TOLEDO BAR ASSOCIATION v. DEMARCO.
No. 2014-1738
Supreme Court of Ohio
Submitted May 6, 2015-Decided November 5, 2015.
144 Ohio St.3d 248, 2015-Ohio-4549
LANZINGER and O‘NEILL, JJ., dissent.
Beckman Weil Shepardson, L.L.C., Janet E. Pequet, and Ashley Shannon Burke, for appellees.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, Stephen P. Carney, Deputy Solicitor, and Rebecca L. Thomas and Jeffery Jarosch, Assistant Attorneys General, for appellants.
Per Curiam.
{¶ 1} Respondent, Robert Paul DeMarco of Solon, Ohio, Attorney Registration No. 0031530, was admitted to the practice of law in Ohio in 1969. In February 2014, relator, the Toledo Bar Association, charged him with professional misconduct for making false statements to a court in Lucas County. Based upon the parties’ stipulations and evidence presented at the hearing, a three-member hearing panel of the Board of Commissioners on Grievances and Discipline1
{¶ 2} Upon our independent review of the record, we overrule DeMarco‘s objections, but we agree with the panel that a one-year suspension, with six months stayed, is the appropriate sanction in this case.
Misconduct
{¶ 3} In 2011, DeMarco, while representing a plaintiff in a civil suit, entered into an agreement with defense counsel authorizing Jack Harper, a computer expert whom DeMarco had retained, to search the defendants’ electronic devices pursuant to a strict discovery protocol. Under the terms of the protocol, potentially relevant documents were to be delivered to the trial judge “for an in-camera inspection to determine what documents, if any, [would] be turned over to [DeMarco].” Harper thereafter searched the computers of one of the defendants and placed the results of his search on a disc. Harper, however, gave the disc to DeMarco, who reviewed it and determined that none of the documents would be useful for his case. DeMarco never submitted the disc to the trial judge for an in camera inspection.
{¶ 4} At a March 2012 pretrial conference, defense counsel asked DeMarco about the results of the computer search, and DeMarco indicated that there was nothing of value in the documents. After defense counsel questioned how DeMarco could have already come to that conclusion, DeMarco stated that Harper had reviewed the documents and told him that there was nothing relevant. DeMarco denied having possession of the disc containing the documents that Harper had retrieved. After the conference, DeMarco telephoned Harper and left a voicemail essentially admitting that he had lied to the court about having the disc. DeMarco then returned the disc to Harper.
{¶ 5} The parties resolved their lawsuit in June 2012, and defense counsel requested that Harper return the disc. When Harper refused, the defendants filed a motion to compel. In response, Harper notified the court that he had destroyed the disc. In November 2012, the trial judge held a hearing for Harper to show cause why he should not be held in contempt, and Harper testified that he had given a copy of the disc to DeMarco and that after DeMarco had advised him that the case was over, he had destroyed all media related to the matter.
{¶ 6} In response to Harper‘s testimony, DeMarco repeated multiple times—both in the judge‘s chambers and in open court—that he had never received the
{¶ 7} Based on this conduct, the parties stipulated and the board found that DeMarco had violated
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in
Aggravating and mitigating factors
{¶ 9} The board found, and we agree, that only one aggravating factor exists: DeMarco acted with a dishonest motive. See
{¶ 10} DeMarco objects to the board‘s refusal to adopt two additional mitigating factors that the parties had stipulated to: a timely, good-faith effort to rectify the consequences of his misconduct, see
{¶ 11} DeMarco also asserts that the panel “failed to appreciate the reason for the initial lie made at the March, 2012 pretrial.” He claims that he was “covering for Mr. Harper” and that he therefore should have been given mitigating credit for lacking a selfish motive. However, as we have explained in previous cases, “[u]nless the record weighs heavily against a hearing panel‘s findings, we defer to the panel‘s credibility determinations, inasmuch as the panel members saw and heard the witnesses firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24. Here, the panel, after seeing and hearing DeMarco‘s explanation for his conduct, found that his motive was selfish and that he likely made misrepresentations to the court because he feared that he had violated the discovery protocol by not submitting the documents to the judge for an in camera inspection. Following our precedent, we defer to the panel‘s assessment of DeMarco‘s motive.
