Northwest Ohio Bar Assn. v. Archer , 129 Ohio St. 3d 204 ( 2011 )

[Cite as Northwest Ohio Bar Assn. v. Archer, 129 Ohio St.3d 204, 2011-Ohio-3142.]
NORTHWEST OHIO BAR ASSOCIATION v. ARCHER.
[Cite as Northwest Ohio Bar Assn. v. Archer,
129 Ohio St.3d 204, 2011-Ohio-3142.]
Attorneys at law — Misconduct involving dishonesty — One-year license
suspension.
(No. 2010-2270 — Submitted February 16, 2011 — Decided July 5, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-015.
__________________
Per Curiam.
{¶ 1} Respondent, Stephen Robert Archer of Defiance, Ohio, Attorney
Registration No. 0031376, was admitted to the practice of law in Ohio in 1978.
On August 11, 1993, we publicly reprimanded him for neglecting a client’s
bankruptcy matter. Northwest Ohio Bar Assn. v. Archer (1993), 67 Ohio St.3d
97, 616 N.E.2d 210, 211.
{¶ 2} On February 8, 2010, relator, Northwest Ohio Bar Association,
filed a complaint alleging that respondent had committed several violations of the
Ohio Code of Professional Responsibility by failing to submit the requisite forms
or pay unemployment taxes and by failing to remit the federal-, state-, and local-
income-tax and Medicare and Social Security withholdings from his secretary’s
wages to the proper governmental authorities.
{¶ 3} A panel of the Board of Commissioners on Grievance and
Discipline heard the cause and considered the parties’ joint stipulations of fact,
law, and proposed penalties. The panel adopted the parties’ stipulated facts and
Disciplinary Rule violations, but rejected some of the stipulated aggravating and
mitigating factors and proposed sanction.
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{¶ 4} The board adopted the panel’s findings of fact and misconduct and
concluded that respondent had engaged in conduct involving dishonesty, fraud,
deceit, or misrepresentation and that his conduct adversely reflects on his fitness
to practice law.
{¶ 5} Citing respondent’s prior disciplinary record, his “mixed
appreciation” for the gravity of his misconduct, and the subsequent lapse of his
malpractice insurance and failure to inform his clients that he is not insured, the
board has rejected the parties’ stipulated sanction of a one-year partially stayed
suspension and recommends that we suspend respondent from the practice of law
for one full year. No objections have been filed.
{¶ 6} We adopt the board’s findings of fact and misconduct and
conclusions of law and suspend respondent from the practice of law in Ohio for
one year.
Misconduct
{¶ 7} Respondent’s misconduct came to light when his secretary
separated from her employment and applied for unemployment-compensation
benefits in February 2008. Because respondent had neither filed the appropriate
forms nor paid unemployment taxes from late 2004 until February 1, 2008, as
required by Ohio law, the secretary’s claim was denied. After receiving an
unfavorable judgment on appeal, the secretary filed a grievance with relator. By
April 8, 2008, the necessary paperwork had been filed, and all taxes and penalties
had been paid. As a result, the secretary’s application for unemployment benefits
was approved. Approximately seven weeks after she had applied, she received
unemployment benefits retroactive to the date of her original application.
