Cleveland Metro. Bar Assn. v. McElroy (Slip Opinion) , 140 Ohio St. 3d 391 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. McElroy, Slip Opinion No. 2014-Ohio-3774.]
NOTICE
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an advance sheet of the Ohio Official Reports. Readers are requested
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SLIP OPINION NO. 2014-OHIO-3774
CLEVELAND METROPOLITAN BAR ASSOCIATION v. MCELROY.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as Cleveland Metro. Bar Assn. v. McElroy,
Slip Opinion No. 2014-Ohio-3774.]
Attorneys—Misconduct—Dishonest conduct and statements in criminal case and
disciplinary proceeding—Failure to report disciplinary violation—
Indefinite suspension.
(No. 2013-1626—Submitted December 11, 2013—Decided September 4, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 12-058.
____________________
Per Curiam.
{¶ 1} Respondent, Kenneth Kelly McElroy of Cleveland, Ohio, Attorney
Registration No. 0070478, was admitted to the practice of law in Ohio in 1999.
On October 13, 2011, we suspended McElroy’s license to practice law on an
interim basis following our learning of his September 20, 2005 conviction of
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forgery and tampering with records. In re McElroy, 129 Ohio St. 3d 1499, 2011-
Ohio-5244, 954 N.E.2d 1211.
{¶ 2} On August 6, 2012, relator, Cleveland Metropolitan Bar
Association, filed a 13-count complaint with the Board of Commissioners on
Grievances and Discipline charging McElroy with violations of the Code of
Professional Responsibility and the Rules of Professional Conduct arising from
the conduct that led to his felony convictions.1 The parties submitted stipulations
of facts and violations and jointly recommended that McElroy be suspended from
the practice of law for 18 months, with 6 months of the suspension stayed on the
condition that he engage in no further misconduct.
{¶ 3} The parties jointly moved to waive the formal hearing, but a panel
of the Board of Commissioners on Grievances and Discipline denied the motion.
The panel conducted a hearing and adopted the parties’ stipulations of fact and
misconduct, but recommended a two-year suspension with no reinstatement “until
Respondent can demonstrate that he has broken this pattern of lying” that was of
specific concern to the panel. The board recommended an indefinite suspension.
No objections have been filed.
{¶ 4} We adopt the board’s findings of fact and misconduct, and we find
that an indefinite suspension is appropriate, with no credit for time served under
the interim felony suspension.
Misconduct
{¶ 5} The record demonstrates that McElroy has a disposition for not
telling the truth. Many of his ethics violations arose from a relationship with a
woman who, in May 2004, attempted to run over him with her automobile.
Because he did not want her to be prosecuted for felony assault, McElroy testified
1
Relator charged McElroy with misconduct under the applicable Disciplinary Rules for acts
occurring before February 1, 2007, the effective date of the Rules of Professional Conduct, which
superseded the Disciplinary Rules of the Code of Professional Responsibility.
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in an affidavit that “the whole situation was an unfortunate accident,” even though
he later admitted in court and under oath that hers was an intentional act.
{¶ 6} McElroy had purchased the automobile for this girlfriend, and
then, after a disagreement with her, he took the vehicle. She wanted the car back,
made attempts to get it back, and ultimately called the police, reported it stolen,
and notified McElroy that she had filed a report with the police. McElroy later
notarized her alleged signature on a motor vehicle title without administering the
oath and without actually witnessing her sign it, transferring in that process the
ownership of the vehicle from his girlfriend to an acquaintance.
{¶ 7} After a four-day bench trial and based on these facts, the trial court
found McElroy guilty of forgery and tampering with evidence, a fifth-degree and
third-degree felony respectively. The court found that there was a “large gap of
credibility” with respect to McElroy’s testimony. “In fact,” the judge continued,
“the Court notes from the observations here of all of the circumstances that were
testified to the fairly evasive manner that this Defendant answered questions,
especially on cross-examination, and that his credibility is lacking.”
{¶ 8} During closing arguments at McElroy’s trial, and also at the
sentencing hearing, his counsel stated that McElroy “has no prior criminal
convictions” and “no prior criminal record.” In fact, McElroy had been convicted
of assault in 1993, and at the time of his trial, another charge of assault was
pending in South Euclid Municipal Court, on which he was found guilty on
October 18, 2005. In the first instance, McElroy did not correct his counsel’s
representations to the judge, and in the second instance, McElroy did not report
the ultimate outcome to the judge or his probation officer, notwithstanding the
court’s order for just such an update. McElroy also did not report his felony
convictions for forgery and tampering with evidence to any disciplinary authority.
{¶ 9} On September 1, 2005, perhaps attempting to avoid the inevitable,
McElroy took inactive status with respect to his license to practice law.
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Following our imposition of an interim suspension of his license, he represented
to this court, in his “Motion to Dissolve and/or Modify Suspension (Expedited
Review Requested)” that he had “formally resigned his license to practice law
some time before the entry of his felony conviction on September 20, 2005.”
