2020 Ohio 5478
Ohio2020Background
- Jason A. Sarver, admitted 2007, had been suspended Nov. 28, 2018 for prior misconduct (including a sexual relationship with an indigent client and obstructing official business).
- Sarver represented Juanita Mustin in a wrongful-death matter for her daughter Jessica’s estate; Allstate offered the $50,000 policy limit and Sarver accepted.
- Despite the suspension, Sarver did not notify Mustin, filed a false affidavit of compliance with this Court, forged Mustin’s signature on a release and the settlement check, deposited the $50,000 into his trust account, and made unauthorized disbursements (including payments to himself and others) without probate approval.
- Sarver stipulated to most charged rule violations (1.4(a)(1), 1.16(d), 3.4(c), 5.5(a), 8.1(a), 8.4(c), 8.4(d)), contested some findings, and belatedly attempted partial restitution shortly before hearing.
- The Board recommended permanent disbarment; the Ohio Supreme Court adopted the findings, rejected Sarver’s objections, found no mitigating evidence, and ordered permanent disbarment with $50,000 restitution to Allstate or the estate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sarver’s failure to notify Mustin and to obtain her informed consent violated Prof.Cond.R. 1.4(a)(1) | Relator: failure to notify and continued representation deprived client of choice; informed consent required given probate risks | Sarver: suspension automatically terminated representation so no duty to obtain informed consent | Court: Overruled — suspension did not auto-terminate representation; duty to inform and obtain informed consent existed; violation of 1.4(a)(1) proven |
| Whether failing to comply with the Court’s suspension order violated Prof.Cond.R. 3.4(c) | Relator: knowingly disobeyed tribunal rule by not notifying clients/courts and by self-paying fees without probate approval | Sarver: 3.4(c) applies only to fairness toward opposing counsel during litigation and not to post-order conduct | Court: Overruled — 3.4(c) prohibits knowingly disobeying tribunal obligations without temporal limit; applies post-order; violation proven |
| Whether Sarver committed multiple professional-rule violations while suspended (practice, false affidavit, dishonesty, misuse of funds) | Relator: record shows practicing while suspended, false affidavit, forgery, misuse of client funds — violations of listed rules | Sarver: admitted most stipulations but disputed scope/one finding; claimed cooperation and restitution as mitigation | Court: Adopted board’s findings — violations of Prof.Cond.R. 1.4(a)(1), 1.16(d), 3.4(c), 5.5(a), 8.1(a), 8.4(c), 8.4(d) |
| Appropriate sanction: indefinite suspension vs. permanent disbarment | Sarver: indefinite suspension adequate (cites Meyer); attempted restitution and some cooperation | Relator: close call but disbarment not unwarranted given practicing while suspended and repeated misconduct | Court: Permanent disbarment ordered — aggravating factors (prior discipline, dishonest/selfish motive, multiple violations, harm to client), no mitigation, and precedent support disbarment to protect public |
Key Cases Cited
- Disciplinary Counsel v. Sarver, 155 Ohio St.3d 100 (Ohio 2018) (prior suspension for sexual relationship with indigent client and related misconduct)
- Disciplinary Counsel v. Hoskins, 150 Ohio St.3d 41 (Ohio 2017) (presumption of disbarment for practicing while suspended)
- Disciplinary Counsel v. Shaw, 138 Ohio St.3d 522 (Ohio 2014) (permanent disbarment for practicing while suspended, self‑dealing, and lack of restitution)
- Disciplinary Counsel v. Bellew, 152 Ohio St.3d 430 (Ohio 2017) (permanent disbarment where attorney abandoned clients, took funds, and continued practice while suspended)
- Disciplinary Counsel v. Meyer, 142 Ohio St.3d 448 (Ohio 2015) (indefinite suspension for practicing while suspended and related violations; distinguishable facts)
- Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187 (Ohio 1995) (material misrepresentations to a court strike at core of lawyer–court relationship)
- Disciplinary Counsel v. Sabroff, 123 Ohio St.3d 182 (Ohio 2009) (discipline’s primary purpose is public protection)
- Disciplinary Counsel v. Robinson, 126 Ohio St.3d 371 (Ohio 2010) (chapter titles do not limit scope of rules within that chapter)
- Cleveland Metro. Bar Assn. v. Azman, 147 Ohio St.3d 379 (Ohio 2016) (applying §3.4 prohibitions to non‑litigation personal conduct)