Disciplinary Counsel v. Gerchak , 130 Ohio St. 3d 143 ( 2011 )

[Cite as Disciplinary Counsel v. Gerchak, 130 Ohio St.3d 143, 2011-Ohio-5075.]
DISCIPLINARY COUNSEL v. GERCHAK.
[Cite as Disciplinary Counsel v. Gerchak,
130 Ohio St.3d 143, 2011-Ohio-5075.]
Attorney misconduct—Conduct involving dishonesty, fraud, deceit, or
misrepresentation and conduct prejudicial to the administration of
justice—One-year suspension, all stayed on condition.
(No. 2011-0700—Submitted June 21, 2011—Decided October 5, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-069.
__________________
Per Curiam.
{¶ 1} Respondent, David John Gerchak, Attorney Registration No.
0069060, was admitted to the practice of law in Ohio in 1998. In August 2010,
Disciplinary Counsel, relator, filed a complaint charging Gerchak with
misconduct and violations of the Rules of Professional Conduct based on
misrepresentations he made to the bankruptcy court.
{¶ 2} The parties filed stipulations of fact and stipulated that Gerchak
had violated Prof.Cond.R. 8.4(c) (conduct involving dishonesty, fraud, deceit, or
misrepresentation). A panel of the Board of Commissioners on Grievances and
Discipline conducted a hearing to consider additional allegations of misconduct.
The panel determined that there was clear and convincing evidence that Gerchak
had violated Prof.Cond.R. 8.4(c) and 8.4(d) (conduct that is prejudicial to the
administration of justice), but there was insufficient evidence that he had violated
Prof.Cond.R. 8.4(h) (conduct that adversely reflects on the lawyer’s fitness to
practice law). The panel recommended that Gerchak be suspended from the
practice of law for one year with the entire year stayed upon conditions. The
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board adopted the panel’s findings of fact, conclusions of law, and recommended
sanction.
{¶ 3} On May 10, 2011, we gave Gerchak 20 days to show cause why
we should not adopt the recommendations of the board. He did not reply. Based
on the evidence before us, we adopt the board’s findings and conclusions, and we
suspend Gerchak’s license to practice law in Ohio for a period of one year, with
the entire suspension stayed on the conditions set by the panel.
Facts
{¶ 4} Gerchak is a sole practitioner who practices in the area of
bankruptcy law. On November 20, 2009, Judge Kay Woods of the United States
Bankruptcy Court, Northern District of Ohio, found Gerchak in contempt for
failing to respond to show-cause orders in two separate cases and suspended his
electronic-filing (“ECF”) privileges in bankruptcy court for 60 days for purposes
of filing new cases only.
{¶ 5} On December 16, 2009, Gerchak electronically filed a bankruptcy
petition on behalf of a client using the ECF account of attorney Jeffrey Kurz
because Gerchak’s ECF privileges had been suspended. Gerchak filed a
disclosure-of-compensation form with the bankruptcy petition stating that Kurz,
as attorney for the debtor, had received $800 in fees from the client. The
following day, Gerchak filed a notice of appearance as co-counsel in the case.
{¶ 6} Although the client had paid him the entire filing fee in advance,
Gerchak did not pay the filing fee when he filed the petition. Because of the ECF
suspension, he was unable to pay the fee electronically as required. Instead, on
December 30, 2009, Gerchak applied to the court to pay the fee in installments.
The application, which was electronically signed by Kurz and the client, stated
that the debtor was unable to pay the filing fee except in installments, a statement
that was clearly untrue, as the client had already given Gerchak the filing fee.
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January Term, 2011
Neither Kurz nor the client was aware that Gerchak was going to file the
application.
{¶ 7} On January 12, 2010, Judge Woods found Gerchak in contempt for
electronically filing the bankruptcy petition during the 60-day suspension of his
ECF privileges. The order extended the suspension, prohibited him from filing
any documents in bankruptcy court through March 19, 2010, and required him to
disgorge the $800 fee paid by his client.
{¶ 8} During a hearing before Judge Woods, Gerchak admitted that he
had used Kurz’s ECF account to file a new case and that he had falsely stated to
the court that the debtor was unable to pay the filing fee except in installments.