(Emphasis added.) He claimed in that same filing that he “willingly left the legal
profession before his conviction, for at least four years.” (Emphasis sic.) He
became active again on February 18, 2009, three years and five months after he
went inactive.
{¶ 10} On June 10, 2010, McElroy filed in the Cuyahoga County Court of
Common Pleas a “Motion for Sealing of Record of First Offense,” attempting by
this motion to expunge the criminal convictions he received in 2005.2 Yet that
conviction was not his first offense; instead, it was the second of three criminal
convictions.
{¶ 11} McElroy told much of his version of these events in a November
19, 2011 response to a written inquiry from relator regarding his felony
convictions. Relator’s investigator on March 15, 2012, interviewed McElroy, and
while explaining his conduct, McElroy stated that the trial had lasted only one
day, that he “never in any way shape or form ha[d] attempted to practice law for
approximately four years.” When asked by the investigator whether any court
actions occurred other than his trial and the prosecution of his girlfriend for
assaulting him with a car, McElroy said no. But McElroy had been charged in
2004 with domestic violence and child endangering in Cleveland Municipal
Court. These charges had been dismissed in June 2005, when his girlfriend failed
to appear to testify.
2
McElroy cites in his motion R.C. 2953.31 through 2953.36 as authority for the court to seal.
R.C. 2953.31(A) defines “first offender” as “anyone who has been convicted of an offense in this
state or any other jurisdiction and who previously or subsequently has not been convicted of the
same or a different offense in this state or any other jurisdiction.”
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{¶ 12} McElroy, during the disciplinary investigation, also made the
following statements: (1) that his last conversation with his ex-girlfriend had been
in July 2004, (2) that the judge in his trial during the sentencing hearing had asked
the case’s detective for his opinion regarding sentencing and the detective had
said “no jail time,” (3) that during that sentencing hearing, the judge stated that he
was imposing alcohol and drug testing as part of McElroy’s probation because
McElroy “probably or likely” had a substance- or alcohol-abuse problem because
he let himself get into the negative situation with his ex-girlfriend. All of these
statements were contradicted by his trial testimony and the trial transcript.
{¶ 13} To summarize, McElroy was convicted of forgery and tampering
with evidence, made false statements in an affidavit, made false statements to a
disciplinary investigator, made false statements to the trial court in his filings,
allowed false statements to be made to the trial court without correction, made
false statements to this court in his filing, notarized a signature without observing
the person sign or administering the oath, and failed to report his felony
convictions to a disciplinary body.
{¶ 14} The parties stipulated, and the panel and board found, that
McElroy’s conduct violated DR 1-102(A)(3) (prohibiting a lawyer from engaging
in illegal conduct involving moral turpitude), (4) (prohibiting a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), (5)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), and (6) (prohibiting a lawyer from engaging in conduct
that adversely reflects on the lawyer’s fitness to practice law) and 1-103(A)
(requiring a lawyer possessing unprivileged knowledge of a violation of DR 1-
102 to report the knowledge to a tribunal or other legal authority empowered to
investigate or act upon the violation) and Prof.Cond.R. 8.1(a) (prohibiting
knowingly making a false statement of material fact in connection with a
disciplinary matter), 8.3(a) (requiring an attorney to self-report his violations of
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the Rules of Professional Conduct that raise a question about his honesty,
trustworthiness, or fitness as a lawyer), 3.3(a)(1) (prohibiting a lawyer from
knowingly making a false statement of fact or law to a tribunal), and 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation), (d) (prohibiting a lawyer from engaging in conduct
that is prejudicial to the administration of justice), and (h) (prohibiting a lawyer
from engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law).
Sanction
{¶ 15} 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. We also weigh evidence of
the aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B).
Disciplinary Counsel v. Broeren, 115 Ohio St. 3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.
{¶ 16} As mitigating factors, the parties stipulated that McElroy does not
have any prior disciplinary record, has paid the criminal penalty for his
convictions, and has acknowledged his wrongful conduct. They further stipulate
that McElroy placed himself on a “self-imposed break” from the practice of law
from 2005 to 2009, has not engaged in a lengthy pattern of ongoing misconduct or
caused grave harm to others as a result of his misconduct, and has not realized any
actual personal gain or profit from his misconduct. Finally, they stipulate that
McElroy paid for the vehicle formerly belonging to his girlfriend and returned it
to her and that he maintains that he relied upon his counsel’s erroneous advice in
not reporting his conviction to the Supreme Court. No aggravating factors were
submitted by the parties.
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{¶ 17} The parties recommend a sanction of an 18-month suspension with
6 months stayed on the condition that McElroy engage in no further misconduct
and request that he be credited with his time under the interim felony suspension.
