End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Ohio Legal Ethics Narrative
The rules of professional conduct governing lawyers in Ohio are found in the Ohio Rules of Professional Conduct (OHRPC). The OHRPC is modeled on the ABA Model Rules, although it varies from the Model Rules in a number of respects. These differences are discussed in the Model Rule Comparison sections pertaining to each Rule. Unusual aspects of the OHRPC are discussed in section 0.1:104.
Like the Model Rules, the OHRPC contains rules and comments thereto, together with Preamble, Scope, and Terminology (Rule 1.0) sections.
Court opinions construing these rules arise (and, under the former Ohio Code of Professional Responsibility (OHCPR), have arisen) not only in disciplinary cases, but in other contexts as well, such as malpractice, contempt, disqualification, and ineffective assistance of counsel. Only Ohio Supreme Court opinions rendered in disciplinary cases provide authoritative interpretations of the OHRPC (and the former OHCPR). Nevertheless, opinions rendered in other contexts, while not directly on point, often provide important insights into the likely interpretation of the disciplinary provisions.
Ethics opinions applying the OHRPC (and the former OHCPR) to prospective or hypothetical situations are rendered by the Ohio Board of Commissioners on Grievances and Discipline, the Ohio State Bar Association, and numerous local bar associations. It is important to recognize that none of these opinions are binding; they are all advisory in nature. Nevertheless, an ethics opinion may be persuasive in determining the interests to be protected by the disciplinary rule at issue. See, e.g., Insituform of N. Am., Inc. v. Midwest Pipeliners, Inc., 139 F.R.D. 622 (S.D. Ohio 1991). Of the various ethics opinions available, those of the Board of Commissioners on Grievances and Discipline probably deserve the greatest weight, given that they are issued under authority expressly granted by the Ohio Supreme Court in Gov Bar R V 2(C).
In addition to the OHRPC, professional conduct of lawyers in Ohio is governed by the Ohio Supreme Court Rules for the Goverment of the Bar (Gov Bar R), including the Oath of Office attorneys take upon admission to the bar, Gov Bar R I 8(A), and various provisions of the Ohio Revised Code (ORC), particularly ORC 4705.01 (prohibitions regarding practice of law). The Governing Bar Rules are described in section 0.2:210.
To provide additional ethical guidance for lawyers in Ohio, in 1992 the Ohio Supreme Court established the Supreme Court Commission on Professionalism to address professionalism concerns. See Gov Bar R XV. In response to the Commission's work, the Court issued a Statement on Professionalism and adopted two documents: A Lawyer's Creed and A Lawyer's Aspirational Ideals. See Gov Bar R App. V. These documents are not intended to set additional disciplinary standards, but rather provide guidelines to promote professionalism in the bench and bar. Mandatory continuing legal education (CLE) related to professionalism, along with instruction on the OHRPC and substance abuse, is required of every Ohio lawyer authorized to practice. See Gov Bar R X 3(A)(1).
The Ohio Rules of Professional Conduct were adopted by the Ohio Supreme Court on July 1, 2006, effective February 1, 2007. The OHRPC is applicable in all disciplinary matters involving conduct occurring on or after the effective date. OHRPC Form of Citation, Effective Date, Application (b). For overviews of Ohio's adoption of the Rules, see John Mueller, Frank Quirk & Eugene P. Whetzel, New Ethics Rules: What Lawyers Need to Know, Ohio Law., Nov./Dec. 2006, at 9 (part I), and Ohio Law. Jan./Feb. 2007, at 12 (part II); Deborah A. Coleman, The New Ohio Ethics Rules, Clev. B.J., Oct. 2006, at 8.
The Ohio Code of Professional Responsibility, adopted effective October 5, 1970, and not the Rules, will continue to apply in all disciplinary matters involving conduct that occurred on or before January 31, 2007. OHRPC Form of Citation, Effective Date, Application (b). For a history of attorney regulation in Ohio from the 1700s to the early 1980s, see Thomas R. Swisher, Professional Responsibility in Ohio (1981).
Other than MR 3.2 (Expediting Litigation), 6.3 (Membership in Legal Services Organization), 6.4 (Law Reform Activities Affecting Client Interests), and 7.6 (Political Contributions to Obtain Legal Engagements or Appointments by Judges), which were not adopted, and MR 6.1 (Voluntary Pro Bono Publico Service), on which action was deferred, the OHRPC largely tracks the ABA Model Rules. Where it does not, the changes often reflect a retention of the substance of the analogous OHCPR provision. These differences are set forth below:
Ohio Rule 1.4(c), like former OH DR 1-104, requires notification to clients when a lawyer does not maintain malpractice insurance of at least $100,000 per occurrence and $300,000 in the aggregate. See section 1.4:500.
Ohio Rule 1.5(f), like former OH DR 2-107(B), provides that fee-division disputes between lawyers not in the same firm are to be resolved by mediation or arbitration provided by a local bar association or, if that is unsuccessful, the Ohio State Bar Association. See section 1.5:250.
Ohio Rule 1.8(c), like former OH DR 5-101(A)(2)-(3), prohibits lawyer involvement in the preparation, drafting, or execution of a will, codicil, inter vivos trust, or other instrument for a client if the instrument bestows any gift to the lawyer, his firm, or anyone in his firm or family, unless the recipient is related to the client. See section 1.8:400.
Ohio Rule 1.10(d), unlike MR 1.10, provides for screening in certain situations to cure imputed disqualification of other members of a law firm. The provision is adapted from Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998). See section 1.10:300. See also Marc L. Swartzbaugh, Where Does Ohio Stand on Screening as a Means of Avoiding Imputed Disqualification?, Clev BJ, Dec. 2006, 10.
Ohio Rule 1.13 recommends, but does not require, that a lawyer report to higher (or highest) authority within the organization before making disclosure permitted by Rule 1.6(b) or required by Rule 1.6(c). See Rule 1.13 cmt. . MR 1.13(c), (d), and (e) have been deleted from the Ohio Rule; Ohio Rule 1.13(c) states that the discretion or duty of a lawyer to reveal information outside the organization is governed by Rule 1.6(b) and (c). See section 1.13:300.
Ohio Rule 1.18 deletes MR cmt. , which permits a lawyer to agree with prospective clients, on informed consent, that information disclosed would not prevent the lawyer's representation of a different client in the matter and/or to the lawyer's use of information received from the prospective client. See section 1.18:200.
Ohio Rules 7.1 through 7.5, governing solicitation and advertising, diverge in a number of respects from the Model Rules. This is particularly so of Ohio Rule 7.3 ("Direct Contact with Prospective Clients"), which includes much of the material in former OH DR 2-101(F). See sections 7.1:100-7.5:500.
Ohio Rule 8.4(g), like former OH DR 1-102(B), treats as a disciplinary offense a lawyer's engaging, in a professional capacity, in conduct involving discrimination prohibited by law. See section 8.4:800.
Finally, in a number of instances, Ohio uses the term "illegal" instead of "criminal" as used in the Model Rules. See Ohio Rules 1.2(d), 1.6(b)(3), 1.16(b)(2), 4.1(b), and 8.4(b), and sections 1.2:600, 1.6:340, 1.16:320, 4.1:300, and 8.4:300, respectively. See also Brian F. Toohey, Ohio Goes Its Own Way on Misconduct Prohibition and Disclosure Obligations, Clev BJ, Mar. 2007, at 12.
In a series of cases from 1909 to 1958, the Ohio Supreme Court developed a theory of inherent authority to justify the primacy of the judiciary in the regulation of attorney conduct in Ohio. See In re Thatcher, 80 Ohio St. 492, 89 N.E. 39 (1909); In re McBride, 164 Ohio St. 419, 132 N.E.2d 113 (1956); Cleveland Bar Ass'n v. Pleasant, 167 Ohio St. 325, 148 N.E.2d 493 (1958); Mahoning County Bar Ass'n v. Franko, 168 Ohio St. 17, 151 N.E.2d 17 (1958). The import of these cases can be summarized as follows: The power to regulate lawyer admission to practice, conduct and discipline lies in the inherent authority of the judiciary. While the legislature may act in these areas, it can do so only as an aid to the judiciary, not in derogation of it.
In 1968, the Ohio Constitution was amended to explicitly recognize the Court's role. See Calhoun v. Supreme Court, 61 Ohio App.2d 1, 399 N.E.2d 559 (Franklin 1978) (discussing the intent of the amendments). Under these amendments the Ohio Supreme Court is granted original jurisdiction over "[a]dmission to the practice of law, the discipline of persons so admitted and all other matters relating to the practice of law." OH Const art IV, § 2(B)(1)(g). OH Const art IV, § 5(B) requires the Court to "make rules governing the admission to the practice of law and discipline of persons so admitted." The express authority to regulate the practice of law also includes the concomitant responsibility to control the unauthorized practice of law. See Henize v. Giles, 22 Ohio St.3d 213, 490 N.E.2d 585 (1986). Implicit authority is provided to assess attorney registration fees to be used in regulating the practice of law. Calhoun v. Supreme Court, 61 Ohio App.2d 1, 399 N.E.2d 559 (Franklin 1978). For a case recognizing the Supreme Court's exclusive jurisdiction in all such matters, see In re Estate of Robertson, 159 Ohio App.3d 297, 2004 Ohio 6509, 823 N.E.2d 904 (Mahoning) (probate court had no authority to impose 10% reduction in attorney-fee award as sanction for violation of DR 9-102). (In one disciplinary case, Disciplinary Counsel v. Scacchetti, 114 Ohio St.3d 36, 2007 Ohio 2713, 867 N.E.2d 830, the Supreme Court referred to action taken by a common pleas court in an underlying criminal prosecution against respondent. In granting respondent/defendant's motion for treatment in lieu of conviction, the trial court imposed, inter alia, an order that Scacchetti change his registration status to inactive for a two-year period, and the "Supreme Court Attorney Registration Section has changed respondent's status to inactive." Id. at para. 7. Such an order seems arguably at odds with the Supreme Court's exclusive jurisdiction in such matters.)
Pursuant to its rulemaking authority, the Court not only has adopted rules and codes of conduct to govern both lawyers and judges, but also has promulgated the Supreme Court Rules for the Government of the Bar of Ohio (Gov Bar R). The seventeen substantive Governing Bar Rules address the following topics:
Rule I [Gov Bar R I]- Admission to the Practice of Law (see section 8.1:200)
Rule III [Gov Bar R III] - Practice of Law - Firm Organization; Name; Ethics; Financial Responsibility
Rule V [Gov Bar R V] - Disciplinary Procedure (see section 0.2:240)
Rule VI [Gov Bar R VI] - Registration of Attorneys (see section 5.5:220)
Rule VII [Gov Bar R VII] - Unauthorized Practice of Law (see section 5.5:200)
Rule VIII [Gov Bar R VIII] - Client's Security Fund (see section 1.15:120)
Rule X [Gov Bar R X] - Attorney Continuing Legal Education (see section 1.1:200)
Rule XII [Gov Bar R XII] - Rules Advisory Committee
• Rule XIII [Gov Bar R XIII] - Funds for Dispute Resolution Programs
Rule XIV [Gov Bar R XIV] - Certification of Attorneys as Specialists (see section 7.4:200)
Rule XV [Gov Bar R XV] - Supreme Court Commission on Professionalism (see section 0.1:102)
Rule XVI [Gov Bar R XVI] - Supreme Court Committee for Lawyer Referral and Information Services (see section 7.3:500)
Rule XVII [Gov Bar R XVII] - Commission on Legal Education Opportunity
In light of both its inherent authority and constitutional mandate, the Ohio Supreme Court has jealously guarded its authority to regulate the bar from intrusion by the legislature. Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (1993), involved a statutory provision providing limited, rather than absolute, privilege for comments made in professional disciplinary proceedings; the Court construed the provision as applying to the disciplinary proceedings of other professionals, but not lawyers. Any other interpretation, the Court argued, would be unconstitutional as an invalid intrusion on the Court's authority. In Smith v. Kates, 46 Ohio St.2d 263, 348 N.E.2d 320 (1976), the Court, finding that it has the exclusive and absolute authority to structure the disciplinary process, declared unconstitutional a statute that purported to authorize the filing of original actions in the courts for the suspension, disbarment, or removal of attorneys and judges for ethical violations. While the Supreme Court has in the past found unconstitutional legislative authorization of lay representation in proceedings where such representation constitutes the practice of law, e.g., Cleveland Bar Ass'n v. Picklo, 96 Ohio St.3d 195, 2002 Ohio 3995, 772 N.E.2d 1187 (finding legislative authorization for landlord's agents to prosecute forcible entry and detainer actions an infringement on the Court's exclusive jurisdiction to define the practice of law), more recent decisions have upheld limited statutory exceptions to the general rule so long as the layperson is not authorized to engage in activities reserved exclusively for lawyers, such as cross examination, legal argument, and the like. E.g., Cleveland Bar Ass'n v. Pearlman, 106 Ohio St.3d 136, 2005 Ohio 4107, 832 N.E.2d 1193. See further discussion in section 5.5:210 at "Constitutionality of legislation empowering nonlawyers to practice law in certain limited circumstances."
Inasmuch as the power to regulate the legal profession lies in the Ohio Supreme Court, lower courts in Ohio have no direct role in the disciplinary process. The process established by the Supreme Court for the discipline of lawyers is exclusive and must be followed. Smith v. Kates, 46 Ohio St.2d 263, 348 N.E.2d 230 (1976). Furthermore, while lower courts have the authority to promulgate local rules, they cannot use that authority to establish enforceable standards of conduct for lawyers appearing before them that are analogous to the disciplinary rules. See Melling v. Stralka, 12 Ohio St.3d 105, 465 N.E.2d 857 (1984). Nor can lower courts disqualify particular lawyers from appearing before them as a general matter, rather than on a case-by-case basis. See, e.g., State ex rel. Buck v. Maloney, 102 Ohio St.3d 250, 2004 Ohio 2590, 809 N.E.2d 20 (writ of prohibition granted to prevent judge from barring appellant from practicing in probate court); Catholic Soc. Servs. v. Howard, 106 Ohio App.3d 615, 666 N.E.2d 658 (Cuyahoga 1995); State ex rel. Jones v. Stokes, 49 Ohio App.3d 136, 551 N.E.2d 220 (Cuyahoga 1989). Cf. In re Karasek, 119 Ohio App.3d 615, 695 N.E.2d 1209 (Montgomery 1997). But see the trial court order described in Disciplinary Counsel v. Scacchetti, discussed this section supra, requiring respondent/defendant to change his registration status from active to inactive.
The lower courts do play an indirect role in the disciplinary process, however, by regulating the conduct of lawyers appearing before them through the contempt power, disqualification for conflicts, and the like. See Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 510 N.E.2d 379 (1987) (lower court consideration of the former OHCPR in deciding a motion to disqualify does not infringe on the exclusive authority of the Ohio Supreme Court to discipline, but is instead preventing a potential disciplinary violation in the proper exercise of the trial court's inherent authority to regulate practice before it and to protect the integrity of its proceedings). The lower courts also play an indirect role where lawyer conduct is questioned through actions in tort (such as malpractice suits), contract (such as fee disputes), or in the criminal setting in claims of ineffective assistance of counsel. Further, all Ohio judges have a duty to cooperate in a variety of ways in the disciplinary process. See Ohio Code of Judicial Conduct [OH CJC] Canon 3(D); Gov Bar R V 4(G).
The Ohio Supreme Court's actions, in promulgating and enforcing the former OHCPR, have been found to qualify for state-action immunity from challenge under the Sherman Act as an unreasonable restraint of trade. See Berger v. Cuyahoga County Bar Ass'n, 983 F.2d 718 (6th Cir. 1993); see also Bates v. State Bar, 433 U.S. 350 (1977).
There are more than one hundred voluntary bar associations in Ohio. The first was the Franklin County Bar Association, formed in 1869. The Ohio State Bar Association was formed in 1880. Most of the bar associations in Ohio are county bar associations, although some larger cities, such as Akron, Cincinnati, Cleveland, Columbus, Dayton and Toledo, have their own bar associations. There also are specialty bar associations, such as the Ohio Academy of Trial Lawyers Association and the Ohio Municipal Attorneys Association. A number of minority bar associations are active in the state, as well, such as the Asian American Bar, the Black Lawyers Association, the John Mercer Langston Bar Association, the Norman S. Minor Bar Association, and the Ohio Hispanic Association. A complete list can be found in volume 1 of the Ohio Legal Directory, published annually by the Ohio State Bar Association.
The bar associations play a number of roles that relate to the regulation of lawyers in Ohio. Most are active in sponsoring continuing legal education programs, which help lawyers comply with their mandatory CLE obligations.
A few provide advice on ethical issues. Among those local bar associations which issue non-binding ethics opinions are the Cincinnati, Cleveland, Columbus and Toledo bar associations. The Ohio State Bar Association issues opinions as well. None of these opinions are as influential, however, as those issued by the Board of Commissioners on Grievances and Discipline, since those opinions are issued under authority expressly granted by the Ohio Supreme Court in Gov Bar R V 2(C).