{¶ 8} Relator’s investigation also revealed that during the secretary’s
employment, respondent withheld local, state, and federal taxes — including
income, Medicare, and Social Security taxes — from the secretary’s wages but
failed to remit the taxes and the requisite paperwork to the appropriate
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governmental authorities. Instead, he converted these funds to his own use. The
parties, however, have not stipulated the amount of the funds converted, relator
did not offer the secretary’s W-2’s into evidence, and the respondent testified that
the amounts he recalled paying included the payment of his delinquent personal-
income taxes and penalties. Nonetheless, the record clearly and convincingly
demonstrates that respondent violated DR 1-102(A)(4) and Prof.Cond.R. 8.4(c)
(both prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation) and DR 1-102(A)(6) and Prof.Cond.R. 8.4(h) (both
prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law).1
Sanction
{¶ 9} When imposing sanctions for attorney misconduct, we consider
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 Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 10} The parties have stipulated that respondent’s prior disciplinary
record is an aggravating factor. See BCGD Proc.Reg. 10(B)(1)(a). The board
also found that respondent’s failure to pay his unemployment taxes and to remit
multiple tax withholdings to the appropriate governmental authorities constitute
1. Respondent’s misconduct occurred both before and after February 1, 2007, the effective date of
the Rules of Professional Conduct, which supersede the Disciplinary Rules of the Code of
Professional Responsibility. Although both the former and current rules are cited for the same
acts, the allegations comprise a single continuing ethical violation. Disciplinary Counsel v.
Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.
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multiple offenses and that his failures harmed a vulnerable employee. See BCGD
Proc.Reg. 10(B)(1)(d) and (h). In addition, the board recognized the lapse of
respondent’s malpractice insurance, coupled with his failure to inform his clients
of that lapse as required by Prof.Cond.R. 1.4(c), as an aggravating factor.
{¶ 11} As mitigating factors, the parties stipulated and the board found
that respondent paid monetary sanctions in the form of penalties for the late
payment of taxes and demonstrated a cooperative attitude toward these
disciplinary proceedings. See BCGD Proc.Reg. 10(B)(2)(c) and (d).
{¶ 12} The parties also stipulated that respondent submitted character
letters from two attorneys and a former client. See BCGD Proc.Reg. 10(B)(2)(e).
The first attorney, who has known respondent for almost 30 years, wrote that
respondent “is very conscientious, very thorough in his preparation, and very
caring in his dealing with clients,” that he has found [respondent’s] ethical
standards to be “above reproach,” and that respondent is “an honest and good man
and a fine lawyer.” The second attorney has known respondent for approximately
20 years and has dealt with him regularly, primarily in the context of domestic
relations. She states that she has known respondent “to be very honest and
forthright and [has] never even had an inkling or a concern as to the truth or
veracity of anything he has said.” She reports, “[H]e is perceived by the local bar
as being very honest” and that she considers him to be a “good man.” The final
letter, from a client who has known respondent for almost 30 years, having
retained him to handle both business and personal matters, states that respondent
has “always performed ethically, properly and efficiently for [him] and the
company.” He believes that respondent “is a good man and * * * an outstanding
attorney!”
{¶ 13} The board, however, rejected the parties’ stipulation that
respondent’s conduct was not driven by a dishonest or selfish motive, observing
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that he had offered several explanations for his misconduct and that his
expressions of remorse were inconsistent. See BCGD Proc.Reg. 10(B)(2)(b).
{¶ 14} Respondent stated that his financial situation was “[n]ot great”
when the secretary called him out of the blue seeking work, and he claimed that
various health problems, including diabetes and a minor stroke, had made it hard
for him to concentrate. He testified that his business had ebbed and flowed and
that he had had just barely the income to fund the secretary’s net paycheck. He
stated that once he had let the tax payments lapse, it was easy to continue that
pattern.
{¶ 15} Although respondent expected a large settlement to be “the pot of
gold that could make everything right,” he claimed that his plan derailed when he
suffered a heart attack and required quintuple-bypass surgery just one week after
the settlement was paid. Despite some expressions of remorse, he cast himself as
the victim of his circumstances and blamed his spiteful secretary for exploiting his
misconduct. But respondent offered no documentary evidence to substantiate any
of this testimony. Moreover, the board observed that respondent had stipulated to
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
{¶ 16} The parties have stipulated that a one-year suspension with six
months stayed is the appropriate sanction for respondent’s misconduct. In support
of that sanction, they cite Toledo Bar Assn. v. Abood, 104 Ohio St.3d 655, 2004-
Ohio-7015, 821 N.E.2d 560; Disciplinary Counsel v. Large, 122 Ohio St.3d 35,
2009-Ohio-2022, 907 N.E.2d 1162; and Geauga Cty. Bar Assn. v. Bruner, 98
Ohio St.3d 312, 2003-Ohio-736, 784 N.E.2d 687.
