Disciplinary Counsel v. Stafford , 128 Ohio St. 3d 446 ( 2011 )

[Cite as Disciplinary Counsel v. Stafford, 128 Ohio St. 3d 446, 2011-Ohio-1484.]
DISCIPLINARY COUNSEL v. STAFFORD.
[Cite as Disciplinary Counsel v. Stafford,
128 Ohio St. 3d 446, 2011-Ohio-1484.]
Attorney misconduct, including engaging in conduct prejudicial to the
administration of justice — Eighteen-month suspension, with six months
stayed.
(No. 2010-1601 — Submitted January 18, 2011 — Decided April 5, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-081.
__________________
LANZINGER, J.
{¶ 1} Respondent, Vincent Stafford of Cleveland, Ohio, Attorney
Registration No. 0059846, was admitted to the practice of law in Ohio in 1992
and was publicly reprimanded in 2000, Cuyahoga Cty. Bar Assn. v. Gonzalez
(2000), 89 Ohio St. 3d 470, 733 N.E.2d 587.
{¶ 2} In a five count complaint, relator, Disciplinary Counsel, charged
respondent with numerous disciplinary violations arising from his conduct while
representing clients in four domestic relations cases and one legal malpractice
case. A panel of the Board of Commissioners on Grievances and Discipline, after
having heard testimony for 22 days and having reviewed the evidence, made
findings of fact and conclusions of law. As to Count I, the panel found that
respondent violated DR 1-102(A)(5) (a lawyer shall not engage in conduct that is
prejudicial to the administration of justice) and 1-102(A)(6) (a lawyer shall not
engage in conduct that adversely reflects upon his fitness to practice law) and
Prof.Cond.R. 3.4(a) (a lawyer shall not unlawfully obstruct another party’s access
to evidence), 3.4(c) (a lawyer shall not knowingly disobey an obligation under the
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rules of a tribunal), 8.4(d) (a lawyer shall not engage in conduct that is prejudicial
to the administration of justice), and 8.4(h) (a lawyer shall not engage in conduct
that adversely reflects on the lawyer’s fitness to practice law).1
{¶ 3} The panel also concluded that respondent had violated DR 1-
102(A)(5) and 1-102(A)(6) as alleged in Count II. The panel recommended
dismissal of additional violations charged in Count I and Count II and
recommended dismissal of Counts III, IV, and V in their entirety. The panel
recommended that this court suspend respondent’s license to practice law in Ohio
for 18 months, with 12 months of the suspension stayed. The board adopted the
panel’s findings and recommended sanction.
{¶ 4} Both respondent and relator filed objections to the board’s report.
For the reasons that follow, however, we overrule those objections, accept the
board’s findings of fact and misconduct, but modify the recommended sanction to
stay only six months of an 18-month suspension. We will detail the findings of
fact as to Counts I and II only, as those are the counts related to the sanction
imposed.
I. Misconduct
A. Count I: Obstructing Discovery
{¶ 5} During an 18-month divorce action between a husband and wife,
respondent represented the wife. Respondent filed the divorce action on April 24,
2006, and the case was assigned to Cuyahoga County Domestic Relations Judge
Timothy Flanagan. Four attorneys represented the husband throughout the course
of the divorce action: Herbert Palkovitz, who represented the husband from May
until early September 2006; Paul Kriwinsky, who assisted with the representation
1. On February 1, 2007, the Rules of Professional Conduct became effective, replacing the Code
of Professional Responsibility in Ohio. Respondent's conduct before February 1, 2007, is governed
by the Code of Professional Responsibility, and conduct after that date is governed by the Rules of
Professional Conduct.
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during 2006 and 2007; Eric Laubacher, whose representation lasted from early
September 2006 until January 2007; and Russell Kubyn, who represented the
husband from January 2007 until the divorce was final in November 2007.
{¶ 6} Respondent’s compliance with discovery became an issue during
the time that Kriwinsky, Laubacher, and Kubyn represented the husband. At a
pretrial conference held on October 30, 2006, the court directed respondent to
respond to discovery requests within 11 days. On November 17, 2006, on behalf
of his client, Laubacher filed a motion to compel responses to the interrogatories
and requests for production of documents. Respondent did not file a response. A
judgment entry was issued granting the motion to compel and requiring
respondent to provide discovery responses by December 1, 2006.