The local bar associations also play a role in the disciplinary process. At the admissions stage, the Ohio Supreme Court utilizes the local bar associations to appoint admissions committees that investigate and report on the character, fitness, and moral qualifications of applicants for admission to the practice of law in Ohio. See Gov Bar R I 11. Local bar associations are authorized to form unauthorized-practice-of-law committees to investigate and report on unauthorized-practice-of-law activities, including the prosecution of complaints before the Board of Commissioners on the Unauthorized Practice of Law. See Gov Bar R VII 4-5. Upon meeting appropriate standards, the Ohio State Bar Association and local bar associations can establish certified grievance committees, which are authorized to investigate and prosecute allegations of misconduct or mental illness by Ohio judges or attorneys, as well as to adopt procedures for handling matters of client dissatisfaction that do not rise to the level of disciplinary violations. See Gov Bar R V 3(C).
The bar associations, particularly the Ohio State Bar Association, have also played an important role in suggesting changes in the disciplinary system to the Ohio Supreme Court. See, e.g., Supreme Court Action on Bell Comm'n Recommendations 1997 & 1998, 82 Ohio St.3d 1423 (1998).
This description of the disciplinary bodies in Ohio is excerpted and adapted from the work of Ruth Bope Dangel in Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 10.2-10.5 (1996).
Disciplinary bodies - In general: The Supreme Court carries out its duties with the assistance of three disciplinary bodies: the Disciplinary Counsel, the certified grievance committees of state and local bar associations, and the Board of Commissioners on Grievances and Discipline. The Disciplinary Counsel and the certified grievance committees are the investigatory and prosecutorial arms of the process. The Board is the adjudicatory and administrative arm of the process. The Supreme Court is the final authority in all disciplinary matters. These actors are immune from suit for monetary damages for official acts taken in carrying out the disciplinary process. See Berger v. Cuyahoga County Bar Ass'n, 983 F.2d 718 (6th Cir. 1993); see also Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982).
Problems concerning the unauthorized practice of law are the province of the Board of Commissioners on the Unauthorized Practice of Law. See Gov Bar R VII. Their work is described in section 5.5:200.
Disciplinary bodies - Board of Commissioners on Grievances and Discipline: The Board of Commissioners on Grievances and Discipline of the Supreme Court consists of twenty-eight members, including seventeen attorneys admitted to the practice of law in Ohio, seven active or retired judges, and four nonattorneys. See Gov Bar R V 1(A). The Board members are appointed by the Court to serve three-year terms or to fill vacancies. See Gov Bar R V 1(C)-(D). Each year, the Board elects an attorney or judge as chair and vice-chair, and meets in Columbus, Ohio at least six times during the year. See Gov Bar R V 1(E)-(F).
The Board's jurisdiction under Gov Bar R V is broad. Grievances involving alleged misconduct by justices, judges, or attorneys, proceedings regarding mental illness, disciplinary proceedings, and reinstatement proceedings are brought, conducted, and disposed of in accordance with Gov Bar R V. See Gov Bar R V 2(A).
The Board has power to receive evidence, preserve the record, make findings, and submit recommendations to the Supreme Court regarding: (1) complaints of misconduct alleged to have been committed by any judge, attorney, or person suspended or on probation from the practice of law; (2) complaints regarding mental illness of any judge or attorney; (3) petitions for reinstatement; and (4) conduct by a judge or attorney affecting a disciplinary proceeding where the acts constitute a contempt of the Supreme Court or a breach of the Rules for the Government of the Bar and the conduct did not take place in the presence of the Court, whether by willful disobedience of an order or judgment of the Court or Board, by interference with an officer of the Court in the prosecution of a duty, or otherwise. See Gov Bar R V 2(B).
The Board also issues informal, nonbinding, advisory opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct [as it did formerly with respect to the Code of Professional Responsibility], the Code of Judicial Conduct, or the Attorney's Oath of Office. See Gov Bar R V 2(C). Although the opinions are nonbinding, they may be persuasive. See, e.g., Insituform of N. Am., Inc. v. Midwest Pipeliners, Inc., 139 F.R.D. 622 (S.D. Ohio 1991); Am. Laundry Mach. v. Okamoto (In re Disqualification of Ney), 74 Ohio St.3d 1271, 74 N.E.2d 1367 (1995); State ex rel. Miller v. Mayer (In re Disqualification of DeWeese), 74 Ohio St.3d 1256, 657 N.E.2d 1357 (1994); Potts v. Schwartz (In re Disqualification of Burnside), 74 Ohio St.3d 1240, 657 N.E.2d 1346 (1992).
Disciplinary bodies - Disciplinary Counsel: The Disciplinary Counsel investigates allegations of misconduct by judges or attorneys, and allegations of mental illness affecting judges or attorneys, and initiates complaints as a result of its investigations. See Gov Bar R V 3(B). The Office of the Disciplinary Counsel is headed by the Disciplinary Counsel, who is an attorney appointed by the Board of Commissioners on Grievances and Discipline with the approval of the Supreme Court. The appointment is for a four-year term with removal by the Supreme Court for just cause only. See Gov Bar R V 3(B)(1). The Disciplinary Counsel appoints attorneys to serve as assistant disciplinary counsel. See Gov Bar R V 3(B)(2). Disciplinary Counsel also certifies bar counsel designated by certified grievance committees. Gov Bar R V 3(B). Funds for the operation of the Office of the Disciplinary Counsel are provided by the Attorney Registration Fund. See Gov Bar R V 3(D).
Disciplinary bodies - Certified grievance committees: Certified grievance committees of state and local bar associations are certified by the Board of Commissioners on Grievances and Discipline to investigate allegations of misconduct by judges or attorneys and allegations of mental illness of judges and attorneys, and to initiate complaints as a result of the investigations. See Gov Bar R V 3(C). With the exception of Cuyahoga County, there can be no more than one certified grievance committee per county. If multiple bar associations establish a joint certified grievance committee, membership on the committee shall be in proportion to the number of attorneys employed in the geographic area served by each bar association. Gov Bar R V 3(C). There are thirty-four certified grievance committees across the state. The certified grievance committees are as follows:
- Akron Bar Association
- Allen County Bar Association
- Ashtabula County Bar Association
- Belmont County Bar Association
- Butler County Bar Association
- Cincinnati Bar Association
- Clermont County Bar Association
- Cleveland Bar Association
- Columbiana County Bar Association
- Columbus Bar Association
- Cuyahoga County Bar Association
- Darke County Bar Association
- Dayton Bar Association
- Erie and Huron County Law Library and Bar Association
- Findlay/Hancock County Bar Association
- Geauga County Bar Association
- Greene County Bar Association
- Lake County Bar Association
- Lorain County Bar Association
- Mahoning County Bar Association
- Medina County Bar Association
- Miami County Bar Association
- Muskingum County Bar Association
- Northwestern Ohio Bar Association
- Ohio State Bar Association
- Portage County Bar Association
- Portsmouth Bar and Law Library Association
- Richland County Bar Association
- Stark County Bar Association
- Toledo Bar Association
- Trumbull County Bar Association
- Warren County Bar Association
- Wayne County Bar Association
- Wood County Bar Association
To obtain and retain certification, each committee must maintain specific standards. Each committee must consist of no fewer than fifteen members, must meet at least every third month, must maintain a full-time office staffed by a minimum of one full-time employee, must designate bar counsel, certified by Disciplinary Counsel, to supervise the receipt, investigation and prosecution of grievances, must maintain permanent files and records, must be sufficiently funded by the bar association to perform its duties, must establish written procedures, and must file written procedures and quarterly reports with the Board. See Gov Bar R V 3(C)(1). The Board may decertify a committee that fails to maintain the minimum standards. See Gov Bar R V 3(C)(5).
The majority of the certified grievance committee members are attorneys admitted to the practice of law in Ohio, but, as of January 1, 2000, at least three members, or ten percent of the committee, whichever is greater, must be nonattorneys. See Gov Bar R V 3(C)(1)(a). Attorneys with "inactive" or "retired" registration status may serve as attorney members of certified grievance committees of bar associations provided they perform the same or similar functions as the lay members of the committee. See Bd. of Comm'rs on Grievances & Discipline Op. 92-4, 1992 Ohio Griev. Discip. LEXIS 17 (Feb. 14, 1992). All committee members are volunteers.
The attorney members are often engaged in the private practice of law during their term on the committee. An attorney member may not privately represent another attorney in a disciplinary matter being investigated or prosecuted by the certified grievance committee on which the attorney serves. An attorney member may privately represent an attorney being investigated or prosecuted by a certified grievance committee of a different bar association or by the Disciplinary Counsel. See Bd. of Comm'rs on Grievances & Discipline Op. 93-6, 1993 1993 Ohio Griev. Discip. LEXIS 6 (Aug. 13, 1993).
This description of the disciplinary process in Ohio is excerpted and adapted from the work of Ruth Bope Dangel in Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 10.1, 10.6-10.43 (1996).
Disciplinary process - An overview: Ohio lawyers are subject to discipline if they are ultimately found, by clear and convincing evidence, to have violated any provision of the oath of office taken upon admission to the practice of law in this state, the Code of Professional Responsibility (for conduct occurring prior to February 1, 2007), the Rules of Professional Conduct (for conduct occurring on or after February 1, 2007), the Code of Judicial Conduct, the Rules for the Government of the Bar, or the terms of an order imposing probation or a suspension from the practice of law. See Gov Bar R V 6(A)(1). Special provisions allow for interim suspensions for a felony conviction or default under a child support order, interim remedial suspensions, mental illness suspensions and reciprocal discipline. See Gov Bar R V 5, 5a, 7, 11(F).
Gov Bar R V sets forth Ohio's disciplinary procedure. The Rule regulates disciplinary matters from the first filing of a grievance, through investigation and prosecution, to imposition, if any, of sanctions. Disciplinary proceedings may be instituted only in accordance with Gov Bar R V. See Smith v. Kates, 46 Ohio St.2d 263, 348 N.E.2d 320 (1976). Once the disciplinary process has begun, invocation of the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), usually will forestall successful recourse to federal court to enjoin the process before completion. See Berger v. Cuyahoga County Bar Ass'n, 983 F.2d 718 (6th Cir. 1993); O'Neill v. Battisti, 472 F.2d 789 (6th Cir. 1972) (issuing mandamus to prevent federal district judge from interfering in Ohio Supreme Court disciplinary proceeding against state court judge); see also Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982). An attorney's filing for bankruptcy does not warrant an automatic stay of the disciplinary proceeding under § 362 of the Bankruptcy Act, see 11 U.S.C. § 362(b)(4) (2000). See Cuyahoga County Bar Ass'n v. Okocha, 83 Ohio St.3d 3, 697 N.E.2d 594 (1998) (decided under the substantively identical language of the section as set forth in 11 U.S.C. § 362(b)(4) (1994 & Supp. III 1997)).
The procedure for a disciplinary action can be broken down into six basic steps: (1) the grievance; (2) the investigation; (3) the complaint; (4) the panel hearing; (5) the Board recommendation; and (6) the Supreme Court order. The process and its procedures are intended to be as summary as possible. See Gov Bar R V 11(D). The Ohio Rules of Civil Procedure and the Ohio Rules of Evidence are followed whenever practicable, unless a specific provision of the rule or procedures and guidelines issued by the Board provide otherwise. See Gov Bar R V 11(A); Board of Commissioners on Grievances and Discipline Procedural Regulation (BCGD Proc Reg) 3(A).
Overall, Gov Bar R V is to be construed liberally for the protection of the public, the courts, and the legal profession. See Gov Bar R V 11(D). Only prejudicial irregularities or errors resulting in a miscarriage of justice warrant invalidation of a proceeding conducted under the Rule. See id.
Disciplinary proceedings are neither civil nor criminal, but are instituted to safeguard the courts and to protect the public from misconduct by those licensed to practice law. See Ohio State Bar Ass'n v. Illman, 45 Ohio St.2d 159, 342 N.E.2d 688 (1976); Ohio State Bar Ass'n v. Weaver, 41 Ohio St.2d 97, 322 N.E.2d 665 (1975). But cf. In re Ruffalo, 391 U.S. 961 (1968) (describing the lawyer disciplinary process as quasi-criminal). Nevertheless, it is clear that some level of procedural due process must be afforded.
"The purpose of disciplinary actions is to protect the public interest and to ensure that members of the bar are competent to practice a profession imbued with the public trust." Fred Siegel Co., LPA v. Arter & Hadden, 85 Ohio St.3d 171, 178, 707 N.E.2d 853, 859 (1999); Office of Disciplinary Counsel v. Trumbo, 76 Ohio St.3d 369, 669 N.E.2d 1186 (1996). The focus is not to provide redress to individuals injured by an attorney's conduct; that is the province of the substantive law. Because of the difference in focus, a violation of a disciplinary rule need not, in itself, create a private cause of action. See Fred Siegel Co., 85 Ohio St.3d 171, 707 N.E.2d 853 (violation of disciplinary rules does not automatically create cause of action in tort).
Disciplinary proceedings - Private and public stages: The disciplinary process has both private and public stages. All deliberations, proceedings, and documents relating to review and investigation of a grievance are private unless the respondent makes a written request that the information be made public or voluntarily waives the privacy of the proceedings. See Gov Bar R V 11(E)(1)(a)-(b). See Everage v. Elk, 159 Ohio App.3d 220, 2004 Ohio 6186, 823 N.E.2d 516 (reversing in malpractice case trial court order to produce documents relating to uncertified grievances; applying Gov Bar R V 11(E)). The respondent's right to privacy and confidentiality provided by Gov Bar R V is not waived by furnishing the grievant with the respondent's reply to the grievance. See Gov Bar R V 11(E)(3). Public revelation by the grievant, if an attorney, that a grievance has been filed may violate the rule, although discussion of the underlying facts apparently would not. See Bd. of Comm'rs on Grievances & Discipline Op. 98-2, 1998 Ohio Griev. Discip. LEXIS 8 (Apr. 3, 1998).
Before taking office, all members and employees of the Board, all members of any certified grievance committee, the disciplinary counsel, and all employees of the Office of Disciplinary Counsel swear or affirm that they will protect the privacy of the proceedings and documents and the confidentiality of the deliberations relating thereto. See Gov Bar R V 11(E)(4). There are recognized exceptions, however. A member of a certified grievance committee may share information about an attorney's addiction or substance abuse with members of recognized assistance committees. See Gov Bar R V 11(E)(1)(c); see also Bd. of Comm'rs on Grievances & Discipline Op. 90-19, 1990 Ohio Griev. Discip. LEXIS 7 (Aug. 17, 1990). Where appropriate, information may be shared with the Board of Commissioners of the Clients' Security Fund. See Gov Bar R V 4(F). Members of a certified grievance committee have a duty to inform law enforcement officials of an attorney's criminal activity when the evidence is uncovered during an investigation. Bd. of Comm'rs on Grievances & Discipline Op. 86-001, 1987 Ohio Griev. Discip. LEXIS 29 (May 5, 1987). If subpoenaed, a member of a certified grievance committee must appear before a county grand jury and testify. In re Klausmeyer, 24 Ohio St.2d 143, 265 N.E.2d 275 (1970).
Once a complaint is certified to the Board by a probable cause panel, the formal complaint and all subsequent proceedings in connection with the formal complaint are public. All deliberations remain confidential (Everage supra at ¶ 98) however, and the ultimate recommendations of the Board are private until filed with the Supreme Court of Ohio. See Gov Bar R V 11(E)(2)(a)-(b); see also Gov Bar R V 11(E)(2)(c)(i)-(ii) (defining the terms "private" and "confidential").
Disciplinary proceedings - Duty to cooperate: Any justice, judge, or attorney may be called on to assist in an investigation or to testify in a hearing before the Board or a panel, including mediation and ADR proceedings, as to any matter that he or she would not be bound to claim as privileged as an attorney. See Gov Bar R V 4(G). A justice, judge, or attorney shall not neglect or refuse to assist or testify in an investigation or hearing. See id.; Ohio Code of Judicial Conduct (OH CJC) Canon 3(D)(3). If any person subpoenaed as a witness neglects or refuses to obey a subpoena, to attend, to be sworn or to affirm, or to answer any proper question, the failure is considered a contempt of the Supreme Court and may be punished accordingly. See Gov Bar R V 11(C).
An attorney who is the subject of an investigation may be disciplined for failure to cooperate with the investigation, even when the underlying disciplinary complaints are dismissed. E.g.,Cleveland Bar Ass'n v. James, 109 Ohio St.3d 310, 2006 Ohio 2424, 847 N.E.2d 438; Lake County Bar Ass'n v. Vala, 82 Ohio St.3d 57, 693 N.E.2d 1083 (1998); Cuyahoga County Bar Ass'n v. Dyck, 59 Ohio St.3d 68, 570 N.E.2d 1105 (1991). If an underlying violation is found, failure to cooperate can be treated as an aggravating factor in deciding on an appropriate sanction. E.g., Akron Bar Ass'n v. Pringle, 75 Ohio St.3d 242, 661 N.E.2d 1107 (1996). Similarly, if the attorney attempts to conceal his wrongdoing in order to mislead those in the disciplinary process, additional sanctions will be levied. Butler County Bar Ass'n v. Derivan, 81 Ohio St.3d 300, 691 N.E.2d 256 (1998) (lawyer who created false document in attempt to exonerate himself from charges that he negligently failed to file client's claim within statute of limitations given six-month suspension rather than public reprimand recommended by Board).
