disciplinary handbook: volume v - Supreme Court - State of Ohio

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Gerchak, Disciplinary Counsel v. 130 Ohio St.3d 143, 2011-Ohio-5075. Decided 10/5/2011. Case Summaries- 96 Respondent made false statements to a bankruptcy court and used another attorney‘s electronic filing privileges when his had been suspended. Respondent had his ECF privileges suspended by a court for failing to respond to two show-cause orders. Respondent used another attorney‘s ECF login to file a new bankruptcy. Although the client paid the filing fee to respondent, respondent did not pay the filing fee when he filed the case due to his ECF suspension. Instead, he applied to pay in installments, stating that his client was unable to pay (which was clearly untrue). The court discovered this misconduct and forced respondent to disgorge his fee and further suspended his ECF privileges. This conduct violated Prof.Cond.R. 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct prejudicial to the administration of justice); the board dismissed a violation of 8.4(h) (conduct adverse to fitness to practice law) as not proven by clear and convincing evidence. The Court agreed with the above findings. In aggravation, respondent committed multiple offenses. BCGD Proc.Reg. 10(B)(1)(d). In mitigation, respondent lacked a prior disciplinary record, cooperated with the disciplinary process, lacked a dishonest or selfish motive, presented evidence of good character, and had other penalties levied against him. BCGD Proc.Reg. 10(B)(2)(a), (b), (d), (e), (f). The board, citing these mitigating factors, recommended a one-year suspension, stayed on the condition that respondent complete a three-year OLAP contract. The Court noted that a violation of Prof.Cond.R. 8.4(c) usually requires an actual suspension, but citing Potter (2010), and Ricketts (2010), agreed that the mitigating circumstances present here indicate that respondent is ―unlikely to commit future misconduct,‖ and adopted the board‘s recommended sanction. Rules Violated: Prof.Cond.R. 8.4(c), 8.4(d) Aggravation: (d) Mitigation: (a), (b), (d), (e), (f) Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO Public Official: NO Sanction: One-year suspension, stayed
Gibson, Akron Bar Assn. v. 128 Ohio St.3d 347, 2011-Ohio-628. Decided 2/16/2011. Case Summaries- 97 Respondent‘s misconduct arose from performing painting and maintenance services for a client while representing him in a divorce, her efforts to collect for those services, and her conduct after another client terminated her services. The parties stipulated to findings of fact and conclusions of law. In Count I, respondent, while representing a client in a divorce action, agreed to perform nonlegal services to prepare for the sale of a piece of property that was jointly owned by the client and his spouse. Respondent sought a court order for payment for these services from escrow funds that were provided by the client and his spouse. Respondent did not disclose to the court or opposing counsel that she performed the work and that she and her husband would receive the payment. Opposing counsel moved to disqualify respondent as she was a potential witness as to the value of the nonlegal services performed. Respondent, on the day of the hearing on these motions, induced the escrow agent to distribute to her the funds for the maintenance work done. Thereafter, respondent attempted to avoid being deposed as a witness by filing a notice of withdrawal of counsel and withdrawing her request for payment for nonlegal services; but, she failed to disclose that she had been paid for them. There is no evidence that respondent‘s charges were unreasonable, however, she failed to fully disclose the terms to the client in writing, failed to advise that he seek independent counsel, and failed to obtain the client‘s informed consent in a writing signed by the client. The board adopted the panel‘s findings of the stipulated violations of Prof.Cond.R. 1.8(a)(1), (2), and (3), 4.1(a), 8.4(a), 8.4(c), and 8.4(h). Relator formally withdrew an alleged violation of Prof.Cond.R. 8.4(d) and the panel and board recommended that the court dismiss the alleged violation of Prof.Cond.R. 3.7(a) because of insufficient evidence to establish when or if the respondent had sufficient information to determine that she was likely to be a necessary witness in the divorce proceedings. As to Count I, the court accepted these findings of fact and misconduct and dismissed the alleged violation of Prof.Cond.R. 3.7(a). In Counts II and III, respondent was terminated by a client whom she was representing in two matters. The client wanted to terminate her in a domestic-relations case, but respondent interpreted the termination to apply to both cases. Respondent did not seek a motion to withdraw in the domestic relations case and waited several months to do so in the other case. Respondent ceased attending court hearings, failed to forward letters and documents, and ignored requests to return the client‘s files. The board adopted the panel‘s findings of the stipulated violations of Prof.Cond.R. 1.3, 1.16(c), and 1.16(d). As to Counts II and III, the court agreed. The Board