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

Farrell, Cincinnati Bar Assn. v.119 Ohio St.3d 529, 2008-Ohio-4540. Decided 9/16/2008.Case Summaries- 80Respondent fabricated documents, forged a signature to obtain a loan, and misled another attorney andhis wife. Respondent and his wife, both lawyers, maintained an affluent lifestyle. In 2004, she wanted tocut back her hours to spend more time with their daughter and suggested they move to smaller quarters.As an alternative, respondent promised to find more lucrative employment, but instead pretended to do soby fabricating two detailed letters from two separate companies purportedly offering respondentpositions with high salaries, incentive-pay packages, and health insurance. As a result, his wiferesigned from her job. Respondent planned to increase the income from his practice enough to supportthe family, but by March 2006, he needed money. He forged his wife‘s signature on a power of attorney,lied about the authentication of the signature to another attorney, who notarized the signature, and thenobtained an additional $50,000 on their Fifth Third Bank line of credit, secured by his family‘s home.The attorney who notarized the signature was publicly reprimanded. See Gottesman, (2007). When hiswife found a bank statement and questioned him about the extension of credit, respondent created threeletters purportedly written on Fifth Third Letterhead by bank executives, all dated May 5, 2006. Thesethree letters were each addressed to respondent and his wife, each supposedly addressing some issue withthe couple‘s accounts, were at least a page long, and specified in detail how the $75,000 credit limitresulted from a ―counterfeit.‖ Then to keep his wife in the dark, respondent stopped mail delivery to theirhome. When his wife questioned him about the mail, respondent fabricated a letter from the United StatesPostal Service dated May 19, 2006, claiming to be from the assistant director of investigations assuringthat their mail had not been held or diverted in the last year. Eventually respondent revealed hisduplicity to his wife; they were divorced in December 2006. The divorce decree required respondentto repay the line of credit from his funds or from the sale of the marital home. At the urgings of hiswife‘s counsel, respondent self reported his actions to relator. Respondent stipulated that he actedillegally in procuring a loan based upon false information [see R.C. 2921.13(A)(8)] violating DR 1-102(A)(3) and acted deceitfully in violation of DR 1-102(A)(4). The board adopted the panel‘s findingsof violations of DR 1-102(A)(3) and (4). The Supreme Court agreed. In aggravation, respondent actedwith self-interest, engaged in a pattern of misconduct, committed multiple offenses, and has not, as of oralarguments, made restitution by paying off the unauthorized extension of credit. BCGD Proc.Reg.10(B)(1)(b), (c), (d), and (i). In mitigation, respondent has no prior disciplinary record and cooperatedwith the disciplinary process. BCGD Proc.Reg. 10(B)(2)(a) and (e). While he showed remorse for hisactions, respondent did not present mitigating evidence of his good character and reputation or prove thathis depression, a mental disability, contributed to his misconduct. The Court found the mitigatingfactors respondent showed were not enough to warrant leniency. The parties submitted a joint proposalfor a one-year suspension, stayed on the condition of respondent‘s continued mental-health treatment.The board recommended a two-year suspension, with one year stayed on the condition of respondent‘scontinued mental-health treatment. Respondent objected to the board‘s recommendation arguing hisethical breaches do not warrant such a severe sanction and that any sanction should be completely stayed.The Court discussed case law that requires an actual suspension from the practice of law whenviolations of DR 1- 102(A)(3) and (4) are found. The Supreme Court overruled respondent‘sobjection, agreed with the board‘s recommendations, and so ordered. One justice concurred in judgmentonly.Rules Violated: DR 1-102(A)(3), 1-102(A)(4)Aggravation: (b), (c), (d), (i)Mitigation: (a), (e)Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NOPublic Official: NO Sanction: Two-year suspension, 12 months stayed