Disciplinary proceedings - Subpoena power: Subpoenas may be issued in accordance with the requirements of BCGD Proc Reg 7 to cause testimony to be taken under oath in disciplinary investigations and proceedings. A motion to quash the subpoena also may be filed. Id. For an extensive discussion of the breadth and limits of the subpoena power in an analogous setting, see Cincinnati Bar Ass'n v. Adjustment Serv. Corp., 89 Ohio St.3d 385, 732 N.E.2d 362 (2000) (addressing subpoena power of the Board of Commissioners on the Unauthorized Practice of Law).
Filing a grievance: The first step in the disciplinary process is the timely filing of a grievance. Disciplinary proceedings are not subject to general statutes of limitations. Columbus Bar Ass'n v. Teaford, 6 Ohio St.2d 253, 217 N.E.2d 872 (1966); Mines v. Phillips, 37 Ohio App.3d 121, 524 N.E.2d 200 (Trumbull 1987). As a consequence, past conduct of some vintage may still form the basis of a grievance. See, e.g., Office of Disciplinary Counsel v. Talbert, 71 Ohio St.3d 438, 644 N.E.2d 310 (1994) (fourteen-year old claim considered in disciplinary proceeding). Nevertheless, there is some indication in the case law that delay in filing a grievance may, at some point, lead to such a delayed consideration of charges as to undercut fundamental fairness. See Ohio State Bar Ass'n v. Sacher, 8 Ohio St.3d 49, 457 N.E.2d 815 (1983); Columbus Bar Ass'n v. Teaford, 6 Ohio St.2d 253, 217 N.E.2d 872 (1966). Moreover, the Court held in Office of Disciplinary Counsel v. Lawlor, 92 Ohio St.3d 406, 407, 750 N.E.2d 1107, 1109 (2001), that although the lawyer's conduct (felony conviction for conversion of funds of corporation of which he was treasurer) "would alone warrant disbarment" and there was no evidence that his right to a fair hearing was violated, a four-year delay in bringing a disciplinary action based on the felony conviction caused the Supreme Court to "believe that some mitigation of the penalty is appropriate because of the delay." As a result, the Court accepted the Board's recommendation of indefinite suspension, with no reinstatement possible until respondent has made full restitution to the corporation.
In Ohio, a grievance may be filed with and investigated by either the Office of Disciplinary Counsel or a certified grievance committee of a bar association. See Gov Bar R V 3(B)-(C). For an action filed with a certified grievance committee, the committee should have in place a method to notify the grievant of the option to file a complaint with the Disciplinary Counsel. Gov Bar R V 3(C)(1)(f). Further, a certified grievance committee does not have the authority to investigate grievances filed against attorneys who are members of the committee. Gov Bar R V 3(C). On occasion, individuals will direct their grievances to the Board of Commissioners on Grievances and Discipline, rather than to an investigatory body. These grievances are redirected either to a certified grievance committee or to the Disciplinary Counsel. See Gov Bar R V 4(A).
Those who file grievances need not fear retaliation in a defamation action. Statements made by an individual in the course of an attorney disciplinary proceeding, including a complaint filed with a grievance committee, are granted an absolute privilege against civil liability, as long as the statement bears some reasonable relation to the proceeding. Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (1993). Pursuit of a defamation action by an attorney under these circumstances may itself warrant discipline. Columbus Bar Ass'n v. Elsass, 86 Ohio St.3d 195, N.E.2d 421 (1999).
There is no express requirement in Gov Bar R V that a grievance be made in writing. Nevertheless, it is generally the policy of the investigatory bodies to require a grievance to be submitted in writing. Upon the filing of a written grievance, the investigation begins.
Notice to the attorney: Gov Bar R V 4(I)(2) provides that no investigation should be completed or complaint filed without first giving the attorney notice of each allegation of wrongdoing and a chance to respond. Service is to be made either personally or by certified mail. See BCGD Proc Reg 4. If the attorney cannot be found, service may be made on the Clerk of the Supreme Court who serves as the attorney's agent for service of process. See Gov Bar R V 11(B). An attorney registered for active status is required under Gov Bar R VI 1(D) to keep his or her current residence and office address on file with the Office of Attorney Registration and CLE. Failure by the attorney to do so, necessitating service on the Clerk of the Court, waives any complaint about the lack of actual notice. See Toledo Bar Ass'n v. Wood, 32 Ohio St.3d 166, 441 N.E.2d 570 (1987). Such a regime has been found to comport with procedural due process. Columbus Bar Ass'n v. Gross, 2 Ohio St.3d 5, 512 N.E.2d 671 (1982). (Inactive lawyers, while not obligated to file the biennial certificate of registration, must still keep his or her current address[es] on file with the Attorney Registration and CLE Office. See Gov Bar R VI 2(B).)
Investigation - Authority to investigate: Grievances can be filed with either the Office of Disciplinary Counsel or a certified grievance committee. The body that receives it is initially responsible for its investigation. See Gov Bar R V 4(C). A certified grievance committee may, if needed, request assistance from the Disciplinary Counsel when a matter is sufficiently serious and complex to require assistance. In such instances, the Office of the Disciplinary Counsel will investigate the matter and report the results to the committee requesting assistance. See Gov Bar R V 4(B). If a certified grievance committee has a conflict of interest in investigating an attorney, the investigation will be referred to the Office of Disciplinary Counsel. If the Office of Disciplinary Counsel has a conflict of interest in investigating an attorney, the investigation will be referred to an appropriate certified grievance committee.
Investigation - Time frame: Investigations proceed along a specified time frame. An investigation is to be concluded within sixty days from the date of the receipt of the grievance, and a decision as to the disposition of the grievance made within thirty days after the conclusion of the investigation. Gov Bar R V 4(D).
Extensions of time to complete an investigation may be granted by the Secretary of the Board of Commissioners on Grievances and Discipline for good cause upon written request of the investigative body. See Gov Bar R V 4(D)(1). When an extension is granted, the investigation is to be completed within 150 days from the date of receipt of the grievance. See id. Gov Bar R V 4(D)(1) expressly permits extensions of time in grievances involving fee disputes, when the parties voluntarily agree to enter an alternative dispute resolution process sponsored by a bar association. Additional extensions beyond 150 days may be granted by the chair or Secretary of the Board in the event of pending litigation, appeals, unusually complex investigations including the investigation of multiple grievances, time delays in obtaining evidence or testimony of witnesses, or for other good cause shown. See Gov Bar R V 4(D)(2).
When an investigation is not concluded within the 150-day extension or within the good cause extension of that time, the Secretary may refer the matter either to the Disciplinary Counsel or to a geographically appropriate certified grievance committee. Upon such referral, the investigation is to be completed within sixty days. See id.
No investigation shall be extended beyond one year from the date of the filing of the grievance. See id. Investigations extending beyond one year from the date of filing are deemed prima facie evidence of unreasonable delay. See Gov Bar R V 4(D)(3). The time limits are not jurisdictional, however, and no grievance shall be dismissed unless there has been unreasonable delay and the rights of the attorney to a fair hearing have been violated. See Disciplinary Counsel v. Johnson, 113 Ohio St.3d 344, 2007 Ohio 2074, 865 N.E.2d 873; Akron Bar Ass'n v. Holder, 112 Ohio St.3d 90, 2006 Ohio 6506, 858 N.E.2d 356; Columbus Bar Ass'n v. Ewing, 75 Ohio St.3d 244, 661 N.E.2d 1109 (1996); Ohio State Bar Ass'n v. Sacher, 8 Ohio St.3d 49, 457 N.E.2d 815 (1983). Time limits are not analogous to a speedy trial statute or a statute of limitations, but instead are intended to protect the public from further misconduct that may occur during a prolonged investigation. See Sacher supra. In Cleveland Bar Ass'n v. Mallin, 86 Ohio St.3d 310, 715 N.E.2d 122 (1999), the Court found a nine-year delay between the filing of the grievance and the filing of the complaint with the Board to be unreasonable and prejudicial where the memories of witnesses had grown stale and certain court records were no longer readily available. Compare Office of Disciplinary Counsel v. Conese, 96 Ohio St.3d 458, 2002 Ohio 4797, 776 N.E.2d 13 (investigation took one year and eight months, which is prima facie evidence of unreasonable delay under Gov Bar R V 4(D)(3), but Court found that respondent was not prejudiced: "respondent's inability to explain his actions resulted not from the passage of time but from his failure to maintain the required records of his client's funds." Id. at para. 10.). Accord Disciplinary Counsel v. Johnson supra (respondent's arguments based on investigation extending more than one year from date of filing of grievance rejected; "none of the time limits set forth in the rule are jurisdictional, and the rule requires prejudice in addition to unreasonable delay for dismissal. We see no prejudice to respondent's defense." Id. at para. 78.). Akron Bar Ass'n v. Holder supra (investigation lasted longer than one year but "record contains no evidence of prejudice to respondent's right to be heard," 112 Ohio St.3d 90, 858 N.E.2d 356, at para. 11; respondent's offer to resign from practice rejected and permanent disbarment imposed instead). See also Cincinnati Bar Ass'n v. Schwartz, 98 Ohio St.3d 438, 2003 Ohio 1635, 786 N.E.2d 866, where two of the grievances stemmed from conduct more than 30 years old. Perhaps the Court did not feel it necessary to speak to the delay because of the egregiousness of respondent's conduct with respect to multiple clients and because the misconduct pertaining to the two earlier incidents continued into the years 1999 and 2001 respectively. Respondent was disbarred for, inter alia, "knowingly convert[ing] client funds," id. at para. 15.
Investigation - Outside experts; procedural questions: The services of an independent investigator, auditor, examiner, assessor, or other expert may be used in an investigation. See Gov Bar R V 4(E). Procedural questions that arise during an investigation may be directed in writing to the Board by the chair of a certified grievance committee, the president of a bar association, or the Disciplinary Counsel. Upon receipt, the Board's chair and its Secretary consult and direct a response to the inquiry. See Gov Bar R V 4(H).
Investigation - Determination upon completion: When the investigation is completed, the investigating body determines whether to file a complaint with the Board. A determination not to file a complaint indicates that a complaint is not warranted and that the grievance will be dismissed. See Gov Bar R V 4(I)(4). Both the grievant and the judge or attorney are given written notice of the intent not to file a complaint, along with a brief statement of the reasons that a complaint was not filed with the Board. See id. A copy of the grievance also will be sent to the judge or attorney upon request. Id. If a certified grievance committee dismisses the grievance, the grievant may file a written request for review with the Secretary of the Board within fourteen days after being notified of the dismissal. See Gov Bar R V 4(I)(5). The Secretary refers these requests to the Disciplinary Counsel who, within thirty days, conducts a review, makes a decision, and notifies the grievant of that decision. The Secretary may extend this time period if good cause is shown. If the Disciplinary Counsel overturns the certified grievance committee's decision to dismiss the grievance, it will handle any further proceedings. If the Disciplinary Counsel affirms the dismissal of the grievance, no further review or appeal is available to the grievant. See id.
A determination to file a complaint indicates that the investigatory body finds probable cause to believe that the misconduct occurred or that a condition of mental illness exists. See Gov Bar R V 4(C). A certified grievance committee makes its determination by a majority vote of a quorum of the committee. See Gov Bar R V 4(I)(3).
Complaint - Filing a complaint by a relator: A "complaint" is a "formal written allegation of misconduct or mental illness" filed by a relator against a respondent. Gov Bar R V 4(I)(1). The relator is either a certified grievance committee or the Disciplinary Counsel, depending on which investigated the grievance. The respondent is the attorney or judge who is the subject of the grievance and the investigation.
All complaints must be filed with the Secretary of the Board of Commissioners on Grievances and Discipline. Each complaint must have attached sufficient investigatory materials to demonstrate probable cause and shall include a copy of any response filed on behalf of the respondent. See Gov Bar R V 4(I)(6). The complaint must allege the specific misconduct and specify the Rule alleged to have been violated. See BCGD Proc Reg 1. Upon filing the complaint with the Board, the relator must forward copies of the complaint to the Disciplinary Counsel, the Certified Grievance Committee of the Ohio State Bar Association, the local bar association, and any certified grievance committee serving the county or counties where the respondent resides, where the respondent maintains an office, and where the complaint arose. See Gov Bar R V 4(I)(9).
Complaint - Probable-cause determination by a board panel: In response to the relator's filing of the complaint, the Secretary of the Board of Commissioners on Grievances and Discipline directs the complaint, with its investigatory attachments, to a probable-cause panel of the Board. A probable-cause panel is comprised of three Board members chosen by the Chair of the Board. Both attorney and nonattorney members of the Board serve on probable-cause panels, but only an attorney or a judge may serve as chair of the panel. See Gov Bar R V 6(D)(1).
A probable-cause panel makes an independent decision as to whether probable cause exists for the filing of a complaint. See id. "Probable cause" means that there is "substantial, credible evidence" that misconduct has been committed. Gov Bar R V 6(A)(2). Misconduct is defined as
any violation by a justice, judge, or an attorney of any provision of the oath of office taken upon admission to the practice of law in this state or any violation of the Ohio Rules of Professional Conduct [or, with respect to conduct occurring prior to February 1, 2007, the Code of Professional Responsibility] or the Code of Judicial Conduct, disobedience of these rules or of the terms of an order imposing probation or a suspension from the practice of law, or the commission or conviction of a crime involving moral turpitude.
Gov Bar R V 6(A)(1) (bracketed material added).
A probable-cause panel either finds probable cause and issues an order certifying the complaint to the Board, or determines there is no probable cause and issues an order dismissing the complaint. See Gov Bar R V 6(D)(1). The relator and the respondent are notified of the determination by certified mail.
When a panel dismisses a complaint, the relator has seven days after receipt of the decision to file a written appeal of the dismissal with the Secretary of the Board. The appeal then goes before the full Board. The Board makes an independent determination as to whether probable cause exists, then issues an order either to certify or dismiss the complaint. The relator may not appeal a dismissal by the Board. See Gov Bar R V 6(D)(2).
Complaint - Formal complaint: Once a complaint is certified by a probable cause panel of the Board, it is considered a "formal complaint." A relator may amend a formal complaint prior to a hearing without presenting the additional counts to a probable cause panel. See Board of Comm'rs on Grievances & Discipline Op. 90-18, 1990 Ohio Griev. Discip. LEXIS 7 (Aug. 17, 1990). The formal complaint is to be served on the respondent by certified mail along with notice of the time requirements for response. See Gov Bar R V 6(E). Note that in Columbus Bar Ass'n v. Dougherty, 99 Ohio St.3d 147, 2003 Ohio 2672, 789 N.E.2d 621, the Court held the relator to the OH Civ R 9(B) duty to plead fraud with particularity and found its allegations insufficient in that regard.
Complaint - Answer to formal complaint: Six copies of the answer must be filed with the Board within twenty days after the mailing of the notice, and a copy of the answer must be served on the relator's attorney of record. See Gov Bar R V 6(E). Both steps must be complied with to avoid a possible default. See Medina County Bar Ass'n v. Mulbach, 83 Ohio St.3d 224, 699 N.E.2d 459 (1998). The Secretary of the Board may grant an extension of time for filing an answer upon good cause shown. Gov Bar R V 6(E). The respondent may also file any motion appropriate under Rule 12 of the Ohio Rules of Civil Procedure [OH Civ R 12]. See BCGD Proc Reg 2(A).
Complaint - Amendment: The relator may amend the original complaint. Amendments made within thirty days of the scheduled hearing date will be allowed only upon a showing of good cause, as determined by the chair of the hearing panel. BCGD Proc Reg 9(D). But in Columbus Bar Ass'n v. Dougherty, 99 Ohio St.3d 147, 2003 Ohio 2672, 789 N.E.2d 621, the Supreme Court held that OH Civ R 15(A), which requires that motions to amend be "freely" given "when justice so requires," was applicable to a relator's amendment request that was made during the scheduled hearing. Given that "the parties mutually misunderstood what charges were truly at issue in this case," id. at para. 16, the cause was remanded for further proceedings, including provision for relator's amendment of its complaint.
Complaint - Voluntary dismissal: The relator may voluntarily dismiss a complaint only upon permission of the chair of the hearing panel. BCGD Proc Reg 9(D). The motion for voluntary dismissal must be accompanied by a memorandum in support. Id. The panel also may request the filing of supporting affidavits, documents, and depositions and may conduct a hearing on the matter, which could include the taking of testimony and the production of documents. Id.
Hearing - Appointment of hearing panel: After the answer is filed or the time for filing an answer has elapsed, the Secretary of the Board appoints a hearing panel. A hearing panel consists of three members of the Board, chosen by lot from members who did not serve on the probable cause panel. The Secretary designates one member who is an attorney or judge to serve as panel chair. The panel chair rules on all motions and interlocutory matters. No ruling by a panel chair may be appealed prior to entry of the final order. None of the hearing panel members may be a resident of the appellate district from which the complaint originated, and only one nonattorney member may serve on a hearing panel. A majority of a panel constitutes a quorum. See Gov Bar R V 6(D)(3). A hearing panel chair may request the chair of the Board to appoint a master commissioner to assume case management responsibilities occurring between the appointment of the hearing panel and the formal hearing. See BCGD Proc Reg 8.