recommended a suspension for one year, with the entire year stayed on conditions that she submit to one year of monitored probation, complete 12 hours of continuing legal education in law-office management and commit no further misconduct. In aggravation, respondent committed multiple offenses. BCGD Proc.Reg. 10(B)(1)(d). In mitigation, respondent has no prior disciplinary record, demonstrated a cooperative attitude, and demonstrated her reputation for competence, honesty, and trustworthiness. BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). Further, she has performed substantial pro bono work as a volunteer lawyer and court-appointed guardian ad litem and special advocate for juveniles, had been involved in professional and bar association work and committees, and she had serious respiratory illnesses beginning in December 2008 that were a contributing factor to some of the misconduct. While violations of Prof.Cond.R. 8.4(c) usually require an actual suspension [Fowerbaugh (1995)], an abundance of mitigating evidence can justify imposition of a lesser sanction [Fumich (2007) and Ellison (2008)]. The court, finding no evidence of harm to the client as a result of respondent‘s misconduct and the substantial mitigating factors, agreed with the board‘s recommended sanction. Respondent was suspended for one year, all stayed, on conditions that she submit to one year of probation supervised by a monitor chosen by relator, complete 12 hours of CLEs in law-office management, and commit no further misconduct. Rules Violated: Prof.Cond.R. 1.3, 1.8(a)(1), 1.8(a)(2), 1.8(a)(3), 1.16(c), 1.16(d), 4.1(a), 8.4(a), 8.4(c), 8.4(h) Aggravation: (d) Mitigation: (a), (d), (e) Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO Public Official: NO Sanction: One-year suspension, stayed
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The Supreme Court of Ohio Board of
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Table of Cases Table of Cases- 1 [F
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Drain, Cuyahoga Cty. Bar Assn. v. 1
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Horton, Disciplinary Counsel v. 124
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Markovich, Akron Bar Assn. v. 117 O
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Table of Cases- 9 Ramos, Cleveland
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Table of Cases- 11 Stuard, Becker,
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Case Summaries Allerding, Columbus
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Case Summaries- 15 Archer, Northwes
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Case Summaries- 17 intermittently o
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Bartels, Allen Cty. Bar Assn. v. 12
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Blair, Disciplinary Counsel v. 128
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Case Summaries- 23 Bowling, Discipl
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Broschak, Disciplinary Counsel v. 1
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Brown, Dayton Bar Assn. v. 124 Ohio
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Brown, Allen Cty. Bar Assn. v. 124
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Brueggeman, Disciplinary Counsel v.
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Bunstine, Disciplinary Counsel v. 1
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Bursey, Disciplinary Counsel v. 124
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Butler, Disciplinary Counsel v. 128
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Campbell, Disciplinary Counsel v. 1
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Cantrell, Disciplinary Counsel v. 1
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Cantrell, Disciplinary Counsel v. 1
Page 47 and 48: Case Summaries- 45 abuse impede his
Page 49 and 50: Case Summaries- 47 respondent‘s d
Page 51 and 52: Case Summaries- 49 with a client if
Page 53 and 54: Case Summaries- 51 not DR 1-102(A)(
Page 55 and 56: Clovis, Columbus Bar Assn. v. 125 O
Page 57 and 58: Corrigan, Geauga Cty. Bar Assn. v.
Page 59 and 60: Cunningham, Butler Cty. Bar Assn. v
Page 61 and 62: Davis, Disciplinary Counsel v. 121
Page 63 and 64: Dawson, Cleveland Metropolitan Bar
Page 65 and 66: DeLoach, Akron Bar Assn. v. 130 Ohi
Page 67 and 68: Detweiler, Disciplinary Counsel v.
Page 69 and 70: DiCato, Akron Bar Assn. v. 130 Ohio
Page 71 and 72: DiMartino, Mahoning Cty. Bar Assn.
Page 73 and 74: Doellman, Disciplinary Counsel v. 1
Page 75 and 76: Drain, Cuyahoga Cty. Bar Assn. v. 1
Page 77 and 78: Ellis, Columbus Bar Assn. v. 120 Oh
Page 79 and 80: Emerson, Cincinnati Bar Assn. v. 12
Page 81 and 82: Farah, Toledo Bar Assn. v. 125 Ohio
Page 83 and 84: Farrell, Cincinnati Bar Assn. v. 12
Page 85 and 86: Fink, Akron Bar Assn. v. 131 Ohio S
Page 87 and 88: Folwell, Disciplinary Counsel v. 12
Page 89 and 90: Freedman, Akron Bar Assn. v. 128 Oh
Page 91 and 92: Freeman, Disciplinary Counsel v. 12
Page 93 and 94: Freeman, Disciplinary Counsel v. 11
Page 95 and 96: Frost, Disciplinary Counsel v. 122
Page 97: Case Summaries- 95 his goal of gain
Page 101 and 102: Glaeser, Cuyahoga Cty. Bar Assn. v.
