Toledo Bar Assn. v. Abood
104 Ohio St. 3d 655
Ohio
2004
Check Treatment

*1 JJ., C.J., F.E. concur. Moyer, Resnick, O’Connor, Sweeney, Pfeifer Lundberg JJ., dissent. O’Donnell, Stratton Lundberg J., dissenting. Stratton, I for the set forth in respectfully my dissenting opinion dissent reasons

2}{¶ Nowak, 466, 2004-Ohio-6777, In re 104 Ohio St.3d 820 N.E.2d 335. J.,

O’Donnell, in the dissenting opinion. concurs foregoing Co., L.P.A., & Freeburg, petitioner, McFadden Associates David A. Mortgage Group, ABN AMRO Inc. Sater, L.L.P.,

Vorys, Reisz, Seymour & Pease and Lisa for respondent, Pierce III, L. Frederick Ransier trustee. v. Abood.

Toledo Bar Association Abood, [Cite as Toledo Assn. v. Bar 655, 2004-Ohio-7015.] (No. 2004.) 2004-1066 Submitted October 2004 Decided December Curiam. Per Association, April relator, On Bar Toledo filed a complaint 1}

{¶ respondent, Abood, Ohio, charging Oregon, Attorney Norman No. Registration 0029004, in three counts violations of the Code of Professional Responsibili- answered, ty. Respondent admitting disputing some facts and On others. 27, January Board Commissioners on Grievances hearing. conducted a Discipline hearing, parties Before submitted facts. agreed parties stipulated stipulation *2 1-102(A)(6) adversely reflects on an (prohibiting conduct that violated DR law) 9-102(A) attorney keep to attorney’s practice (requiring fitness to and only and to client in an deposit client funds funds separate funds account). and attorney’s Additionally, respondent testified submitted exhib- trust letters written in at and numerous character-reference hearing its the submitted his behalf. and the established that stipulations panel respon- The evidence before

2}{¶ law in in 1953 admitted to of in practice dent June and was the Ohio was born May 1980s, late had a in By respondent developed 1979. the successful however, negotiations litigation. period, the same During business-contract and resulting financial from the respondent problems, also suffered various some $220,000 clients in principal pay legal failure of two to over bills. One, the that as a of respect Count evidence established result With

{¶ 3} difficulties, his income respondent pay financial failed to federal taxes as the 1987,1988,1990,1991,1993, April year years taxes 15 for the became due each 1994, 1996, 1997, $118,000 But in respondent pay and 1999. in did over October taxes, years through and interest for tax 1987 1992. including penalties Respon- August dent federal returns for and 1994 in 2002. filed his (“IRS”) the Revenue a point, At some Internal Service commenced {¶ 4} into investigation criminal federal-tax situation. to re- According spondent, payment plan satisfy obligations, he asked the IRS his but it him payment plan IRS indicated that would not work out until he had assets, home, liquidated all his the maximum on including his borrowed his credit cards, Respondent exhausted all of declined to and his resources. satisfy obligations tried to his without a with the IRS. The payment plan IRS 1993, In responded procedures. May respondent with intense collection believed that the that agreed payment plan required respondent IRS had to make a $10,000 $2,500. 1993, monthly In payment July down installments of respondent’s home and auction. the IRS seized sold it at 16, 2002, May pleaded guilty in the United States District respondent On Ohio, Division, Court for the Northern District of Western to two misdemeanor 2002, pay September counts of failure to income taxes for 1994 1995. On terms judge respondent eight the federal district sentenced to consecutive 28, 2002, Respondent months for each offense. was incarcerated from October release, halfway until to a house. His term of his November imprisonment ended on 2003. December Three, respondent evidence established that received As to Count

$63,657 The in closing. in after a residential real-estate home April that his owned until the IRS the one wife had question respondent was auction, it at the and his purchased seizure. His mother IRS sale, the net bought proceeds wife it After the sale deposited back. if in his because he that the seize the funds IOLTA account feared IRS would they were in his placed personal account. violations, the stipulated panel Based on the evidence and the found that 1-102(A)(6)

respondent’s conduct as to Count One violated DR and as to Count 9-102(A). motion, Three violated DR On relator’s dismissed other One and allegations disciplinary violations contained Counts Three. a second count unproven. dismissed as At hearing, urged relator license to law contrast, suspended years year Ohio be for two with one stayed. requested a public reprimand as the sanction. *3 misconduct, a for no recommending panel sanction this the found

{¶ 9} (Guidelines aggravating circumstances. for Imposing Lawyer See Section Sanctions) of and Regulations the Rules and Governing Complaints Procedure Hearings Before the Board of Discipline Commissioners on Grievances and features, As to (“BCGD.Proc.Reg.”). mitigating panel the noted that respondent prior had no had disciplinary “fully cooperated record and with the Internal during Moreover, Revenue investigation Service entire of him.” the panel [its] found that had respondent fully investigation with had cooperated relator’s and immediately informed relator when he realized that he was under investigation and was going charged by the be IRS. The also panel mitigation considered in 16 character-reference letters

