*1 14
limited to
In re Application Mort
applicant’s
moral
Compare
fitness.
of
(1990),
53 Ohio
(applicant’s
St.3d
doubts about his to practice fitness law. Communication skills are central to the practice of law. The questionnaires submitted by applicant show that he had difficulty understanding and following instructions written in English. The hearing transcript shows that he had equal difficulty understanding questions put him orally in that language. Applicant’s confusion regarding the bankruptcy proceedings imperfect illustrates how his command of English could him handicap law, in practicing possible Moreover, detriment of his clients. problems his what understanding he reads and hears are problems matched his communicating thoughts his own to others. Accordingly, deny applicant permission
{¶ to take the 59} Ohio bar exami- time, nation at the present however, time. applicant’s education and intelli- gence may him enable to overcome the language barrier that now stands in his way. Therefore, applicant may file a application new to take the bar examina- tion; however, he may not file application his until 18 months have elapsed from the date of this decision.
Judgment accordingly. C.J., F.E. Lundberg Moyer, Resnick, Sweeney, Pfeifer, Stratton, O’Connor JJ., concur. O’Donnell, Singh, Satnam pro se. Cocoves,
Spiros Bar Toledo Association.
Cincinnati Bar Association
v. Statzer.
Statzer,
Cincinnati Bar Assn. v.
[Cite as
Ohio St.3d
{¶ 1} 17, 2002, in 1996. On June 0067179, to the Ohio bar was admitted tion No. violations of the Association, relator, charged respondent Bar Cincinnati Relator later complaint. in a two-count Responsibility of Professional Code include a third count of misconduct. its amended and on Grievances the Board of Commissioners appointed by A panel conclusions findings and made May heard the cause on Discipline counts first and second law, The dismissed the panel and a recommendation. had convincing no clear and evidence finding the complaint, V(6)(H); Bar Assn. R. Ohio State Rules. See Gov.Bar any Disciplinary violated 193, syllabus. two of paragraph v. Reid that, had induced her discipline, to avoid alleged The first count had that her law office claiming to execute a false affidavit legal former assistant alleged The second count a client’s file for retrieval. prepared induced the same that a former associate had not to relator report knew but did the associate of blame testimony false to absolve provide assistant to legal testimony legal of the The determined that the hearing. panel a having missed counts, credibility. panel The also assistant, on these lacked a central witness respon to relator that sufficiently reported had respondent’s counsel found the former associate. involving of claimed misconduct knowledge dent had count, that respondent the record shows to the third respect With anticipation legal her former assistant on November deposed attorneys. During proceeding, office of one of relator’s hearing, at the panel counsel, respondent legal and relator’s was attended which legal former in front of her tapes nine audio cassette conspicuously placed during them referring and labeling tapes By suggestively assistant. conversations with that she had recorded implied questioning, legal embarrass the assistant. impeach personally that could assistant legal truthfully assistant to answer intermittently cautioned the also Respondent herself. perjuring or risk Respondent’s suggestive display of the cassettes was intended to mislead actually The were blank or held information unrelated tapes assistant. assistant, consequently, respondent did not offer the tapes or after the found that deposition.
evidence had 1-102(A)(4), thereby lawyer violated DR which from prohibits engaging fraud, deceit, conduct or involving dishonesty, misrepresentation, and DR 7- 106(C)(1), lawyer which in a prohibits appearing professional capacity before a alluding any supported by tribunal from matter that will not be admissible evidence. misconduct, a sanction for this recommending reviewed the
mitigating aggravating considerations listed Section 10 of the Rules and Regulations Governing Complaints Procedure on and Hearings Before the Board of Commissioners on Discipline Supreme Grievances and Court. The panel assistant, in attempting determined that to mislead the legal respondent “en- *3 gaged in a deceptive practice during disciplinary process.” the The found panel aggravating no other factors and identified no mitigating factors. 1-102(A)(4), Having found that violated DR panel the con license,
cluded that she should receive an actual suspension of her law
the
ordinarily required
sanction
for this infraction. See Cincinnati Bar Assn. v.