{¶ 7} Laubacher testified that as of December 7, 2006, he still had not
received discovery responses from respondent. On that day, Laubacher sent a
letter to the judge alerting him to this fact. Respondent telephoned Laubacher
upon receiving a copy of the letter and assured him that discovery responses
would be forthcoming. Laubacher withdrew as counsel for the husband in
January 2007 and testified that as of that date he still had not received discovery.
{¶ 8} Kubyn took over representation of the husband in January and
continued to represent him until the divorce decree was entered. At a pretrial
conference in March 2007, respondent gave Kubyn and Kriwinsky a number of
documents. They, like Laubacher before them, complained that they had not
received some of the documents requested and that the interrogatories had not
been answered. Accordingly, they sent a letter to respondent on March 26, 2007.
Kubyn never received a response.
{¶ 9} The divorce trial took place during the fall of 2007. One of the
contested trial issues was whether the husband was required to pay a portion of
the wife’s attorney fees. In an attempt to show that respondent’s fee bills were
exaggerated, Kubyn pressed the issue of his discovery noncompliance.
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Respondent’s client testified that she had indeed completed interrogatory answers,
and upon the judge’s request, respondent searched through his file boxes and
produced her original, handwritten interrogatory responses. The responses were
neither complete nor verified, and contained no objections by respondent.
{¶ 10} Respondent testified during the trial with regard to the attorney
fees he charged his client and was cross-examined by Kubyn. The following,
consisting of a mere portion of the transcript, shows the flavor of the exchange
that took place:
{¶ 11} “Q: Now, do you recall when this finite period of time was when
Mr. Laubacher was on the case?
{¶ 12} “A: No. Perhaps, if you get a document you would have that period
of time.
{¶ 13} “Q: You just don't recollect?
{¶ 14} “A: I generally don't take notice of when people come and get off
of cases.
{¶ 15} “Q: Would he have been on the case —
{¶ 16} “A: I have no idea.
{¶ 17} “Q: I didn't finish my question.
{¶ 18} “A: I told you I didn't know when he was on or off the case. I
know in October of ‘06, he was on the case. When he got on or off, I have no
idea.
{¶ 19} “Q: There was a Motion to Compel filed by Mr. Laubacher; wasn't
there?
{¶ 20} “A: I don't know. Appears so.
{¶ 21} “Q: When?
{¶ 22} “A: July — November 17th, 2006.
{¶ 23} “Q: Was that filed after you gave him those documents?
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{¶ 24} “A: Again, I told you I didn't know what date he got the
documents.
{¶ 25} “Q: If you had given him the documents and he would have filed
that, you would have filed some sort of response.
{¶ 26} “A: No, that's absolutely not correct.
{¶ 27} “Q: Why not?
{¶ 28} “A: My client had already provided the interrogatories and
responses to the Request for Production of Documents to predecessor counsel.
There was no reason to have a duplicative attempt at discovery by Mr. Laubacher.
{¶ 29} “Q: Help me out here, Mr. Stafford.
{¶ 30} “A: Sorry. I'm not here to help you out; I'm here to answer your
questions.
{¶ 31} “Q: The answer will help me out. You indicated you provided
discovery to Mr. Laubacher?
{¶ 32} “A: Yes.
{¶ 33} “Q: We just noted that a Motion to Compel Discovery was filed by
Mr. Laubacher on November 17, 2006, correct?
{¶ 34} “A: Yes.
{¶ 35} “Q: On November 17, 2006 —
{¶ 36} “A: That's when he filed the motion.
{¶ 37} “Q: You are indicating that even though you have been forced to
—
{¶ 38} “A: I'm sorry? Forced? I don't think I'm forced to do anything, sir.
{¶ 39} “Q: Even though you were compelled —
{¶ 40} “A: Sir, I'm not a party.
{¶ 41} “Q: Let me finish.
{¶ 42} “A: You ask a proper question.
{¶ 43} “MR. STAFFORD: I'm not a litigant to this case, Your Honor.