{¶ 10} respondent’s from clients lawyers [respondent’s] and fellow “praising legal abili- ties, his his integrity, honesty, his work ethic.” The panel additionally [and] noted that respondent clients, had no with problems lawyers, his or judges and nature, that his problems IRS, “of a were financial and deal exclusively with the not with his or his practice, capacity attorney.” as an Further, the respondent “presented noted that had himself

{¶ 11} exemplary incredibly fashion” and “was remorseful.” The was also con- that vinced his misconduct repeated. Finally, would never be the panel noted (14) that already been punished, “having served fourteen months of payment incarceration for his late income of tax.” The panel public recommended that reprimand. receive

{¶ 12} The board adopted findings the and of panel; conclusions the of because matters,” “continuing difficulties tax with the board recommended that he be from suspended the of law for one of year six months that suspension stayed on conditions. board further recommended that the costs of the be proceeding taxed to respondent. argues He that a objects to the board’s recommendation. Respondent lack of given aggravating the sanction the

public appropriate is reprimand sentence, that an factors, Relator actual jail deep responds his remorse. his law of is warranted view suspension license to pay personal-income for failure his taxes. respondent’s criminal convictions 1-102(A)(6) review, DR 9- agree we that violated Upon 102(A), suspension actual by agree that an is as found board. We obligations. appropriate respondent’s long history for of default his one-year order a adopt suspen- We therefore board’s recommendation and sion, only suspension the last six months of that on conditions. staying disciplinary unique “Each case involves facts circumstances.” 10(A). But we Proc.Reg. argues, generally impose one-year BCGD as relator See, lawyer’s e.g., with income-tax laws. suspension for failure 990; (1992), Disciplinary v. Baker 603 N.E.2d Counsel (1988), v. Bowen 38 Ohio 528 N.E.2d 172 Disciplinary Counsel St.3d (attorney’s failing convictions for to file federal income-tax returns warranted a one-year long actual have warned of the serious- suspension). practitioners We ness of type this misconduct: the professional responsibility of the fundamental tenets of of a “One

lawyer degree personal professional integrity that he should maintain a is integrity standard. The can be main highest profession meets He tained if the conduct of is should only reproach. the individual above any public refrain conduct. short of lessens confidence illegal Anything this respect in the to the law legal profession exemplifies obedience —because *4 (1972), 151, law.” Assn. v. 29 Ohio 58 O.O.2d Cleveland Bar Stein St.2d 278 N.E.2d 670. in to cases which we have deviated from Respondent, points for to with imposing one-year suspension standard of failure tax (1999), 403, 704 Dayton Millonig

laws. In Bar Assn. v. 84 Ohio St.3d N.E.2d 568, for tax attorney pleaded guilty failing who to file returns for example, years Markijohn, In v. public reprimand. Disciplinary three received Counsel 489, 2003-Ohio-4129, stayed conditionally 99 Ohio 794 N.E.2d we a six- St.3d attorney misrepresented month from for an who his contribu suspension false years, including filing tions to firm’s for four state plan his law retirement recently, Cty. Most in Lake Bar Assn. v. federal returns. Ezzone, 79, 2004-Ohio-1774, conditionally 806 N.E.2d we 102 Ohio St.3d for an was stayed one-year suspension attorney who convicted his tax return. failing one misdemeanor count to file Millonig, in and Ezzone were Markijohn, The less severe sanctions presented the same factors that has justified many mitigating here, each, in attorney’s we noted that the misconduct did not involve lying rely a court or client. therefore authority imposing We this a less severe sanction than a one-year suspension of license to no practice with portion suspension stayed. However, we also find that misconduct warrants a sanction public

more onerous than the in reprimand Millonig stayed or the suspensions Markijohn and Ezzone. In none of those cases did the fail to pay as much liability of his tax long for as as did. The sheer breadth of respondent’s default must be seen an aggravating as circumstance. Accord Bruner, Geauga Cty. Bar Assn. v. 2003-Ohio-736, 784 N.E.2d (attorney indefinitely suspended for failing report and remit payroll federal withholding years). addition, taxes for over ten we did not in any find of those three anything cases like the investigation and enforcement measures that federal tax authorities had to undertake to collect the tax deficit amassed. Although accept we as mitigating the factors enumerated reports, board we also take into account the aggravating circumstances not by

found or board. Respondent is therefore suspended from the practice of law in year; however, Ohio for one the last six months of this suspension are stayed on the conditions» that respondent refrain from any violations of the Code of Professional Responsibility and that respondent pay the costs of these disciplinary proceedings. If respondent condition, violates either stay lifted, will be and respondent will one-year serve the entire suspension. Costs are taxed to respondent.

Judgment accordingly. Moyer, C.J., F.E. JJ., Sweeney, O’Donnell, O’Connor and concur. Lundberg

Resnick, Pfeifer JJ., dissent. Stratton, Lundberg J., dissenting. Stratton, I suspend would respondent from the practice

{¶ of law for one year 21} the entire suspension stayed. Therefore, I respectfully dissent. JJ.,

Resnick concur in the foregoing dissenting opinion. Pfeifer, *5 McKenny, Grade, Ernsberger L.L.C., Grade, & Swanson, David G. M. Susan and Jonathan B. Cherry, for relator. Caruso, D.

James for respondent.