Hearing - Motion for default: An attorney who fails to file an answer to a complaint has no right to a hearing on the charges. Lake County Bar Ass'n v. Billson, 56 Ohio St.3d 89, 564 N.E.2d 432 (1990). Thus, if a respondent does not file an answer within twenty days, or within the time period of any extension to the answer date, the relator files a motion for default. See Gov Bar R V 6(F). The motion for default includes: (1) a statement of the effort to contact respondent and the result; (2) sworn or certified documentary prima facie evidence in support of the allegations; (3) the recommended sanction; (4) any mitigating factors; and (5) a certificate of service of the motion. See Gov Bar R V 6(F)(1). The Secretary of the Board must refer the motion to a Board member or a master commissioner for determination. If a default motion is denied, the panel proceeds with a formal hearing. See Gov Bar R V 6(F)(2).
If the relator does not follow these procedural steps, a finding of violation will be rejected. See Cincinnati Bar Ass'n v. Weaver, 102 Ohio St.3d 264, 2004 Ohio 2683, 809 N.E.2d 1113 (rejecting findings of violations asserted in Counts II and IV "because relator did not move for default on these counts or submit evidence to substantiate them," id. at para. 5). In Northwestern Ohio Bar Ass'n v. Lauber, 104 Ohio St.3d 121, 2004 Ohio 6237, 818 N.E.2d 687, the Court remanded for further proceedings because the affidavit submitted by the investigator in support of the allegations in the motion for default was deficient -- "this summary, conclusory, and hearsay-filled affidavit [was not] of sufficient weight or probative force to constitute the '[s]worn or certified documentary prima facie evidence' that Gov.Bar R. V(6)(F)(1)(b) requires to sustain a motion for default." Id. at para. 3. In a case decided the same day as Lauber, Dayton Bar Ass'n v. Parker, 104 Ohio St.3d 117, 2004 Ohio 6236, 818 N.E.2d 684, a number of counts were not cited by the relator in its motion for default or substantiated with the proof required by Gov Bar R V 6(F)(1)(b). The findings of violation were therefore rejected as they were in Weaver. A number of other findings, however, were accepted, based on the investigator's affidavits, which the Court found substantiated the findings of violation. Justice Lundberg Stratton, dissenting, found no meaningful distinction between these findings, accepted in Parker, and those found wanting in Lauber:
they contain summary, conclusory assessments of misconduct based solely on conversations with the four grievants and are not based on personal knowledge. Such affidavits are not sufficient to sustain a motion for default judgment under Gov. Bar R. V(6)(F)(1)(6). [citing Lauber].
Id. at para. 11. According to Justice Lundberg Stratton,
[i]n both cases, the relator's evidence consisted entirely of an investigator's affidavit or affidavits containing hearsay and conclusory statements. It is inconsistent for us to remand Lauber . . . , while summarily accepting the board's findings in Parker that are based upon the same kind of evidence. I believe that we should also remand Parker and require the board to support its findings by sworn or certified documentary evidence.
Id. at para. 14. See Dayton Bar Ass'n v. Sebree, 104 Ohio St.3d 448, 2004 Ohio 6560, 820 N.E.2d 318, where the Court advised in "affirm[ing] today the principle established in Lauber" that "[l]ocal bar associations appearing as relators in disciplinary hearings should therefore provide affidavits executed by the grievants themselves in moving for default." Id. at para. 9. Accord Cleveland Bar Ass'n v. McNally, 109 Ohio St.3d 560, 2006 Ohio 3258, 849 N.E.2d 1022 (since relator unable to locate grievants and obtain affidavits from them, Board, citing Sebree, found evidence insufficient regarding count in question); Butler County Bar Ass'n v. Cornett, 106 Ohio St.3d 1418, 2005 Ohio 3322, 830 N.E.2d 349 (remanding for evidence and findings in accordance with Sebree).
A default is available only if the respondent fails to plead or otherwise defend within the twenty day period. If the respondent files an answer, but later drops out of the process, default is not available. The relator must establish its case by clear and convincing evidence. See Office of Disciplinary Counsel v. Jackson, 81 Ohio St.3d 308, 691 N.E.2d 262 (1998).
After granting a default motion, the panel must file with the full Board a certified report setting forth its findings of facts and recommendations. See Gov Bar R V 6(F)(2) & (J). The Board chair, for good cause shown, may set aside a default entry and order a panel hearing at any time before the report and recommendation of the Board are certified to the Supreme Court. See Gov Bar R V 6(F)(2).
Hearing - Time guidelines: BCGD Proc Reg 9 sets forth time guidelines for the hearing process. Failure to follow them, however, is not ground for dismissal of the complaint. BCGD Proc Reg 9(C).
A pre-hearing conference is to be held within sixty days of the assignment date of the hearing panel. BCGD Proc Reg 9(A)(1). The hearing date should be no more than one hundred fifty days following the date of assignment. Id. The panel's report, in a non-expedited case, should be filed with the full Board "within forty days of the filing of the transcript for consideration at the next regularly scheduled meeting of the Board." BCGD Proc Reg 9(B)(1). This latter date may be extended by the Board Secretary, at the request of the panel chair, upon a showing of good cause, but the panel's report should in any event be submitted at least seven days prior to the full Board meeting at which it is to be considered. BCGD Proc Reg 9(B)(1) & (2).
Hearing - The process: If a respondent files an answer to a certified complaint, the panel chair sets a time and location for a formal hearing on the complaint. See Gov Bar R V 6(G). Pre-hearing instructions are provided to each interested party to the proceeding.
Within sixty days of the hearing panel's appointment, the panel chair conducts a pre-hearing conference, which may be by telephone if the chair so chooses. BCGD Proc Reg 9(A)(1). The regulation lists objectives to be pursued at the conference, among them: (1) simplification of the issues; (2) amendment of the pleadings; (3) establishment of discovery deadlines; (4) identification of anticipated witnesses and the exchange of reports prepared by anticipated expert witnesses; (5) identification and exchange of anticipated exhibits; (6) stipulations; and (7) setting a final hearing date. Id.
If the relator and the respondent stipulate to the facts, the panel chair or a panel member may either cancel a hearing and deem the matter submitted in writing or order a hearing to be held with counsel and respondent present. BCGD Proc Reg 3(C). The hearing panel and the Board are not bound by a joint recommendation of sanction by the relator and respondent. BCGD Proc Reg 3(D).
BCGD Proc Reg 11 ("Consent to Discipline") was adopted by the Supreme Court effective May 1, 2001. Pursuant thereto, the respondent can enter into a stipulation with the relator in which he or she admits the alleged misconduct and in which a sanction is agreed upon. "Sanction" is defined so as to exclude indefinite suspension and disbarment, BCGD Proc Reg 11(A)(2); thus, the regulation has no applicability to cases and/or stipulations involving these sanctions. See BCGD Proc Reg 11(F). If the agreement is accepted by the panel (or master commissioner) and the Board, the agreement forms the basis for the Board's certified report to the Supreme Court. BCGD Proc Reg 11(C) & (D). If either the panel or the Board rejects the agreement, the case shall be set for hearing and the agreement is of no further force and effect. BCGD Proc Reg 11(C)-(E). See Disciplinary Counsel v. Robertson, 113 Ohio St.3d 360, 2007 Ohio 2075, 865 N.E.2d 886 (two-year suspension stipulated, presumably under BCGDB Proc Reg 11 but not expressly so stated; Board recommended indefinite suspension, which Supreme Court adopted; interestingly, relator argued before Court that indefinite suspension was appropriate, even though it had previously stipulated to two-year suspension). If the Court rejects a section 11 sanction, the matter is returned to the Board for hearing. Gov Bar R V 8(D).
Examples of use of the consent-to-discipline procedure include Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006 Ohio 6525, 858 N.E.2d 414, and Cuyahoga County Bar Ass'n v. Lazzaro, 98 Ohio St.3d 509, 2003 Ohio 2150, 787 N.E.2d 1182. For a case in which the respondent attempted unsuccessfully to invoke the "spirit" of BCGD Proc Reg 11, even though he conceded it was not yet in place at the time his stipulation was entered into, see Cincinnati Bar Ass'n v. Selnick, 94 Ohio St.3d 1, 759 N.E.2d 764 (2001) (panel, Board, and Supreme Court rejected stipulated sanction of indefinite suspension; permanent disbarment imposed; respondent's attempt to rely on BCGD Proc Reg 11 in a case involving stipulation of indefinite suspension was "totally misplaced." Id. at 9, 759 N.E.2d at 771.). See Cleveland Bar Ass'n v. Dixon, 95 Ohio St.3d 490, 2002 Ohio 2490, 769 N.E.2d 816 (following Selnick; stipulation of indefinite suspension not within scope of BCGD Proc Reg 11). But see Lorain County Bar Ass'n v. Fernandez, 99 Ohio St.3d 426, 2003 Ohio 4078, 793 N.E.2d 434, where the parties agreed under the consent-to-discipline provision that an existing indefinite suspension be continued. As in Selnick and Dixon, the respondent was disbarred, but without any comment by the Court about the seeming inapplicability of BCGD Proc Reg 11.
The consent-to-discipline procedure was invoked in In re Complaint Against Resnick, 108 Ohio St.3d 160, 2005 Ohio 6800, 842 N.E.2d 31. Justice Resnick had been arrested for driving under the influence and was charged with violation of OH CJC Canon 2 ("A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."). In the consent-to-discipline agreement the parties stipulated to the facts, the violation, and agreed that the recommended sanction should be a public reprimand, subject to the acceptance of the Court. The Court accepted the agreement without further hearing. The Resnick case also highlights the procedural mechanism applicable when a Supreme Court justice is so charged. All of the members of the Court are disqualified, and the case is heard by the Chief Justice of the Courts of Appeals and the presiding judge of each of the twelve courts of appeals, sitting as the Supreme Court. Gov Jud R II(4). A panel of three presiding judges of the courts of appeals appointed by the Chief Justice of the Courts of Appeals decides whether there is sufficient cause to warrant further investigation. Gov Jud R II(2)(B)(2) & (3)(a). In the Resnick case, based on the investigation by a special investigator appointed by the Chief Justice of the Courts of Appeals pursuant to Gov Jud R II(3)(a), the investigator, as relator, filed a formal complaint, which resulted in the disposition set forth above. All of the judges concurred in the result, but two wrote separately. Judge Fain noted in his concurrence the media accounts of Justice Resnick's arrest, including
references to statements she reportedly made to the arresting officer, while still under the influence, that might be construed as an attempt to persuade the officer to release her because of her high judicial office. While such statements could certainly constitute an aggravating circumstance, they are not part of the record before us.
Id. at para. 11. Inasmuch as the court could not consider matters not of record, "[t]here are no aggravating factors of record in the case before us," id. at para. 20, and thus "a public reprimand is the appropriate disciplinary sanction." Id. at para. 21. Judge Slaby, concurring as to judgment only, would have preferred a "full, open hearing on this matter," given that "there may be some unanswered questions as to how the investigator came to the conclusions and recommendations that he presented to the panel. Id. at para. 23.
Panel hearings are recorded by a court reporter provided by the Board, and a copy of the transcript is filed with the Secretary of the Board. See Gov Bar R V 6(G).
Respondent attorneys often exercise the opportunity to appear at the hearing, but there is no absolute right to do so. An incarcerated respondent, for example, is not entitled as a matter of right to appear at a disciplinary hearing. Rather, the primary means of securing the testimony of an incarcerated attorney is by deposition. See In re Colburn, 30 Ohio St.3d 141, 507 N.E.2d 1138 (1987).
In numerous cases, respondents have raised evidentiary objections to the conduct of the proceedings, usually to no avail. The Ohio Supreme Court has held it permissible for the Board to consider disciplinary proceedings from other jurisdictions against the respondent in determining the respondent's fitness to practice law in Ohio. See Office of Disciplinary Counsel v. Geron, 32 Ohio St.3d 134, 512 N.E.2d 954 (1987). Final court orders may also be considered as evidence, and the respondent's right to collaterally attack them can be limited. See Office of Disciplinary Counsel v. Manogg, 74 Ohio St.3d 213, 658 N.E.2d 257 (1996). Criminal convictions clearly can be considered as evidence in a disciplinary proceeding. Office of Disciplinary Counsel v. Kraft, 5 Ohio St.3d 197, 449 N.E.2d 1303 (1983); Ohio State Bar Ass'n v. Moore, 45 Ohio St.2d 57, 341 N.E.2d 302 (1976). The Court also has concluded that polygraph results need not be considered as a matter of course by the Board. See Toledo Bar Ass'n v. Westmeyer, 58 Ohio St.3d 38, 567 N.E.2d 1016 (1991).
While often represented by counsel in disciplinary proceedings, respondents are not entitled as a matter of right to have counsel appointed to represent them. Ohio State Bar Ass'n v. Illman, 45 Ohio St.2d 159, 342 N.E.2d 688 (1976).
Hearing - Continuances: Either the relator or the respondent may request a continuance of a panel hearing date. The panel chair may grant the request for good cause shown. See Gov Bar R V 6(G). County, municipal, and common pleas courts shall grant a motion for a continuance of a trial or a hearing when a party, counsel, or a witness under subpoena is scheduled to appear on the same date at a hearing before the Board of Commissioners on Grievances and Discipline as a member of the Board, as a party, as counsel, or as a witness under subpoena for the hearing. See Rule of Superintendence for the Courts of Ohio (OH Sup R) 41(B)(2)(a).
Hearing - Panel determination and recommendation: At the end of the evidence, the hearing panel may, by unanimous vote, decide to dismiss a complaint or a count in a complaint if the evidence is insufficient to support the alleged misconduct. See Gov Bar R V 6(H). The panel can proceed to dismiss the complaint in one of two ways. The chair can give written notice of the dismissal to the Board, the respondent, all counsel of record, the Disciplinary Counsel, the certified grievance committee, and the local bar association of the county or counties in which the respondent resides and maintains an office, the county from which the complaint arose, and to the Ohio State Bar Association. See id. Or, the panel may refer the findings of fact and recommendation for dismissal to the full Board for review and action. See Gov Bar R V 6(I). As the Supreme Court stated in Cuyahoga County Bar Ass'n v. Marosan, 109 Ohio St.3d 439, 2006 Ohio 2876, 848 N.E.2d 837, when a unanimous panel chooses to follow the V 6(H) route, "it may dismiss the count without referring it to the board or this court for review. . . . We do not review such dismissals." Id. at para. 13. Accord Cuyahoga County Bar Ass'n v. Maybaum, 112 Ohio St.3d 93, 2006 Ohio 6507, 858 N.E.2d 359, at para. 3; Columbus Bar Ass'n v. Farmer, 111 Ohio St.3d 137, 2006 Ohio 5342, 855 N.E.2d 462, at para. 2. Columbus Bar Ass'n v. Dougherty, 105 Ohio St.3d 307, 2005 Ohio 1825, 825 N.E.2d 1094, at para. 9. Following Marosan in Disciplinary Counsel v. Johnson, 113 Ohio St.3d 344, 2007 Ohio 2074, 865 N.E.2d 873, the Court rejected relator's "hypertechnical reading" that Gov Bar R V 6(H) "allows the panel to dismiss only a count of misconduct or the entire complaint, not individual violations," id. at para. 80).
In contrast, when "the panel recommended [per Gov Bar R V 6(I)] dismissal of all charges except the violation of DR 1-104 to the board, and the board certified that entire recommendation to us, [t]he recommendation to dismiss DR 5-105, therefore, is ready for our final determination." Columbus Bar Ass'n v. Ross, 107 Ohio St.3d 354, 2006 Ohio 5, 839 N.E.2d 918, at para. 17 (emphasis in original; bracketed material added).
If the hearing panel determines that the relator has shown, by clear and convincing evidence, that a respondent is guilty of misconduct and that a sanction is merited, the panel files a certified report of the proceeding and the findings of facts and recommendations with the Secretary of the Board. See Gov Bar R V 6(J); see also Columbus Bar Ass'n v. Plymale, 91 Ohio St.3d 367, 745 N.E.2d 413 (2001) (applying clear-and-convincing-evidence standard); Findlay/Hancock County Bar Ass'n v. Filkins, 90 Ohio St.3d 1, 734 N.E.2d 764 (2000) (same); Office of Disciplinary Counsel v. Jackson, 81 Ohio St.3d 308, 691 N.E.2d 262 (1998) (same). The certified report includes the transcript and an itemized statement of the actual and necessary expenses incurred in connection with the proceedings. See Gov Bar R V 6(J).
Hearing - Board determination and recommendation: The panel chair presents the certified report to the Board at a regularly scheduled meeting. The Board reviews and deliberates on the panel's findings of facts and recommended sanction. The Board has several choices: (1) it may dismiss the complaint or a count of the complaint; (2) it may refer the matter back to the hearing panel for further hearing; (3) it may order a further hearing before the Board; or (4) it may make a finding of misconduct and recommend a sanction based on the panel's findings and recommendations. See Gov Bar R V 6(K).