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{¶ 44} “THE COURT: Are you objecting?
{¶ 45} “MR. STAFFORD: Objection.
{¶ 46} “THE COURT: Rephrase it, counsel.
{¶ 47} “Q: Even though you were served with that motion, you didn't do
anything to bring it to counsel's or the Court's attention that, perhaps, this is some
sort of frivolous motion?
{¶ 48} “A: We had already responded to the discovery from Mr.
Palkovitz.
{¶ 49} “Q: So the answer is you took no action?
{¶ 50} “A: Could I finish my response?
{¶ 51} “Q: I thought you were finished.”
{¶ 52} The board noted that this testimony in response to Kubyn’s attempt
to establish exactly which documents respondent had produced to Laubacher and
when they were produced was significant because it clearly demonstrated that he
was intentionally attempting to “obfuscate and hinder the truth-seeking process.”
The board determined that respondent had “erected a smokescreen so dense that
his exchange with Kubyn at times resembled a replay of ‘Who’s on First?’ rather
than a search for the truth.” The board found his conduct “totally unacceptable
for an officer of the court.”
{¶ 53} Based upon these factual findings, the board concluded that
respondent’s conduct “showed contempt for the discovery process” and violated
DR 1-102(A)(5) and 1-102(A)(6) and Prof.Cond.R. 3.4(a), 3.4(c), 8.4(d), and
8.4(h). The board, however, recommends that we dismiss the alleged violation of
Prof.Cond.R. 4.1 (in the course of representing a client, a lawyer shall not
knowingly make a false statement of material fact or law to a third person), 8.4(c)
(a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or
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misrepresentation), and 3.3(a)(1) (a lawyer shall not knowingly make a false
statement of fact or law to a tribunal).2
B. Objections to Count I
{¶ 54} Respondent objects to the board’s findings of misconduct, arguing
that relator failed to meet its burden of proving by clear and convincing evidence
that his conduct violated the Code of Professional Responsibility and the Rules of
Professional Conduct. Throughout this disciplinary proceeding, respondent has
maintained that the panel and the board simply disagree with his style of practice
and that this disagreement is irrelevant as to whether relator established by clear
and convincing evidence that he committed disciplinary violations. Relator, on
the other hand, objects to the board’s recommendation that we dismiss the
additional violations in Count I, arguing that it had presented clear and convincing
evidence to find that respondent had committed those additional violations.
{¶ 55} We do not agree with either party. The clear-and-convincing-
evidence standard is actually an intermediate standard—“more than a mere
preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases.” Cross v. Ledford (1954), 161 Ohio St.
469, 477, 53 Ohio Op. 361, 120 N.E.2d 118. “Clear and convincing evidence is
evidence which shows that the truth of the facts asserted is highly probable.” In
re B.D.-Y. (2008), 286 Kan. 686, 187 P.3d 594. In this case, both sides presented
evidence to the panel for 22 days, and the evidence was reviewed by the full
board. We defer to the board’s assessment of the truth and weight of the evidence
with regard to the additional violations alleged in Count I, and in accordance with
the board’s recommendation, we dismiss those charges.
{¶ 56} We have repeatedly held that the practice of law is “a learned
profession grounded on integrity, respectability, and candor.” See, e.g.,
2. The board dismissed the alleged violation of Prof.Cond.R. 3.4(d) because the conduct occurred
before the effective date of the rule.
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Disciplinary Counsel v. Claflin, 107 Ohio St. 3d 31, 2005-Ohio-5827, 836 N.E.2d
564, ¶ 14. It is clear that these attributes were missing from respondent’s
conduct: How difficult can it be to show that you sent discovery responses to
opposing counsel? For more than a year, respondent confounded three attorneys
in their search for discovery documents. His evasive and obstreperous conduct
alone is clear and convincing evidence that he violated the rules of professional
conduct. Discovery is a critical part of the litigation process, and it often takes up
a majority of the time that lawyers spend in litigating a case. “ ‘Our system of
discovery was designed to increase the likelihood that justice will be served in
each case, not to promote principles of gamesmanship and deception in which the
person who hides the ball most effectively wins the case.’ ” Cincinnati Bar Assn.
v. Marsick (1998), 81 Ohio St. 3d 551, 553, 692 N.E.2d 991, quoting Abrahamsen
v. Trans-State Express, Inc. (C.A.6, 1996), 92 F.3d 425, 428-429. Respondent’s
lack of diligence in responding to requests for discovery is the equivalent of
obstructing discovery. Therefore, as determined by the board, there is clear and
convincing evidence that respondent engaged in evasive conduct that was
prejudicial to the administration of justice.