Florez,
448,
leading actually Count about whether she had returned the client’s case file the subject prior grievance was response her. to relator’s inquiry, respondent assured investigator writing that the client’s file had response her client, included with and she available and made copied recanted, Relator affidavit, to this effect. later assistant’s in which other documents by is contradicted representation
this fees, by paid client file until the release the would not that she stated with then- comply did not attorneys, who client’s new never client, that she who testified file, her former for the requests discredit that these contradictions insists the file. Relator received may or account of what unreliable notwithstanding story, respondent. discharged the client not have after may happened exist; however, inconsistencies review, that these acknowledge we Upon by the board. findings adopted panel’s disregarding not warrant they do an enviable possessed and thus firsthand observed the witnesses testimony. For this of their credibility weight assessing vantage point indepen- in our credibility determinations reason, panel’s defer to a ordinarily heavily weighs record unless the discipline cases professional review of dent 191, (2001), St.3d Cleary 93 Ohio Bar Assn. v. findings. Cleveland against those 235. 754 N.E.2d unanimously length Here, panel questioned that she had to conclude insufficient evidence finding after dismissed Count require on this issue would judgment dishonestly. Supplanting panel’s acted v. Filkins 90 Ohio Cty. Bar Assn. variety Findlay/Hancock proof findings of miscon- rejected recommended in which we St.3d testimony of a the uncorroborated largely had relied duct because inconsis- often, under oath. The including once admittedly lied witness who had objection, not Relator’s first compare. do simply asserted relator tencies *4 I. overruled, recommendation to dismiss Count therefore, adopt and we the to dismiss the unanimous decision objects panel’s relator to Additionally, 1- under DR duty report had a to II. Relator Count 103(A) (a of misconduct as defined knowledge lawyer possessing unprivileged authority) that her appropriate to an report knowledge DR 1-102 shall such falsely at the direction that she had testified told assistant panel. to the out of deference disagree, again associate. We respondent’s former part” “in on the depended large in II allegations found that the Count panel considered from this that the credibility.” “frail We take legal assistant’s that, in it did not retrospect, inherently claim so unreliable 1-103(A), DR of whether regardless in reporting requirement invoke the Moreover, respon- found turned out to be true. ultimately claim of misconduct allegations to other report counsel did relator dent’s Accordingly, personal experience. on respondent’s that were based associate overruled, II is dismissed. and Count objection second is also relator’s In as objections panel’s findings adopted board relative 11} {¶ 7-106(C)(l) III, prohibits asserts that while DR an attor- Count ney’s supported by reference to matters will not be admissible evidence tribunal,” appearing apply deposition when “before a it does not respon- attorney. Respondent dent conducted at the office of relator’s also contends that during deposition her conduct assistant did not constitute a 1-102(A)(4). reject arguments. violation of DR both We Responsibility “Tribunal” is defined the Code of Professional as “all bodies,” all adjudicatory courts and other but we have not construed this term as narrowly respondent urges today. us to do In Disciplinary Counsel v. Levin (1988), attorney 35 Ohio an verbally St.3d became abusive remarks, that in during deposition. making insulting profane We found his 7-106(C)(2) attorney had acted before a DR tribunal violation of (asking any question attorney before a tribunal that the has no reason to believe is relevant degrade to the case and that is intended to a witness or other 7- person), 106(C)(5) (failing to comply courtesy with known local customs of or practice 7-106(C)(6) tribunal), appearing while before a or (engaging undignified 7-106(0(7) tribunal), discourteous degrading conduct to a (intentionally or evidence). habitually an violating procedure established rule of or Id. at N.E.2d 892. We continue to adhere to Although this view. are depositions conven-
tionally
judicial
conducted without direct
supervision,
proceedings
such
are
always subject
judicial
nevertheless
intervention and oversight under Civ.R.
30(D) (court may terminate or limit the
of a
scope
deposition
upon
showing of
faith
part
and, thus,
bad
or harassment on the
of a
or
deponent
party)