He also admitted that he had not obtained his client’s consent to file the
application to pay in installments.
Misconduct
{¶ 9} Gerchak stipulated that his actions violated Prof.Cond.R. 8.4(c).
The panel further found, and the board agreed, that Gerchak’s having been found
in contempt by Judge Woods on two occasions within 60 days and his admission
to violating Prof.Cond.R. 8.4(c) constituted clear and convincing evidence that
Gerchak had also violated Prof.Cond.R. 8.4(d). But the panel and board
concluded that there was insufficient evidence of a violation of Prof.Cond.R.
8.4(h) and recommended that that charge be dismissed.
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the duties violated and 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 addition, we also weigh evidence of aggravating and
mitigating factors listed in Section 10 of the Rules and Regulations Governing
Procedure on Complaints and Hearings Before the Board of Commissioners on
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Grievances and Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v.
Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 11} Here, the parties stipulated in mitigation that Gerchak had no prior
disciplinary record and that he provided full and free disclosure during the
investigation and exhibited a cooperative attitude. BCGD Proc.Reg. 10(B)(2)(a)
and (d). In addition, the panel found that there was no dishonest or selfish motive,
that Gerchak had a good character and reputation in the legal community, and that
other penalties or sanctions had been imposed on him. BCGD Proc.Reg.
10(B)(2)(b), (e), and (f).
{¶ 12} The panel found as the only aggravating factor that Gerchak had
committed multiple offenses. BCGD Proc.Reg. 10(B)(1)(d).
{¶ 13} We have held that “[a] violation of Prof.Cond.R. 8.4(c) will
typically result in an actual suspension from the practice of law unless ‘significant
mitigating factors that warrant a departure’ from that principle are present.”
Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521, 930 N.E.2d
307, ¶ 10, quoting Disciplinary Counsel v. Rohrer, 124 Ohio St.3d 65, 2009-
Ohio-5930, 919 N.E.2d 180, ¶ 45. In this case, the panel concluded and the board
agreed that there were sufficient mitigating factors to warrant a stayed suspension.
{¶ 14} First, Gerchak’s misrepresentations to the bankruptcy court were
not made for malicious or selfish reasons. See Disciplinary Counsel v. Ricketts,
128 Ohio St.3d 271, 2010-Ohio-6240, 943 N.E.2d 981, ¶ 41. He intended to pay
the filing fee and did so within a week after he filed the false application to pay in
installments. Next, Gerchak presented evidence that he was suffering from
depression at the time of this incident and that he had been under significant stress
for many years as a result of a chronic genetic illness of his son. The panel
considered that Gerchak began treatment in the fall of 2009 with a psychiatrist for
depression, anxiety, and an eating disorder and had entered into a three-year
contract with the Ohio Lawyers Assistance Programs (“OLAP”) on February 9,
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January Term, 2011
2010. The panel found that Gerchak’s mental state, although not a mitigating
factor, had clouded his judgment and contributed to his making a bad decision
concerning nonpayment of the filing fee. But the panel concluded that this was an
ethical lapse unlikely to recur and that an actual suspension was not necessary to
protect the public.
{¶ 15} Finally, the panel acknowledged that Gerchak had fully cooperated
in the disciplinary process and expressed sincere remorse for his misconduct.
Gerchak’s client was not harmed by his misconduct, and the bankruptcy court
imposed a sanction on Gerchak for his misconduct. For these reasons, the panel
concluded, and the board agreed, that the evidence established significant
mitigating factors that warranted a stayed suspension despite the violations of
Prof.Cond.R. 8.4(c) and (d).
{¶ 16} We agree with the board that there are significant mitigating
factors indicating that Gerchak is unlikely to commit future misconduct.
Accordingly, we suspend Gerchak’s license to practice law in Ohio for a period of
one year, with the entire suspension stayed on the conditions that he successfully
complete his three-year OLAP contract and commit no further misconduct.
{¶ 17} Costs taxed to Gerchak.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Hissom,
Assistant Disciplinary Counsel, for relator.
John B. Juhasz, for respondent.
______________________
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