The Board's procedural regulations seem to allow the Board to make any finding of misconduct warranted by the evidence, even if the violation was not alleged in the complaint. See BCGD Proc Reg 1(A) ("The panel and Board shall not be limited to the citation to the disciplinary rule(s) [in the complaint] in finding violations based on all the evidence."). The Board relied on this language in approving the panel's conclusion that respondent violated rules not charged in Office of Disciplinary Counsel v. Simecek, 83 Ohio St.3d 320, 322, 699 N.E.2d 933, 934 (1998), but the Ohio Supreme Court rejected this practice as a violation of the procedural due process right to fair notice "[t]o the extent that this regulation authorizes the addition of misconduct charges after the record is closed." Id. Accord Columbus Bar Ass'n v. Farmer, 111 Ohio St.3d 137, 2006 Ohio 5342, 855 N.E.2d 462 (following Simicek). Without citing Simicek or alluding to due process concerns, the Court reached the same result in rejecting uncharged violations in Cincinnati Bar Ass'n v. Deaton, 102 Ohio St.3d 19, 2004 Ohio 1587, 806 N.E.2d 503, relying instead on its "independent review and final authority in disciplinary cases." Id. at n.2. Accord Cincinnati Bar Ass'n v. Rothermel, 112 Ohio St.3d 443, 2007 Ohio 258, 860 N.E.2d 754 (following Deaton). See Cuyahoga County Bar Ass'n v. Judge, 96 Ohio St.3d 467, 2002 Ohio 4741, 776 N.E.2d 21 (applying Simecek to prohibit sanctioning respondent for uncharged violations found by master commissioner and Board in proceeding in which respondent had defaulted and there were no voluntarily stipulated facts or violations). A further variation occurs when the relator moves for default pursuant to Gov Bar R V(6)(F) on some but not all counts in a proceeding in which the respondent does not answer. In Toledo Bar Ass'n v. Pommeranz, 102 Ohio St.3d 26, 2004 Ohio 1586, 806 N.E.2d 509, the Supreme Court had such a situation and concluded as follows:
Relator did not move for default on these counts and presented no evidence to substantiate them. We reject these findings [of misconduct found by the master commissioner and the board] pursuant to our independent review and final authority in disciplinary cases. [citing Ohio State Bar Ass'n v. Reid, 85 Ohio St.3d 327, 708 N.E.2d 193 (1999) (syllabus one)]
Id. at n.1. See also Toledo Bar Ass'n v. DiLabbio, 101 Ohio St.3d 147, 2004 Ohio 338, 803 N.E.2d 389, where the panel "noted that it had no authority to consider respondent's apparent violation of DR 9-102(A) . . . because relator did not charge this in the complaint." Id. at para. 5. But where the action proceeds on stipulated facts and violations in lieu of hearing, which the respondent waives, the Court has found it permissible to sanction a lawyer for uncharged violations. Office of Disciplinary Counsel v. Jackson, 86 Ohio St.3d 104, 712 N.E.2d 122 (1999). Cf. Columbus Bar Ass'n v. Farkas, 94 Ohio St.3d 419, 763 N.E.2d 1158 (2002) (uncharged violation may be considered where parties stipulated at hearing that the additional matter could be added). And in Dayton Bar Ass'n v. Millonig, 84 Ohio St.3d 403, 704 N.E.2d 568 (1999), the Court held that once an attorney is charged with misconduct at the initial stages of the grievance process, this provides notice and opportunity to defend. As a consequence, even if the charges are withdrawn at this level, that does not preclude tribunals later in the process from reviving the withdrawn charges, finding a violation, and ordering discipline based upon them. (For an instance in which the Board found no violation of particular disciplinary rules, despite the parties' stipulation that those rules had been violated, see Butler County Bar Ass'n v. Schoonover, 105 Ohio St.3d 472, 2005 Ohio 2816, 828 N.E.2d 1007.)
Office of Disciplinary Counsel v. Atkin, 84 Ohio St.3d 383, 704 N.E.2d 244 (1999), presents a further interesting wrinkle on the uncharged-violation point. Atkin had been convicted of numerous federal charges arising out of his falsely representing to a client that he could bribe a federal judge. For reasons unknown, the disciplinary complaint against Atkin did not charge him with violation of former OH DR 9-101(C) (a lawyer shall not state or imply that he can improperly influence a tribunal). The panel found that he had violated the disciplinary rules for which he had been charged (former OH DR 1-102(A)(3) & (4) and 7-102(A)(7)). The Board adopted these findings and conclusions, as well as the recommendation that Atkin be permanently disbarred. After agreeing with the findings and conclusions of the Board and its recommendation that respondent be permanently disbarred, the Supreme Court in dicta focused entirely on the violation of OH DR 9-101(C). In all likelihood, this uncharged violation was not seen by the Court as implicating due-process concerns (which were not mentioned) because of a combination of factors: (1) the discussion was added by the Court, not the Board, and thus did not involve BCGD Proc Reg 1(A), (2) the sanction of disbarment was the same, with or without the additional violation (but see Judge supra, where the Court invoked due process to negate the uncharged violation, even though the penalty remained the same), and (3) perhaps most important, respondent could not be said to have had no notice of the violation, since the supposed bribery scheme was at the core of his obstruction of justice federal criminal trial and conviction, which was affirmed on appeal. See United States v. Atkin, 107 F.3d 1213, 1217-19 (6th Cir. 1997). The Atkin case is also discussed at section 8.4:600.
While an uncharged violation cannot serve as a ground for discipline, it can be used as an aggravating factor in considering the appropriate sanction. See Dayton Bar Ass'n v. Rohrkaste, 111 Ohio St.3d 224, 2006 Ohio 5487, 855 N.E.2d 868, where the Court noted that "respondent admitted the aggravating effect of his failure to comply with [uncharged DR 1-104 – obligation to maintain malpractice insurance and to disclose to clients when not so maintained]." Id. at para. 8; accord Columbus Bar Ass'n v. Farmer, 111 Ohio St.3d 137, 2006 Ohio 5342, 855 N.E.2d 462 (uncharged attempts to mislead disciplinary authorities could not be basis of disciplinary-rule violation because of due process, but "[t]hese falsehoods certainly exacerbate the misconduct committed in this case," id. at para. 49).
In recommending a sanction, the Board has several choices that vary in severity: (1) disbarment; (2) suspension for an indefinite period; (3) suspension for a definite period of time from six months to two years, subject to a stay in whole or in part; (4) conditional probation in conjunction with suspension under subsection 3; or (5) public reprimand. See Gov Bar R V 6(B).
The Board will consider all relevant factors, Ohio Supreme Court precedent, and aggravating and mitigating factors, in deciding upon the recommended sanction. BCGD Proc Reg 10(B). The factors to be considered in aggravation or mitigation are as follows:
(1) Aggravation. The following shall not control the Board's discretion, but may be considered in favor of recommending a more severe sanction:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) lack of cooperation in the disciplinary process;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of and resulting harm to victims of the misconduct;
(i) failure to make restitution.
(2) Mitigation. The following shall not control the Board's discretion, but may be considered in favor of recommending a less severe sanction:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) timely good faith effort to make restitution or to rectify consequences of misconduct;
(d) full and free disclosure to disciplinary Board or cooperative attitude toward proceedings;
(e) character or reputation;
(f) imposition of other penalties or sanctions;
(g) chemical dependency or mental disability when there has been all of the following:
(i) A diagnosis of a chemical dependency or mental disability by a qualified health care professional or alcohol/substance abuse counselor;
(ii) A determination that the chemical dependency or mental disability contributed to cause the misconduct;
(iii) In the event of chemical dependency, a certification of successful completion of an approved treatment program or in the event of mental disability, a sustained period of successful treatment;
(iv) A prognosis from a qualified health care professional or alcohol/substance abuse counselor that the attorney will be able to return to competent, ethical professional practice under specified conditions.
(h) other interim rehabilitation.
BCGD Proc Reg 10(B)(1) & (2).
When, in a case involving serious violations, the aggravating factors are present in abundance and there are no or few mitigating factors, the result, not surprisingly, is often disbarment or indefinite suspension. E.g., Disciplinary Counsel v. Jones, 103 Ohio St.3d 590, 2004 Ohio 5697, 817 N.E.2d 841 (multiple aggravating factors, no mitigating factors; disbarment recommended by Board and imposed by Court); Columbus Bar Ass'n v. Moushey, 96 Ohio St.3d 461, 2002 Ohio 4850, 776 N.E.2d 16, at para. 10 ("In determining the appropriate sanction, the board is to consider certain factors listed in BCGD Reg. 10(B) as having an aggravating impact. Of these factors, this case presents a pattern of misconduct, multiple offenses, a lack of cooperation in the disciplinary process, the refusal to acknowledge wrongdoing, client vulnerability and harm, and a failure to make restitution. The only mitigating factor is that respondent has not been professionally disciplined before now." Indefinite suspension recommended by Board and imposed by Court.). Compare Disciplinary Counsel v. Gideon, 104 Ohio St.3d 418, 2004 Ohio 6587, 819 N.E.2d 1103, where significant mitigating factors under BCGD Proc Reg 10(B)(2) were present, resulting in a sanction of a stayed two-year suspension on compliance with conditions recommended by the Board and imposed by the Court. Another instance in which the "mitigating factors far outweighed the aggravating factors" was Dayton Bar Ass'n v. Gerren, 110 Ohio St.3d 297, 2006 Ohio 4482, 853 N.E.2d 302, at para.19; as a result, the Board accepted the stipulated sanction of 18 months with the last six months stayed. The Court found this sanction appropriate, with the addition of restitution as a condition of the stay. For a case balancing significant mitigating and aggravating factors, resulting in a two-year suspension with one year conditionally stayed, see Allen County Bar Ass'n v. Linnon, 104 Ohio St.3d 189, 2004 Ohio 6386, 819 N.E.2d 210.
Note that the pattern-of-misconduct aggravating factor is not necessarily limited to conduct presently before the Court. Thus in Disciplinary Counsel v. Novak, 112 Ohio St.3d 163, 2006 Ohio 6527, 858 N.E.2d 421, the respondent had been disciplined once before for neglect and dishonesty. Since the case at bar also involved neglect and dishonesty concerning a client, the Board found that respondent "had thereby engaged in a pattern of misconduct," id. at para. 11. But see Dayton Bar Ass'n v. Andrews, 105 Ohio St.3d 453, 2005 Ohio 2696, 828 N.E.2d 630 (prior suspension for, inter alia, neglecting cases of four bankruptcy clients; despite finding of violation of one count of professional neglect in case at bar, Board found that respondent "had not committed a pattern of misconduct," id. at para. 13).
Upon adopting findings of fact and a recommendation for sanction, the Board files a final certified report of its proceedings with the Clerk of the Supreme Court. The report includes the transcript of the hearing testimony and an itemized statement of actual and necessary expenses incurred in the proceeding. The Board also notifies the respondent and all counsel of record, enclosing a copy of the Board's report and the statement of the expenses. See Gov Bar R V 6(L). Aggravating and mitigating factors are further discussed this section infra at "Supreme Court order – Sanctions for misconduct."
Supreme Court order - Order to show cause: On receipt of the Board's certified report, the Supreme Court issues an order to the respondent to show cause why the Board's report should not be confirmed and a disciplinary order entered. The show cause order is served by the Clerk of the Supreme Court on the respondent and all counsel of record personally or by certified mail. See Gov Bar R V 8(A). Filing objections at the Supreme Court show-cause stage and asking for remand in order to submit evidence will fall of deaf ears – the respondent's obligation is to present such evidence at the hearing stage and if he/she does not, the Court will ignore such objections, except in the most extraordinary circumstances. E.g., Dayton Bar Ass'n v. Stephan, 108 Ohio St.3d 327, 2006 Ohio 1063, 843 N.E.2d 771.
Within twenty days after the issuance of an order to show cause, the respondent or the relator may file objections to the findings or recommendations of the Board, to the entry of a disciplinary order, or to the confirmation of the Board's report. A brief must accompany the objection, and there must be proof of service of copies on the Secretary of the Board and all counsel of record. See Gov Bar R V 8(B). Answer briefs and proof of service must be filed within fifteen days after the objection and briefs are filed. See Gov Bar R V 8(C).
Supreme Court order - Final disciplinary order: If objections are filed, the Supreme Court holds a hearing. After the hearing on the objections, or if no objections are filed, the Supreme Court enters such order as it finds proper. Gov Bar R V8(D). As stated in In re Complaint Against Harper, 77 Ohio St.3d 211, 215, 673 N.E.2d 1253, 1258 (1996),
the Supreme Court, not the board, "makes the ultimate conclusion, both as to the facts and as to the action, if any, that should be taken."
(quoting from Cincinnati Bar Ass'n v. Heitzler, 32 Ohio St.2d 214, 220, 291 N.E.2d 477, 482 (1972)). The Court asserted its authority in this regard in no uncertain terms in Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 181, 754 N.E.2d 219, 228 (2001), where numerous violations, found not proved by the panel and the Board, were reinstated by the Supreme Court, and respondent was permanently disbarred. "The Supreme Court is not bound by the conclusion of either the panel or the board regarding the propriety of attorney's conduct . . . ." Accord Columbus Bar Ass'n v. Plymale, 91 Ohio St.3d 367, 745 N.E.2d 413 (2001). Nevertheless, the Court also has indicated that the findings of fact and the recommendations of the Board will generally be followed, unless they are manifestly against the weight of the evidence. See Cincinnati Bar Ass'n v. Fennell, 63 Ohio St.2d 113, 406 N.E.2d 1129 (1980).
In making its determination, the Court relies on the record made below and, absent exceptional circumstances, will not consider new evidence attached to a brief or presented in oral argument. See Columbus Bar Ass'n v. Sterner, 77 Ohio St.3d 164, 672 N.E.2d 633 (1996); see also Office of Disciplinary Counsel v. Jackson, 81 Ohio St.3d 308, 691 N.E.2d 262 (1998); Columbus Bar Ass'n v. Finneran, 80 Ohio St.3d 428, 687 N.E.2d 405 (1997). Should the evidentiary record from the Board be found wanting, the Court can remand the matter to the Board for further proceedings. See Jackson, 81 Ohio St.3d 308, 691 N.E.2d 262; Dayton Bar Ass'n v. Clinard, 60 Ohio St.3d 59, 573 N.E.2d 45 (1991).
A disciplinary order is effective on the date the order is announced by the Court unless the order indicates otherwise. Gov Bar R V 8(D). An order usually provides for reimbursement of costs and expenses incurred by the Board or the panels. Id.
Supreme Court order - Notice and publication: The Clerk of the Supreme Court mails certified copies of the Court's entry to counsel of record, to the Board, to respondent, to the Disciplinary Counsel, to the certified grievance committee and the local bar association of the county or counties in which the respondent resides and maintains an office and in which the complaint arose, to the Ohio State Bar Association, to the administrative judge of the court of common pleas for each county in which the respondent resides or maintains an office, and to the presiding judges of the United States District Courts in Ohio, the United States Court of Appeals for the Sixth Circuit, and the Supreme Court of the United States. Gov Bar R V 8(D)(1).
The Reporter for the Ohio Supreme Court is obligated to publish every disciplinary order in the Ohio Official Reports, the Ohio State Bar Association Report, and in a publication, if any, of the local bar association. Gov Bar R V 8(D)(2). The publication includes the citation of the case. Id. To inform the public, a notice is published in a local newspaper with the largest general circulation in the county or counties designated by the Board. The notice appears in the form of a paid legal advertisement and is published three times within thirty days following the Court's order. The publication fees are assessed against the respondent as part of costs. Id. (Every once in a great while, the Reporter's obligation to publish in the Ohio Official Reports is honored in the breach. In Bar Ass'n of Greater Cleveland v. Wilsman, 9 Ohio St.3d 5, 457 N.E.2d 824 (1984), the respondent received an indefinite suspension. He subsequently moved to have the sanction reduced to a one-year suspension, which motion was granted by 4-3 order of the Supreme Court, without opinion by the majority. This action was never officially reported, and the only evidence of its occurrence that we know of is found in 58 Ohio St. B. Ass'n Rep. 1201 (July 29, 1985).)
Supreme Court order - Sanctions for misconduct: When a disciplinary proceeding is brought under Gov Bar R V, the sanctions the Court may impose are: disbarment from the practice of law; suspension from the practice of law for an indefinite period of time; suspension for a period of six months to two years, subject to a stay in whole or part and with or without probation; or public reprimand. See Gov Bar R V 6(B). In appropriate cases, the Court may also order the respondent to make restitution.
Sanctions may be imposed on inactive or retired attorneys, as well as those on active status. See Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006 Ohio 6525, 858 N.E.2d 414 (inactive; public reprimand); Cleveland Bar Ass'n v. Greenberg, 112 Ohio St.3d 138, 2006 Ohio 6519, 858 N.E.2d 400 (retired; 18-month suspension to commence if respondent returns to active status). But, as to Greenburg, see Gov Bar R VI 6(A), discussed this section below at " Special disciplinary provisions - Retirement or resignation from the practice of law."