{¶ 57} Having determined that respondent’s and relator’s objections to the
board’s findings with respect to Count I are meritless, we adopt the board’s
findings of fact and misconduct with respect to this count.
C. Count II: Lack of Candor
{¶ 58} Count II relates to a legal malpractice action that respondent
prosecuted on behalf of his client against his client’s former attorney. The
complaint alleged that the lawyer’s representation had fallen below the standard
of care while he was pursuing a negligence action arising out of an automobile
accident. The issues surrounding this count again relate to a discovery dispute.
{¶ 59} The dispute arose in late August 2004, after the first set of
interrogatories had been answered by respondent’s client. In a response to a
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question about damages, respondent’s client had stated that the damages he was
seeking in the malpractice case would include “all costs associated with the
various matters of litigation including the Probate proceedings” and that “[t]he
associated costs of litigation have not been finalized. All final damages will be
provided.” At a deposition several weeks later, the opposing counsel representing
the attorney posed questions to respondent’s client relating to expenses and
attorney fees that respondent’s client had incurred. Respondent objected to the
questions on the basis of privilege. The presiding judge rejected respondent’s
argument.
{¶ 60} Less than a month later, respondent’s client was served with a
second set of requests for production of documents, asking for “[a]ny and all
documents demonstrating and/or evidencing any and all expenses you have
incurred or claim to have incurred, including, but not limited to, attorney fee bills
from * * * Stafford & Stafford Co., L.P.A. * * * in connection with [specified
cases].” Respondent maintained that the documents were not discoverable,
because they were protected by attorney-client privilege. Opposing counsel for
the attorney then moved to compel respondent’s client to respond to discovery,
stating, “Defendants’ Second Request for Production simply asks the Plaintiff to
produce the documents that confirm the sort of expenses [the plaintiff] has already
testified to” and that “the Court has already ruled [are] not privileged.”
Respondent then filed a motion for a protective order.
{¶ 61} A month later, opposing counsel served a third set of requests for
production of documents, which respondent responded to with another motion for
a protective order. In an entry dated December 8, 2004, the judge granted the
motion to compel and denied respondent’s motions for protective order, but
invited respondent’s client to comply with the discovery requests by submitting
the requested documents to the court for an in camera inspection. Respondent
instead filed a notice of appeal to the Eighth District Court of Appeals. The court
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of appeals affirmed the trial court, rejecting respondent’s argument that “all
documents relating to fee agreements, billing, and/or attorney fees paid” are
privileged. Muehrcke v. Housel, 8th Dist. Nos. 85643 and 85644, 2005-Ohio-
5440, ¶ 1 and 17. The court of appeals also pointed out that respondent had made
a “blanket assertion of privilege without so much as requesting an in camera
inspection.” Id. at ¶ 20. A request for discretionary review by this court was
denied. 108 Ohio St. 3d 1489, 2006-Ohio-962, 843 N.E.2d 795.
{¶ 62} Once appeals were exhausted, opposing counsel again asked for
the production of all documents previously requested, which the courts had now
ordered respondent’s client to produce, including the fee bills from respondent’s
firm. Eventually, on May 17, 2006, respondent produced documents, but the
documents produced did not include any attorney-fee bills, prompting opposing
counsel to renew the attorney’s motion to dismiss and for other sanctions.
{¶ 63} In May 2006, respondent disclosed that no fee bills had ever been
sent by his firm to his client pertaining to the malpractice action or to the
underlying probate proceedings. On May 30, 2006, an associate from
respondent’s law firm sent a letter to the judge, attaching attorney-fee bills that
had been sent to the client. One bill, dated May 30, 2006, was from respondent’s
firm, and all others came from other firms that had represented the client during
probate proceedings. The judge turned the fee bills over to opposing counsel.
