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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.

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Ohio Legal Ethics Narrative

VIII Maintaining the integrity of the profession

8.4 RULE 8.4 MISCONDUCT

The material in the following introductory paragraphs is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.15 (1996).

Misconduct in general: Because of their position in the legal system, lawyers have a special responsibility to comport themselves in ways that reflect well on themselves and on the legal profession as a whole; even minor violations may undercut public trust in lawyers and the legal system. This general philosophy was endorsed by the Ohio Supreme Court in the oft-cited case of Cleveland Bar Ass'n v. Stein, 29 Ohio St.2d 77, 81, 278 N.E.2d 670, 673 (1972), where the Court stated:

One of the fundamental tenets of the professional responsibility of a lawyer is that he should maintain a degree of personal and professional integrity that meets the highest standard. The integrity of the profession can be maintained only if the conduct of the individual attorney is above reproach. He should refrain from any illegal conduct. Anything short of this lessens public confidence in the legal profession -- because obedience to the law exemplifies respect for the law.

Accord, e.g., Cincinnati Bar Ass'n v. Hennekes, 110 Ohio St.3d 108, 2006 Ohio 3669, 850 N.E.2d 1201 (quoting Stein with approval).

On its face, Ohio Rule 8.4 (as was the case with former OH DR 1-102) applies to misconduct by "a lawyer." Typically, misconduct engaged in prior to becoming a lawyer, and its effect on the individual's right to practice law, is resolved by the processing of an individual's application for admission to the bar. In Office of Disciplinary Counsel v. Clark, 40 Ohio St.3d 81, 531 N.E.2d 671 (1988), the Ohio Supreme Court was asked to address whether pre-admission conduct could be sanctioned under OH DR 1-102 as well.

The respondent in Clark was charged with violations of former OH DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude) and (A)(6) (engaging in conduct that adversely reflects on one's fitness to practice law), stemming from his significant participation in a major marijuana smuggling operation and from tax evasion, both of which resulted in felony convictions. The criminal activity took place before the lawyer was admitted to the bar, but he was convicted after admission. Respondent argued that the Disciplinary Rules are directed solely to misconduct occurring while a member of the bar. The Court expressly determined it was not necessary to resolve that issue, because he was a member of the Ohio Bar when convicted:

Clearly, an attorney's conviction of felony charges relating to drug smuggling and tax evasion reflects adversely of his fitness to practice law. Furthermore, we find respondent's violation of DR 1-102(A)(6) so serious that it warrants severe disciplinary measures [indefinite suspension], regardless of whether he also violated DR 1-102(A)(3).

40 Ohio St.3d at 83, 531 N.E.2d at 672.

8.4:100 Comparative Analysis of Ohio Rule

  • Primary Ohio References: Ohio Rule 8.4
  • Background References: ABA Model Rule 8.4

8.4:101 Model Rule Comparison

Ohio Rule 8.4 differs substantively from the Model Rule in the following respects:

In division (b), "an illegal" has been substituted for "a criminal"; "or" has been added after "honesty"; and the phrase "or fitness as a lawyer in other respects" has been deleted after "trustworthiness".

In division (f), the words "the Ohio Rule of Professional Conduct, the" have been added after "violation of".

Divisions (g) (discriminatory conduct in professional capacity) and (h) (conduct adversely reflecting on fitness to practice) have been added.

8.4:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.4(a): DR 1-102(A)(1) & (2).

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.4(b): DR 1-102(A)(3).

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.4(c): DR 1-102(A)(4).

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.4(d): DR 1-102(A)(5).

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.4(e): DR 1-102(A)(5) & 9-101(C).

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.4(f): DR 1-102(A)(5).

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.4(g): DR 1-102(B).

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.4(h): DR 1-102(A)(6).

8.4:200 Violation of a Rule of Professional Conduct

  • Primary Ohio References: Ohio Rule 8.4(a)
  • Background References: ABA Model Rule 8.4(a)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.16-1.18
  • Commentary: ABA/BNA § 101:101; ALI-LGL § 2; Wolfram § 3.3

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.16-1.18 (1996).

Ohio Rule 8.4(a) provides that a lawyer shall not "violate or attempt to violate the Ohio Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." An example of the third transgression is set forth in Comment [1] -- "as when [a lawyer] request[s] or instruct[s] an agent to do so on the lawyer's behalf." Rule 8.4 cmt. [1].

Direct violation: Technically, a breach of any Rule violates Ohio Rule 8.4(a) as well, but little is achieved by citing the latter as a disciplinary infraction, in addition to the more specific Rule allegedly violated, other than to make perfectly clear that violations of other Rules constitute "misconduct" under Rule 8.4. The Supreme Court seemed to acknowledge as much under the similar Code provision (OH DR 1-102(A)(1)) in Findlay/Hancock County Bar Ass'n v. Filkins, 90 Ohio St.3d 1, 734 N.E.2d 764 (2000), where, in a footnote, it pointed out that while the complaint also alleged violation of former 1-102(A)(1), this rule "merely precludes a lawyer from violating a Disciplinary Rule."  Id. at 2, 734 N.E.2d at 766. Nevertheless, the rule was sometimes cited as a ground for discipline. See, e.g., Toledo Bar Ass'n v. Slack, 88 Ohio St.3d 274, 725 N.E.2d 631 (2000) (violation of numerous disciplinary rules, including OH DR 1-102(A)(1)); Cleveland Bar Ass'n v. Feneli, 86 Ohio St.3d 102, 712 N.E.2d 119 (1999) (OH DR 1-102(A)(1) tacked on to 1-102(A)(6) violation). See also, under the Code, Cleveland Bar Ass'n v. McMahon, 114 Ohio St.3d 331, 2007 Ohio 3673, 872 N.E.2d 261, where the respondent was charged, inter alia, with violation of DR 7-102(A)(8), which, similar to 1-102(A)(1), prohibits a lawyer during representation of a client from knowingly engaging in illegal conduct or conduct contrary to a disciplinary rule.  In the words of the Court, the Board of Commissioners "dismiss[ed] the DR 7-102(A)(8) violations as redundant," id. at para. 3.

Indirect violation of a Rule: Rule 8.4(a) provides that a lawyer may be guilty of a disciplinary violation not only by his direct actions, but also when the lawyer knowingly assists or induces another to violate a Rule or when the actions are carried out on the lawyer's behalf by another. For example, a lawyer violated this aspect of the former disciplinary rule (1-102(A)(2)) when, at the direction of respondent, one of his nonlawyer employees sent solicitation letters to persons who had been named as defendants in divorce actions, but, contrary to DR 2-101(F)(4), some of the recipients received letters prior to verification that service had been made on them. Akron Bar Ass'n v. Amourgis, 113 Ohio St.3d 32, 2007 Ohio 974, 862 N.E.2d 501. Similarly, the disciplinary rule was violated when a nonlawyer engaged in in-person client solicitation on the lawyer's behalf and defrauded a client in a joint scheme with the lawyer. Bar Ass'n of Greater Cleveland v. Protus, 53 Ohio St.2d 43, 372 N.E.2d 344 (1978) (lawyer indefinitely suspended when nonlawyer solicited business on lawyer's behalf and prepared on lawyer's letterhead itemized proof of loss statements to be submitted to insurance companies to collect insurance proceeds, which statements were represented to clients as work of lawyer; lawyer also violated, inter alia, former OH DR 2-103(C) (restricting solicitation or referral of clients by another)). If a lawyer who is not representing an individual allows that person to mail documents pertaining to a legal matter in the lawyer's business envelope, the conduct involves dishonesty, fraud, deceit, or misrepresentation and is prohibited. Cleveland Bar Ass'n Op. 113 (Dec. 17, 1974) (forbidding this practice in situation where landlord used envelopes of attorney who was not representing him to send tenant five-day notice and complaint in forcible entry and detainer action). The lawyer is not excused because the mailing was carried out by the individual, rather than the lawyer himself. Id. Securing a promise from a former client, as part of the settlement of a fee dispute, to keep the settlement strictly confidential and, if asked, to say no more to disciplinary authorities than that "the matters have been resolved," constituted an attempt to circumvent the disciplinary rules through the act of another. Cuyahoga County Bar Ass'n v. Berger, 64 Ohio St.3d 454, 597 N.E.2d 81 (1992) (attempting to suppress the bar association's investigation violated former OH DR 1-102(A)(2), (5) & (6)).

To the extent a supervisory lawyer ordered or ratified misconduct of a subordinate lawyer, Wolfram noted that a violation of former DR 1-102(A)(2) could be found. See Charles W. Wolfram, Modern Legal Ethics § 16.2.2 (1986). This matter is now addressed directly in Ohio Rule 5.1(c). See section 5.1:400.

See also Carol K. Metz, Do You Know What Your PI Is Doing?, Clev. B.J., April 2007, at 14, which explores the ethical obligations, including those arising under Rule 8.4(a), that may be implicated in hiring a personal investigator to work on a matter.

8.4:300 Commission of an Illegal Act Reflecting Adversely on Honesty or
Trustworthiness

  • Primary Ohio References: Ohio Rule 8.4(b)
  • Background References: ABA Model Rule 8.4(b)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.19-1.21
  • Commentary: ABA/BNA § 101:301; ALI-LGL § 2; Wolfram § 3.3.2

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.19-1.21 (1996).

Illegal conduct reflecting adversely on honesty or trust: Ohio Rule 8.4(b) prohibits a lawyer from "commit[ing] an illegal act that reflects adversely on the lawyer's honesty or trustworthiness."

One hardly knows where to begin. First, Ohio Rule 8.4(b) is once again unique and doubly so here; to our knowledge, no other Model Rule jurisdiction has substituted "illegal" for "criminal," and no other jurisdiction has deleted the "or fitness as a lawyer in other respects" language following "trustworthiness." (Vermont uses a different approach -- it eliminates the "reflecting adversely" list altogether and confines itself to conduct constituting felonies and other lesser crimes involving interference with the administration of justice, perjury, fraud, etc.) Note, however, that in Ohio Rule 8.4 cmt. [2], dealing with Rule 8.4(b), the fitness concept, perhaps unintentionally, has been retained; the Ohio Comment [2] language tracks MR 8.4 cmt. [2] verbatim. In any event, the variation from the Model Rule in Ohio Rule 8.4(b)'s deletion of the fitness language can perhaps be explained (although the Task Force does not do so) by the retention of former OH DR 1-102(A)(6) (engaging in conduct adversely reflecting on fitness to practice) as Ohio Rule 8.4(h) (there is no MR 8.4(h)). While there will be more on Rule 8.4(h) in section 8.4:1000, it should be pointed out here that, insofar as fitness to practice is concerned, the conduct need not be criminal nor even illegal -- "any other conduct" reflecting adversely on fitness violates 8.4(h).

With respect to the substitution of "illegal" for "criminal," as has been stated previously in section 1.2:600, the change raises problems that "criminal" does not. The parameters of "criminal" are generally well understood, and the term finds widespread acceptance in ethics law as a benchmark. "Illegal," while a defined term, at a minimum greatly expands the universe that lawyers need to be concerned about. Even under the Code, the prohibition was directed toward illegal conduct "involving moral turpitude," which, as the annotations to former 1-102(A)(3) reflect, almost invariably dealt with criminal conduct. E.g., Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008 Ohio 91, 880 N.E.2d 467. Accord Charles W. Wolfram, Modern Legal Ethics § 3.3.2, at 92 (1986) ("While the reference to 'illegal' [in DR 1-102(A)(3)] seems to encompass conduct that is not a crime, the criminal law is the virtually exclusive referent in the decisions."). The language of the Supreme Court in Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418, 2005 Ohio 541, 835 N.E.2d 707, is consistent with the focus under the Code on criminal conduct. Thus, in rejecting respondent's argument that her conduct (embezzlement from estates in her charge as guardian and trustee resulting in conviction for felony theft) did not involve "a crime of moral turpitude," id. at para. 20, the Court stated that "an independent review of the circumstances underlying the illegal conduct" is required where the moral turpitude element is disputed,

to determine whether the conduct manifests the requisite lack of social conscience and depravity beyond any established criminal intent.