The Court may adopt the Board's recommended sanction, but ultimately the decision is the Court's. Disciplinary Counsel v. Shaw, 110 Ohio St.3d 122, 2006 Ohio 3821, 851 N.E.2d 487 (exercising "our authority in disciplinary cases to independently determine the appropriate sanction," id. at para. 33). Sometime the penalty is increased, e.g., Disciplinary Counsel v. Lord, 111 Ohio St.3d 131, 2006 Ohio 5341, 855 N.E.2d 457 (respondent's "many ethical missteps, coupled with the misleading half-truths he has offered to clients, courts, and fellow lawyers," id. at para. 29, caused Court not to adopt recommended two-year suspension with one year stayed but to impose indefinite suspension instead). Disciplinary Counsel v. Ulinski, 106 Ohio St.3d 53, 2005 Ohio 3673, 831 N.E.2d 425 (conviction of conspiracy to commit federal securities, mail, and wire fraud, resulting in losses to clients and other customers of more than $100,000. Based on significant mitigating evidence, the panel and Board recommended indefinite suspension. The Court, however, emphasizing the "devastating" financial injury and "financial havoc" caused by respondent's misdeeds, imposed "our most rigorous sanction," disbarment. Id. at paras. 23, 24.); Office of Disciplinary Council v. Furth, 93 Ohio St.3d 173, 754 N.E.2d 219 (2001) ("blatant disregard" for important professional rules; "the record compels a reevaluation of the sanction recommended by the board"; recommended two-year suspension changed to permanent disbarment. Id. at 186, 187, 754 N.E.2d at 232.). And sometimes it is lessened, e.g., Cincinnati Bar Ass'n v. Rothermel, 104 Ohio St.3d 413, 2004 Ohio 6559, 819 N.E.2d 1099 (Board's recommendation of disbarment for serious transgressions reduced by Court to indefinite suspension; Court concluded that respondent "may in the future regain the moral compass necessary to competently and ethically practice law, which distinguishes this case from any in which we have ordered disbarment." Id. at para. 21. This proved to be wishful thinking; Rothermeil was disbarred for further violations in 112 Ohio St.3d 443, 2007 Ohio 258, 860 N.E.2d 754.). Accord Columbus Bar Ass'n v. Milless, 96 Ohio St.3d 74, 2002 Ohio 3455, 771 N.E.2d 845, at para. 5 (because of traumatic events occurring at time of "isolated instance" of misconduct in otherwise distinguished legal career, Court mitigated recommended penalty of indefinite suspension to one-year suspension with entire year stayed).
When imposing a sanction, the Court considers (1) the duty violated, (2) the lawyer's mental state, (3) the actual injury caused, and (4) whether mitigating and/or aggravating factors exist. Disciplinary Counsel v. Beeler, 105 Ohio St.3d 188, 2005 Ohio 1143, 824 N.E.2d 78, at para. 25 ("In seeking to bring uniformity to the process of sanctioning attorneys, this court turned to the four-step methodology of the American Bar Association standards for Imposing Lawyer Sanctions in Disciplinary Counsel v. Brown (1999), 87 Ohio St.3d 316, 720 N.E.2d 525."). Accord Stark County Bar Ass'n v. Ake, 111 Ohio St.3d 266, 2006 Ohio 5704, 855 N.E.2d 1206 (invoking, in addition to the ABA list, sanctions imposed in similar cases, see below). (In one 2006 decision, the Court said that it would consider respondent's "background" and the aggravating/mitigating factors. Cuyahoga County Bar Ass'n v. Maybaum, 112 Ohio St.3d 93, 2006 Ohio 6507, 858 N.E.2d 359, at para. 8. Whether the reference to "background" was intended as shorthand for the first three factors is not clear.) In other decisions, the Court has added a fifth parameter -- the sanctions imposed in similar cases, e.g., Cleveland Bar Ass'n v. Church, 114 Ohio St.3d 41, 2007 Ohio 2744, 867 N.E.2d 834; Disciplinary Counsel v. Young, 113 Ohio St.3d 36, 2007 Ohio 975, 862 N.E.2d 504; Cuyahoga County Bar Ass'n v. Rutherford, 112 Ohio St.3d 159, 2006 Ohio 6526, 858 N.E.2d 417; Columbus Bar Ass'n v. Winkfield, 107 Ohio St.3d 360, 2006 Ohio 6, 839 N.E.2d 924, or, as it alternatively has been put, "applicable precedent." E.g., Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006 Ohio 6525, 858 N.E.2d 414. Of the many mitigating and aggravating factors considered (see BCGD Proc. Reg. 10(B)(1) & (2), set forth in this section supra at "Hearing - Board determination and recommendation"), two are mentioned in Gov Bar R V. Prior disciplinary offenses may justify an increase in the degree of discipline imposed for subsequent misconduct. See Gov Bar R V 6(C). Cooperation with the disciplinary process is required of all attorneys, including the respondent. See Gov Bar R V 4(G). Failure to cooperate is treated as an aggravating factor. BCGD Proc Reg 10(B)(1)(e). See, e.g., Cleveland Bar Ass'n v. Church, 114 Ohio St.3d 41, 2007 Ohio 2744, 867 N.E.2d 834; Office of Disciplinary Counsel v. Watson, 98 Ohio St.3d 181, 2002 Ohio 7088, 781 N.E.2d 212, at para. 11 (respondent's conduct during disciplinary process was "the perfect example of how not to behave").
There are instances in which obvious aggravating factors seem to go unnoticed. Thus in Toledo Bar Ass'n v. Sousher, 112 Ohio St.3d 533, 2007 Ohio 611, 861 N.E.2d 536, the Court stated that "r]elator did not identify, and the board did not find, evidence of aggravating factors warranting severity." Id. at para. 32. This was said in the face of respondent's stipulated violation of multiple disciplinary rules in 14 separate courts, including passing bad checks and pleading guilty to two charges of forgery and one of identity theft. Apparently relator and the Board (and the Court) chose to ignore the multiple-offense and pattern-of misconduct aggravating factors. (The focus of the Court with respect to sanctions was directed at the "considerable mitigating effect" of respondent's seemingly successful battle with alcohol and prescription-drug dependency.) Id. at para. 30. In Cuyahoga County Bar Ass'n v. King, 109 Ohio St.3d 95, 2006 Ohio 1932, 846 N.E.2d 37, the respondent was under a prior indefinite suspension when charged with and found to have engaged in additional misconduct. In imposing a sanction, the Court noted that the Board had found as aggravating factors respondent's lack of cooperation in the disciplinary process and failure to make restitution, BCGD Prac Reg 10(B)(1)(e) & (i). No mention was made of BCGD Proc Reg 10(B)(1)(a), prior disciplinary offenses, even though the prior offense was acknowledged by the Court when it changed the sanction from indefinite suspension to run concurrently with the prior suspension, as recommended by the Board, to indefinite suspension to run consecutively to the earlier suspension. A blatant disregard of the prior-offenses element occurred in Erie-Huron Counties Joint Certified Grievance Comm. v. Huber, 108 Ohio St.3d 338, 2006 Ohio 1066, 843 N.E.2d 781. There was a long list of aggravating factors cited by the Board, but the list did not include prior disciplinary offenses, even though Huber had been disciplined twice before. Indeed, the majority quoted the Board's citations of "respondent's 50 years of legal practice as a mitigating factor." Id. at para. 13. The Board nevertheless recommended an indefinite suspension. The Court, however, concluded that "a more lenient sanction" was appropriate because of "his long career in the legal profession," id. at para. 15, never mentioning that during this "long career" he had twice been disciplined before. Dissenting, Chief Justice Moyer reasoned that the Board's recommended indefinite suspension should have been imposed and had this to say about the majority's reliance on respondent's "long career":
The only reason cited by the majority for making an exception to our consistent sanctions for those attorneys who have engaged in conduct [neglect, misrepresentation to clients, failure to cooperate] similar to that of respondents (sic) is that he has a "long career in the legal profession." That is a new standard. I can only hope that this is the sole case in which it will be applied as the reason for such leniency.
Id. at para. 21. In contrast to the King and Huber cases, see Disciplinary Counsel v. Jones, 112 Ohio St.3d 46, 2006 Ohio 6367, 857 N.E.2d 1221, decided the same year, where the "prior disciplinary record" aggravating factor was found "[a]pparently because of respondent's license suspension for failure to register." Id. at para. 20.
Most disciplinary cases are decided per curiam without any syllabus stating the sanction to be applied in such cases. An exception occurred in Office of Disciplinary Counsel v. Greene, 74 Ohio St.3d 13, 655 N.E.2d 1299 (1995). In Greene, Chief Justice Moyer, writing for a 4-3 majority, concluded that the case presented the Court "with an opportunity to state a clear test that should be consistently applied in all cases where an officer of the court intentionally misrepresents a crucial fact to the court in order to effect a desired result to benefit a party." Id. at 15, 655 N.E.2d at 1301. (The respondent, an assistant county prosecutor, had lied to the court concerning the facts involved in a traffic charge case in order to obtain a dismissal of the charges.) As a result, the Court issued a syllabus stating that in such circumstances "the lawyer will be suspended from the practice of law for an appropriate period of time." (Here, one year, with ten months stayed on conditions.) Dissenting, Justice Resnick argued that syllabus law is inappropriate in disciplinary cases, each of which should be decided on its particular facts. "[I]t certainly should not be this court's place to announce in advance the sanction which will automatically be forthcoming from this court when a particular set of circumstances occurs." Id. at 18, 655 N.E.2d 1302. (A review of citing references to the Greene decision indicates that no subsequent Supreme Court disciplinary case has cited to or quoted the Greene syllabus language, although a few have quoted comparable language from the opinion.) With respect to another noteworthy syllabus-rule disciplinary case, Office of Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 87, 658 N.E.2d 237 (1995) (violation of DR 1-102(A)(4) – deceit, fraud, misrepresentation, etc., – will result in an actual suspension), the Fowerbaugh syllabus, is often, but not always, followed. See discussion in section 8.4:400 at "In general."
Although in most instances each case is decided upon it own facts, disciplinary case law does provide some guidance as to how the Court views certain types of misconduct and responds to aggravating and mitigating factors in determining sanctions. Not surprisingly, when the aggravating factors overwhelm any mitigation evidence, the penalty will be more severe. E.g., Cleveland Bar Ass'n v. Dadisman, 109 Ohio St.3d 82, 2006 Ohio 1929, 846 N.E.2d 26, at para. 39 (disbarment; "the multiplicity of offenses, the resulting harm caused to multiple clients, and respondent's lack of cooperation in the disciplinary process all show that he is a danger to the public and is not fit to remain in the legal profession"). The opposite is true when mitigating factors predominate, as in Columbus Bar Ass'n v. Micciulla, 106 Ohio St.3d 19, 2005 Ohio 3470, 830 N.E.2d 332 (even though multiple offenses and pattern of misconduct, one-year stayed suspension imposed, given persuasive force of numerous mitigating factors, including being "very active in providing pro bono legal services to the homeless and the poor, . . . unselfishly devot[ing] many hours to these clients," id. at para. 23). For additional case law on the impact of aggravating/mitigating factors, see Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 10.27 (1996).
Numerous decisions involve mental-health concerns considered in mitigation. See BCGD Proc Reg 10(B)(2)(g). An interesting discussion on clinical depression as a mitigating factor is found in Cincinnati Bar Ass'n v. Stidham, 87 Ohio St.3d 455, 721 N.E.2d 977 (2000). Accord Disciplinary Counsel v. Bowman, 110 Ohio St.3d 480, 2006 Ohio 4333, 854 N.E.2d 480 ("abhorrent" behavior, but sanction tempered because mental disability contributed to misconduct; two-year suspension; citing Stidham supra and Golden and Lowden infra); Office of Disciplinary Counsel v. Golden, 97 Ohio St.3d 230, 2002 Ohio 5934, 778 N.E.2d 564 (following Stidham; despite misconduct permeating practice, which would ordinarily call for disbarment, respondent's misconduct resulted directly from clinical depression; Court willing to see if problem can be overcome with treatment; indefinite suspension imposed). Another mental-disability case involved a documented bipolar disorder that, in the Court's words "did not merely impede his performance on his client's behalf [resulting in multiple violations, including DR 1-102(A)(4)], it effectively prevented him from functioning at all in accordance with his professional oath. Because of this and respondent's willingness to commit to treatment, we exercise lenience and tailor our sanction to help manage the disability while at the same time preserving the public's trust in the legal profession," Toledo Bar Ass'n v. Lowden, 105 Ohio St.3d 377, 2005 Ohio 2162, 826 N.E.2d 836, at para. 20 (stayed two-year suspension on condition that respondent continue his treatment and provide quarterly reports to relator about his progress during the suspension period). Accord Columbus Bar Ass'n v. Winkfield, 107 Ohio St.3d 360, 2006 Ohio 6, 839 N.E.2d 924 (in situation where, because of "the seriousness of respondent's mental disease and the professional and personal hardships it has caused," only options were indefinite suspension or disbarment, "[w]e are thus persuaded to also give respondent the chance to prove himself in the future"; indefinite suspension imposed, id. at paras. 46, 56). The Lowden decision is noteworthy in another respect: it would appear that the Court, in a unanimous opinion and contrary to the earlier syllabus-rule cases such as Greene and Fowerbaugh, discussed above, has settled on the approach that "each case of professional misconduct must be decided on the unique facts and circumstances presented." Id. at para. 19.
In some situations a link will exist between a recognized disability of an attorney and the misconduct that occurred. The presence of such a disability triggers Americans with Disabilities Act protections in some settings outside the disciplinary process, but the Act does not apply to limit the state's authority to impose disciplinary sanctions for the misconduct. Cincinnati Bar Ass'n v. Komarek, 84 Ohio St.3d 90, 702 N.E.2d 62 (1998) (ADA does not prevent the state from disbarring an attorney suffering from bipolar disorder). Nevertheless, as noted, the disability may be treated as a mitigating factor when considering the sanction to be imposed. See Office of Disciplinary Counsel v. Zingarelli, 89 Ohio St.3d 210, 729 N.E.2d 1167 (2000) (panel and Board recommended permanent disbarment; Court noted that respondent's bipolar disorder contributed to his misconduct and ordered indefinite suspension).
BCGD Proc Reg 10(B)(2)(g) also deals with chemical dependency as a mitigating factor. If drug and/or alcohol abuse is diagnosed by a health care professional; if it contributed to the misconduct; if treatment has been successful; and if there is a prognosis that the respondent will be able to return to the competent, ethical practice of law, these factors can be taken into account in mitigation. Id. at (g)(i)-(iv). E.g., Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076, at paras. 59-61 ("A two-year suspension with the final six months stayed will appropriately protect the public, provided that respondent continues his daily efforts at maintaining sobriety.").
While the great majority of disciplinary cases involve violation of disciplinary rules, remember that sanctions can be imposed based solely on a failure to cooperate in the investigation. One such case is Cleveland Bar Ass'n v. James, 109 Ohio St.3d 310, 2006 Ohio 2424, 847 N.E.2d 438 (insufficient evidence of violation of disciplinary rules, but "utter lack of cooperation" violative of Gov Bar R V (4)(G) called for one-year suspension). Accord Mahoning County Bar Ass'n v. Guarnieri, 106 Ohio St.3d 24, 2005 Ohio 3471, 830 N.E.2d 336.
Violation of Governing Bar Rules other than that requiring cooperation in the investigation can also lead to sanction. See Disciplinary Counsel v. Houser, 110 Ohio St.3d 203, 2006 Ohio 4246, 852 N.E.2d 724 (respondent sanctioned for violation of, inter alia, the biennial registration requirements of Gov Bar R VI 1(A)). She was also charged with multiple violations of Gov Bar R X 3(A)(1) and (B)(5) (requiring an attorney to report 24 CLE credit hours biennially), for which she had been sanctioned previously. The Court noted that violations of these two GBR provisions are treated differently in disciplinary proceedings brought pursuant to Gov Bar R V 8:
We agree with the board that respondent violated the cited Disciplinary Rules and has a long history of failing to comply with our rules for attorney registration and CLE. In determining the appropriate sanction for this misconduct, however, neither we nor the board may consider the facts that respondent was fined and suspended from practice for her violations of Gov.Bar R. X(3)(A)(1) and (B)(1) [CLE violations].
Gov.Bar R. X(5)(C) specifically prohibits us from considering a sanction for respondent's failure to comply with CLE requirements when we impose a sanction under Gov.Bar R. V(8). In contrast, Gov.Bar R. VI, which addresses the registration of attorneys, does not contain a similar prohibition.
Houser, at paras. 17-18 (failure to comply with GBR registration requirements considered, along with numerous other serious violations, in imposing disbarment).
Disciplinary matters brought under Gov Bar R V can include proceedings against a justice of the Supreme Court or a judge (see Gov Jud R II and the Resnick case, which is discussed this section supra at "Hearing - The process"). ("Misconduct" under Gov Bar R V includes violation of the Code of Judicial Conduct, as well as the OHRPC. See Gov Bar R V 6(A)(1).) In addition, there is a special disciplinary mechanism applicable only to justices and judges set forth in Gov Jud R III. Pursuant thereto, a justice or judge can be removed or suspended for misdeeds of a generally more serious nature than those covered by Gov Bar R V. The bases for removal or suspension from office are listed in Gov Jud R III 1(B); section (B) incorporates by reference sanctionable conduct as provided in ORC 2701.12(A) (including "misconduct" involving moral turpitude or conviction of a crime involving moral turpitude) and then adds four more reasons triggering removal or suspension, including willful and persistent failure to perform judicial duties and habitual intemperance. Retirement for disability (mental or physical) is covered by ORC 2701.12(B). The procedures applicable in all such cases are set forth in Gov Jud R III and in ORC 2701.11. Anyone interested in the details of this curious and cumbersome mix of statute and Supreme Court rule should consult those provisions; they are treated also in Arthur F. Greenbaum, A Lawyer's Guide to the Ohio Code of Professional Responsibility § 10.42 (1996).
