2021 Ohio 4048
Ohio2021Background
- Harvey B. Bruner, admitted 1974, had prior conditional discipline (2012) and faced new grievances in 2019 arising from six client matters plus failure to notify clients he lacked malpractice insurance for ~7 years.
- On the morning of the October 2020 hearing the parties filed written stipulations of fact, misconduct, aggravators/mitigators, 41 exhibits, and a joint recommended sanction (two-year suspension with one year stayed); relator sought to withdraw some charged violations orally at the hearing.
- The hearing panel nonetheless called Bruner to testify; the panel found the stipulated misconduct and additionally found two Prof.Cond.R. 8.4(c) (dishonesty) violations—one in the Walton matter and one in the Ortega matter—even though relator had sought to withdraw those charges.
- The Board adopted the panel report and recommended a two-year actual suspension and restitution; the Supreme Court dismissed the Ortega 8.4(c) finding for lack of clear-and-convincing evidence but otherwise affirmed the board’s findings (including Walton 8.4(c)), imposed a two-year suspension, and ordered restitution ($1,250 to Ortega; $1,500 to Walton).
- Bruner argued the panel was bound by the parties’ stipulations (or at least should have remanded), and that the late expansion of inquiry violated due process; a dissent would have remanded or limited sanctions to the parties’ joint recommendation.
Issues
| Issue | Plaintiff's Argument (Bar) | Defendant's Argument (Bruner) | Held |
|---|---|---|---|
| 1) Are the panel and court bound by parties’ stipulations or is a consent-to-discipline required? | Stipulations are not binding; panel may accept, reject, or find additional violations supported by evidence. | The stipulations were the functional equivalent of a consent-to-discipline; panel should accept or remand for full trial. | Stipulations are not the equivalent of a Gov.Bar R. V(16) consent; panel not bound and may decide issues if supported by evidence. |
| 2) Did Bruner commit Prof.Cond.R. 8.4(c) (dishonesty) in the Ortega matter? | Bar relied on inconsistent statements and invoice dates to support dishonesty. | Bruner said inconsistencies were memory/record-keeping errors; no clear evidence of intentional misrepresentation. | Dismissed: the record did not contain clear-and-convincing evidence to sustain an 8.4(c) finding in Ortega. |
| 3) Did Bruner commit Prof.Cond.R. 8.4(c) in the Walton matter (billing for visits when the inmate was elsewhere)? | Bruner billed trips to the Ohio State Penitentiary on dates the client was in county custody; his repeated assertions support 8.4(c). | The dated entries were mistakes, not lies; relator even tried to withdraw the charge. | Affirmed: clear-and-convincing evidence supported 8.4(c) in Walton; panel credibility findings deferred to. |
| 4) Did Bruner violate other professional-conduct rules (1.1, 1.5(b), 1.15(a)(2), 8.1(b), 8.4(h), 1.4(c))? | Relator alleged and produced stipulations/evidence of inadequate communication about scope/fees, failure to maintain trust-account records, incompetence in two matters, failure to disclose material facts in investigation, threats to a client, and failure to notify clients about lack of malpractice insurance. | Bruner disputed some factual allegations and objected to procedural handling but admitted certain failures; argued mitigation and process errors. | Court adopted the board’s findings of violations for these rules (except Ortega 8.4(c)), ordered restitution and costs. |
| 5) Appropriate sanction? | Given prior discipline, pattern of misconduct, multiple aggravators and limited mitigation, an actual suspension is warranted. | Parties jointly recommended a two-year suspension with one year stayed; Bruner urged the court to adopt that compromise. | Two-year actual suspension imposed; board’s recommendation affirmed as appropriate. |
| 6) Was the hearing process unfair / denial of due process requiring remand? | Panel acted within authority to examine evidence and decline withdrawn charges; due process satisfied. | Panel surprised parties by expanding inquiry after encouraging a stipulation-based resolution and eliciting testimony; process was unfair and prejudicial—remand required. | Majority: no remand; process viewed as adequate and Bruner not prejudiced. Dissent would remand or limit sanction. |
Key Cases Cited
- Ohio State Bar Assn. v. Bruner, 976 N.E.2d 899 (Ohio 2012) (prior discipline of respondent)
- Cuyahoga Cty. Bar Assn. v. Veneziano, 900 N.E.2d 185 (Ohio 2008) (parties’ stipulations not binding on panel)
- Disciplinary Counsel v. Karp, 124 N.E.3d 819 (Ohio 2018) (board/panel not bound by parties’ stipulations)
- Columbus Bar Assn. v. Keating, 121 N.E.3d 341 (Ohio 2018) (discipline rules; proof standard discussion)
- Disciplinary Counsel v. Stafford, 946 N.E.2d 193 (Ohio 2011) (discussion of clear-and-convincing standard)
- Cuyahoga Cty. Bar Assn. v. Wise, 842 N.E.2d 35 (Ohio 2006) (deference to panel credibility findings)
- Disciplinary Counsel v. Tamburrino, 87 N.E.3d 158 (Ohio 2016) (due-process contours in attorney-discipline proceedings)
- Disciplinary Counsel v. Maney, 94 N.E.3d 533 (Ohio 2017) (no second chance to argue after adequate process)
- Disciplinary Counsel v. Noel, 980 N.E.2d 1008 (Ohio 2012) (example sanctions for multiple offenses)
- In re Ruffalo, 390 U.S. 544 (U.S. 1968) (warning against unfair disciplinary procedure traps)