2020 Ohio 2794
Ohio2020Background:
- Scott Atway, admitted in Ohio in 2001, owned Verizon stores and practiced law; he understated/store income for tax years 2010–2012 and failed to file for 2013, and made false statements to his tax preparer.
- He purchased luxury vehicles and a home while underreporting income; his conduct led to a federal prosecution and plea to willfully filing a false tax return (2010).
- Sentenced October 3, 2018 to 12 months + 1 day imprisonment, one year supervised release, and ordered to pay $600,000 restitution (fully paid by Nov. 2018); released to a halfway house June 28, 2019.
- Ohio Supreme Court imposed an interim felony suspension October 26, 2018 that remains in effect during these proceedings.
- Parties stipulated to violation of Prof.Cond.R. 8.4(b), submitted aggravating and mitigating facts, and jointly recommended a two-year suspension with credit for time served under the interim felony suspension; the Board agreed and recommended the same.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Atway violate Prof.Cond.R. 8.4(b) by his criminal tax conduct? | Disciplinary Counsel: felony tax conviction and false statements reflect adversely on honesty and trustworthiness. | Atway: admitted the conduct but emphasized it was personal, not related to law practice, and presented mitigating evidence. | Court: Yes; violation of Prof.Cond.R. 8.4(b) established. |
| What sanction is appropriate? | Two-year suspension, with credit for time served under interim felony suspension. | Agreed to joint recommendation of two-year suspension with credit, citing mitigation. | Court: Adopted two-year suspension and credited interim suspension time. |
| Should time served under the interim felony suspension be credited? | Relator: credit should be granted. | Atway: requested credit; parties jointly sought credit. | Court majority: granted credit; three justices would not grant credit. |
| How should aggravating/mitigating factors affect sanction? | Aggravation: dishonest/selfish motive. Mitigation: no prior discipline, restitution paid, cooperation, good character, no client harm. | Emphasized mitigating factors to support the two-year recommendation. | Court: Found one aggravator and multiple mitigators, relied on precedent to impose a two-year suspension (crediting time served). |
Key Cases Cited
- Disciplinary Counsel v. Lawrence, 65 N.E.3d 711 (Ohio 2016) (suspended two years for multiple false tax returns where mitigating factors outweighed aggravation)
- Disciplinary Counsel v. Jacobs, 14 N.E.3d 984 (Ohio 2014) (two-year suspension for false tax returns; similar balancing of aggravating and mitigating factors)
- Toledo Bar Assn. v. Manore, 137 N.E.3d 59 (Ohio 2019) (two-year suspension with second year stayed; emphasized acceptance of responsibility and remedial measures)