2014 Ohio 1025
Ohio2014Background
- Kenneth N. Shaw, admitted 1980, was suspended for two years on Sept. 23, 2010, for serious prior misconduct (trust beneficiary/loan issues and unapproved probate fees) and was found in contempt for failing to file an affidavit of compliance.
- Shaw never applied for reinstatement and remained suspended when he continued to provide legal services and hold himself out as an attorney to multiple clients and referral sources between 2010–2011.
- Clients (Patterson, the Stanleys, Rosian, DeVito) were referred to Shaw, paid fees, received legal work or notarizations, and were not informed of his suspension; Shaw used an attorney notary stamp and an “Esq.” signature block while suspended.
- In probate matters (Garner and Mazarik estates), Shaw paid himself attorney fees without prior probate-court approval and failed to fully reimburse estates despite court-ordered repayment plans.
- The parties stipulated to numerous violations of the Rules of Professional Conduct and the Code of Professional Responsibility; Shaw agreed an indefinite suspension was appropriate, but the Board recommended indefinite suspension and the Supreme Court imposed permanent disbarment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Practicing law while suspended | Shaw violated rules by representing clients, notarizing, and holding himself out as an attorney while suspended | Shaw stipulated to facts but argued (implicitly) mitigation and consent to indefinite suspension | Court found violations of Prof.Cond.R. 5.5(a), 8.4(h), and Gov.Bar R. V(8)(E) and ordered permanent disbarment |
| Failure to notify clients of suspension | Relator argued Shaw failed to notify clients as required by Gov.Bar R. V(8)(E) | Shaw had been introduced as attorney and did not disclose suspension; no successful rebuttal | Court found Shaw failed to notify clients and thus violated notification rule |
| Taking probate fees without court approval | Relator argued Shaw disobeyed tribunal rules and paid himself fees without prior approval | Shaw admitted taking fees, claimed they were earned and proposed repayment plans when ordered | Court found violations of Prof.Cond.R. 3.4(c), 8.4(d), 8.4(h) (and pre-2007 disciplinary rules) and found restitution largely unmade |
| Appropriate sanction | Relator sought significant sanction given recurring and aggravated misconduct; parties had stipulated to indefinite suspension | Shaw (stipulated) asked for indefinite suspension; cited cooperation as mitigation | Court concluded aggravating factors (prior discipline, pattern, harm, dishonesty, multiple offenses, failure to repay) outweighed mitigation and imposed permanent disbarment |
Key Cases Cited
- Disciplinary Counsel v. Shaw, 126 Ohio St.3d 494, 2010-Ohio-4412, 935 N.E.2d 405 (prior two-year suspension for related misconduct)
- Disciplinary Counsel v. Shaw, 127 Ohio St.3d 1455, 2010-Ohio-6038, 938 N.E.2d 42 (contempt for failure to file affidavit of compliance)
- Disciplinary Counsel v. Mbakpuo, 98 Ohio St.3d 177, 2002-Ohio-7087, 781 N.E.2d 208 (continuing to practice while suspended normally warrants disbarment)
- Disciplinary Counsel v. Allison, 98 Ohio St.3d 322, 2003-Ohio-776, 784 N.E.2d 695 (same principle regarding practice while suspended)
- Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935 (use of aggravating/mitigating factors in sanctioning)
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818 (consideration of ethical duties and similar sanctions)