are within
judicial
boundaries of the
setting. And because there is ordinarily no
presiding authority, “it is even
upon
more incumbent
attorneys to conduct
in a professional
themselves
and civil
manner
a deposition.” Matter of
Golden
329 S.C.
preserve testimony 32(A). for impeachment or for the Any record. Civ.R. deposition that is to be used as evidence must generally filed court. Id. It therefore follows that these proceedings are to be if conducted as before a tribunal, 106(C)(1). including accordance with DR depositions taken 7— in Gov.Bar R. proceedings V must be filed pursuant with the board to Civ.R. 32. 3(B) Section Regulations Rules and Governing Procedure on Complaints *5 Hearings Before the Board of Commissioners on Grievances and Discipline. however, Respondent, urges distinguish us to trial conduct from “discov- {¶ 15} ery depositions,” arguing that the require greater latter freedom of inquiry into 26(B)(1) (inadmissible that may matters be relevant but inadmissible. See Civ.R. evidence is discovery of admissible reasonably evidence calculated lead insists, discoverable). case, in the particularly This was also argues imperative that wide latitude was deposition assistant. She testimony from a theretofore untrustwor- proceeding that to draw honest during a tactic intended tapes merely that use of the audio cassette was thy witness and end. legitimate to achieve this recognize discovery process, particularly pursuit that We
{¶ 16} if cannot restricted it is to remain through deposition, overly information line, however, attorney engages must draw the when an effective. We subterfuge respondent’s primary purpose that intimidates a witness. While truth, tactic may have been to elicit the her deposition that thinking embarrassing also tricked the assistant into the revelation of confidences was stake. these has asserted that her “bluff’ Throughout proceedings, respondent issue, tactic not at Regardless,
worked. the success of her cannot, any certainty, assert that her witness would not have degree Further, truthfully subterfuge. of her while such the absence if a deception may testimony, just likely induce truthful it is as elicit lies Respondent’s that from the false threat. security witness believes lies will offer by creating impression deceitful tactic intimidated her witness the false that information that could offer respondent possessed compromising personal as 1-102(A)(4) reasons, DR agree evidence. For these violated 7-106(0(1). misconduct, As a sanction for relator advocates respondent’s respon- from the suspension arguments dent’s indefinite law based II, respondent committed misconduct connection with Counts I and addition hand, III. Respondent, to Count on the other should be alternative, ignored dismissed. she asserts that and board and, therefore, mitigating evidence the sanction recommended the board —a one-year suspension conditionally stayed with six months too severe. Re- —is that a spondent proposes public reprimand appropriate. would be more sanction, We find that either as the board’s recommen- proposed well dation, would be incommensurate with misconduct. An indefinite II, suspension light would be too harsh in of our dismissal of Counts I and while public reprimand unduly severity no more than a would minimize the of respon- dent’s conduct. recommendation, As to the board’s we find that there are mitigating
factors for which the board did not account. and board did Specifically, respondent’s having professionally not mention that there is no evidence of now, disciplined grievances lodged against notwithstanding. before Moreover, clients, history professional has of dutiful service *6 20 fact, In not returned. has supposedly case file she the client whose
including tirelessly had worked respondent associates another her in a contentious divorce years representing while on this client’s behalf pro- in these Finally, respondent cooperated of abuse. allegations and related ceedings. factors, temper disposition our mitigating the basis of these On
{¶ 21}
warranted
is sometimes
stayed suspension
rule that a
accordance with the
1-102(A)(4).
DR
See Disci
concerns,
a violation of
notwithstanding
mitigating
Judgment accordingly. JJ., concur. Lundberg O’Donnell, Pfeifer, Resnick, Stratton J., C.J., F.E. dissent. Moyer, Sweeney,
Moyer, C.J., dissenting. respondent by imposed I dissent from the sanction respectfully follow, year I for one majority. suspend respondent For the reasons that would engage on condition that she no further stay suspension six months of the misconduct.