Special disciplinary provisions - In general: In addition to the process outlined above, Gov Bar R V provides for interim suspensions and contains special disciplinary provisions for lawyers convicted of a felony or found in default under a child support order, lawyers suffering from mental illness, and Ohio lawyers disciplined in another jurisdiction. The rule also recognizes a role for alternative dispute resolution techniques to handle complaints that raise issues outside the purview of the OHRPC. Effective September 1, 2007, the procedure for retirement or resignation from practice has been placed in Rule VI. See Gov Bar R VI 6 and discussion of this section infra at "Special disciplinary provisions - Retirement or resignation from the practice of law.".
Special disciplinary provisions - Interim remedial suspension: If the Disciplinary Counsel or an appropriate Certified Grievance Committee receives substantial, credible evidence that an attorney or judge has committed a disciplinary violation and poses a substantial threat of serious harm to the public, it may initiate procedures to secure an interim remedial suspension of the respondent. Gov Bar R V 5a(A).
As a first step, the disciplinary authority must make a reasonable attempt to notify the respondent that a motion will be filed with the Ohio Supreme Court requesting an order for an interim remedial suspension. Gov Bar R V 5a(A)(1)(a). Next, the disciplinary authority will file a motion with the Court requesting such an order. The motion must include proposed findings of fact and conclusions of law and should be accompanied by relevant evidence and a certificate of service. Gov Bar R V 5a(A)(1)(b). The respondent may file a memorandum in opposition accompanied by rebuttal evidence. Gov Bar R V 5a(A)(2).
If warranted, the Court will enter an immediate interim suspension or take such other action as it considers appropriate. Gov Bar R V 5a(B). For instances of application of the interim-suspension provision, see Medina County Bar Ass'n v. Wootton, 110 Ohio St.3d 179, 2006 Ohio 4094, 852 N.E.2d 175; Cleveland Bar Ass'n v. Dadisman, 101 Ohio St.3d 1444, 2004 Ohio 322, 802 N.E.2d 676; Office of Disciplinary Counsel v. Brickley, 95 Ohio St.3d 1430, 766 N.E.2d 997 (2002). Gov Bar R V 5a(B) also provides that, if requested, the Court may order such a suspension even before the memorandum in opposition is filed.
If an order of interim remedial suspension is entered, the respondent may move for its modification or dissolution through a motion contending that the respondent no longer poses a serious threat of harm to the public. Such motions may be made within thirty days of entrance of the order or at a later time with leave of the Court. Gov Bar R V 5a(C)(1). A motion requesting dissolution also can be made if 180 days have passed since entrance of the order and a formal complaint has yet to be filed with the Board pertaining to the alleged misconduct upon which the interim suspension was predicated. Gov Bar R V 5a(C)(2). The disciplinary authority is to be served with the motion and is given ten days from the date of its filing to enter a response.
For a case in which a lawyer under interim remedial suspension was found in contempt of the suspension order, for appearing and arguing a matter pending before an administrative agency after the suspension order had been entered, see Columbus Bar Ass'n v. Smith, 100 Ohio St.3d 278, 2003 Ohio 5751, 798 N.E.2d 592.
Special disciplinary provisions - Lawyers convicted of a felony or found in default under a child support order: Gov Bar R V 5 provides for interim suspensions for lawyers convicted of a felony or found in default under a child support order. The process is discussed in section 0.2:245.
Special disciplinary provisions - Mental illness suspension: Gov Bar R V 7 sets forth process for the suspension of lawyers suffering from mental illness. The Court may order a mental illness suspension if there is a complaint or answer alleging mental illness, supported by a certified copy of a journal entry of an adjudication of mental illness under ORC 5122.01 or if a hearing panel or the Board, upon its own motion or on motion of either party, ordered a medical or psychiatric examination and the Board concludes there is evidence that the respondent suffers from a mental illness. Mental illness suspensions are applicable only when a respondent proves mental illness at the time of the disciplinary action. See Cincinnati Bar Ass'n v. Fettner, 8 Ohio St.3d 17, 455 N.E.2d 1288 (1983); Ohio State Bar Ass'n v. Roest, 54 Ohio St.2d 95, 374 N.E.2d 1366 (1978). If a mental illness suspension is ordered, the lawyer will be placed on inactive status. Gov Bar R V 7(E).
The purpose of this provision is to provide an expedited procedure to suspend an attorney whose mental illness renders the attorney unable to represent his or her clients properly. Such a suspension stands apart from any disciplinary violations that may have occurred; it cannot be raised as claim preclusion in defense of any subsequent disciplinary proceeding. Cincinnati Bar Ass'n v. Komarek, 84 Ohio St.3d 90, 702 N.E.2d 62 (1998). Accord Cuyahoga Bar Ass'n v. McClain, 99 Ohio St.3d 248, 2003 Ohio 3394, 791 N.E.2d 411. Justice Lundberg Stratton entered a powerful dissent in McClain. See id. at paras. 14-29. For a case in which the same justice in dissent argued that the mental-illness suspension process should have been used, see Cuyahoga County Bar Ass'n v. Maybaum, 112 Ohio St.3d 93, 2006 Ohio 6537, 858 N.E.2d 359, at para. 34.
The Clerk of the Supreme Court mails copies of mental illness suspension orders just as in other disciplinary cases. The orders are not published, however, even though they are considered matters of public record. See Gov. Bar R. V 7(E). The suspension order may be terminated on the respondent's application showing removal of the cause of the suspension. See Gov Bar R V 7(F).
Disciplinary suspensions sometimes involve issues relating to mental illness of an attorney. Serious misconduct of an attorney with a mental illness may warrant a disciplinary suspension, rather than a mental illness suspension. See Mahoning County Bar Ass'n v. Cregan, 62 Ohio St.3d 444, 584 N.E.2d 656 (1992). In some disciplinary proceedings, mental illness may be considered a mitigating factor in determining what sanction should be imposed, but is not intended to be used by a respondent to avoid punishment. See Office of Disciplinary Counsel v. Zingarelli, 89 Ohio St.3d 210, 729 N.E.2d 1167 (2000); Cincinnati Bar Ass'n v. Fettner, 8 Ohio St.3d 17, 455 N.E.2d 1288 (1983). If psychiatric problems do not interfere with representation of clients, a disciplinary suspension, stayed with probation, may be ordered. See Office of Disciplinary Counsel v. Pridemore, 28 Ohio St.3d 106, 502 N.E.2d 635 (1986). Alcoholism may be considered as a mitigating factor, but it is not considered a mental illness under the mental-illness provisions of Gov Bar R V 7. See Ohio State Bar Ass'n v. Roest, 54 Ohio St.2d 95, 455 N.E.2d 1288 (1978).
Mental illness as a mitigating factor in disciplinary proceedings is covered in BCGD Proc Reg 10(B)(2)(g)(i)-(iv). Pursuant thereto, mental illness "may be considered in favor of recommending a less severe sanction," where there has been (i) professional diagnosis of the lawyer's condition, (ii) it has been determined that the condition contributed to the misconduct, (iii) there has been a sustained period of successful treatment, and (iv) there is a professional prognosis that the lawyer will be able to return to competent, ethical professional practice. In the Maybaum case, cited above, Justice Lundberg Stratton in dissent read the majority opinion as one in which the respondent's mental illness was used in aggravation, not mitigation; the Court adopted the board's recommendation to impose an indefinite suspension, rather than the two-year suspension with 18 months stayed recommended by the panel. See 112 Ohio St.3d 93, at para. 33.
Special disciplinary provisions - Reciprocal discipline: Discipline in another jurisdiction is the basis for reciprocal discipline in Ohio. E.g., Disciplinary Counsel v. Kreiling, 105 Ohio St.3d 1201, 2005 Ohio 389, 822 N.E.2d 368 (permanent disbarment in Florida; permanent disbarment imposed in Ohio). An attorney licensed in Ohio must notify the Disciplinary Counsel and the Clerk of the Supreme Court within thirty days after the issuance of a disciplinary order in another jurisdiction. Upon notification of the action, the Disciplinary Counsel must obtain a certified copy of the disciplinary order and file it with the Clerk. See Gov Bar R V 11(F)(1).
The Court then issues a show-cause order directing the attorney to notify the Court, within twenty days of the service of the notice, of any reason why identical or comparable discipline would be unwarranted. See Gov Bar R V 11(F)(2). Within thirty days after service of the notice, the Court will impose identical or comparable discipline, unless the attorney proves by clear and convincing evidence that there was a lack of jurisdiction or fraud in the other disciplinary proceeding, or that the misconduct warrants substantially different discipline in Ohio. See Gov Bar R V 11(F)(4)(a). Without such proof, a final disciplinary order in another jurisdiction conclusively establishes the misconduct for an Ohio disciplinary proceeding. See Gov Bar R V 11(F)(5).
Reciprocal discipline may be imposed even if the term of discipline imposed in the other jurisdiction has expired. See Gov Bar R V 11(F)(4)(b). But, if it has been stayed, any reciprocal discipline imposed in Ohio will be deferred until the stay expires. Gov Bar R V 11(F)(3). The filing in the United States Supreme Court of a petition for certiorari challenging the decision rendered in the initial forum does not trigger this provision. Office of Disciplinary Counsel v. Hine, 80 Ohio St.3d 448, 687 N.E.2d 420 (1997).
The Ohio Supreme Court may make its determination based on the pleadings filed, or may permit or require briefs or a hearing, or both. See Gov Bar R V 11(F)(7). The Court may enhance the sanction if an attorney fails to self-report the action to the Disciplinary Counsel and the Clerk of the Supreme Court. Gov Bar R V 11(F)(6). See Office of Disciplinary Counsel v. Webster, 99 Ohio St.3d 92, 2003 Ohio 2459, 789 N.E.2d 191, for a case in which Chief Justice Moyer, in a persuasive dissent, invoked Gov Bar R V 11(F)(6), among other reasons, in arguing that indefinite suspension, the sanction most comparable to Rhode Island's "disbarment," should be enhanced to permanent disbarment in Ohio.
Note that for purposes of reciprocal discipline, "another jurisdiction" includes a federal court or other federal agency or department, as well as another state. See, e.g., Office of Disciplinary Counsel v. Porter, 97 Ohio St.3d 1221, 2002 Ohio 6774, 779 N.E.2d 1043 (public reprimand by the district court for the Northern District of Ohio); Office of Disciplinary Counsel v. Colitz, 99 Ohio St.3d 1216, 2003 Ohio 3308, 790 N.E.2d 788 (five-year suspension, with two years stayed, imposed by U.S. Department of Commerce, U.S. Patent & Trademark Office).
Note further that reciprocal discipline may consist of a sanction that is not available in Ohio. See Colitz supra; Office of Disciplinary Counsel v. Ankerman, 98 Ohio St.3d 1205, 2003 Ohio 503, 782 N.E.2d 1161 (as result of three-year suspension in Connecticut, respondent suspended for three years in Ohio). For additional discussion of reciprocal discipline, see section 8.5:200.
Special disciplinary provisions – Retirement or resignation from the practice of law: Effective September 1, 2007, Gov Bar R VI 6 sets forth the procedures for both retirement (formerly in Gov Bar R VI 3) and resignation (formerly in Gov Bar R V 11(G)) from the practice of law in Ohio. (The age 65 requirement for retirement in former Gov Bar R VI 3 has been eliminated. As an initial step the attorney must file a notarized affidavit containing some core information (e.g., attorney registration number, date of birth) and attesting that he or she does want to retire or resign from practice and recognizes the consequences of doing so -- that the act is irrevocable and completely divests the individual of all rights and privileges accorded attorneys. Gov Bar R VI 6(A)(1). The big news here is that, in contrast to retirement under former Gov Bar Rule VI 3(A), pursuant to which the retired attorney could reapply for active status, retirement is now "irrevocable"; if a lawyer takes retired status under Gov Bar R VI 6(A), there is no going back. (The amendment is briefly discussed in Eugene P. Whetzel, Change as a constant: Review of the Judicial Code and other clarifications, Ohio Law., Sept./Oct. 2007, at 28). This change renders moot the sanction in cases such as Cleveland Bar Ass'n v. Greenberg, 112 Ohio St.3d 138, 2006 Ohio 6519, 858 N.E.2d 400, where the Court ordered an 18-month suspension to be imposed if and when the respondent, who had taken retired status, should choose to resume active status. (The Greenberg case is also discussed in section 8.3:200.) The attorney also must sign a written waiver allowing Disciplinary Counsel to review all records pertaining to any grievances filed against the attorney and to disclose any of that information, including information that otherwise would be private, in a report to the Ohio Supreme Court. Gov Bar R VI 6(A)(2).
Upon receipt of these documents, the Office of Attorney Registration and CLE is to refer the matter to Disciplinary Counsel for review and recommendation that culminates in a written report, filed under seal, with the Attorney Registration Office. Disciplinary Counsel may recommend that the resignation be accepted, denied, or delayed. If the application is accepted, Disciplinary Counsel must also indicate whether the attorney should be designated as retired or as resigned with disciplinary action pending. If the recommendation is to delay or deny, the report is to set forth the reasons for the recommendation. Gov Bar R VI 6(B).
Upon receipt of the report, the Office of Attorney Registration and CLE shall do one of the following:
(1) accept the application and designate the attorney as retired if the report so recommends;
(2) if the report recommends acceptance with a designation of resigned with disciplinary action pending, or if the report recommends denial or deferral of the application, the application and report are to be filed with the Clerk of the Supreme Court.
Gov Bar R VI 6(B)(1) & (2).
Upon receipt and consideration of an application filed pursuant to division (B)(2), the Court shall enter such order as it deems appropriate. An order accepting an application to resign shall indicate that the resignation is with disciplinary action pending. Gov Bar R VI 6(C). If the application to resign is not accepted, the appropriate sanction will be imposed if the offer the resign is an effort to evade sanction. See Akron Bar Ass'n v. Holder, 112 Ohio St.3d 90, 2006 Ohio 6506, 858 N.E.2d 356 (respondent disbarred).
Special disciplinary provisions - Alternative dispute resolution: Gov Bar R V 3(C) permits certified grievance committees to adopt and use mediation, office-practice monitoring, and other means of alternative dispute resolution developed by the Board to handle allegations of client dissatisfaction that do not constitute disciplinary violations. The mediators and ADR facilitators may not be members of or subject to the jurisdiction of the certified grievance committee. The certified grievance committees are to report the results of the alternative dispute procedures to the Board. See Gov Bar R V 3(C)(1)(g).
Duties of a disciplined attorney: If an attorney is disbarred or suspended, the attorney must inform his clients, opposing counsel and tribunals before which he has actions pending of that fact. Certain steps also must be taken to protect the clients' interests. See Gov Bar R V 8(E). Violation of this rule is ground for sanction. Disciplinary Counsel v. Frazier, 110 Ohio St.3d 288, 2006 Ohio 4481, 853 N.E.2d 295 (respondent permanently disbarred for violation of Gov Bar R V 8(E) and host of disciplinary rules). Where necessary, another attorney may be appointed to inventory the files and protect the clients' interests if the disbarred or suspended attorney does not do so. See Gov Bar R V 8(F).
When the Court imposes a suspension from practice, the order may include a period for practice while under probation. Gov Bar R V 9 governs probationary procedures.
Disbarment and voluntary retirement or resignation from the bar are permanent; the lawyer may never regain her license. See Gov Bar R VI 6(A). If a lawyer is suspended, the lawyer may apply for reinstatement. If the lawyer received a suspension for a definite time period, from six months to two years, the lawyer may make a written application for reinstatement at the end of the period. A lawyer subject to an indefinite suspension must petition for reinstatement, but cannot do so until two years after entry of the order of indefinite suspension. Gov Bar R V 10 details the process, which is discussed in the following paragraphs. Moreover, a suspended lawyer must comply with the additional CLE requirements imposed by Gov Bar R X 3(G). See Fraziersupra, at para. 48 (failure to do so considered in aggravation).
Reinstatement - In general: After completing a suspension from the practice of law, an attorney may apply for reinstatement. There are two different reinstatement procedures. An application for reinstatement is typically used after a suspension for a definite time period of six months to two years. A more rigorous petition procedure is required for reinstatement after an indefinite suspension.
Reinstatement - Application for reinstatement after suspension for definite time period: An application for reinstatement may be made on completion of a suspension ordered for a period of time from six months to two years. The suspended attorney must make a written application to the Clerk of the Supreme Court of Ohio, accompanied by an affidavit indicating whether the respondent has any formal disciplinary proceedings pending, and whether he or she has complied with continuing legal education requirements. Gov Bar R V 10(A). The Supreme Court will order reinstatement if the respondent has paid all costs of the proceedings as ordered by the Court, complied with the terms of the suspension order, complied with the continuing legal education requirements, and has no formal disciplinary proceedings pending. The Clerk provides notice of the reinstatement to the person or organizations that received copies of the suspension order. Id.
The Court addressed the interaction of federal and state law in the context of conditions for reinstatement in Dayton Bar Ass'n v. Gerren, 110 Ohio St.3d 297, 2006 Ohio 4482, 853 N.E.2d 302. In imposing the sanction of an 18-month suspension, with the last six months stayed on respondent's payment of restitution, the Court made clear that if the debt upon which restitution is premised is discharged in bankruptcy, then the restitution condition is inoperative, pursuant to 11 USC § 525(a). See 110 Ohio St.3d 297, at para. 23.