{¶ 18} The panel disagreed with many of the mitigating factors, however,
and added aggravating factors. The panel found it difficult to believe that
McElroy was not aware of his obligation to report his disciplinary infractions. It
noted that “[h]is numerous falsifications and misrepresentations of fact create a
pattern of dishonesty, much more serious than Relator suggests.” The panel
found that McElroy was motivated by a dishonest and selfish motive in his
handling of the motor vehicle transfer and in his misleading of the court in his
attempt at expungement. The panel also found that McElroy attempted to realize
personal gain in the transfer of the vehicle to his friend. The panel thus
recommended a two-year suspension.
{¶ 19} Most disconcerting to both the panel and board was McElroy’s
pattern of lying:
Viewed individually, no single misrepresentation of his would
warrant an indefinite suspension. Even in the aggregate, it is
possible to view his misrepresentations as not especially harmful to
others. But the practice of law demands from every attorney, at a
minimum, absolute candor before any court or disciplinary
authority. Respondent repeatedly has demonstrated a disturbing
tendency to misrepresent and conceal the truth about his past
behavior. If an attorney cannot be trusted to reveal candidly
unfavorable facts about his own behavior, we as a panel cannot be
sanguine about whether he will be candid in his representations to
courts or clients in other contexts. Until Respondent can
demonstrate that he has broken this pattern of lying, his license to
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practice law although subject to a definite suspension should not be
reinstated.
The board adopted the findings of fact and conclusions of law of the hearing panel
but did not adopt the panel’s recommendation. Instead, based on the panel’s
concerns, the board recommends that McElroy be suspended indefinitely, with no
credit for time served under his felony suspension imposed in October 2011.
{¶ 20} In Disciplinary Counsel v. Insley, 104 Ohio St. 3d 424, 2004-Ohio-
6564, 819 N.E.2d 1109, we found that the respondent violated DR 1-102(A)(4),
(5), and (6), 6-101(A)(3), and 7-101(A)(1) and (2) for conduct involving
temporary-custody papers. The respondent sent school officials copies of an
executed petition for temporary custody and a consent judgment entry that she
represented would be filed in court that same day. Not following through, and the
parent being apprised by the school’s officials several months later that they had
not received a court order, the respondent fabricated a court document that
included forged signatures of both a magistrate and judge in an attempt to cover
up her failure to file. She then faxed the falsified document to the school along
with a cover letter that falsely advised school officials that all the necessary
papers had been filed in court and the child’s custody had been changed.
{¶ 21} In mitigation, we found that the respondent had no prior
disciplinary record. As an aggravating factor, we found that although the
respondent cooperated initially in the disciplinary investigation, she did not
answer the relator’s complaint and did not further participate in the disciplinary
process. The respondent’s lies to the court and her client and her fabrication of
the judicial officers’ signatures warranted an indefinite suspension. Id., ¶ 12.
{¶ 22} In Disciplinary Counsel v. Woods, 28 Ohio St. 3d 245, 503 N.E.2d
746 (1986), the respondent gained the confidence of an elderly woman by helping
her with matters that did not involve attorney-client matters. He handled certain
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financial matters for her, occasionally signing her name even though he did not
have a power of attorney for those purposes. When the woman’s $70,000 money-
market certificate of deposit matured, the respondent, without authority, redeemed
it, forged her signature on the cashier’s check, and deposited that endorsed check
into his personal account. The respondent was convicted of theft, forgery, and
uttering in violation of R.C. 2913.02 and 2913.31 and sentenced to a one-year
term of imprisonment. We found that his misconduct violated DR 1-102(A)(1),
(3), (4), and (6), and we imposed an indefinite suspension from the practice of
law. Id. at 247.
{¶ 23} And in Cincinnati Bar Assn. v. Nienaber, 80 Ohio St. 3d 534, 687
N.E.2d 678 (1997), the respondent attempted to finesse to his client’s advantage
by his silence the timing of hearings, charges, and convictions on two DUI-related
prosecutions, which led two different judges to unwarranted inferences in their
respective circumstances. The respondent also made affirmatively false
statements to one of the judges. “We require complete candor with courts. * * *
We are particularly concerned that the instant matter arose on the criminal docket
of one of our municipal courts which handles an extremely heavy caseload.
Judges, especially those who must process heavy caseloads, must be able to rely
on the representations of the attorneys who appear before them.” Id. at 537. In
light of the respondent’s violation of DR 1-102(A)(4) and (5) and 7-102(A)(5)
and (7), and considering that we had previously suspended that lawyer for 6
months, we indefinitely suspended him from the practice of law.
{¶ 24} Because we find that Kenneth Kelly McElroy’s conduct was
similar to the conduct in the above cases, we indefinitely suspend him from the
practice of law in Ohio, with no credit for time served under the interim felony
suspension. Costs are taxed to McElroy.
Judgment accordingly.
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O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Cleveland Metropolitan Bar Association and Heather M. Zirke; Thompson
Hine, L.L.P., Jennifer S. Roach, and Holly H. Little, for relator.
Kenneth Kelly McElroy, pro se.
_________________________
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