Mahoning County Bar Ass'n v. Wagner
1 N.E.3d 398
Ohio2013Background
- Wagner was admitted to practice in 1981 and received an interim felony suspension in January 2012 after his conviction.
- Mahoning County Bar Association charged Wagner in April 2012 with three counts of professional misconduct tied to fraudulent mortgage loan applications and conspiracy to commit wire fraud.
- In November 2012, the parties stipulatively agreed to misconduct facts and aggravating/mitigating factors and proposed an 18-month suspension with credit for the interim suspension.
- Wagner, as a title agent, prepared HUD-1 settlement statements for seven real estate transactions involved in a scheme, relying on information provided by Romero Minor and others.
- He realized some schemes were suspect but did not question or report the information in at least four transactions; he was paid only his usual fee.
- The board found violations of Prof.Cond.R. 8.4(c) and 8.4(b); 8.4(d) was dismissed; the sanction imposed was an indefinite suspension with credit for time served.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Wagner violate ethical rules 8.4(c) and 8.4(b)? | Mahoning argues Wagner engaged in dishonest and illegal misconduct. | Wagner disputed the extent of responsibility, highlighting lack of full knowledge in some transactions. | Yes; violations established for dishonesty and illegal acts. |
| What is the appropriate sanction for the misconduct? | Bar association proposed 18-month suspension with credit for interim suspension. | Wagner sought a shorter or less severe sanction consistent with mitigating factors. | Indefinite suspension with credit for the interim suspension. |
| Should aggravating factors (pattern of misconduct) influence the sanction? | Multiple fraudulent transactions show a pattern justifying harsher discipline. | No counterclaims; argument limited to mitigating factors. | Yes; the presence of a pattern was recognized as an aggravating factor. |
Key Cases Cited
- Disciplinary Counsel v. Lash, 68 Ohio St.3d 12 (1993) (one count of bank fraud; sanctions reflect cooperation and responsibility)
- Cuyahoga Cty. Bar Assn. v. Garfield, 109 Ohio St.3d 103 (2006-Ohio-1935) (fiduciary breach; 18-month suspension with credit for time served)
- Disciplinary Counsel v. Gittinger, 125 Ohio St.3d 467 (2010-Ohio-1830) (title-agent fraud; indefinite suspension with credit for interim time)
- Columbus Bar Assn. v. Hunter, 130 Ohio St.3d 355 (2011-Ohio-5788) (felony conviction; indefinite suspension for misconduct including failure to report cash over $10,000)
- Disciplinary Counsel v. Smith, 128 Ohio St.3d 390 (2011-Ohio-957) (conspiracy to defraud IRS; indefinite suspension)
- Cincinnati Bar Assn. v. Kellogg, 126 Ohio St.3d 360 (2010-Ohio-3285) (money laundering and related offenses; indefinite suspension)
- Disciplinary Counsel v. Bennett, 124 Ohio St.3d 314 (2010-Ohio-313) (structuring to evade currency reporting; indefinite suspension)