Columbiana County Bar Association v. Barborak
149 Ohio St. 3d 143
Ohio2016Background
- Virginia M. Barborak, admitted 1997, was charged by the Columbiana County Bar Association with multiple misconducts in four probate matters spanning 2006–2015.
- Beginning in 2009 she repeatedly withdrew and used estate and trust funds without authorization, causing client-trust-account deficits (one deficiency ≈ $160,000); she also deposited $121,500 from a relative into her client trust account.
- She failed to maintain required trust-account records, filed late or inadequate probate accountings, and submitted filings and altered bank statements that were false or forged to conceal shortfalls.
- Parties stipulated to violations of Ohio Rules of Professional Conduct including trust-account, candor to tribunal, dishonesty, and fitness-to-practice rules; the board adopted the stipulations and found a pattern of dishonesty.
- The board rejected the parties’ joint recommendation of a two-year suspension and instead recommended indefinite suspension with stringent reinstatement conditions; the Supreme Court concluded the misconduct warranted permanent disbarment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barborak committed trust-account misappropriation and recordkeeping violations | Relator: Barborak misappropriated client/trust funds, failed to segregate funds, and kept inadequate records | Barborak: stipulated facts but sought mitigation and correction; some inconsistencies about current practice | Court: Violations proven; adopted board findings that she misappropriated funds and failed to keep records (Prof.Cond.R. 1.15, etc.) |
| Whether Barborak knowingly made false statements and offered false evidence to tribunals | Relator: She submitted falsified bank statements and misleading accountings to probate courts | Barborak: contested scope of dishonesty at hearing (disputed whether she misrepresented continuing practice) | Court: Found intentional falsification and repeated misrepresentations (Prof.Cond.R. 3.3, 8.4(c),(d),(h)) |
| Appropriate sanction for extensive misappropriation and pattern of dishonesty | Relator: Misconduct supports severe sanction; board recommended indefinite suspension with conditions | Barborak: accepted board recommendation for indefinite suspension and offered mitigating facts (no prior record, community involvement, treatment) | Court: Rejected indefinite suspension as insufficient given seriousness and pervasiveness; ordered permanent disbarment |
| Whether claimed mitigation (mental-health treatment, restitution, lack of prior record) reduces sanction to suspension | Relator/Board: mitigation insufficient—no evidence disorder caused misconduct; restitution not accepted as mitigating because records incomplete | Barborak: cited absence of prior discipline, community service, counseling, restitution | Held: Mitigating factors insufficient to avoid disbarment; permanent disbarment imposed |
Key Cases Cited
- Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35 (used to support finding of conduct reflecting adversely on fitness to practice)
- Dayton Bar Assn. v. Gerren, 103 Ohio St.3d 21 (disbarment is presumptive for misappropriation but may be tempered by mitigation)
- Cleveland Metro. Bar Assn. v. McElroy, 140 Ohio St.3d 391 (false affidavit, criminal convictions, and failure to correct court filings supported severe discipline)
- Disciplinary Counsel v. Leksan, 136 Ohio St.3d 85 (commingling, repeated misappropriation, and poor records justified indefinite suspension)
- Lake Cty. Bar Assn. v. Rozanc, 132 Ohio St.3d 114 (concealment of estate assets and fraud on probate court supported severe discipline)
- Akron Bar Assn. v. Smithern, 125 Ohio St.3d 72 (conviction for theft by depositing client retainers into personal account supported disbarment)
- Disciplinary Counsel v. Bandman, 125 Ohio St.3d 503 (misappropriation and concealment from client supported severe discipline)