Page 103 and 104: Goldblatt, Disciplinary Counsel v.
Page 105 and 106: Gottehrer, Cleveland Metro. Bar Ass
Page 107 and 108: Case Summaries- 105 disgorgement of
Page 109 and 110: Grote, Cincinnati Bar Assn. v. 127
Page 111 and 112: Hackett, Cincinnati Bar Assn. v. 12
Page 113 and 114: Case Summaries- 111 presented evide
Page 115 and 116: Hanni, Mahoning Cty. Bar Assn. v. 1
Page 117 and 118: Hauck, Cincinnati Bar Assn. v. 129
Page 119 and 120: Heiland, Disciplinary Counsel v. 11
Page 121 and 122: Heisler, Cincinnati Bar Assn. v. 11
Page 123 and 124: Henry, Disciplinary Counsel v. 127
Page 125 and 126: Hickman, Toledo Bar Assn. v. 119 Oh
Page 127 and 128: Hildebrand, Cleveland Metro. Bar As
Page 129 and 130: Holda, Akron Bar Assn. v. 125 Ohio
Page 131 and 132: Horan, Disciplinary Counsel v. 123
Page 133 and 134: Hoskins, Disciplinary Counsel v. 11
Page 135 and 136: Howard, Disciplinary Counsel v. 123
Page 137 and 138: Hunter, Columbus Bar Assn. v. 130 O
Page 139 and 140: Jackel, Ohio State Bar Assn. v. 118
Page 141 and 142: Jackson, Disciplinary Counsel v. 12
Page 143 and 144: Jaffe, Cleveland Metro Bar Assn. v.
Page 145 and 146: Johnson, Toledo Bar Assn. v. 121 Oh
Page 147 and 148: Johnson, Cuyahoga Cty. Bar Assn. v.
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Johnston, Disciplinary Counsel v. 1
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Jones, Mahoning Cty. Bar Assn. v. 1
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Kaplan, Cleveland Metro. Bar Assn.
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Kealy, Cleveland Metro. Bar Assn. v
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Kellogg-Martin, Disciplinary Counse
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Kelly, Disciplinary Counsel. v. 121
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Case Summaries- 159 other assets in
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Case Summaries- 161 none of the mon
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Case Summaries- 163 Although the un
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Kubyn, Lake Cty. Bar Assn. v. 121 O
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Landis, Disciplinary Counsel v. 124
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Lapine, Disciplinary Counsel v. 128
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Larkin, Columbus Bar Assn. v. 128 O
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Case Summaries- 173 Board‘s findi
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Lawson, Cincinnati Bar Assn. v. 119
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Lawson, Cincinnati Bar Assn. v. 130
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Lentes, Disciplinary Counsel v. 120
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Lewis, Medina Cty. Bar Assn. v. 121
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Case Summaries- 183 and blame the w
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Longino, Disciplinary Counsel v. 12
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Lowden, Toledo Bar Assn. v. 117 Ohi
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Case Summaries- 189 8.4(h) by his a
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Mamich, Disciplinary Counsel v. 125
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Manning, Disciplinary Counsel v. 11
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Marosan, Stark Cty. Bar Assn. v. 11
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Martin, Toledo Bar Assn. v. 131 Ohi
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Mason, Toledo Bar Assn. v. 118 Ohio
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McAuliffe, Disciplinary Counsel v.
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McCord, Disciplinary Counsel v. 121
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McFaul, Cleveland Metro. Bar Assn.
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Case Summaries- 207 withdrawal. Res
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Case Summaries- 209 that he is comp
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Meade, Disciplinary Counsel v. 127
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Miller, Disciplinary Counsel v. 126
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Minamyer, Butler Cty. Bar Assn. v.
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Case Summaries- 217 represent his c
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Case Summaries- 219 became effectiv
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Mitchell, Disciplinary Counsel v. 1
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Mullaney, Brooking, and Moeves, Cin
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Murraine, Disciplinary Counsel v. 1
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Nance, Cleveland Metropolitan Bar A
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Newcomer, Disciplinary Counsel v. 1
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Newman, Cincinnati Bar Assn. v. 124
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Niermeyer, Disciplinary Counsel v.