{¶ 17} While each of these cases involves misconduct comparable to that
of respondent’s, the board observed that the aggravating and mitigating factors
unique to each case resulted in a range of sanctions. For example, in Abood, the
attorney had failed to pay personal-income taxes for eight years and had deposited
proceeds from a personal real estate transaction into his client trust account to
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avoid IRS collection. Abood, 104 Ohio St.3d 655, 2004-Ohio-7015, 821 N.E.2d
560, ¶ 6. Abood’s default on his tax obligations lasted approximately twice as
long as respondent’s and involved significant IRS collection measures. Id. at ¶ 3-
4, 19. But like respondent, Abood fully cooperated in the disciplinary
investigation and submitted favorable character references. Id. at ¶ 9-10.
Additional mitigating factors present in Abood — including the attorney’s lack of
a prior disciplinary record, his efforts to self-report his conduct once he realized
that he was the subject of an IRS investigation, his sincere remorse, and the
imposition of criminal sanctions — justified the imposition of a one-year
suspension with six-months conditionally stayed. Id. at ¶ 9, 11, 19-20.
{¶ 18} At the opposite end of the spectrum, Bruner had failed to remit
$42,982.80 in taxes that he had withheld from his secretary’s wages over ten
years and had given her fraudulent W-2 forms each year in an effort to conceal his
theft. Bruner, 98 Ohio St.3d 312, 2003-Ohio-736, 784 N.E.2d 687, at ¶ 3-4.
Although Bruner had filed the documents necessary to assess his tax liability at
the time of his disciplinary hearing, he had not begun to make restitution, falsely
attributed his misconduct to a lack of business acumen before conceding that he
had defaulted on his tax obligations because his practice was not making enough
money, and failed to appreciate the gravity of his misconduct. Id. at ¶ 5-7.
Therefore, we indefinitely suspended Bruner from the practice of law. Id. at ¶ 8.
Respondent’s conduct, however, is less egregious than Bruner’s because it lasted
less than half as long, and respondent had made full restitution prior to the filing
of relator’s complaint.
{¶ 19} In Large, we imposed a one-year license suspension on an attorney
who, for five years, had failed to file personal-income tax returns, had failed to
withhold income taxes and Social Security contributions from his employees’
wages, and had failed to report his employees’ wages to the IRS. Large, 122
Ohio St.3d 35, 2009-Ohio-2022, 907 N.E.2d 1162, ¶ 4, 13, 15, 21. Like the
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respondent in this case, Large established that he was a person of good character
and reputation and fully cooperated in the disciplinary proceedings. Id. at ¶ 17.
He also had no prior disciplinary record and had served six months of probation in
a community confinement center and six months of electronically monitored
home confinement after pleading guilty to federal criminal charges arising from
this misconduct. Id. at ¶ 10, 17. See BCGD Proc.Reg. 10(B)(2)(a) and (f). Large
did not convert his employees’ withholdings, because he had not withheld taxes
from their wages, but he had failed to make restitution, even after he had received
a $72,000 fee, and he had acted with a selfish desire to delay the collection of his
personal-income taxes. Id. at ¶ 13, 17.
{¶ 20} Having independently considered respondent’s four-year pattern of
misconduct and balanced his good reputation in the legal community and payment
of restitution against his prior disciplinary action, his mixed appreciation for the
gravity of his misconduct, and his failure to inform his clients that he does not
carry malpractice insurance, we agree that a one-year suspension is the
appropriate sanction for respondent’s misconduct.
{¶ 21} Accordingly, Stephen Robert Archer is suspended from the
practice of law in Ohio for one year. Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
John Donovan, for relator.
______________________
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