Disciplinary Counsel v. Phillabaum (Slip Opinion) , 144 Ohio St. 3d 417 ( 2015 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Phillabaum, Slip Opinion No. 2015-Ohio-4346.]
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SLIP OPINION NO. 2015-OHIO-4346
DISCIPLINARY COUNSEL v. PHILLABAUM.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Phillabaum, Slip Opinion No.
2015-Ohio-4346.]
Attorneys—Misconduct—Altering indictment to add gun specifications that were
never presented to grand jury—One-year suspension.
(No. 2015-0279—Submitted April 14, 2015—Decided October 27, 2015.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2014-021.
_______________________
Per Curiam.
{¶ 1} Respondent, Jason Richard Phillabaum of Cincinnati, Ohio, Attorney
Registration No. 0072219, was admitted to the practice of law in Ohio in 2000.
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{¶ 2} On March 3, 2014, a probable-cause panel of the Board of
Commissioners on Grievances and Discipline1 certified to the board a two-count
complaint filed against Phillabaum by relator, disciplinary counsel. In that
complaint, relator alleged that while employed as an assistant prosecuting attorney
in Butler County, Phillabaum had engaged in prosecutorial misconduct by failing
to disclose exculpatory evidence to a criminal defendant and by signing two
separate criminal indictments containing charges that he knew had not been
presented to the grand jury.
{¶ 3} The parties entered into stipulations of fact and mitigation and
submitted more than 20 stipulated exhibits. A panel of the board conducted a
hearing and issued a report finding that by causing gun specifications that were not
presented to the grand jury to be included in a criminal indictment, Phillabaum had
knowingly made a false statement of fact to a tribunal, engaged in dishonesty, fraud,
deceit, or misrepresentation, and prejudiced the administration of justice—all of
which adversely reflected on his fitness to practice law.2 Based on that misconduct,
the panel recommended that Phillabaum be suspended from the practice of law for
one year with six months stayed on the condition that he engage in no further
misconduct. The board adopted the panel’s report in its entirety, and neither party
has objected.
{¶ 4} We adopt the board’s findings of fact, misconduct, and aggravating
and mitigating factors. But we reject the recommended sanction. Instead, we
conclude that a one-year suspension, with no stay, is the appropriate sanction for
Phillabaum’s misconduct.
1
Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been
renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St. 3d CII.
2
The panel also unanimously dismissed the remaining allegations of misconduct, finding that
Phillabaum’s failure to disclose exculpatory evidence in one criminal matter resulted from a
misevaluation of the evidence rather than an egregious or willful attempt to thwart the
administration of justice and that relator had failed to prove alleged violations with respect to a
second criminal indictment.
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January Term, 2015
Misconduct
{¶ 5} On December 13, 2010, assistant prosecutor Josh Muennich presented
the case against Tyree Johnson to a Butler County grand jury in Phillabaum’s
absence. He instructed the grand jury to vote on charges of aggravated robbery and
felonious assault, but did not present any evidence on any gun specifications related
to the crime and did not instruct the jury to vote on any such specifications.
Phillabaum reviewed the indictment on December 20, 2010, and instructed a legal
assistant in the prosecutor’s office to add gun specifications to the indictment. The
legal assistant told him that the gun specifications had not been included because
Muennich had not presented them to the grand jury, and for that reason she felt
uncomfortable adding them to the indictment. But when Phillabuam insisted, she
complied. Muennich refused to sign the indictment containing the gun
specifications, since he had not presented that evidence to the grand jury, but
Phillabaum signed it, knowing that it contained a false statement and would be filed
with the clerk of courts. After Phillabaum’s conduct came to light, the Butler
County Prosecutor presented the case to the grand jury a second time and obtained
a superseding indictment that included the firearm specification.
{¶ 6} On May 3, 2012, Phillabaum was indicted on two counts of forgery,
one count of dereliction of duty, two counts of tampering with records, one count
of interference with civil rights, and one count of using a sham legal process, all
arising out of his conduct in the Johnson case. He pleaded guilty to a single count
of dereliction of duty, a second-degree misdemeanor, and was sentenced to 90 days
in jail, all suspended on the conditions that he successfully complete one year of
community control and perform at least 75 hours of community service.