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Nittskoff, Disciplinary Counsel. v.
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Case Summaries- 237 Master Commissi
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Ohlin, Disciplinary Counsel v. 126
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O’Malley, Disciplinary Counsel v.
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Case Summaries- 243 conditions that
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Patterson, Geauga Cty. Bar Assn. v.
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Peskin, Ohio State Bar Assn. v. 125
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Case Summaries- 249 met by imposing
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Plough, Disciplinary Counsel v. 126
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Podor, Cleveland Metro. Bar Assn. v
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Portman, Butler Cty. Bar Assn. v. 1
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Potter, Disciplinary Counsel v. 126
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Pullins, Disciplinary Counsel v. 12
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Case Summaries- 261 disqualificatio
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Randall, Dayton Bar Assn. v. 118 Oh
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Case Summaries- 265 history, no dis
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Raso, Disciplinary Counsel v. 129 O
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Resnick, Ohio State Bar Assn. v. 12
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Ricketts, Disciplinary Counsel v. 1
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Ridenbaugh, Disciplinary Counsel v.
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Ritson, Toledo Bar Assn. v. 127 Ohi
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Roberts, Disciplinary Counsel v. 11
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Robinson, Disciplinary Counsel v. 1
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Rohrer, Disciplinary Counsel v. 124
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Rozanc, Lake Cty. Bar Assn. v. 123
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Rust, Toledo Bar Assn. v. 124 Ohio
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Sabol, Disciplinary Counsel v. 118
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Case Summaries- 289 condition of th
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Sanz, Cincinnati Bar Assn. v. 128 O
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Saunders, Greene Cty. Bar Assn. v.
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Sayler, Cleveland Metro. Bar Assn.
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Case Summaries- 297 1.5(a), 1.16(d)
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Schram, Dayton Bar Assn. v. 122 Ohi
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Scott, Toledo Bar Assn. v. 129 Ohio
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Shaw, Disciplinary Counsel v. 126 O
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Shea, Columbus Bar Assn. v. 117 Ohi
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Shuler, Disciplinary Counsel v. 129
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Siewert, Disciplinary Counsel. v. 1
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Simon, Disciplinary Counsel v. 128
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Smith, Disciplinary Counsel v. 124
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Smith, Disciplinary Counsel v. 128
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Smithern, Akron Bar Assn. v. 125 Oh
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Squire, Disciplinary Counsel v. 130
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Stafford, Disciplinary Counsel v. 1
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Stoll, Erie-Huron Grievance Commt.
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Stuard, Becker, and Bailey, Discipl
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Taylor, Disciplinary Counsel v. 120
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Theisler, Mahoning Cty. Bar Assn. v
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Thomas, Cleveland Metro. Bar Assn.
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Case Summaries- 333 court entered a
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Trainor, Cincinnati Bar Assn. v. 12
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Troxell, Columbus Bar Assn. v. 129
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Troy, Lake Cty. Bar Assn. v. 130 Oh
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Case Summaries- 341 professionals i
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Vivyan, Disciplinary Counsel v. 125
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Case Summaries- 345 offenses, there
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Walker, Disciplinary Counsel v. 119
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Weisberg, Toledo Bar Assn. v. 124 O
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Case Summaries- 351 Chandlers to di
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Williams, Disciplinary Counsel v. 1
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Williamson, Butler Cty. Bar Assn. v
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Wineman, Disciplinary Counsel v. 12
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Wittbrod, Akron Bar Assn. v. 130 Oh
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Yeager, Disciplinary Counsel v. 123
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Zaffiro, Cleveland Metro. Bar Assn.
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Zigan, Disciplinary Counsel v. 118
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Bennett (2/4/2010) (unlawfully stru
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Clovis (5/5/2010) (as required by G
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on inactive status and while under
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suspension, and remanded to board t
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violations for attempt to dismiss a
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Wineman (5/6/2009) Wolanin (4/1/200
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Willette (3/20/2008) DR 2-103(C) (r
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Patterson (12/2/2009) Ryan (8/27/20
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DR 7-102(A)(5) (knowingly making fa
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DR 9-102(B)(4) (failure to promptly
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Dearfield (10/19/2011) DeLoach (8/3
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McNerney (5/28/2009)(term suspensio
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Hoppel (6/8/2011) Hunter (11/15/201
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Rule 1.5(a) (charging or collecting
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Gottehrer (3/17/2010) Gresley (12/2
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Marshall (2/12/2009) Martin (12/15/
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Meade (12/22/2010) Medley (1/27/201
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