Another aspect of reinstatement after a definite-term suspension was referred to in Disciplinary Counsel v. Carlson, 111 Ohio St.3d 281, 2006 Ohio 5707, 855 N.E.2d 1218. Carlson noted that a lawyer such as respondent, who had been suspended for a two-year term, could apply for reinstatement only if no formal disciplinary proceedings were pending at the time of the application. Id. at para. 13, citing Gov Bar R V 10(A)(4).
Reinstatement - Petition for reinstatement after indefinite suspension: A Gov Bar R V10(C) petition for reinstatement by an attorney serving an indefinite suspension may not be filed until at least two years after either of the following: (1) the entry of the order suspending the attorney from the practice of law, but the two-year time period may include credit for time served under an interim suspension, or (2) the denial of a petition for reinstatement. Gov Bar R V 10(B). The contents of the petition must include, among other things, "[t]he facts upon which the petitioner relies to establish by clear and convincing evidence that he or she possesses all the mental, educational, and moral qualifications that were required of an applicant for admission to the practice of law in Ohio at the time of his or her original admission and that he or she is now a proper person to be readmitted to the practice of law in Ohio, notwithstanding the previous disciplinary action." Gov Bar R V 10(C)(5).
Note that in Toledo Bar Ass'n v. Lockhart, 95 Ohio St.3d 135, 2002 Ohio 1758, 766 N.E.2d 596, respondent's petition for reinstatement was denied after she failed to notify the Court that, at the time she verified the petition stating that she possessed the requisite moral qualifications, she was under indictment for felony theft, a charge that resulted in a guilty plea to the lesser offense of petty theft. The lawyer in Lockhart had been suspended for two years, with one year stayed. As such, it would seem that the reinstatement application procedure of Gov Bar R V 10(A), not the 10(C) verified petition procedure for those under indefinite suspension, should have been applicable. Although the Court did not comment on this in Lockhart, there are instances in which the Court expressly directs that the more rigorous reinstatement procedure of Gov Bar R 10(C) be imposed "to ensure that respondent is not permitted to return to the practice of law prematurely," even though the sanction imposed was less than an indefinite suspension. E.g., Cincinnati Bar Ass'n v. Greenberger, 113 Ohio St.3d 162, 2007 Ohio 1255, 863 N.E.2d 167, at para. 6.
Unless denied forthwith for insufficiency of form or substance, the clerk forwards the respondent's petition for reinstatement to the secretary of the Board. A panel of the Board conducts a hearing to accept and report evidence regarding the rehabilitation of the petitioner, and his or her possession of the mental, educational, and moral qualifications required. Gov Bar R V 10(F), (G)(1). The petitioner must establish by clear and convincing evidence, to the satisfaction of the panel, that he or she has made appropriate restitution to persons harmed by the misconduct, that he or she possesses all the mental, educational, and moral qualifications that were required of an applicant for admission to the practice of law at the time of his or her original admission, that he or she has complied with the continuing legal education requirements, and that the petitioner is now a proper person to be readmitted to the practice of law in Ohio. Gov Bar R V 10(E). For a case granting a petition for reinstatement on conditions, in which the Court divided on whether the restitution requirement had been satisfied, see Cleveland Bar Ass'n v. Gay, 94 Ohio St.3d 404, 763 N.E.2d 585 (2002).
Reinstatement hearings are public. Interested persons, members of the bar, and the Disciplinary Counsel are permitted to appear before the hearing panel in support of or in opposition to the reinstatement. Gov Bar R V 10(G)(2). Usually the relator in the original disciplinary matter speaks for or against reinstatement. In matters relating to the petitioner's qualifications that are sufficiently serious and complex, certified grievance committees may request the assistance of the Disciplinary Counsel. Gov Bar R V 10(G)(3).
After the hearing, the panel makes its findings of fact and recommendations in a certified report presented to the Board. Gov Bar R V 10(G)(4). The Board may recommend the denial of a petition for reinstatement, in which case the petitioner has ten days from receipt of the notice to file with the Court objections and a brief in support of the objections. Gov Bar R V 10(G)(5). The Board may instead recommend reinstatement, in which case objections and a brief supporting the objections may be filed with the Court within ten days by any person or organization entitled to receive copies of the disciplinary order, the bar association of the county in which the petitioner resides at the time of filing the petition, each county in which the petitioner proposes to maintain an office if reinstated, and the Ohio State Bar Association. Gov Bar R V 10(G)(6). In recommending reinstatement, the Board may suggest to the Court that reinstatement be conditioned on the petitioner taking and passing the bar examination. Gov Bar R V 10(G)(5). The Supreme Court enters the final order in all reinstatement matters. Gov Bar R V 10(G)(6).
Former OH DR 1-102(A)(3) subjected a lawyer to sanction for engaging in "illegal conduct involving moral turpitude." Under the OHRPC, the "moral turpitude" language has been deleted; Ohio Rule 8.4(b) now prohibits instead the commission of "an illegal act that reflects adversely on the lawyer's honesty or trustworthiness." As explained in Comment , this represents a narrowing of the former "moral turpitude" scheme:
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.
Ohio Rule 8.4 cmt. . See section 8.4:400.
If an Ohio attorney or judicial officer is convicted of a felony in Ohio, or its equivalent in another jurisdiction, whether by verdict or plea, a certified copy of the judgment entry of conviction received from any source by the Secretary of the Board of Commissioners on Grievances and Discipline will be transmitted to the Ohio Supreme Court. Upon receipt, the Ohio Supreme Court may enter any order it considers appropriate with respect to the individual, usually immediate interim suspension, without having to go through the full disciplinary process. See Gov Bar R V 5(A). This provision applies regardless of whether the conduct underlying the felony conviction constituted a crime of moral turpitude. If the conviction is reversed, the lawyer, if suspended, will be reinstated, but reinstatement does not require the termination of any pending disciplinary proceedings based upon the conduct. See Gov Bar R V 5(D)(2).
This procedure also applies with respect to an attorney or judicial officer against whom a final, enforceable determination has been made that the individual is in default under a child-support order. See Gov Bar R V 5(A)(1)(b). A case of first impression under the default-of-child-support aspect of Gov Bar R V5(A) is Disciplinary Counsel v. Greer, 112 Ohio St.3d 124, 2006 Ohio 6516, 858 N.E.2d 388. In Greer, respondent, who had been given an interim suspension for violation of Gov Bar R V 5(A)(1)(b), was then charged with violating DR 1-102(A)(6) for the same conduct – failure to comply with the child-support order. The sanction imposed for this violation (coupled with failure to cooperate in the investigation) was a one-year suspension, with no credit for the time spent on interim suspension, and with reinstatement conditioned on compliance with all of the terms of the interim-suspension order. Justice Lundberg Stratton dissented with respect to the sanction. She argued that the interim suspension on its own serves the intended purpose and that the added one year is counterproductive: "this added discipline accomplishes nothing and, in the long run, potentially harms the victims, the children, to whom child support is owed [by making it more difficult for the respondent to pay off the arrearages owing]." Id. at para. 25. Accord Disciplinary Counsel v. Curry, 112 Ohio St.3d 130, 2006 Ohio 6517, 858 N.E.2d 392, with Justice Lundberg Stratton again dissenting for the same reasons. (A further detail in Curry was that Disciplinary Counsel advised the Court that it had not previously imposed a disciplinary sanction upon a lawyer "solely" for failure to pay child support and lack of cooperation in the disciplinary investigation. Id. at para. 18. Note, however, that the Court has previously disciplined a lawyer for failure to cooperate standing alone. See, e.g., Cleveland Bar Ass'n v. James, 109 Ohio St.3d 310, 2006 Ohio 2424, 847 N.E.2d 438 (one-year suspension; interestingly, the failure to cooperate was not only the misconduct sanctioned but also constituted an aggravating factor).
See sections 3.1:300, 3.1:500, and 3.5:400.
See sections 3.1:400 and 8.4:300.
See section 0.2:280.
Both federal district courts in Ohio and the Sixth Circuit Court of Appeals set forth their policies on admission to practice and attorney discipline by local rule. These supplement any ethical rules generally applicable in federal courts. For example, the bankruptcy code should be consulted for ethical standards codified there; those standards apply in all federal bankruptcy courts.
In the Federal District Court for the Northern District of Ohio, admission to practice before the court is treated in Local Civ R 83.5, Local Cr R 57.5, and Local Bankr R 2090-1. Limited appearances by law students are authorized in Local Civ R 83.6 and Local Cr R 57.6.
Lawyers admitted to practice before the court are bound by the OHRPC "so far as [those requirements] are not inconsistent with federal law." Local Civ R 83.5(b); Local Cr R 57.5(b); Local Bankr R 2090-2(a) (incorporating by reference the applicable Local Civil Rules). For a discussion of how the former OHCPR was to be interpreted in this context, see United States v. Beiersdorf-Jobst, Inc., 980 F. Supp. 257 (N.D. Ohio 1997).
Lawyer discipline is dealt with in Local Civ R 83.7, Local Cr R 57.7, and Local Bankr R 2090-2.
Restrictions on the release of information by lawyers in criminal cases are contained in Local Cr R 57.1.
In the Federal District Court for the Southern District of Ohio admission to practice before the court is treated in Local Civ R 83.3, which governs both civil and criminal matters (see Local Cr R 1.2-1.3) and Local Bankr R 2090-1. Limited appearances by law students are allowed in the Southern District, subject to compliance with the requirements of Local Civ R 83.6.
Lawyers admitted to practice before the Southern District were bound by the OHCPR unless otherwise provided by a specific local rule of the court. Local Civ R 83.3(f) (incorporating Model Federal Rule of Disciplinary Enforcement IV(B)). Local Bankr R 2090-2(a) also provides that the former OHCPR applies to those practicing before that court, except "that service on a debtor as required by these rules shall not be a violation of the [OHCPR] as an unauthorized contact with a represented person." (It can safely be presumed that all of these OHCPR references will be changed to the OHRPC in due course.)
Lawyer discipline is dealt with in Local Civ R 83.3(f), which provides that lawyer conduct and its supervision is to be governed by the Model Federal Rules of Disciplinary Enforcement (with the exception of Rules XI and XII), adopted by Order 81-1 of the court. Local Civ R 83.4(f) governs both civil and criminal matters. Local Bankr R 2090-2(a) also adopts the Model Federal Rules of Disciplinary Enforcement, with some special exceptions set forth in Local Bankr R 2090-2(c).
Restrictions on the release of information by lawyers in criminal cases are contained in Local Cr R 57.1.
In the Sixth Circuit, admission to practice before the court is governed by FRAP 46(a) and Local R 46(a).
The local rule in the Sixth Circuit addressing the ethical standards that govern lawyers practicing before it is ambiguous. Local R 46(b) provides that lawyers appearing before the court are subject to sanction for conduct "violating the Canons of Ethics or the Model Rules of Professional Conduct, whichever applies . . . ." Since the Model ABA provisions never apply as such, the reference is intended to address the fact that lawyers appearing before the court may come from a CPR-based or Model Rules-based state. It is unclear whether the phrase "whichever applies" relates to the ethical standards imposed by the jurisdiction(s) in which the lawyer is licensed to practice, those imposed by the district court in which the appealed case was tried, or both.
Be aware, however, that an October 18, 2006 opinion looks to the Model Rules "with regard to the ethical code of conduct that we demand from the attorneys who practice before us." Nat'l Union Fire Ins. Co. v. Alticor, 466 F.3d 456, 457-58 (6th Cir. 2006). In Alticor, the Sixth Circuit discussed the issue in some detail, as follows:
Previously, the ethics rules for attorneys practicing in our court were largely governed by our common-law precedent. See, e.g., Manning v. Waring, Cox, James, Dklar & Allen, 849 F.2d 222 (6th Cir. 1988). However, with the wide-spread acceptance of the American Bar Association's Model Rules of Professional Conduct, we now look to the codified Rules of Professional Conduct for guidance. See, e.g., Duggins v. Steak 'N Shake, Inc., 195 F.3d 828, 835 (6th Cir. 1999) (referring to and following the ABA's Model Rules of Professional Conduct and Model Code of Professional Responsibility). We conclude that applying these accepted rules will lead to greater uniformity and predictability with regard to the ethical code of conduct that we demand from the attorneys who practice before us.
Application of the Rules of Professional Conduct are particularly applicable to the present dispute involving Michigan-based law firms and attorneys, who, as members of the State Bar of Michigan, are subject to the Michigan Rules of Professional Conduct.
* * *
Accordingly, we exercise our authority to enforce the Rules of Professional Conduct with respect to counsel who appear before this court, and turn to the substance of the MRPC cited by National Union.
466 F.3d at 457-58, 459 (footnotes omitted).
On motion for rehearing, the court on January 3, 2007 vacated in part its prior order, but not so as to affect the language quoted above. 472 F.3d 436 (6th Cir. 2007). See further discussion of the Alticor decisions in section 1.10:300.
The organization of this Treatise follows the Model Rules format, with adjustments as necessary to incorporate Ohio provisions that vary, by addition or deletion, from the Model Rules.
Ohio Rule 1.0(a) adopts the MR 1.0(a) definition verbatim.
Ohio Rule 1.0(b) is substantively identical to MR 1.0(b).
Ohio Rule 1.0(c) is similar to the MR 1.0(c), but contains the following variation: The Ohio Rule expressly includes lawyers in a private or public legal aid or public defender organization.
Ohio Rule 1.0(d), as in MR 1.9(d), fraud "denotes conduct that has an intent [instead of "purpose"] to deceive," but deletes the Model Rule language "that is fraudulent under the substantive or procedural law of the applicable jurisdiction" and in its place incorporates the primary elements of common-law fraud established under Ohio law. See Ohio Rule 1.0(d)(1) & (2) & cmt. .
Ohio Rule 1.0(f) is identical to MR 1.0(e). See Ohio Rule 1.0 cmts.  & .
Ohio Rule 1.0(g) is identical to MR 1.0(f).
Ohio Rule 1.0(h) is identical to MR 1.0(g).
Ohio Rule 1.0(i) is identical to MR 1.0(h).
Ohio Rule 1.0(j) is identical to MR 1.0(i).
Ohio Rule 1.0(k) is identical to MR 1.0(j).
Ohio Rule 1.0(l) is identical to MR 1.0(k), with the exception of one instance of capitalization ("Rules"). See Ohio Rule 1.0 cmts.  & .
Ohio Rule 1.0(m) is similar to MR 1.0(l), but replaces the Model Rule language "a material matter of clear and weighty importance" with "a matter of real importance or great consequence." See Ohio Rule 1.0 cmt. , which notes that the definition of "substantial" does not extend to "substantially" as used in the Rules there enumerated.
Ohio Rule 1.0(o) is identical to MR 1.0(m), except for minor differences in punctuation.
Ohio Rule 1.0(p) is identical to MR 1.0(n), except for minor differences in punctuation.
Ohio Rule 1.0(e) defines "illegal," a term not found in MR 1.0: "'Illegal' denotes criminal conduct or a violation of an applicable statute or administrative regulation."
In a number of places, the Ohio Rules use the term "illegal" instead of the Model Rules term "criminal." See Ohio Rules 1.2(d), 1.6(b)(2), 1.16(e)(2), 4.1(b), and 8.4(b). The ramifications of this change for each of these rules are discussed in sections 1.2:600, 1.6:370, 1.16:320, 4.1:300, and 8.4:300 below. In its Report of the Supreme Court of Ohio Task Force on Rules of Professional Conduct ("Report"), the Task Force states as follows with respect to this change:
For example, a labor law lawyer who advises a client about whether
proposed conduct constitutes an unfair labor practice under federal
or state law usually advises about law that provides for civil
sanctions but no criminal penalties. The Model Rule provisions on
fraud [or criminal conduct] would not apply to such a lawyer because
the lawyer would not be advising the client about either potentially
criminal or fraudulent activity. The Task Force's provisions
apply to such a lawyer because the lawyer is advising the client
about potentially illegal, but not criminal, activity.
Taken together, these rules [i.e., the ones using "illegal instead of "criminal"] work together by encouraging lawyers to counsel clients to avoid illegal and fraudulent activities, requiring lawyers to extricate themselves from client representations when clients will not desist, and requiring lawyers to disclose client confidential information when necessary to avoid furthering a client's illegal or fraudulent activity.
Report at 12-13 (bracketed material added). Apart from the illegal/criminal issue, the example cited by the Task Force seems a poor one. The labor lawyer who advises a client on whether proposed client conduct constitutes an unfair labor practice is not "counsel[ing] a client to engage, or assist[ing] a client" in known illegal or fraudulent conduct, as is prohibited by Rule 1.2(d); rather she is doing what lawyers are supposed to do – providing basic advice about the law and its consequences. Surely the "Task Force's provisions [do not] apply to such a lawyer." As Ohio Rule 1.2 cmt.  makes plain, "[t]here is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which an illegal act or fraud might be committed with impunity."
Ohio Rule 1.0(n) defines "Substantially related matter," a term not found in MR 1.0 (although a comparable definition is found in MR 1.9 cmt. ). The term "denotes one that involves the same transaction or legal dispute or one in which there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation of a client would materially advance the position of another client in a subsequent matter."