Id. at ¶ 24 (emphasis added). The bottom line is that Ohio Rule 8.4(b), which clearly reaches beyond criminal conduct, ends up being broader in scope than both the Model Rule and the former OHCPR analog, DR 1-102(A)(3).

The illegal/criminal problem is magnified by the corresponding Rule 8.3 duty to report any violation of the Rules, whether by others or by the reporting lawyer. See section 8.3:200. This puts the reporting lawyer in a sticky position. Is he or she obligated to report (or self-report) a lawyer who ignores parking tickets? Does that bear on "trustworthiness," if such legal obligations are routinely ignored? See Rule 8.4 cmt. [2], which states that a "pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation." And cf. In re Application of Phelps, 116 Ohio St.3d 312, 2007 Ohio 6459, 878 N.E.2d 1037, in which a bar applicant was rejected on character and fitness grounds because of "patterns of disregarding the law," including her failure to pay "several parking tickets." Id. at paras. 2, 7. Both the reporting and the reported-on lawyer deserve, to paraphrase the Task Force (Report at 8) in support of the future-crime exception in what is now Rule 1.6(b)(2)), a "bright[er] line" test than that provided by the use of the term "illegal."

As noted, virtually all of the cases decided under the former DR 1-102(A)(3) illegal conduct/moral turpitude standard involved criminal conduct. Moreover, as long as these two prongs were met, a violation was found, regardless of whether the lawyer's conduct took place in the course of acting as an attorney or in a purely private capacity. Examples of the latter include Disciplinary Counsel v. LoDico, 118 Ohio St.3d 316, 2008 Ohio 2465, 888 N.E.2d 1097 (felony and misdemeanor convictions arising out of strip bar parking lot altercation in which respondent sighted .45-caliber pistol at six different people; conduct also violated 1-102(A)(6)); Columbus Bar Ass’n v. Neal, 113 Ohio St.3d 461, 2007 Ohio 2341, 866 N.E.2d 503 (multiple felony convictions arising out of staging a series of burglaries at former residence; conduct also violated 1-102(A)(4) & (6)); Columbus Bar Ass’n v. Linnen, 111 Ohio St.3d 507, 2006 Ohio 5480, 857 N.E.2d 539 (the “Naked Photographer” case; respondent pleaded guilty to 53 misdemeanor offenses arising from his accosting and photographing solitary women while wearing only a hat and gym shoes; see further discussion in section 8.4:1000); Cincinnati Bar Ass'n v. Blankemeyer, 109 Ohio St.3d 156, 2006 Ohio 2038, 846 N.E.2d 523 (conviction for theft to support drug use); Cuyahoga County Bar Ass'n v. Freedman, 107 Ohio St.3d 25, 2005 Ohio 5831, 836 N.E.2d 559 (failure to file income tax returns over ten-year period); Disciplinary Counsel v. Stern, 106 Ohio St.3d 266, 2005 Ohio 4804, 834 N.E.2d 351 (conviction for drug trafficking, arson, bank fraud, money-laundering); Office of Disciplinary Counsel v. Zemba, 97 Ohio St.3d 489, 2002 Ohio 6725, 780 N.E.2d 576 (conviction for reckless homicide of infant while engaged in unlicensed childcare business); Toledo Bar Ass'n v. Lockhart, 95 Ohio St.3d 135, 2002 Ohio 1758, 766 N.E.2d 596 (theft of merchandise from retail clothing store); Cincinnati Bar Ass'n v. Banks, 94 Ohio St.3d 428, 763 N.E.2d 1166 (2002) (interstate transportation of stolen lap-top computers); Office of Disciplinary Counsel v. Ostheimer, 72 Ohio St.3d 304, 649 N.E.2d 1217 (1995) (conviction of sexual misconduct with adopted daughter, together with creating fabricated court documents designed to facilitate his sexual designs).

The rationale for extending discipline to purely private conduct was articulated by the Ohio Supreme Court in Office of Disciplinary Counsel v. Lowe: "Underlying all of our Disciplinary Rules is an attorney's duty of care, not only to the affairs of specific clients, but also to the requirements of the law." 75 Ohio St.3d 427, 428, 662 N.E.2d 796, 797 (1996) (rejecting argument of lawyer convicted of eleven felonies relating to financial and banking matters that the felonies should not be grounds for discipline because they did not relate to practice of law). Cf. Disciplinary Counsel v. Scacchetti, 114 Ohio St.3d 36, 2007 Ohio 2713, 867 N.E.2d 830 (possession of cocaine; "Respondent violated duties to the general public and the legal system by failing to operate within the bounds of the law"; no evidence that respondent actually compromised his clients' cases, but respondent acknowledged that "he risked harm to his clients by practicing while impaired," id. at para. 14).

Despite the broad-based rationale of duty to the public and the legal system as set forth in Lowe and Scacchetti, the Court has given some indication that the locus of the misbehavior also may be a factor. In Office of Disciplinary Counsel v. Thomas, 76 Ohio St.3d 578, 669 N.E.2d 833 (1996), the Court adopted the finding of the panel and the Board that a conviction for possession of a controlled substance would not be treated as conduct involving moral turpitude as charged, because, inter alia, "the charged offense occurred [in Texas, on vacation] outside the community where respondent practiced law."  Id. at 578, 669 N.E.2d at 834 (bracketed material added) (although OH DR 1-102(A)(3) charge dropped, lawyer sanctioned for violating OH DR 1-102(A)(6)). Why the "locus" should make a difference for purposes of OH DR 1-102(A)(3) moral turpitude went unexplained.

The illegal conduct requirement: Only illegal conduct is subject to sanction under Rule 8.4(b). If conduct is morally or otherwise reprehensible, but neither criminal nor in violation of noncriminal statutes or administrative regulations, it is not subject to sanction under this provision, although it could fall under 8.4(d), as conduct prejudicial to the administration of justice, or under 8.4(h), as other conduct that adversely reflects on the attorney's fitness to practice law. See, under the comparable Code provisions, Office of Disciplinary Counsel v. Campbell, 68 Ohio St.3d 7, 11, 623 N.E.2d 24, 27 (1993) (numerous unwelcome sexual comments and/or physical contacts by lawyer directed at employees while in private practice, and at court employees or lawyers appearing before him while judge, were described as "particularly intolerable by an attorney and abhorrent for a member of the judiciary"; conduct was found to violate OH DR 1-102(A)(5) and (6), as well as numerous provisions of the Code of Judicial Conduct). (Campbell was decided prior to the adoption of the anti-discrimination provisions of OH DR 1-102(B), as to which see section 8.4:800.)

Although the overwhelming majority of the "illegal/moral turpitude" cases under the Code involved criminal conduct, in all likelihood that will no longer be the case under Rule 8.4(b), given the expanded definition of "illegal" in Rule 1.0(e). But to the extent the conduct is criminal, there is no need that there be a conviction (or even a charge). See ABA, Annotated Model Rules of Professional Conduct 579 (6th ed. 2007) (commentary). This is consistent with the jurisprudence under former DR 1-102(A)(3). See, e.g., Cincinnati Bar Ass’n v. Lawson, 119 Ohio St.3d 58, 2008 Ohio 3340, 891 N.E.2d 749 (misappropriation of clients’ settlement funds and illegal drug use; lying to disciplinary authorities about both; no criminal charge indicated); Disciplinary Counsel v. Walker, 119 Ohio St.3d 47, 2008 Ohio 3321, 891 N.E.2d 740 (forgery; no criminal charge indicated); Toledo Bar Ass’n v. Mason, 118 Ohio St.3d 412, 2008 Ohio 2704, 889 N.E.2d 539 (theft of client’s settlement funds; no criminal charge indicated). Disciplinary Counsel v. Jones, 112 Ohio St.3d 46, 2006 Ohio 6367, 857 N.E.2d 1221 (stealing from charitable foundation; no criminal charge indicated); Cleveland Bar Ass'n v. Rus, 106 Ohio St.3d 467, 2005 Ohio 5520, 835 N.E.2d 1252 (forgery and misappropriation; no criminal charge or conviction); Cleveland Bar Ass'n v. Smith, 102 Ohio St.3d 10, 2004 Ohio 1582, 806 N.E.2d 495 (“While respondent has apparently not been convicted or even prosecuted for failing to file income tax returns . . . .,” id. at para. 12; violation of DR 1-102(A)(3), (5) & (6) for doing so; case also discussed this section infra at "Income tax violations"); Columbus Bar Ass'n v. Hamilton, 88 Ohio St.3d 330, 725 N.E.2d 1116 (2000) (misappropriation of funds of estate for which respondent was commissioner; probate court found respondent in contempt, removed him as commissioner, and ordered him incarcerated for seven days, but no indication of criminal proceedings against respondent); Toledo Bar Ass'n v. Doyle, 68 Ohio St.3d 24, 623 N.E.2d 37 (1993) (stealing from estate of incompetent for whom respondent "served" as guardian and legal counsel; no discussion of criminal conviction); Dayton Bar Ass'n v. Sams, 41 Ohio St.3d 11, 535 N.E.2d 298 (1989) (attorney's agreement to waive attorney fees in exchange for sexual favors and his involvement in drug trafficking, involving sixty dollars' worth of prescription diet pills, constituted violations of OH DR 1-102(A)(3) & (6) and warranted six-month suspension from practice of law, even where, based on police entrapment, defendant was found not guilty on drug charges and where soliciting for prostitution charge was reduced to charge of disorderly conduct). Cf. Bar Ass'n of Greater Cleveland v. Cassaro, 61 Ohio St.2d 62, 399 N.E.2d 545 (1980) (rejecting argument that misdemeanor, rather than felony, conviction for involvement in presenting fraudulent workers' compensation claims did not violate OH DR 1-102(A)(3)). If conviction is entered, however, it becomes conclusive proof that the lawyer did engage in the conduct involved. See Gov Bar R V 5(B) ("A certified copy of a judgment entry of conviction of an offense shall be conclusive evidence of the commission of that offense in any disciplinary proceedings instituted . . . based upon the conviction.").