{¶ 7} The board found that the conduct summarized above violated
Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly making a false
statement of fact or law to a tribunal), 8.4(c) (prohibiting a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d)
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(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law). We adopt
the board’s findings of fact and misconduct.
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties 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. We also weigh evidence of the aggravating
and mitigating factors listed in Gov.Bar R. V(13).
{¶ 9} The parties stipulated that relevant mitigating factors in this case
include the absence of a prior disciplinary record, Phillabaum’s cooperative attitude
toward the disciplinary proceedings, and the criminal sanctions imposed for
Phillabaum’s conduct (with which he has fully complied). The board adopted these
stipulations and also found that Phillabaum presented several letters from judges,
attorneys, and clients attesting to his good reputation in the legal community. See
Gov.Bar R. V(13)(C)(1), (4), (5), and (6). Moreover, the board found that none of
the aggravating factors enumerated in Gov.Bar R. V(13)(B) are present.
{¶ 10} Relator recommended that Phillabaum be suspended from the
practice of law for one year, but Phillabaum argued that a public reprimand or a
fully stayed suspension was the appropriate sanction for his misconduct. The board
considered four cases involving comparable ethical violations and noted that
sanctions for violations of Prof.Cond.R. 3.3(a)(1), 8.4(c), 8.4(d), and 8.4(h) vary
widely depending on the nature of the conduct and the applicable aggravating and
mitigating factors.
{¶ 11} In Disciplinary Counsel v. Wilson, 142 Ohio St. 3d 439, 2014-Ohio-
5487, 32 N.E.3d 426, ¶ 8, 20, we publicly reprimanded an attorney who violated
Prof.Cond.R. 3.3(a)(1), 8.4(c), and 8.4(d) by signing the name of her
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January Term, 2015
granddaughter’s mother to an affidavit, notarizing the document without any
notation that she had signed the document with the affiant’s authorization, and then
filed the document in a pending guardianship proceeding. In Dayton Bar Assn. v.
Swift, 142 Ohio St. 3d 476, 2014-Ohio-4835, 33 N.E.3d 1, we also imposed a two-
year suspension with the second year stayed on conditions on an attorney who
violated Prof.Cond.R. 3.3(a)(1), 8.4(c), and 8.4(h). The attorney in Swift engaged
in a pattern of misconduct involving multiple offenses by failing to maintain
independent time records and overbilling four counties for court-appointed work
over a period of several years. And in a case involving violations of Prof.Cond.R.
8.4(c), (d), and (h), we imposed a two-year suspension with the second year
conditionally stayed on an attorney who failed to fully disclose his assets in his
personal bankruptcy filings, testified falsely about his assets in two depositions, and
blamed his attorneys for his conduct. See Disciplinary Counsel v. Harmon, 143
Ohio St. 3d 1, 2014-Ohio-4598, 34 N.E.3d 55. Finally, the board noted that in
Disciplinary Counsel v. Cicero, 143 Ohio St. 3d 6, 2014-Ohio-4639, 34 N.E.3d 60,
we indefinitely suspended an attorney who, in his third disciplinary matter, engaged
in a pattern of misconduct and acted with a selfish motive when he lied to a judge
and amended his own speeding charge to a lesser offense without authorization.
{¶ 12} The board determined that Phillabaum’s knowing alteration of the
Johnson indictment was more serious than Wilson’s failure to document the
authorized signing of an affiant’s name, but found that this case did not involve the
aggravating factors present in Swift, Harmon, or Cicero. Therefore, the board
reasoned that a one-year suspension with six months stayed on the condition that
Phillabaum engage in no further misconduct was the appropriate sanction in this
case.
{¶ 13} We reject the board’s recommendation and conclude that a one-year
suspension is the appropriate sanction in this case. Accordingly, Jason Richard
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Phillabaum is suspended from the practice of law in Ohio for one year. Costs are
taxed to Phillabaum.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and O’NEILL,
JJ., concur.
PFEIFER and FRENCH, JJ., dissent and would impose a suspension of one
year with six months stayed.
_________________
Scott J. Drexel, Disciplinary Counsel, and Catherine M. Russo, Assistant
Disciplinary Counsel, for relator.
Montgomery Rennie Jonson, L.P.A., George D. Jonson, and Lisa M.
Zaring, for respondent.
__________________
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