Opposing counsel then sought sanctions on the ground that respondent’s client
had failed to disclose that no fee bills from respondent’s firm had existed,
notwithstanding the privilege claims. The trial court never ruled on that motion.
{¶ 64} The jury in the attorney-malpractice case returned a verdict in
favor of respondent’s client. The court of appeals vacated the judgment but
refused to reverse the trial court’s implicit decision not to sanction respondent’s
client for frivolous conduct with respect to the fee bills claimed to be privileged.
Muehrcke v. Housel, 181 Ohio App. 3d 361, 2008-Ohio-4445, 909 N.E.2d 135.
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{¶ 65} The board found that respondent had made misrepresentations
during the discovery process, specifically in the way he described the documents
his firm was refusing to produce on privilege grounds. This misleading conduct
caused opposing counsel to reasonably believe that respondent’s firm had actually
sent fee bills to its client in the pertinent matters.
{¶ 66} Upon review of this matter, the board determined that respondent
“did not fulfill his duty of candor toward the trial court or the court of appeals.”
The board stated that even though respondent knew “full well that [Stafford &
Stafford] had never sent written fee bills to [the client] for work done on the
malpractice action, Stafford & Stafford nevertheless implied in court filings that
they had in fact sent such bills to [the client].” As a result, the board found that
respondent’s lack of candor warranted a finding that he had violated DR 1-
102(A)(5) and 1-102(A)(6). The board based these findings on respondent’s
failure to candidly dispel misimpressions created by his firm’s misleading court
filings.
D. Objections to Count II
{¶ 67} Relator objects to the board’s findings that the additional violations
charged under this count against respondent were not proved by clear and
convincing evidence, an argument we reject. Respondent objects to the board’s
findings, advancing similar arguments to those he asserted for Count I. He argues
primarily that he had a good-faith basis for raising arguments of privilege,
because those privilege arguments were part of a legal strategy that was bolstered
by at least some viable support. Respondent’s other objections are centered on
what he perceives as the lack of clear and convincing evidence to support the
misconduct findings. Respondent’s arguments are without merit for two reasons.
{¶ 68} First, the record belies respondent’s good-faith argument. As
determined by the panel and board: “[T]he common thread running through
[respondent’s] violations is respondent’s palpable indifference to discovery
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directed at his clients. In each instance, had respondent been even slightly more
forthcoming in responding to the discovery * * * he could have spared the courts,
his opposing counsel and their clients, and his own clients needless controversy,
time, and expense.” Second, because the panel was in the best position to assess
the credibility of the witness testimony and rejected respondent’s testimony that
he did not intentionally mislead opposing counsel, we defer to that determination.
See Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St. 3d 164, 2006-Ohio-550, 842
N.E.2d 35, ¶ 24 (“Unless 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”).
{¶ 69} After reviewing the record, we overrule both parties’ objections,
and instead accept the board’s assessment of the evidence and its findings of fact
and conclusions of law on this count. Courts cannot function properly unless the
lawyers practicing before them observe their duties of candor. See Disciplinary
Counsel v. Rohrer, 124 Ohio St. 3d 65, 2009-Ohio-5930, 919 N.E.2d 180;
Cincinnati Bar Assn. v. Nienaber (1997), 80 Ohio St. 3d 534, 687 N.E.2d 678. In
this circumstance, respondent did not fulfill his duty of candor toward the trial
court or the court of appeals. He could have done so easily, with no prejudice to
his client, and could have spared the courts and his own client almost two years of
costly litigation.
II. Sanction
{¶ 70} 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
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Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary
case is unique, we are not limited to the factors specified in the rule but may take
into account “all relevant factors” in determining what sanction to impose.
BCGD Proc.Reg. 10(B).
A. Aggravating and Mitigating Factors
{¶ 71} The board found a number of aggravating factors weighing in
favor of a more severe sanction. First, the board found that respondent had
committed multiple offenses that were part of a pattern of delaying the discovery
process. See BCGD Proc.Reg. 10(B)(1)(c) and (d). The board further found that
this disregard of discovery was done to gain a tactical advantage, which suggests
a selfish motive, another aggravating factor. BCGD Proc.Reg. 10(B)(1)(b).