Presumably it will make no difference under Rule 8.4(b), as it did not under the Code, that the lawyer

  • still maintains innocence, see, e.g., Portage County Bar Ass'n v. Miller, 70 Ohio St.2d 162, 436 N.E.2d 217 (1982) (rejecting as irrelevant attorney's claim of innocence in light of criminal conviction for act of moral turpitude),

  • pleads nolo contendere, see, e.g., Greater Cleveland Bar Ass'n v. Bogomolny, 10 Ohio St.3d 110, 461 N.E.2d 1294 (1984) (finding of guilty on two counts of Sherman Act violations constituted misconduct under OH DR 1-102(A)(3) & (4); fact that respondent-attorney entered plea of nolo contendere to allegations made it no less a violation under disciplinary rules),

  • pleads guilty as part of a plea bargain, see, e.g., Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008 Ohio 91, 880 N.E.2d 467. Cf. Office of Disciplinary Counsel v. Norris, 76 Ohio St.3d 93, 94, 666 N.E.2d 1087, 1089 (1996) ("Despite his testimony, and that of others, that there were no facts to support his conviction [for cocaine possession] and that he pled guilty to avoid a trial, we decline to go behind the federal court's judgment."); Office of Disciplinary Counsel v. Mesi, 72 Ohio St.3d 45, 49, 647 N.E.2d 473, 476 (1995) (in response to lawyer's attempt to minimize guilty plea to felony (misprision) that violated OH DR 1-102(A)(6), the Court responded: "a guilty plea is not a ceremony of innocence, nor can it be rationalized in a subsequent disciplinary proceeding."). [For whatever reason, the respondent in Mesi was apparently not charged with violation of OH DR 1-102(A)(3).], or

  • enters a diversion program that, if successfully completed, would lead to dismissal of the criminal charges of felony theft from respondent's employer, see Akron Bar Ass'n v. Carter, 115 Ohio St.3d 18, 2007 Ohio 4262, 873 N.E.2d 824 (1-102(A)(3)).

One interesting take on the illegality aspect of former OH DR 1-102(A)(3) is found in the case of Office of Disciplinary Counsel v. Liviola, 94 Ohio St.3d 408, 763 N.E.2d 588 (2002). In Liviola, respondent was disbarred for misleading a New York friend suffering from schizophrenia by offering to obtain legal assistance for his friend's supposed legal problems from a nonexistent lawyer in New York City, accepting from the friend thousands of dollars supposedly to be forwarded to the fictional New York lawyer, and then failing to report a portion of the "fees" on his income tax return. Although Liviola was convicted of a misdemeanor for his tax misconduct, the panel's finding of an OH DR 102(A)(3) violation was premised, in the words of the Court, on respondent's "lying to his college friend and taking advantage of his mental disability," without any mention of the income tax violation. 94 Ohio St.3d at 409, 763 N.E.2d at 589. This is one of the few cases under former 1-102(A)(3) seemingly grounded on noncriminal conduct. The only other candidate of which we are aware is Columbus Bar Ass'n v. Baker, 72 Ohio St.3d 21, 647 N.E.2d 152 (1995), where the 1-102(A)(3) violation resulted from respondent's sexually suggestive language in the presence of his minor female office employee. This conduct was characterized in the complaint as sexual harassment, which, under ORC 4212.02(A), is illegal but not criminal. Other than the reference in the complaint, the Court's opinion does not speak to the issue.

The honesty or trustworthiness requirement: The second requirement of 8.4(b) is no longer the Code's "moral turpitude" requisite, but rather that the illegal act "reflects adversely on the lawyer's honesty or trustworthiness." Since conduct involving moral turpitude typically reflected adversely on the lawyer's honesty and trustworthiness, we include below a resume of the moral turpitude decisions under the Code. A good summary of the case law under MR 8.4(b) is provided in ABA, Annotated Model Rules of Professional Conduct 579-82 (6th ed. 2007) (commentary). The litany of cases covered there (drug and alcohol offences, crimes involving dishonesty or fraud, sex offenses, violent crimes, tax-law violations) bears a striking similarity to the listing infra of types of conduct violative of former OH DR 1-102(A)(3), but one must keep in mind that the Model Rule test, while similar to Ohio's, contains important differences -- only criminal conduct is covered, and, in addition to honesty or trustworthiness, the conduct covered includes that reflecting adversely on the lawyer's "fitness as a lawyer in other respects."

The moral-turpitude requirement under former DR 1-102(A)(3): To be actionable under the former disciplinary rule, the illegal conduct had to involve moral turpitude. Some actions, although illegal, did not involve moral turpitude; lawyers were subject to sanction under this provision only for those that did. (Nevertheless, if a lawyer is convicted of a felony, whether by verdict or plea, the lawyer is subject to an interim suspension, even if an appeal is still pending. Gov Bar R V 5(A).)

The Ohio Supreme Court acknowledged that the term "moral turpitude" was not subject to exact definition. Office of Disciplinary Counsel v. King, 37 Ohio St.3d 77, 523 N.E.2d 857 (1988). In an attempt to protect the public, however, the Court believed that it should be given a broad interpretation. As the Court stated in King,

"[t]hat which constitutes moral turpitude for a lawyer is far different from that which constitutes moral turpitude for the layman. The lawyer, because of his training and position of public trust, must be held to a more strict standard than the layman."

Id. at 79, 523 N.E.2d at 860 (quoting from a pre-OHCPR case).

In Office of Disciplinary Counsel v. Burkhart, 75 Ohio St.3d 188, 661 N.E.2d 1062 (1996), the Court provided additional guidance on what conduct evidenced moral turpitude, in the context of rejecting the relator's argument that theft in public office necessarily constituted a crime of moral turpitude. The Court stressed that rather than applying a per se test, one must consider "all of the circumstances surrounding the illegal conduct" to determine if they manifest a "lack of social conscience [or] depravity" on the actor's part.  Id. at 191, 661 N.E.2d at 1065. In Burkhart the Court concluded that such a showing had not been made where the lawyer's theft in office was to gain reimbursement for expenses incurred on the job that had not been reimbursed, rather than for personal financial gain. The Court left open the possibility that a per se test might be appropriate where moral turpitude is an element of the underlying criminal offense involved.

The Court also invoked the lack-of-social-conscience/depravity test in Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418, 2005 Ohio 5411, 835 N.E.2d 707: when moral turpitude is disputed, the Court must "determine whether the conduct manifests the requisite lack of social conscience and depravity beyond any established criminal intent." Id. at ¶ 24.).

It is important to recognize that former OH DR 1-102(A)(3) spoke to "illegal conduct involving moral turpitude." The significance of this language was illustrated by the King case, 37 Ohio St.3d 77, 523 N.E.2d 857, where an attorney, who was having sexual relations with a fifteen-year-old neighbor, was convicted of contributing to the unruliness or delinquency of a child under ORC 2919.24(A)(1). While the conviction stemmed from an entire course of conduct, the lawyer argued that it resulted only from the act of speaking to the child on the telephone after the attorney had been forbidden to communicate with the child by the child's mother. According to the lawyer, OH DR 1-102(A)(3) should have been read so that it was not violated "unless the illegal conduct itself was the act of moral turpitude."  Id. at 78, 523 N.E.2d at 859. Here, the predicate act, talking to the minor against the mother's wishes, was not an act of moral turpitude. The Ohio Supreme Court rejected this argument in no uncertain terms:

The record does not support respondent's argument that the charge against him was based solely on the May 31, 1986 telephone call. While the telephone call was the immediate cause for involving the authorities, it can hardly be considered an independent reason for the charge that was filed. . . .

Even if we subscribed to respondent's version of the facts, however, we would not be inclined to construe DR 1-102(A)(3) as narrowly as respondent suggests. An examination of the plain language of DR 1-102(A)(3) reveals that the rule prohibits lawyers from engaging in illegal acts involving moral turpitude; it does not restrict its reach to illegal acts of moral turpitude. Accordingly, we hold that all the circumstances surrounding illegal conduct should be considered when determining whether a DR 1-102(A)(3) violation has occurred.

Id. (emphasis by the Court). Applying this broader standard, the Court found a violation on these facts.

Another opinion of the Supreme Court shedding light on the moral turpitude standard of OH DR 1-102(A)(3) is Office of Disciplinary Counsel v. Klaas, 91 Ohio St.3d 86, 742 N.E.2d 612 (2001); in Klaas the respondent tipped off a former client about an impending drug raid. Despite the tip, the former client was arrested in the raid and agreed to cooperate with the authorities and to testify against respondent. As a result, respondent was convicted of attempted obstruction of justice and was charged with violating a number of disciplinary provisions, including OH DR 1-102(A)(3). The panel found insufficient evidence to support the 1-102(A)(3) charge, and the Board adopted the panel's conclusions. The Supreme Court, however, concluded that respondent's conduct involved moral turpitude and did violate OH DR 1-102(A)(3). Citing Burkhart, the Court rejected relator's argument that the conviction for attempted obstruction of justice was a per se violation of the Rule. But, stressing the "status of an attorney in relation to the public at large," the Court found that the

circumstances in this case indicate that by her conduct respondent disregarded the standards of morality, honesty, and justice to which an attorney must adhere. Here, respondent attempted to undermine the effectiveness of a drug raid conducted by federal and local law enforcement officers by secretly informing a former client about the imminent raid. Respondent thereby disregarded her duty to faithfully uphold the law and attempted to use her status as an attorney to obstruct justice. This conduct did involve moral turpitude.

91 Ohio St.3d at 87-88, 742 N.E.2d at 614 (one-year suspension with six months stayed).

In sum, the moral-turpitude test is difficult to pin down. The "more strict standard" for lawyers set forth in King (1988), and implicitly in Klass (2001), seems counterbalanced by the lack-of-social-conscience-or-depravity" test of Burkhart (1996) and Hunter (2005), which sounds to us like a test allowing lawyers great leeway, so long as they do not act in a "depraved" manner. For other cases speaking to the moral-turpitude standard, see the following, discussed in more detail this section infra:

  • Muskingum County Bar Ass'n v. Workman, 17 Ohio St.3d 95, 477 N.E.2d 632 (1985) (striking another person in response to verbal invective in victim's home involved moral turpitude);

  • Office of Disciplinary Counsel v. Bell, 15 Ohio St.3d 118, 472 N.E.2d 1069 (1984) (deliberate falsification of documents "immediately morally suspect"; for attorney to do so in judicial proceeding to avoid disclosure of exorbitant fees and questionable payments was "manifestly contrary to the professional qualities of honesty, justice, and good character.");

  • Cincinnati Bar Ass'n v. Leroux, 16 Ohio St.2d 10, 242 N.E.2d 347 (1968) (whether conviction for willful failure to file income-tax returns (misdemeanor) involves moral turpitude turns on circumstances of each case; one such circumstance is evidence negating intent to defraud; openness and remorse alone will not excuse "clearly reprehensible" offense, but may be considered in borderline case);

  • With Leroux, compare Cleveland Bar Ass'n v. Smith, 102 Ohio St.3d 10, 2004 Ohio 1582, 806 N.E.2d 495 (unanimous finding of 1-102(A)(3) violation for failure to file income-tax returns over period of years, even though respondent had filed returns by time disciplinary complaint filed and respondent not prosecuted for failure to file, much less convicted; Leroux not cited).

About the only conclusion one can safely draw from the above decisions is that the determination does indeed "turn on the particular circumstances of each case" (Leroux).

Illegal conduct involving moral turpitude - Common misconduct: Many activities gave rise to sanction under former OH DR 1-102(A)(3), among them:

  • drug-related offenses, such as cocaine abuse, Disciplinary Counsel v. White, 109 Ohio St.3d 402, 2006 Ohio 2709, 848 N.E.2d 504; obtaining controlled substance with forged prescriptions, Disciplinary Counsel v. May, 106 Ohio St.3d 385, 2005 Ohio 5320, 835 N.E.2d 372, drug trafficking; Disciplinary Counsel v. Stern, 106 Ohio St.3d 266, 2005 Ohio 4804, 834 N.E.2d 351; and theft of controlled substances, Office of Disciplinary Counsel v. Garrity, 98 Ohio St.3d 317, 2003 Ohio 740, 784 N.E.2d 691.

