Cleveland Metropolitan Bar Association v. Donchatz
150 Ohio St. 3d 168
| Ohio | 2017Background
- Kenneth R. Donchatz, an Ohio attorney admitted in 1993, was charged by the Cleveland Metropolitan Bar Association with multiple violations across four matters: Davey Tree, Cracknell, Hampton, and McKibben/Leader Technologies.
- Davey Tree: Donchatz filed a satisfaction of judgment without confirming payment or authorization, failed to withdraw it when told the judgment remained, later filed a frivolous motion to reconsider, and paid the judgment and sanctions only after court order.
- Cracknell: He represented a friend with no written fee agreement, accepted a $100,000 loan and an antique desk from the client without the written disclosures required by Prof.Cond.R. 1.8(a), and disputed whether the representation was pro bono.
- Hampton: In a disciplinary defense, Donchatz filed a motion asserting that prosecutorial counsel withheld a recorded third conversation; the board found those assertions false and that he had not reasonably investigated.
- McKibben/Leader: After his firm’s fee claim was unresolved in mediation, Donchatz submitted a proposed “stipulated entry and consent judgment” to the court without opposing party consent or mediator direction; the court later vacated the entry.
- The Board found multiple ethics violations (including dishonest conduct and false statements) across three counts and failures to communicate in the Cracknell matter; the Supreme Court adopted the findings, added factual findings, and imposed an indefinite suspension (costs taxed to respondent).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Donchatz made false statements/engaged in dishonesty in Davey Tree litigation | Donchatz filed a satisfaction without authority, failed to withdraw it, and pursued a frivolous reconsideration — violating rules against frivolous filings and dishonesty | Argued explanations for belief judgment was satisfied (various versions), contesting some findings | Court adopted board: violations of Prof.Cond.R. 3.1, 3.3(a)(1), 3.4(c), 8.4(c), 8.4(d) affirmed |
| Whether Donchatz violated rules in his business dealings with Cracknell (loan/gift and fee communication) | Bar: accepted loan and gift from client without required written disclosures and failed to communicate basis of fees | Donchatz maintained representation was pro bono and disputed some factual assertions about billing; conceded accepting loan without required writing | Court adopted board: violations of Prof.Cond.R. 1.8(a) and 1.5(b) (admitted violation of 1.8(a)) |
| Whether Donchatz knowingly made false statements in Hampton disciplinary defense (alleging withheld recording) | Bar: his motion falsely accused assistant disciplinary counsel of hiding exculpatory recording and was made without reasonable factual basis | Donchatz claimed reasonable basis: hearsay from client and pattern of recording; argued statements were opinion and protected speech | Court held attorney-speech protections limited in judicial proceedings; applied objective-reasonable-attorney standard and found no reasonable basis — violations of Prof.Cond.R. 3.1, 3.3(a)(1), 3.4(c), 8.4(c), 8.4(d) |
| Whether submission of a “stipulated entry/consent judgment” was improper (McKibben/Leader) | Bar: he submitted the document as a final entry without consent or judge directive, misleading the court | Donchatz relied on counsel and local rule Loc.R. 25.01 and testified mediator requested his circulating entry; argued actions consistent with local practice | Court found rule inapplicable (no judicial decision to memorialize), credited opposing testimony, and held submission was deceptive — violations of Prof.Cond.R. 3.1, 3.3(a)(1), 3.4(c), 8.4(c), 8.4(d) |
Key Cases Cited
- Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorneys’ speech in pending cases can be restricted when likely to prejudice administration of justice)
- Berry v. Schmitt, 688 F.3d 290 (6th Cir.) (opinion-based statements sanctionable only if implying provable facts)
- Yagman v. Standing Comm. on Discipline, 55 F.3d 1430 (9th Cir.) (attorney statements in proceedings evaluated under objective-reasonable basis standard)
- Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416 (2003) (adopted objective standard for knowing/reckless falsity in judicial proceedings)
- Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187 (1995) (material misrepresentations to a court strike at core of lawyer–court relationship)
- Disciplinary Counsel v. Shaw, 126 Ohio St.3d 494 (2010) (two-year suspension with partial stay for multiple conflicts, loans from client, and misconduct)
- Cleveland Metro. Bar Assn. v. Wrentmore, 138 Ohio St.3d 16 (2013) (dishonesty warrants severe discipline)
- Cleveland Bar Assn. v. Herzog, 87 Ohio St.3d 215 (1999) (attorneys who lie to courts cannot continue practicing without interruption)
- Disciplinary Counsel v. Frost, 122 Ohio St.3d 219 (2009) (indefinite suspension for deceitful conduct)
- Kettering v. Baker, 42 Ohio St.2d 351 (1975) (accused must protect own interests; prosecutorial obligation limited)