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

DiMartino, Mahoning Cty. Bar Assn. v.124 Ohio St.3d 360, 2010-Ohio-247. Decided 2/3/2010.Case Summaries- 69In 1994, respondent received a six-month suspension stayed on conditions, for failing to timely respond toa client‘s inquiries, to provide a settlement statement; and to promptly forward the client her portion ofsettlement proceeds in Mahoning Cty. Bar Assn. v. DiMartino (1994), 71 Ohio St.3d 95. In 2007,respondent received a one-year suspension, stayed on condition of monitored probation and for furthermisconduct for failing to diligently representing a client in seeking postconviction relief in MahoningCty. Bar Assn. v. DiMartino, 114 Ohio St.3d 174, 2007-Ohio-3605. In the present disciplinary case,respondent is charged with misconduct for committed bigamy in North Carolina, a felony in that state. InAugust 2001, respondent married his longtime girl friend; the couple later separated in September 2005and sought dissolution of the marriage. This attempt at dissolution was dismissed in January 2006,when the wife failed to appear at a hearing. In April 2007, respondent filed for divorce. In the time sincehe separated from his wife, he was involved with a new woman in North Carolina and had arrangedto marry her on July 7, 2007. Respondent expected his divorce to be final by his marriage date, but itwas not. Respondent proceeded with the second marriage. Beforehand, he signed the marriageapplication, falsely representing he was it was his first marriage. He did not disclose to the new wifethat he was not divorced. Respondent‘s first wife notified the authorities, who investigated respondentfor bigamy, a felony in North Carolina; prosecutors ultimately decided not to file charges. Respondent‘sdivorce became final in August 2007, and he then legally married his second wife. His first wife caused agrievance to be filed. Respondent admitted that his conduct violated Prof.Cond.R. 8.4(c); the panel andboard accepted the admission. The board adopted the panel‘s recommendation of six months suspensionwith the last three months stayed on conditions. Respondent‘s past disciplinary record is an aggravatingfactor, but mitigating factors include testimony of character witnesses and many reference letters as toprofessional competence and commitment to clients, cooperation with the disciplinary process, acommitment to community service, and great remorse and embarrassment for his actions. BCGDProc.Reg. 10(B)(1)(a), 10(B)(2)(d), (e). In light of the mitigating factors, the court distinguished this casefrom Muttalib (2001) in which a lawyer received an indefinite suspension for misconduct that included amarriage without first terminating a prior marriage. The Court accepted respondent‘s admission that heviolated Prof.Cond.R. 8.4(c) and further accepted the Board‘s recommendation in so far as it recommendsa six-month suspension; however, the Court noted that respondent had violated a condition of his previous2007 disciplinary sanction by committing further misconduct, so the Court lifted the stay andreinstated the one-year suspension and ordered that it run concurrently with the six-month suspensionordered in this case.Rules Violated: Prof.Cond.R. 8.4(c)Aggravation: (a)Mitigation: (d), (e)Prior Discipline: YES (x2) Procedure/ Process Issues: NO Criminal Conduct: YESPublic Official: NO Sanction: Six-month suspension; Previous stay lifted