Applicable precedent
{¶ 12} An actual suspension from the practice of law “is the general sanction when an attorney engages in dishonest conduct.” Medina Cty. Bar Assn. v. Cameron, 130 Ohio St.3d 299, 2011-Ohio-5200, 958 N.E.2d 138, ¶ 17. This is especially true when an attorney makes repeated and material false statements to a court:
A lawyer who engages in a material misrepresentation to a court or a pattern of dishonesty with a client violates, at a minimum, the lawyer‘s oath of office ***. Such conduct strikes at the very core of a lawyer‘s relationship with the court and with the client. Respect for our profession is diminished with every deceitful act of a lawyer. We cannot expect citizens to trust that lawyers are honest if we have not yet sanctioned those who are not. *** When an attorney engages in a course of conduct resulting in a finding that the attorney has violated [the disciplinary rule prohibiting conduct involving dishonesty,
fraud, deceit, or misrepresentation], the attorney will be actually suspended from the practice of law for an appropriate period of time.
Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 190, 658 N.E.2d 237 (1995).
{¶ 13} In his objections, DeMarco acknowledges this general principle but nonetheless argues that a fully stayed suspension is appropriate here, citing cases in which we stayed suspensions, despite dishonest conduct, due to the presence of significant mitigating factors. For example, DeMarco cites Cameron, a case in which an attorney filed a motion and an affidavit with a court falsely representing that the parties had reached a settlement. In that case, we suspended the attorney for one year but stayed the entire suspension because the attorney‘s dishonesty was an isolated incident in a lengthy career and little or no harm resulted from the misconduct. Cameron at ¶ 17-18. DeMarco argues that like the attorney in Cameron, he lacks prior discipline and therefore should be given a fully stayed suspension.
{¶ 14} The facts and circumstances here, however, are more egregious than the facts in Cameron and the other cases cited in DeMarco‘s objections. DeMarco engaged in a series of misrepresentations directly to the court in March and November 2012. At the November 2012 show-cause hearing, he threatened to take his own expert “outside” after the expert testified truthfully about giving the disc to DeMarco. And if Harper had not saved DeMarco‘s voicemail, Harper might have been sanctioned by the court. Additionally, DeMarco admitted at the panel hearing that he was not remorseful for making the repeated misrepresentations until Harper played the voicemail. The board noted that “[a] key foundation upon which the judicial process rests is the truthfulness of attorneys appearing before our courts.” We agree, and based on these facts, we find no compelling reason to deviate from our rule that dishonest and deceitful conduct mandates an actual suspension. Accordingly, DeMarco‘s objections are overruled.
{¶ 15} However, we agree with the panel that a one-year suspension, with six months stayed, is the appropriate sanction in this case. The board increased the panel‘s recommended sanction to a one-year actual suspension, but the board did not cite any precedent to support its recommendation. Although DeMarco‘s deceitful conduct warrants an actual suspension, the character references and character testimony indicate that his misconduct here was an aberration in an otherwise unblemished 45-year legal career. We find that under these circumstances, staying a portion of the one-year suspension is consistent with prior cases. Compare Toledo Bar Assn. v. Miller, 132 Ohio St.3d 63, 2012-Ohio-1880,
Conclusion
{¶ 16} For the reasons explained above, DeMarco is suspended from the practice of law for one year, with six months of the suspension stayed on the condition that he engage in no further misconduct. Costs are taxed to DeMarco.
Judgment accordingly.
PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
O‘CONNOR, C.J., dissents, and would suspend the respondent for one year with no portion stayed.
McKenny, Ernsberger & Grude, L.L.C., and David G. Grude; and Michael A. Bonfiglio, Bar Counsel, for relator.
Richard C. Alkire Co., L.P.A., Richard C. Alkire, and Dean Nieding, for respondent.