2012 Ohio 5365
Ohio2012Background
- Relator filed seven-count misconduct complaint against Westfall; panel held multiple rule violations.
- Counts include failure to communicate, obtain informed consent, and protect client interests during withdrawal.
- Additional findings: misrepresentation, noncooperation, and failure to remit payroll taxes; some findings were disputed by board.
- Panel recommended two-year suspension with six months stayed and restitution plus tax restitution under conditions.
- Board adopted panel and Supreme Court ultimately suspended two years with conditions, including restitution and IRS compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Westfall violate multiple Prof.Cond.R. provisions? | Westfall violated 1.4, 1.9, 1.16, 5.3, 7.1, 8.1, 8.4, and Gov.Bar R. V(4)(G). | Westfall contested some findings; argued no clear proof on certain counts. | Yes; court upheld extensive violations supporting sanction. |
| Was the payroll-tax withholding misconduct properly found and sanctionable? | Taxes withheld but not remitted violated duties to the public. | Westfall contested amount and impact of tax withholdings. | Yes; justified suspension and restitution after aggravating factors. |
| Did the board's order to cooperate and refund unearned fees require sanction? | Cooperation and restitution essential; misappropriated or unearned funds owed. | Argued about scope and timing of refunds. | Yes; conditions included restitution and ongoing cooperation. |
| Is a two-year suspension with conditions the appropriate sanction? | Comparable cases support two-year suspension with probationary conditions. | Westfall urged lesser or different remediation. | Yes; sanction aligned with similar disciplinary outcomes. |
Key Cases Cited
- Cleveland Metro. Bar Assn. v. Gresley, 127 Ohio St.3d 430 (2010-Ohio-6208) (two-year suspension with final six months stayed for deceitful conduct)
- Columbus Bar Assn. v. Ellis, 120 Ohio St.3d 89 (2008-Ohio-5278) (two-year suspension with probation and restitution conditions)
- Disciplinary Counsel v. Large, 122 Ohio St.3d 35 (2009-Ohio-2022) (one-year license suspension for payroll/withholding failures)
- Northwest Ohio Bar Assn. v. Archer, 129 Ohio St.3d 204 (2011-Ohio-3142) (one-year suspension for payroll tax withholding and noncompliance)
- Veneziano, Cuyahoga Cty. Bar Assn. v. Veneziano, 120 Ohio St.3d 451 (2008-Ohio-6789) (retained funds violated duties to profession and public)
- Bruner, Geauga Cty. Bar Assn. v. Bruner, 98 Ohio St.3d 312 (2003-Ohio-736) (indefinite suspension for payroll-tax failures)
- Disciplinary Counsel v. Butler, 2002-Ohio-4743 (Buttacavoli) (aggravating factors in professional discipline context)