{¶ 72} The board also found that respondent had been disciplined
previously, also an aggravating factor. BCDG Proc.Reg. 10(B)(1)(a).
Respondent received a public reprimand for calling another lawyer an obscene
name while the attorneys were in a magistrate’s chambers and then continuing to
yell at the other attorney after entering the courtroom (a violation of DR 7-
106(C)(6): in appearing in a professional capacity, a lawyer shall not engage in
undignified or discourteous conduct that is degrading to a tribunal). Cuyahoga
Cty. Bar Assn. v. Gonzalez, 89 Ohio St. 3d 470, 733 N.E.2d 587. In reviewing
respondent’s previous offense, the board found commonality between that offense
and the instant violations, which is another aggravating factor to justify
enhancement of the sanction. The board noted that his conduct since his public
reprimand shows that he remains “insufficiently mindful and respectful of his
distinct role as an officer of the court.”
{¶ 73} As a final aggravating factor, the board found that respondent
periodically displayed disrespect for assistant disciplinary counsel throughout the
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course of the 22-day hearing. It stated that respondent’s conduct evinced an
unwarranted disrespect for a fellow officer of the court.
{¶ 74} In evaluating whether there were mitigating factors weighing in
favor of a less severe sanction, the board noted that respondent did not formally
present evidence of mitigating factors, nor did relator. Instead, the panel observed
that over the course of over 22 days of hearings, under intense pressure,
respondent behaved “appropriately.” The board, however, found it impossible to
credit respondent with a cooperative attitude toward the proceeding because of the
personal criticisms of assistant disciplinary counsel noted above.
B. Choice of Sanction
{¶ 75} In considering its sanction, the board pointed to three disciplinary
cases that involved attorneys whose responses to discovery directed at their
clients showed indifference or a lack of candor, as opposed to neglect. In
Cincinnati Bar Assn. v. Wallace (1998), 83 Ohio St. 3d 496, 700 N.E.2d 1238, the
attorney received a public reprimand for engaging in conduct that adversely
reflected on her fitness to practice law. At her client’s request, to thwart any
effort by his ex-wife to collect past-due child support by placing a lien on his
home, the attorney had prepared a quitclaim deed on the property to his wife.
Before the deed was executed, the attorney received interrogatories asking for the
address of any real property owned by her client and gave them to her client on
the same day that he signed the quitclaim deed. The client returned the
interrogatories to his attorney several weeks after the deed was recorded. Upon
noticing that the question regarding real property had been left blank, the attorney
was told by her client to write “none” as a response, which she did. The
interrogatories were returned to opposing counsel unsigned. We held that the
attorney had committed misconduct for not disclosing what she knew to opposing
counsel. Id. at 500. We also agreed with the panel’s finding that her conduct had
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not obstructed the discovery process, because the answer was technically true at
the time it was made. Id. at 498.
{¶ 76} In Marsick, 81 Ohio St. 3d 551, 692 N.E.2d 991, the attorney
represented a truck driver who had hit a parked car, killing a passenger and
injuring its driver. The attorney repeatedly failed to reveal in discovery responses
a tow-truck driver's statement that the truck driver admitted at the scene that he
had dozed off while he was driving. The attorney had maintained his silence even
when the truck driver testified at his deposition and at trial that he had swerved to
avoid a deer. The jury found the truck driver less than 100 percent responsible,
and the judgment was affirmed on appeal. After the attorney revealed the truth
during subsequent proceedings on a contribution claim, the judgment was
vacated. That attorney, who had no prior disciplinary history, received a six-
month actual suspension for this violation. Id. at 553.
{¶ 77} In Columbus Bar Assn. v. Finneran (1997), 80 Ohio St. 3d 428, 687
N.E.2d 405, the attorney flouted his discovery obligations for purposes of
delaying the proceedings in multiple cases, even going so far as to dismiss and
refile those cases. We stated that the attorney's "tactics of evasion and delay"
reflected "a strategy out of keeping with the purpose and intent of our system of
orderly procedures." Id. at 431. "Dilatory practices bring the administration of
justice into disrepute." Id. For this conduct, as well as his lack of cooperation in
the disciplinary process, that attorney was suspended indefinitely.