    Occasionally in disciplinary cases involving chemical-substance felonies, a violation of DR 1-102(A)(3) (illegal act/moral turpitude) was not charged.  One such case is Disciplinary Counsel v. Wolf, 110 Ohio St.3d 411, 2006 Ohio 4709, 853 N.E.2d 1169.  In Wolf, respondent, who was also a licensed nurse, had become addicted after a drug had been prescribed to treat her debilitating foot pain.  She subsequently began illegally to authorize her own prescriptions and was thereafter convicted of two fifth-degree felonies.  Because of significant mitigating factors, including successful efforts to overcome her addiction, respondent was given a two-year suspension, stayed on conditions of continuing treatment and maintaining her OLAP contract.  Accord, as to the absence of a 1-102(A)(3) charge, Disciplinary Counsel v. Walker, 119 Ohio St.3d 47, 2008 Ohio 3321, 891 N.E.2d 740 (guilty plea to possession of cocaine, fifth-degree felony; DR 1-102(A)(6) violated); Disciplinary Counsel v. Bell, 83 Ohio St.3d 310, 699 N.E.2d 925 (1998) (felony conviction for presenting forged or false prescription for Schedule IV drug violated OH DR 1-102(A)(4) & (6); public reprimand imposed).

  • sex-related offenses, such as seeking to arrange sex with a minor female, “the younger the better”; unfortunately for respondent, his telephone arrangements were made with an FBI undercover agent, Disciplinary Counsel v. Goldblatt, 118 Ohio St.3d 310, 2008 Ohio 2458, 888 N.E.2d 1091; sexual imposition involving a 21-year old male, while respondent was employed as an assistant county prosecutor, Cincinnati Bar Ass’n v. Kenney, 110 Ohio St.3d 38, 2006 Ohio 3458, 850 N.E.2d 60; corrupting a minor by engaging in a consensual sexual relationship with the minor, Office of Disciplinary Counsel v. Pansiera, 77 Ohio St.3d 436, 674 N.E.2d 1373 (1997); trading cocaine for sex, Office of Disciplinary Counsel v. Conley, 60 Ohio St.3d 60, 572 N.E.2d 687 (1991); and agreeing to waive attorney fees in exchange for sex, Dayton Bar Ass'n v. Sams, 41 Ohio St.3d 11, 535 N.E.2d 298 (1989) (OH DR 1-102(A)(3) & (6) violated, even where, based on police entrapment, defendant found not guilty on all drug charges and where soliciting-for-prostitution charge was reduced to disorderly conduct); see also the “Naked Photographer” case, Columbus Bar Ass’n v. Linnen, 111 Ohio St.3d 507, 2006 Ohio 5480, 857 N.E.2d 539, discussed this section supra at “Illegal conduct reflecting adversely on honesty or trust.”

  • misappropriation of client funds, see, e.g., Dayton Bar Ass'n v. Rogers, 116 Ohio St.3d 99, 2007 Ohio 5544, 876 N.E.2d 923 (knowingly charging clients for work not done "'is tantamount to misappropriation,'" id.  at para. 19 (citation omitted)); Disciplinary Counsel v. Jones, 112 Ohio St.3d 46, 2006 Ohio 6367, 857 N.E.2d 1221 (stealing “large sums of money” from charitable foundation while executor of estate of his former client, who had established the charity; presumptive sanction for stealing client funds and failure to cooperate in investigation is disbarment); Akron Bar Ass'n v. Dietz, 108 Ohio St.3d 343, 2006 Ohio 1067, 843 N.E.2d 786 (improper withdrawal for personal use of funds of estate for which respondent was executor, followed by improper use of funds from another estate for which he was acting as executor to replenish assets of first estate); Disciplinary Counsel v. Ross, 107 Ohio St.3d 191, 2005 Ohio 6179, 837 N.E.2d 773 ("repeated misappropriation of client funds demonstrate[s] that he is not fit to practice law," id. at para. 21; respondent permanently disbarred); Cleveland Bar Ass'n v. Rus, 106 Ohio St.3d 467, 2005 Ohio 5520, 835 N.E.2d 1252 (misappropriation of client's settlement funds; because of significant mitigating factors, including full restitution, indefinite suspension imposed instead of disbarment); Erie-Huron Counties Joint Certified Grievance Comm. v. Meyerhofer, 99 Ohio St.3d 62, 2003 Ohio 2467, 788 N.E.2d 1073 (respondent wrote checks to himself from client's checking account without authorization; after client died and respondent was appointed as attorney for estate, he took $18,000 from estate for attorney's fees without court approval or filing account; violations of OH DR 1-102(A)(3) and 9-102(B)(4), among others; because of mitigating circumstances (mental illness), Court approved sanction of indefinite suspension rather than disbarment, even though disbarment is usual penalty when "'an attorney's misconduct permeates his practice in the way that respondent's did in this case,'" id. at para. 10, quoting Richland County Bar Ass'n v. Brickley, 97 Ohio St.3d 285, 2002 Ohio 6416, 779 N.E.2d 750, at para. 24); Cincinnati Bar Ass'n v. Schwartz, 98 Ohio St.3d 438, 2003 Ohio 1635, 786 N.E.2d 866 (misappropriation for personal use of $2.5 million from various estates and trusts for which respondent was acting as fiduciary and attorney; for this violation of OH DR 1-102(A)(3) and violation of many other rules, respondent disbarred).

  • theft, see, e.g., Cincinnati Bar Ass'n v. Zins, 116 Ohio St.3d 1, 2007-Ohio 5263, 875 N.E.2d 941 (convicted on one count of identity theft growing out of scheme to steal money from customers of bank for whom he worked as customer-service representative; because of mitigating factors, two-year suspension without credit for time under interim suspension imposed upon notice of felony conviction); Cincinnati Bar Ass'n v. Schwieterman, 115 Ohio St.3d 1, 2007 Ohio 4266, 873 N.E.2d 810 (conversion for personal use of funds belonging to respondent's law firm; indefinite suspension with no credit for interim suspension for felony conviction); Cincinnati Bar Ass'n v. Blankemeyer, 109 Ohio St.3d 156, 2006 Ohio 2038, 846 N.E.2d 523 (embezzlement from employer to support prescription-drug addiction); invoking the "turns-to-crime" language from Bein and Blake infra in imposing disbarment); Disciplinary Counsel v. Millonig, 108 Ohio St.3d 154, 2006 Ohio 420, 841 N.E.2d 779 (embezzlement of funds from escrow account; "presumptive" sanction for such acts of misappropriation is disbarment, aggravated here by prior violations and failure to cooperate with investigation); Disciplinary Counsel v. Bein, 105 Ohio St.3d 62, 2004 Ohio 7012, 822 N.E.2d 358 (federal conviction of conspiracy to engage in interstate transportation of stolen property and money laundering; citing "turns-to-crime" language in Blake); Cincinnati Bar Ass'n v. Blake, 100 Ohio St.3d 298, 2003 Ohio 5755, 798 N.E.2d 610 (conviction on three counts of felony theft, one count of forgery, and two separate misdemeanors; violations of OH DR 1-102(A)(3)-(6); "[d]isbarment is warranted when an attorney turns to crime and is convicted of theft offenses." Id. at para. 7); Office of Disciplinary Counsel v. Bertram, 85 Ohio St.3d 113, 707 N.E.2d 464 (1999) (diversion of millions of dollars by lawyer from escrow accounts of his title insurance agency to his personal accounts; "strictest discipline" required in misappropriation cases; no mitigating factors; lawyer permanently disbarred); Cincinnati Bar Ass'n v. Heekin, 9 Ohio St.3d 84, 459 N.E.2d 495 (1984) (attorney, who as president of Cincinnati Riverfront Coliseum directed purposeful and intentional tampering with meters that resulted in theft of utility services worth more than $775,000, violated, inter alia, OH DR 1-102(A)(3) and was permanently disbarred: "It is impossible for this court to reach any other decision than the one reached today. It is imperative that the members of the Ohio Bar avoid any conduct which reflects adversely on their fitness to practice law. In this case, respondent steps far beyond the threshold of bad judgment or questionable practices which are often the subject matter of proceedings which produce a lesser sanction. Respondent was a party to felony offenses."  Id. at 85-86, 459 N.E.2d at 496.). The unanimous Court's strong language in Heekin and its upping of the sanction recommended by a majority of the panel and by the Board (indefinite suspension) to permanent disbarment may have been in part a reaction to the slapped wrist that respondent received as a result of the criminal process: two suspended sentences, probation, and fines totaling the princely sum of $5,000.00.

  • forgery, see, e.g., Cleveland Bar Ass'n v. Rus, 106 Ohio St.3d 467, 2005 Ohio 5520, 835 N.E.2d 1252 (forging client's signature on release and on settlement-check endorsement; indefinite suspension imposed); Disciplinary Counsel v. Avirov Stempler, 103 Ohio St.3d 104, 2004 Ohio 4656, 814 N.E.2d 811 (forging clients' signatures to document; this, and a host of other serious violations, resulted in disbarment); Office of Disciplinary Counsel v. Herman, 99 Ohio St.3d 362, 2003 Ohio 3932, 192 N.E.2d 1078 (forging signatures of opposing counsel and his client on substituted signature page of qualified-domestic-relations order; violation, inter alia, of OH DR 1-102(A)(3)-(5); because of significant mitigating factors, sanction limited to one-year suspension, with six months stayed); cf. Office of Disciplinary Counsel v. Papcke, 88 Ohio St.3d 161, 724 N.E.2d 407 (2000) (notarizing signatures of clients forged by respondent's secretary on a number of affidavits over more than two-year period violated OH DR 1-102(A)(3), (4) & (6)).

    (One wonders why Toledo Bar Ass’n v. Shousher, 112 Ohio St.3d 533, 2007 Ohio 611, 861 N.E.2d 536, failed to include a DR 1-102(A)(3) charge, since the respondent engaged in credit-card fraud in his ex-wife’s name.  He was charged with two counts of forgery and one count of identity theft and pleaded guilty, but was granted intervention instead of conviction and was placed on probation.)

  • fraudulent activity, see, e.g., Cincinnati Bar Ass’n v. Powers, 119 Ohio St.3d 473, 2008 Ohio 4785, 895 N.E.2d 172 (as part of scheme to “flip” low value homes, respondent pled guilty to defrauding federally insured lenders by falsifying information about potential buyers and home appraisals, and by submitting to the lending institutions false HUD forms, all in support of loan applications; this, together with filing false income tax returns resulted in his disbarment); Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008 Ohio 91, 880 N.E.2d 467 (scheme to defraud in-laws and creditor nursing homes, resulting in Alford guilty plea to misdemeanor counts of defrauding creditors, after being charged with felony theft; indefinite suspension imposed); Office of Disciplinary Counsel v. Ulinksi, 106 Ohio St.3d 53, 2005 Ohio 3673, 831 N.E.2d 425 (conviction of conspiracy to commit securities, mail, and wire fraud in violation of federal law, resulting from respondent's involvement in Ponzi scheme to defraud investors; despite mitigating evidence and Board recommendation of indefinite suspension, Court increased sanction to disbarment, finding indefinite suspension "far too lenient for misconduct of this magnitude," the effect of which was "devastating," and resulted in "financial havoc" for clients and others, id. at paras. 18, 23-24); Office of Disciplinary Counsel v. Goldberg, 94 Ohio St.3d 337, 763 N.E.2d 119 (2002) (extensive pattern of fraudulent activity, including forging signatures and creating false documents relating to estates he represented, pursuant to which he misappropriated over seven million dollars from his former clients; respondent was permanently disbarred (after the Supreme Court had refused to accept his resignation,  In re Resignation of Goldberg, 88 Ohio St.3d 1504, 727 N.E.2d 926 (2000)) for violating OH DR 1-102(A)(3) and a host of other disciplinary provisions). An interesting trio of cases decided by the Supreme Court arose out of a kickback scheme in which an in-house lawyer for Nationwide Insurance was selling inside information to lawyers for plaintiffs in litigation against Nationwide in exchange for a cut of the proceeds of settlements achieved with the information provided. Compare Office of Disciplinary Counsel v. Hartsock, 94 Ohio St.3d 18, 759 N.E.2d 778 (2001) (in-house lawyer charged with, and found to have violated, OH DR 1-102(A)(3)-(6); indefinite suspension imposed), and Office of Disciplinary Counsel v. Gambrel, 94 Ohio St. 10, 759 N.E.2d 771 (2001) (one of the outside lawyers; same violations, same sanction), with Office of Disciplinary Counsel v. Dubyak, 92 Ohio St.3d 18, 748 N.E.2d 26 (2001) (another of the outside lawyers; charged with violations of OH DR 1-102(A) (3)-(6) but found not to have violated OH DR 1-102(A)(3); two-year suspension with six months stayed).