I Erroneous Dismissal of Count alleged complaint. Count I of relator’s Count The board dismissed that, true, lied to the bar facts if warrant the conclusion that in a n written filed response disciplinary grievance association that, lie, the bar association with evidence provided support 2000 and best, by her i.e., an affidavit that had been executed misleading she knew be legal assistant. that a to that stated correspondence grievance, related at her had, papers of all her file” “given copies
former client *7 assertion, association with support respondent provided To that bar request. that the assistant had by representing an her assistant legal affidavit executed file, relations a former domestic “prepared complete photocopy [the client’s] January 1999. pick up” it for former to client] and left at the front desk [the file had affidavit that she assumed that the The assistant averred her legal longer as it is no at the front desk.” up by former “picked [the client] constituting a majority complaint If views the first count of the affidavit, then the the execution of a false charge respondent that solicited that justified. respondent I is The arguably board’s dismissal of Count (although she did prepare not assistant to affidavit legal she did ask with the affidavit justified that the bar association supplying declare she felt true”). The legal “what told to be [her] because its contents reflected Jennifer the false prepare had asked her to respondent assistant testified that that assistant lacked legal affidavit. In view of the board’s conclusion evidence to rebut credibility, provide convincing the relator did not clear and to execute a false testimony legal that she did not ask the assistant affidavit. appropriately count of the viewed more When the first 27}
{¶ evidence, establish, convincing clear and broadly, by it is clear that the relator did fraud, deceit, or involving dishonesty, in conduct respondent engaged had disregarded if the assistant is misrepresentation, testimony legal even affidavit, credibility. by respondent, lack The assistant’s offered respondent constitutes a the former client was representation complete copy January with a of her file in 1999. presented contains clear evidence that the convincing record January well aware that the client had not received a of her file in 1999. copy was client, her that she would indicating provide December wrote $15,000. copy only upon receipt February of the file of check for On affidavit, subsequent period to the time referenced $3,000.00,1 “If I attorney, wrote to the client’s new receive a check of hours, added, I will, you.” turn her “If do immediately within over file She any my files from payment, you receiving not receive that token will not be served interrogatories office.” In filed answers to November client, for the fees. upon payment her former whom she had sued answers, not her former produce In those asserted she would attorney’s it and also there is an copy, client’s file because “is too voluminous answered, lien on this information.” She further “The file is available for my time in I will make it for the court inspection any office. also available However, hearing. I will not release it of the lien.” because representation Her to the bar that the former client had fact received “conduct clearly convincingly proven involving dishonesty, the file was 1-102(A)(4). fraud, deceit, Therefore, or in violation of DR misrepresentation” complaint. do not believe the board should have dismissed Count II
Sanction Respondent acknowledges engaged that she in a deceptive practice deposing while her former legal assistant the course of the bar associa- disciplinary investigation tion’s of her. Yet she shows no remorse for that conduct. She continues to assert that her intentional use of justified deceit was *8 implies perfectly that it is appropriate deceive a witness the course of a deposition in order to “encourage” testify truthfully. the witness to She thus witness) apparently (obtaining believes the ends truthful a testimony from witness). justify (intentionally the means deceiving Respondent affirmatively appropriate it was to intentionally impression witness, create false in the mind of deposition the her former legal assistant, because witness herself had been untruthful past. She attorneys asserts that frequently engage competitive endeavors “no different” from other activities in which “two opposing victory” sides vie for and characteriz- es her actions as meeting “fire with fire.” analogizes litigation She to a game poker, commonly which “bluffs” are employed. view, my however, attorneys must held to ethical be standards higher
than those expected poker players. Attorneys justified are not in employing deception even when they person believe with whom they dealing are is conduct, untruthful. Were we to condone such of law likely would quickly slide to the lowest levels of ethical behavior. The maxim taught us as children wrongs remains valid: two do not make a right. board recommended that suspended period for a
one year, with six months of the suspension stayed to be on condition that engage no further misconduct. with that agree recommendation. I believe that the mitigation majority cited counterbalanced failure to appreciate wrongfulness of her conduct. The sanction imposed by would public. to the bar and wrong message majority sends of the board.
adopt the recommendation
J.,
foregoing dissenting opinion.
in the
F.E.
concurs
Sweeney,
Clements;
L.L.P.,
Fry,
Clements,
Cohen,
Rendigs,
E.
&
and William
Mahin
L.L.P.,
relator.
Dennis,
Carolyn
Taggart,
A.
for
Kiely &
Potash,
respondent.
A.
and Lester S.
Timothy
Smith
McKinney.
County Bar
v.
Association
Stark
McKinney,
Cty. Bar Assn. v.
[Cite as Stark
23,
No. was admitted Ohio On Association, 2003, relator, County charged respondent Stark Bar an amended various violations of the of Professional Responsi- multicount Code bility. panel appointed by A the Board of Commissioners on Grievances 16, 2003, and, Discipline May largely comprehensive heard the cause on based law, and a recommendation. stipulations, findings made conclusions and other misconduct parties stipulated respondent’s neglect client, respect to the first representing eight the course of different clients. With retainer August respondent accepted found that $750 the influence of alcohol. driving defend the client a citation under