{¶ 78} Relying upon these cases, and noting that respondent’s conduct
occurred over several years and involved more than one case, relator asks this
court to impose an 18-month actual suspension from the practice of law.
Respondent, citing case law, asks the court to sustain his objections and dismiss
relator’s complaint in its entirety, with costs taxed to relator.
{¶ 79} The board has adopted the recommendation of the panel and
recommends that respondent be suspended from the practice of law for 18
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months, with 12 months of the suspension stayed on conditions. Respondent
challenges this recommendation as being contrary to the purpose of attorney-
discipline proceedings. He also challenges the use of his prior disciplinary history
as an aggravating factor, and he argues that the recommended sanction is punitive
and contrary to law. Having carefully considered each of these arguments, we
conclude that the board’s findings are amply supported by the record.
Accordingly, we overrule respondent’s objections and accept the findings of the
panel and board with regard to the aggravating and mitigating factors present in
this case.
{¶ 80} Respondent also objects to the board’s reliance upon Wallace,
Marsick, and Finneran and suggests that his conduct is more akin to that of the
attorneys in other cases: Toledo Bar Assn. v. Rust, 124 Ohio St. 3d 305, 2010-
Ohio-170, 921 N.E.2d 1056 (count was dismissed because the attorney initiated
an action in good faith and had an “arguable basis in law and fact that was not
frivolous for filing the claim,” id. at ¶ 2); Findlay/Hancock Cty. Bar Assn. v.
Filkins (2000), 90 Ohio St. 3d 1, 734 N.E.2d 764 (misconduct was not established
by clear and convincing evidence, despite the board’s findings).
{¶ 81} The cases cited by respondent, however, addressed single incidents
of misconduct that this court held had not been proved. In contrast, we find that
respondent engaged in multiple incidents of misconduct that occurred in two
cases spanning several years. Respondent has obstructed and delayed discovery
as well as displayed a marked lack of candor. His evident contempt for the
discovery process and his lack of respect for other officers of the court
demonstrate a profound disrespect for the legal profession.
{¶ 82} Based upon the foregoing, we agree with the board that
“respondent’s obstructive behavior and lack of candor * * * were just as
disruptive to the administration of justice as outright misrepresentations would
have been” and that “his conduct warrants a sanction tantamount to that mandated
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for misrepresentations, actual suspension.” We disagree, however, with the
length of the actual suspension. Although respondent’s conduct is worse than the
conduct that warranted a public reprimand in the Wallace case, it does not rise to
the level of warranting an indefinite suspension, as did the conduct in Finneran.
We find that an 18-month suspension with six months stayed is appropriate.
{¶ 83} We emphasize that respondent is not subjected to sanction here
because he is a zealous advocate on behalf of clients in the Cuyahoga County
Domestic Relations Division of the Cuyahoga County Court of Common Pleas. It
is that his lack of candor, his disrespect and discourtesy to fellow officers of the
court, and his dilatory discovery tactics are unprofessional and interfere with the
orderly administration of justice. As we said in Disciplinary Counsel v. Trumbo
(1996), 76 Ohio St. 3d 369, 373, 667 N.E.2d 1186, “respect for the law and our
legal system is the sine qua non of [the] right to continuance on the rolls” of those
admitted to practice law in Ohio.
{¶ 84} Upon our independent review of the evidence, we hold that the
appropriate sanction for respondent’s misconduct is suspension from the practice
of law for 18 months, with six months of the suspension stayed. We do not agree
with the board’s recommendation for monitoring during the suspension period,
but if respondent engages in further misconduct during the stayed portion of his
suspension, the stay will be lifted, and respondent will serve the entire 18 months
as an actual suspension. Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,
and MCGEE BROWN, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, Chief
Assistant Disciplinary Counsel, for relator.
17
SUPREME COURT OF OHIO
Reminger Co., L.P.A., George S. Coakley, and John P. O’Neil, for
respondent.
______________________
18