  • assault, see, e.g. Office of Disciplinary Counsel v. Cox, 58 Ohio St.3d, 124, 568 N.E.2d 1219 (1991) (attorney convicted of criminal damaging and assault violated OH DR 1-102(A)(3)); Columbus Bar Ass'n v. Harris, 1 Ohio St.3d 33, 437 N.E.2d 596 (1982) (conviction of aggravated assault against companion of attorney's ex-wife violated OH DR 1-102(A)(3) and justified suspension from practice for one year). In Muskingum County Bar Ass'n v. Workman, 17 Ohio St.3d 95, 477 N.E.2d 632 (1985), a lawyer, who was convicted of assault and criminal trespass for actions he took against a woman he was dating and who sought to have the matter treated as a public reprimand, argued that his conduct was less egregious than that in Columbus Bar Ass'n v. Harris, 1 Ohio St.3d 33, 437 N.E.2d 596 (1982), where a one-year suspension had been ordered. Rejecting this argument, the Court wrote:

    Respondent attempts to distinguish Harris on the ground that the attorney in Harris committed the assault with a potentially deadly implement while respondent "only" struck Francis with his hand, and that respondent was convicted of misdemeanors as opposed to a felony. We do not find these to be material distinctions. There is no question that respondent's conduct was illegal. That respondent's conduct also involved moral turpitude is evident from respondent's striking another person in response to a verbal invective and the violation of the sanctity of Francis' home and property. With this in mind, the differences between Harris and the instant case become minimal.

    17 Ohio St.3d at 97-98, 477 N.E.2d at 634 (1985). Compare Cuyahoga County Bar Ass'n v. Garfield, 109 Ohio St.3d 103, 2006 Ohio 1935, 846 N.E.2d 45, where respondent pled guilty to bank fraud, but no OH DR 1-102(A)(3) charge was filed.

  • and many others. See, e.g., Office of Disciplinary Counsel v. Kral, 90 Ohio St.3d 298, 737 N.E.2d 956 (2000) (willfully concealing assets of estate that he represented, failure to provide timely accounting of assets to probate court, and refusal to turn over estate records to successor counsel warranted permanent disbarment); Office of Disciplinary Counsel v. Petroff, 85 Ohio St.3d 396, 709 N.E.2d 111 (1999) (respondent pled guilty to charge of attempting to evade payment of his own federal income taxes; based on mitigating factors, one-year suspension imposed with full credit for time served under interim suspension previously imposed as result of guilty plea); Office of Disciplinary Counsel v. Atkin, 84 Ohio St.3d 383, 704 N.E.2d 244 (1999) (respondent disbarred as result of conviction on numerous counts of violation of federal law, arising out of scheme to obtain $550,000 from client by asserting unfounded ability to bribe federal judge and failure to report payment as income); Office of Disciplinary Counsel v. Kraig, 81 Ohio St.3d 187, 690 N.E.2d 2 (1998) (lawyer convicted of conspiring to impede collection of client's federal income taxes; indefinite suspension imposed for violation of, inter alia, OH DR 1-102(A)(3), based not on acts of commission in furtherance of the scheme but on knowledge of it); Office of Disciplinary Counsel v. McCrae, 75 Ohio St.3d 511, 664 N.E.2d 523 (1996) (indefinite suspension imposed for lying to bank regarding his personal affairs and lying under oath to bankruptcy court in violation of provision of bankruptcy code); Bar Ass'n of Greater Cleveland v. Bogomolny, 10 Ohio St.3d 110, 461 N.E.2d 1294 (1984) (guilt on two counts of violating Sherman Act by engaging in price-fixing conspiracy constituted misconduct under OH DR 1-102(A)(3); indefinite suspension imposed).

Illegal conduct involving moral turpitude - Misconduct directed at the government: Illegal conduct involving moral turpitude often involved conduct directed at the government, which conduct inhibits the government's proper functioning. This misconduct falls into a variety of categories.

Obstruction of justice: One of these categories clearly is obstruction of justice. For example, an attorney who obtains and keeps a client's contraband, which he knows is sought by authorities having a search warrant, commits the crime of obstruction of justice, warranting permanent disbarment for violation of OH DR 1-102(A)(3)-(6). Cincinnati Bar Ass'n v. Freedman, 49 Ohio St.3d 65, 551 N.E.2d 143 (1990). Compare Disciplinary Counsel v. Young, 102 Ohio St.3d 113, 2004 Ohio 1809, 807 N.E.2d 317, where respondent was convicted of the felony of conspiracy to obstruct justice, as a result of his conspiring with his client and others to fabricate a story that would exonerate the client on a charge of possession with intent to distribute crack cocaine. This included preparing a false affidavit and inducing witnesses to sign it. Despite these black marks (in addition to previous discipline), the Court was swayed by the countervailing mitigating factors -- aggressive dealing with substance abuse, cooperation in the disciplinary process, and remorse for his actions. Although "[w]e do not take respondent's conduct lightly," "[w]e must also take care not to deprive the public of attorneys who, through rehabilitation, may be able to ethically and compentently serve in a professional capacity." "[W]e believe that [respondent] may someday be able to demonstrate the ethical conduct required of attorneys licensed in this state. For that reason, we hold that an indefinite suspension [rather than the disbarment recommended by the Board] is the appropriate sanction . . . ." Id. at paras. 15, 17. See Office of Disciplinary Counsel v. Smakula, 39 Ohio St.3d 143, 529 N.E.2d 1376 (1988) (Board of Commissioners on Grievances & Discipline determined that attorney, convicted of attempted tampering with records, falsification, and attempted obstruction of justice as part of traffic ticket-fixing scheme in violation of OH DR 1-102(A)(3)-(5), acted largely due to his naivete and poor judgment; one-year suspension imposed). (See also former OH DR 7-102(A)(3), which provided that a lawyer may not "[c]onceal or knowingly fail to disclose that which he is required by law to reveal." See section 3.4:200.)

Bribery: Bribery of a government official by an attorney often is policed by OH DR 1-102(A)(3). See, e.g., Office of Disciplinary Counsel v. McClenaghan, 57 Ohio St.3d 21, 565 N.E.2d 572 (1991) (conviction of former Ohio Department of Commerce Division of Real Estate Superintendent, who was affiliated with real estate education enterprise at time of incident, for bribing of Division of Real Estate examiner by offering $500 for copies of present and future real estate examinations, violated OH DR 1-102(A)(3); respondent indefinitely suspended); Bar Ass'n of Greater Cleveland v. Italiano, 24 Ohio St.3d 204, 494 N.E.2d 1113 (1986) (attempted bribery of arresting officer; indefinite suspension); Medina County Bar Ass'n v. Haddad, 57 Ohio St.2d 11, 385 N.E.2d 294 (1979) (bribery of prosecuting attorney; respondent permanently disbarred); Ohio State Bar Ass'n v. Consoldane, 50 Ohio St.2d 337, 364 N.E.2d 279 (1977) (solicitation of funds from client for alleged purpose of bribing government official violated OH DR 1-102(A)(3), even where lawyer argued he never intended to carry out bribe and suggested it only as ruse to collect past fee; indefinite suspension).

Acceptance of a bribe by a lawyer/government official: See, e.g., Office of Disciplinary Counsel v. Smith, 69 Ohio St.3d 475, 633 N.E.2d 1117 (1994) (assistant federal public defender who accepted a bribe in exchange for information but subsequently recanted, received two-year suspension for violating OH DR 1-102(A)(3), (4) & (6), with credit for time served under interim suspension, in light of other mitigating factors); Office of Disciplinary Counsel v. DiCarlantonio, 68 Ohio St.3d 479, 628 N.E.2d 1355 (1994) (city attorney permanently disbarred for agreeing to change city ordinance in exchange for bribe; conduct violated OH DR 1-102(A)(3), (4) & (6)).

To the extent that the violation constituted an abuse of public office, some members of the Court took the position that the sanction imposed should be greater than if the underlying conduct involved a nonpublic lawyer. For example, in Office of Disciplinary Counsel v. Columbro, 66 Ohio St.3d 195, 611 N.E.2d 302 (1993), where the Court reduced the disbarment sanction recommended by the Board to an indefinite suspension, Chief Justice Moyer and Justice Pfeifer argued that the theft of cocaine by an assistant prosecutor from the scientific investigation unit where it was being held as evidence in pending cases deserved a harsher sanction than that imposed in previous cases for the distribution of cocaine. In his dissenting opinion, Chief Justice Moyer remarked:

The majority relies upon [Akron Bar Ass'n v. Chandler, 62 Ohio St.3d 471, 584 N.E.2d 677 (1992)], in "tempering justice with mercy" because the majority has "difficulty finding that the situation here is more egregious, thereby warranting a greater sanction," than that found in Chandler, supra.

In Chandler, respondent pleaded guilty in federal court to the fifth count of an indictment charging him with knowingly or intentionally distributing cocaine. The board found the respondent had become a substance abuser and had apparently engaged in a "low level" enterprise to distribute cocaine as a means of supporting his dependency. Relator, Akron Bar Association, and the board's panel both recommended an indefinite suspension, but the board recommended a permanent disbarment.

The difference in the conduct of the attorney in Chandler and the attorney here is profound. Chandler engaged in the "low level" enterprise of distributing cocaine to maintain his addiction. Columbro used his access, his position of trust as an assistant prosecuting attorney, to remove cocaine from the place where evidence was held pending trial. The fact that the record reflects no actual impact on the prosecution of a case is hardly mitigating of respondent's conduct in support of his personal drug dependency. Unlike Chandler's plea to a single count, respondent here pled guilty to twenty counts of drug abuse and sixteen counts of theft in office.

The question is not, as the majority suggests, whether respondent can perhaps rehabilitate himself from his drug dependency. The issue is whether this court should, as recommended by the board, draw a line on misuse of public office where there is a potential impact upon the evidence available for prosecution in pending cases.

The panel and the board offered a bright-line message; we should apply it and disbar respondent for his blatant abuse of his public office.

66 Ohio St.3d at 98, 611 N.E.2d at 305 (Moyer, C.J., dissenting). [Mr. Columbro is now and has been for a number of years one of the most active lecturers on substance abuse on the Ohio CLE circuit. He was reinstated in Office of Disciplinary Counsel v. Columbro, 75 Ohio St.3d 1216, 664 N.E.2d 945 (1996). There were no dissents.]

False statements to the government: In several instances, violations were premised on an attorney's making false or fraudulent statements to a court, see, e.g., Akron Bar Ass'n v. Dietz, 108 Ohio St.3d 343, 2006 Ohio 1067, 843 N.E.2d 786 (accounting filed with probate court falsely stated that no disbursements from estate had been made when in fact respondent/executor had disbursed estate funds and deposited them into his personal account); Office of Disciplinary Counsel v. Bell, 15 Ohio St.3d 118, 472 N.E.2d 1069 (1984) (attorney who charged exorbitant fees for arranging private adoption and made false accounting of them to probate court violated OH DR 1-102(A)(3)), or to a government agency, see, e.g., Ohio State Bar Ass'n v. Wolfson, 102 Ohio St.3d 405, 2004 Ohio 3480, 811 N.E.2d 1113 (conviction of crime of tampering with evidence by giving police false written statement that acquaintance, who had arrived at respondent's house the evening before in intoxicated state and subsequently died, had not arrived until the following morning); Cincinnati Bar Ass'n v. Joseph, 60 Ohio St.3d 57, 572 N.E.2d 681 (1991) (conviction for making false statements to Small Business Administration in regard to loan violated OH DR 1-102(A)(3)). In Bell respondent argued that conviction for falsification of a government record is not a crime of moral turpitude. In a strongly worded opinion, the Ohio Supreme Court responded as follows:

We are satisfied that respondent's conviction for falsification . . . represents illegal conduct involving moral turpitude. The gravamen of [this] violation . . . is that a person knowingly makes a false statement. Here, respondent knowingly made a false statement in a judicial proceeding with the obvious purpose to mislead the court. We are unpersuaded by respondent's contention that such a transgression is not one of moral turpitude. To deliberately falsify documents under any circumstance is immediately morally suspect. For an attorney to deliberately falsify documents in a judicial proceeding in an attempt to avoid disclosure of exorbitant fees and questionable payments is manifestly contrary to the professional qualities of honesty, justice, and good character.

15 Ohio St.3d at 119, 472 N.E.2d at 1071. See also section 3.3:200.

Income tax violations: Income tax violations by an attorney often violated OH DR 1-102(A)(3) as conduct involving moral turpitude. See, e.g., Cincinnati Bar Ass’n v. Powers, 119 Ohio St.3d 473, 2008 Ohio 4785, 895 N.E.2d 172 (willfully filing false individual income tax returns; this and other fraudulent acts violated DR 102(A)(3), (4) & (6); disbarment ordered); Cuyahoga County Bar Ass'n v. Freedman, 107 Ohio St.3d 25, 2005 Ohio 5831, 836 N.E.2d 559 (failure to file personal income tax returns for ten years and for his professional corporation since 1998; mitigating factors; one-year suspension imposed); Office of Disciplinary Counsel v. Roetzel, 70 Ohio St.3d 376, 639 N.E.2d 50 (1994) (conviction for attempted federal income tax evasion; indefinite suspension ordered for violation of 1-102(A)(3), (4) & (6)); Office of Disciplinary Counsel v. Hess, 61 Ohio St.3d 101, 573 N.E.2d 83 (1991) (attorney convicted of filing false and fraudulent income tax return in one year and understating taxable income and taxes in three other years was suspended indefinitely for violating, inter alia, 1-102(A)(3)); Cincinnati Bar Ass'n v. Joseph, 60 Ohio St.3d 57, 572 N.E.2d 681 (1991) (attorney indefinitely suspended from practice of law due to multiple felony convictions for making false statements to federal agency and submitting false tax returns in violation of 1-102(A)(3)). Sometimes other disciplinary rules were invoked to deal with such violations, without mention of 1-102(A)(3) and the question of its applicability. Income tax violations were treated under 1-102(A)(4) as conduct involving dishonesty, fraud, deceit, or misrepresentation, under 1-102(A)(5) as conduct prejudicial to the administration of justice, and/or under 1-102(A)(6) as conduct reflecting adversely on fitness to practice law. Occasionally, however, the Ohio Supreme Court addressed more directly the issue of what types of income tax violation constituted moral turpitude. For example, in Cincinnati Bar Ass'n v. Leroux, 16 Ohio St.2d 10, 242 N.E.2d 347 (1968) (although the decision predates the OHCPR, the concern over lawyer conduct involving moral turpitude was addressed in the Canons of Professional Ethics then in force), the Court discussed whether convictions for willfully failing to file income tax returns constituted conduct involving moral turpitude:

The failure to file income tax returns is a misdemeanor . . . . While such classification does not control the determination of whether moral turpitude is involved, it does indicate that Congress did not consider the offense serious enough to be made a felony.

More important is the evidence that there was no attempt on the part of the respondents to evade income taxes. Respondents Leroux and Weber, for example, filed accurate partnership returns during at least one of the years for which they failed to file personal returns, which would be inconsistent with a plan to defraud the government. All of the respondents co-operated fully with the Internal Revenue agents. There was no indication that the records maintained were either inadequate or deceptive. There was considerable evidence that the reputation and competence of respondents ranged from good to very good.

Whether a charge based upon a willful omission to file income tax returns (for which the explanations offered were so various as to include physical or emotional illness, family problems and economic problems) involves moral turpitude, must necessarily turn on the particular circumstances of each case. [citation omitted]. Certainly the inclusion of evidence negating an intention to defraud is such circumstance.

The lack of evidence from which such an intent might be inferred must be considered to distinguish such cases from those in which such evidence is affirmatively shown. Openness and remorse alone will not excuse an offense which is clearly reprehensible, but may be considered, with other mitigating circumstances, in evaluating a difficult borderline case. We agree with the board's conclusions that the respondents' offenses under the circumstances of the cases here in question did not involve moral turpitude.

Id. at 11-12, 242 N.E.2d at 348 (although the conduct was not treated as conduct involving moral turpitude, it was still subject to sanction (public reprimand) under other disciplinary standards).

A similar situation was posed in Toledo Bar Ass'n v. Stichter, 17 Ohio St.3d 248, 478 N.E.2d 1322 (1985). In that case the lawyer had been convicted of a misdemeanor for willful failure to file income tax returns for a number of years. The lawyer originally was charged with violating OH DR 1-102(A)(3), (4), and (6), but ultimately was convicted only of the latter two violations. While not stated explicitly, it appears that the OH DR 1-102(A)(3) violation was considered inappropriate because the conviction was only a misdemeanor, the lawyer had preserved the records necessary to complete the returns, and he was cooperating fully with the IRS. Cf. Allen County Bar Ass'n v. King, 48 Ohio St.3d 8, 548 N.E.2d 238 (1990) (although charged with violations of OH DR 1-102(A)(3), (4) & (6), respected attorney convicted of filing false federal income tax returns in unsuccessful attempt to save failing business, which conduct neither affected nor prejudiced any interests of his clients, was found to have violated only OH DR 1-102(A)(4)).

Compare, however, the markedly different result in Cleveland Bar Ass'n v. Smith, 102 Ohio St.3d 10, 2004 Ohio 1582, 806 N.E.2d 495, where the Court unanimously found violation of OH DR 1-102(A)(3) for failing to file timely federal tax returns for the years 1992 through 2002, even though "[b]y the time the instant complaint was filed, respondent had filed tax returns for the years in question" and even though "respondent has apparently not been convicted or even prosecuted for failing to file tax returns . . . ." Id. at paras. 6, 12. The Court did not refer to either Leroux or Stichter, cited above, and there is no discussion of the moral turpitude requirement.

A variation on the failure-to-file-taxes theme occurred in Geauga County Bar Ass'n v. Bruner, 98 Ohio St.3d 312, 2003 Ohio 736, 784 N.E.2d 687. In Bruner, respondent failed, for ten years, to make the required payments, not of his own taxes, but of federal payroll taxes of his legal secretary. Instead of reporting and paying these amounts, respondent "simply kept the amounts he withheld." Id. at para. 2. He did the same with the employee's Social Security and Medicare contributions, as well as amounts for state unemployment compensation coverage. Relator asked only for a stayed six-month suspension. But the panel, given that respondent's had in essence converted more than $40,000 over a ten-year period and attempted to cover it up with false documentation, recommended an indefinite suspension for violation of OH DR 1-102(A)(3), (4) & (6), which the Board adopted and the Court approved.

In Toledo Bar Ass'n v. Cook, 114 Ohio St.3d 108, 2007 Ohio 3253, 868 N.E.2d 973, a case brimful of altered and backdated deeds, forgeries, and other byzantine transactions by respondent, who was disbarred for her appalling behavior relating to an elderly and ultimately incompetent client.  Among her many missteps, the one singled out as violative of DR 1-102(A)(3) was, in connection with taking charitable deductions on her personal federal tax return for donating what had been her client's farm to the client's church, "falsely claiming that she donated her client's farm in 2000," id. at para. 15.  Respondent took the first charitable deduction in the year 2000, even though the Court ultimately concluded that the donation could not have taken place until sometime after May 8, 2001.  If this sounds complicated, it is.  There are four different deeds with respect to the farm property, most of which were either altered or falsely dated or both, and about which respondent had numerous and conflicting explanations.  Without going into the gruesome detail, the Court captures the flavor of the entire escapade by noting that "she gamed the system," id. at para. 32; her explanations were "convoluted and far-fetched," id. at para. 15; and her inconsistent accounts "show that, assuming she knows what the truth is, she is incapable of telling it."  Id.

Penalties for OH DR 1-102(A)(3) violations: The penalty imposed for violation of former OH DR 1-102(A)(3) typically was either indefinite suspension or disbarment. Whether the different formulation under the Rule 8.4(b) will make a difference in penalty patterns remains to be seen -- probably not. See, under the Code, Disciplinary Counsel v. White, 109 Ohio St.3d 402, 2006 Ohio 2709, 848 N.E.2d 504, in which respondent had previously been indefinitely suspended and then tested positively for cocaine use while criminal proceedings against him were stayed; disbarment ordered. In Office of Disciplinary Counsel v. Longo, 94 Ohio St.3d 219, 761 N.E.2d 1042 (2002), respondent, having been convicted of the felony of misprision, for concealing knowledge of his business partner's commission of a felony involving drugs, was found to have violated, inter alia, OH DR 1-102(A)(3). The Court rejected the Board's recommendation of indefinite suspension and ordered respondent permanently disbarred. Accord, as to the increase in sanction from recommended indefinite suspension to disbarment, Cincinnati Bar Ass’n v. Powers, 119 Ohio St.3d 473, 2008 Ohio 4785, 895 N.E.2d 172 (guilty plea to two federal felony counts). As the Court stated in Columbus Bar Ass'n v. Gloeckner, 1 Ohio St.3d 83, 84, 437 N.E.2d 1197, 1199 (1982), "The general rule [. . .] is that indefinite suspension or disbarment is the appropriate disciplinary sanction to be imposed on an attorney who has been convicted of felony crime involving moral turpitude" -- here bribery. In terms of the proper penalty to impose for offering a bribe, compare Medina County Bar Ass'n v. Haddad, 57 Ohio St.2d 11, 11-12, 385 N.E.2d 294, 295 (1979), suggesting that permanent disbarment usually is appropriate since "[s]ociety's confidence in those occupying positions of public trust, including members of the bar who are officers of the court, is seriously undermined when a person in that position either accepts or gives a bribe," with Office of Disciplinary Counsel v. McClenaghan, 57 Ohio St.3d 21, 565 N.E.2d 572 (1991), finding indefinite suspension to be in keeping with the penalty imposed in previous bribery cases. (Interestingly, even though respondent stipulated to having acted illegally by providing false information to obtain a loan (a first degree misdemeanor), in Cincinnati Bar Ass’n v. Farrell, 119 Ohio St.3d 529, 2008 Ohio 4540, 895 N.E.2d 800, the Court’s determination of the appropriate sanction centered more on his violation of DR 1-102(A)(4) than on his 1-102(A)(3) violation, and the sanction imposed was only a two-year suspension, with the second year stayed on conditions.)

Needless to say, disbarment is the sanction of choice when the illegal conduct involved is murder; "[i]n fact, permanent disbarment is the only appropriate sanction for an attorney convicted of murder." Office of Disciplinary Counsel v. Rocker, 85 Ohio St.3d 397, 709 N.E.2d 113 (1999). The respondent was likewise disbarred in Office of Disciplinary Counsel v. Zemba, 97 Ohio St.3d 489, 2002 Ohio 6725, 780 N.E.2d 576, where she had been convicted of the third-degree felony of reckless homicide of an infant while running an unlicensed childcare business in her home.

With respect to drug-related offenses, the penalty imposed is often an indefinite suspension. See Disciplinary Counsel v. White, 106 Ohio St.3d 108, 2005 Ohio 3957, 832 N.E.2d 51 (respondent, indicted on various drug trafficking counts, entered guilty plea to one; indefinite suspension imposed for violation of former OH DR 102(A)(3) and other provisions); Office of Disciplinary Counsel v. Garrity, 98 Ohio St.3d 317, 2003 Ohio 740, 784 N.E.2d 691 (conviction on five counts of prescription drug theft; because of mitigating circumstances, disbarment found to be too severe and indefinite suspension imposed); Akron Bar Ass'n v. Chandler, 62 Ohio St.3d 471, 584 N.E.2d 677 (1992) (lawyer, convicted of cocaine trafficking (characterized as a "low-level enterprise to distribute") to support his dependency, received an indefinite suspension, as had been imposed in numerous other cited cases; conduct violated OH DR 1-102(A)(3), (5) & (6)). In Chandler, the Court detailed how such a suspension might work in this context:

We have noted an assumption among the bench and bar of Ohio that the sanction of indefinite suspension means a suspension for two years. This leaves the impression that there is no middle ground between a two-year suspension and permanent disbarment. In fact, however, an indefinite suspension is just that: indefinite. Although two years is the earliest time at which a party may petition for reinstatement from an indefinite suspension, Gov. Bar R. V(25) [now Gov Bar R V 10(B)(1)], an indefinite suspension carries with it no assurance of reinstatement in two years, five years, ten years or indeed at any time. Each indefinite suspension is considered on the facts known at the time of petition for reinstatement, including the severity of the misconduct for which the sanction was imposed. We cannot conceive of any circumstances under which respondent could be reinstated prior to the time when the terms of his plea agreement have been fulfilled. Even after that time, the gravity of the underlying misconduct in this case would demand that an application for reinstatement receive meticulous scrutiny to insure that the public be protected and that the respondent has indeed been rehabilitated.

Considering the foregoing, together with the sanctions given in cases presenting similar fact patterns, . . . we choose to accept the recommendation of the relator (the Akron Bar Association) and of the hearing panel, both of which recommended an indefinite suspension.

Id. at 473, 584 N.E.2d at 678-79. Indefinite suspensions were sometimes entered over the dissent of a justice or justices seeking permanent disbarment for such conduct. E.g., Office of Disciplinary Counsel v. Columbro, 66 Ohio St.3d 195, 198, 611 N.E.2d 302, 304 (1993) (Moyer, C.J., & Pfeifer, J., dissenting); Akron Bar Ass'n v. Chandler, 62 Ohio St.3d 471, 474, 584 N.E.2d 677, 679 (1992) (Resnick, J., dissenting). In the drug-related case of Toledo Bar Ass'n v. Neller, 98 Ohio St.3d 314, 2003 Ohio 774, 784 N.E.2d 689, however, the Court unanimously disbarred respondent, who for many years represented a client whom he knew to be engaged in an organized drug distribution scheme. "During this time, respondent facilitated and promoted this conspiracy by advising Rodriquez on ways to avoid detection of his illegal activities and those of various co-conspirators." Thus, "notwithstanding the outpouring of support from respondent's colleagues and acquaintances, no mitigating circumstances can undo the harm of respondents' integral role in this drug ring. Disbarment is the commensurate sanction." Id. at paras. 9, 10. In Cincinnati Bar Ass'n v. Hennekes, 110 Ohio St.3d 108, 2006 Ohio 3669, 850 N.E.2d 1201, the Court distinguished Neller and imposed a two-year suspension, based on significant mitigating factors and on the fact that his felony offense of engaging in conspiracy to distribute cocaine was "not so nearly widespread or destructive," id. at para. 14, and was a one-time offense, in contrast to the coaching of clients, one of whom had been selling illegal drugs in an organized drug ring for years, in Neller.

It also should be recognized that the penalty imposed for engaging in illegal conduct involving moral turpitude may well be more severe if the offender is a public official. As the Court commented in Office of Disciplinary Counsel v. Norris, 76 Ohio St.3d 93, 666 N.E.2d 1087 (1996), where a prosecuting attorney had been found guilty of misdemeanor cocaine possession,

we recognize that respondent committed this misdemeanor while serving as an elected public official whose sworn duty was to prosecute the very crime he was committing. Our previous decisions involving public officials [in which one-year and indefinite suspensions were entered] should have provided a warning to respondent.

Id. at 94, 666 N.E.2d at 1089 (bracketed material added) (two-year suspension, with one year stayed). Compare Office of Disciplinary Counsel v. Head, 20 Ohio St.3d 16, 484 N.E.2d 702 (1985) (assistant county prosecutor's taking of rings, which were evidence in criminal case, for appraisal for possible sale to a third party, and his subsequent loss of rings, leading to his theft conviction, violated OH DR 1-102(A)(3) and justified indefinite suspension). And disbarment, not the indefinite suspension recommended by the Board, was the sanction imposed on a sitting common pleas judge who was convicted of violating federal drug laws for trafficking in cocaine. Office of Disciplinary Counsel v. Gallagher, 82 Ohio St.3d 51, 693 N.E.2d 1078 (1998). While there were mitigating factors present, the fact that respondent was a judge rendered them of scant importance. In the Court's words:

Permanent disbarment is even more advised here because respondent held judicial office at the time of his arrest. . . .

. . . Mitigating factors have little relevance, however, when judges engage in illegal conduct involving moral turpitude.

* * *

When a judge's felonious conduct brings disrepute to the judicial system, the institution is irreparably harmed. . . . By this sanction we aim to protect both the public and the integrity of the judicial system itself. Mitigating factors relevant to this individual attorney pale when he is viewed in his institutional role as a judge.

Id. at 52, 53, 693 N.E.2d at 1079.

Compare the different approach taken with respect to mitigating factors in Ohio State Bar Ass'n v. Johnson, 96 Ohio St.3d 192, 2002 Ohio 3998, 772 N.E.2d 1184, where the respondent had committed extortion while serving as a state senator (he induced grocers and others to contribute to his election campaigns in exchange for his efforts on their behalf before state agencies.) He was convicted of violating the Hobbs Act (18 USC § 1951) and sentenced to fifteen months in prison. The Board recommended disbarment, but the Court, while acknowledging "that permanent disbarment is the accepted sanction when attorneys in public office commit extortion," id. at para. 6, concluded that an indefinite suspension was the appropriate sanction, given the mitigating factors present, including the fact that he had previously served the community effectively:

In executing our constitutional responsibility to oversee the practice of law in this state, our duty requires us to do more than just protect the public from those ethically unfit to represent them. We must also be careful not to deprive the public of those who, through sufficient rehabilitation, may be able to recover their ethical orientation and serve competently in a professional capacity. . . .

* * * *

. . . Because this possibility exists [here], we find the sanction of indefinite suspension to be appropriate.

Id. at ¶¶ 7, 9 (bracketed material added).

8.4:400 Dishonesty, Fraud, Deceit and Misrepresentation

  • Primary Ohio References: Ohio Rule 8.4(c)
  • Background References: ABA Model Rule 8.4(c)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.22-1.27
  • Commentary: ABA/BNA § 101:401; ALI-LGL § 2; Wolfram § 3.3.1

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.22-1.27 (1996).

In general: Ohio Rule 8.4(c) provides that a lawyer shall not "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." The identical OHCPR provision typically was invoked in its entirety; the case law evidenced little or no attempt by the Ohio Supreme Court to differentiate among the four types of conduct prohibited by the provision. One would expect precedent under the Code to be fully applicable in the interpretation of the same language in Rule 8.4(c).

There is one, new, safe harbor added by the 2006 final revisions. Comment [2A] provides that division (c) "does not prohibit a lawyer from supervising or advising about lawful covert activity in the investigation of criminal activity or violations of constitutional or civil rights when authorized by law." Ohio Rule 8.4 cmt. [2A]. In addition to the reference in the ABA Model Rules Comparison to Rule 8.4 to "involvement in lawful covert activities" as not being a violation of 8.4(c), the Summary of Post-Comment Revisions to Proposed Ohio Rules of Professional Conduct provides additional information regarding this change. After noting that Comment [2] is amended [in fact, Comment [2] was not amended; Comment [2A] was added] to permit lawyers to advise clients and others about covert investigations, the Summary goes on as follows:

This language would permit a prosecutor to advise police officers about an undercover operation or a private lawyer to provide advice about efforts to uncover discriminatory housing activities, without running afoul of the Rules of Professional Conduct. However, Rule 8.4(c) would continue to prohibit lawyers from engaging in misleading or deceitful conduct solely for the purpose of furthering a private cause of action. See Columbus Bar Ass'n v. King (1998), 84 Ohio St.3d 174.

Summary at 5. (The King case involved a respondent who conspired to have another lawyer falsely represent himself to the former landlord of respondent's client, in an attempt to provoke the landlord to slander the client, so that respondent could add a defamation count to the slip-and-fall action to be filed against the landlord.) Ohio Comment [2A] is discussed in Lloyd Snyder, Lawyer Deception to Uncover Wrongdoing, Clev. B.J., Oct. 2007, at 10.

In assessing lawyer conduct under the Rule 8.4(c)/ DR 1-102(A)(4) standard, at least one bar association opinion suggested that the lawyer's subjective intent to deceive may not be a prerequisite to violation. In Ohio State Bar Ass'n Informal Op. 76-4 (July 16, 1976), the inquiry was the propriety of an attorney sending a collection letter to a debtor and including within it a complaint, along with language in the letter that "If I do not hear from you by said date, I will assume that you are not interested in discussing this matter; and the enclosed complaint will be filed." Id. at 1. The opinion criticized the inclusion of the complaint in the letter because of a fear that debtors might be misled into believing that judicial proceedings already had been commenced. The bar association felt that fostering such a misapprehension, regardless of the lawyer's lack of intent to do so, violated former OH DR 1-102(A)(4). See Office of Disciplinary Counsel v. Bell, 15 Ohio St.3d 118, 472 N.E.2d 1069 (1984), where the attorney argued that his conduct was not fraudulent because he lacked the intent to defraud. The Court rejected this argument in the following terms:

Respondent next argues that his conduct was not fraudulent. The board found that "[r]espondent caused to be filed an account in the Summit County Probate Court which was false." Respondent does not dispute that particular finding but insists that since he made a subsequent full disclosure to the probate court, he lacked the intent to defraud. Contrary to respondent's position, the record amply supports the board's finding that, in intentionally submitting two false accountings to the probate court, respondent's conduct was fraudulent. Respondent's argument in this regard is thus without merit.

Id. at 119-20, 472 N.E.2d at 1071.

The language of the Rule does not address the severity of conduct necessary to constitute an act of dishonesty, fraud, deceit, or misrepresentation. It is possible that some conduct, although technically involving a misrepresentation, may not be substantial enough to warrant discipline. See, under the Code, Toledo Bar Ass'n Op. 93-4, at 1 (n.d.) (misstatement of facts in a request for an advisory opinion from a local bar association may not "arise [sic] to the dignity of the wrongdoing envisioned by the Canon"). And see, in this regard, Lake County Bar Ass'n v. Ezzone, 102 Ohio St.3d 79, 2004 Ohio 1774, 806 N.E.2d 991, where respondent's conviction of a misdemeanor for failing to file a federal income tax return violated OH DR 1-102(A)(4). In the course of deciding that a one-year suspension, all stayed on conditions, was appropriate, the Court noted that "respondent's misconduct did not involve lies to a court or client, Dayton Bar Assn. v. Millonig (1999), 84 Ohio St.3d 403, 704 N.E.2d 568 (implying that the most serious violations of DR 1-102[A][4] involve dishonesty toward a client or court)." 102 Ohio St.3d 79, at para. 3 (bracketed form of citation in original).

But where the misrepresentation is clear and significant, a major sanction is warranted. As the Ohio Supreme Court stated in Office of Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 187, 658 N.E.2d 237, 237 (1995) (syllabus), a case involving lawyer conduct of lying to and misleading the client: "When an attorney engages in a course of conduct that violates DR 1-102(A)(4), the attorney will be actually suspended from the practice of law for an appropriate period of time." (Foreshadowing the adoption of this rule in Fowerbaugh was the virtually identical language in the dissenting opinion in Toledo Bar Ass'n v. Dzienny, 72 Ohio St.3d 173, 178, 648 N.E.2d 499, 503 (1995); not surprisingly, both opinions were written by Chief Justice Moyer.) Accord Disciplinary Counsel v. Walker, 119 Ohio St.3d 47, 2008 Ohio 3321, 891 N.E.2d 740 (Fowerbaugh cited and followed; two-year suspension with second year stayed on conditions); Disciplinary Counsel v. Bowman, 110 Ohio St.3d 480, 2006 Ohio 4333, 854 N.E.2d 480 (citing and following Fowerbaugh; two-year actual suspension imposed); Disciplinary Counsel v. Rooney, 110 Ohio St.3d 349, 2006 Ohio 4576, 853 N.E.2d 663 (even with number of mitigating factors and no aggravating factors, actual six-month suspension imposed, citing Fowerbaugh, for dishonest conduct designed to mislead client); Mahoning County Bar Ass’n v. Olivito, 110 Ohio St.3d 64, 2006 Ohio 3564, 850 N.E.2d 702 (two-year suspension with one year stayed, following Fowerbaugh, for forgery and other false representations to court in connection with bankruptcy matter); Cincinnati Bar Ass’n v. Kenney, 110 Ohio St.3d 38, 2006 Ohio 3458; 850 N.E.2d 60 (following Fowerbaugh; actual suspension of two years with 18 months stayed on conditions, for lying to investigating officer about sexual encounter); Toledo Bar Ass'n v. Hickman, 107 Ohio St.3d 296, 2005 Ohio 6513, 839 N.E.2d 24 (Fowerbaugh applied; one-year suspension with six months stayed); Akron Bar Ass'n v. Holder, 102 Ohio St.3d 307, 2004 Ohio 2835, 810 N.E.2d 426 (applying the Fowerbaugh rule; suspension of two years, with 18 months stayed because of mitigating circumstances); Office of Disciplinary Counsel v. Shaffer, 98 Ohio St.3d 342, 2003 Ohio 1008, 785 N.E.2d 429 (rejecting argument that this was "isolated incident" not warranting actual suspension; instead, Court saw it as "misconduct manifest[ing] a course of conduct because he planned and administered a multistep process to defraud" by forging documents to facilitate the sale of real estate of client's incapacitated grandmother; actual suspension (one year, with six months stayed) imposed); Cincinnati Bar Ass'n v. Caliman, 83 Ohio St.3d 461, 462, 700 N.E.2d 857, 857 (1998) (because Board's recommended sanction for violation of OH DR 1-102(A)(4) (six-month suspension with entire suspension period stayed) did "not follow the Fowerbaugh prescription of 'actual suspension,'" stay eliminated).

The Fowerbaugh Court justified this newly recognized per se standard in the following terms:

We express our growing concern with the increase in the discipline matters referred to us by the Board of Commissioners on Grievances and Discipline in which members of the bar of Ohio have deceived their clients or a court. A lawyer who engaged in a material misrepresentation to a court or a pattern of dishonesty with a client violates, at a minimum, the lawyer's oath of office that he or she will not "knowingly . . . employ or countenance any . . . deception, falsehood, or fraud." [Gov Bar R I 8(A)]. Such conduct strikes at the very core of a lawyer's relationship with the court and the client. Respect for our profession is diminished with every deceitful act of a lawyer. We cannot expect citizens to trust that lawyers are honest if we have not yet sanctioned those who are not. Therefore, recognizing that the sanctions that we have imposed heretofore against lawyers who have violated DR 1-102(A)(4) are apparently not causing some lawyers to understand the importance of being honest with courts and clients, we announce a rule that will be applied to this case and future cases. When an attorney engages in a course of conduct resulting in a finding that the attorney has violated DR 1-102(A)(4), the attorney will be actually suspended from the practice of law for an appropriate period of time.

74 Ohio St.3d at 190, 658 N.E.2d at 239-40.

Invoking the Fowerbaugh rule in Disciplinary Counsel v. Manning, 111 Ohio St.3d 349, 2006 5794, 856 N.E.2d 259, the Court had this to say:

Respondent engaged in a methodical pattern of dishonest conduct over many months, lying to his clients repeatedly and even covering his tracks with a fraudulent settlement document that barred the clients from discussing the "settlement" with anyone else. This conduct is unacceptable for a member of a profession in which loyalty, candor, and diligence are essential.

Id. at para 14 (two-year actual suspension imposed). Additional precedent in accord includes Dayton Bar Ass'n v. Rogers, 116 Ohio St.3d 99, 2007 Ohio 5544, 876 N.E.2d 923 (actual suspension for 1-102(A)(4) violation "'particularly appropriate where an attorney's dishonesty has been directed toward a client,'" id. at para. 19; two-year suspension); Disciplinary Counsel v. Medley, 104 Ohio St.3d 251, 2004 Ohio 6402, 819 N.E.2d 273 ("Because respondent [a judge] misrepresented facts in a journal entry . . ., an actual suspension is warranted based solely on that conduct." Id. at para. 40 (citing Fowerbaugh)); Disciplinary Counsel v. O'Neill, 103 Ohio St.3d 204, 2004 Ohio 4704, 815 N.E.2d 286, at para. 52 ("respondent's pervasive conduct of misrepresentation in violation of DR 1-102(A)(4) by itself warrants an actual suspension from the practice of law for an appropriate period of time," citing, inter alia, Fowerbaugh); Disciplinary Counsel v. Hutchins, 102 Ohio St.3d 97, 2004 Ohio 1805, 807 N.E.2d 303 (Fowerbaugh rule applied; respondent suspended for six months; Court distinguishes public-reprimand case (Eisenberg, see next paragraph) advanced by respondent because, inter alia, that case, unlike case at bar, involved isolated instance of misconduct); Office of Disciplinary Counsel v. Johnson, 100 Ohio St.3d 291, 2003 Ohio 5753, 798 N.E.2d 604 (several violations of OH DR 1-102(A)(4), which, together with lack of mitigating factors, requires actual suspension; indefinite suspension imposed). See further discussion of Medley and O'Neill at "Misconduct in the judicial process," this section infra.

In other cases subsequent to Fowerbaugh, however, the Supreme Court has limited the reach of the standard, finding three exceptions to its application. These are well illustrated in the Court's opinion in Disciplinary Counsel v. Cuckler, 101 Ohio St.3d 318, 2004 Ohio 784, 804 N.E.2d 966, where a unanimous Court stated, in approving a public-reprimand sanction:

When an attorney engages in a course of conduct that violates DR 1-102(A)(4), we will ordinarily suspend the attorney's license to practice law for an appropriate period of time. [citing Fowerbaugh syllabus]. In that case, an attorney was suspended for six months for lying repeatedly to a client in an effort to conceal his neglect of the client's case. However, because some violations of this Disciplinary Rule are more egregious than others, a lesser sanction may be justified where little or no harm resulted from the . . . violation or where the violation represented an isolated incident in the attorney's career.  Cleveland Bar Assn. v. Cox, 98 Ohio St.3d 420, 2003 Ohio 1553, 786 N.E.2d 454 (attorney publicly reprimanded for falsely denying his knowledge of certain information during a disciplinary investigation). An abundance of mitigating evidence may also warrant our lenience. Disciplinary Counsel v. Markijohn, 99 Ohio St.3d 489, 2003 Ohio 4129, 794 N.E.2d 24 (six-month suspension, all stayed, was warranted for attorney's violation of OH DR 1-102[A][4] after taking into account his expressed remorse, lack of prior disciplinary record, restitution, report of his own misconduct, personal difficulties, and established professional competence and integrity apart from the misconduct).

101 Ohio St.3d 318, at para. 10 (bracketed form of citation in original). Accord Disciplinary Counsel v. Niermeyer, 119 Ohio St.3d 99, 2008 Ohio 3824, 892 N.E.2d 434 (Fowerbaugh rule recognized but 12-month suspension stayed, based on significant mitigating factors and fact that misstep was “isolated incident in an otherwise unblemished legal career,” id. at para. 13); Dayton Bar Ass’n v. Ellison, 118 Ohio St.3d 128, 2008 Ohio 1808, 886 N.E.2d 836 (Fowerbaugh rule acknowledged but one-year stayed suspension imposed, based on sufficient mitigating circumstances); Columbus Bar Ass'n v. Shea, 117 Ohio St.3d 55, 2008 Ohio 263, 881 N.E.2d 847 (isolated incident; emphasis on absence of course of conduct such as that present in Fowerbaugh); Disciplinary Counsel v. Fumich, 116 Ohio St.3d 257, 2007 Ohio 6040, 878 N.E.2d 6 (Fowerbaugh rule acknowledged, but exception made because of abundance of mitigating evidence; 12-month stayed suspension); Columbus Bar Ass'n v. Stubbs, 109 Ohio St.3d 446, 2006 Ohio 2818, 848 N.E.2d 843 (isolated incident, significant mitigating factors; six-month suspension, all stayed, citing, inter alia, Markijohn); Toledo Bar Ass’n v. Lowden, 105 Ohio St.3d 377, 2005 Ohio 2162, 826 N.E.2d 836 (significant mental-illness mitigating factor; two-year suspension, all stayed, on condition that respondent continue his mental-health treatment); Cincinnati Bar Ass'n v. Statzer, 101 Ohio St.3d 14, 2003 Ohio 6649, 800 N.E.2d 1117 (six-month stayed suspension, citing, inter alia, Markijohn); Portage County Bar Ass'n v. Mitchell, 101 Ohio St.3d 1, 2003 Ohio 6449, 800 N.E.2d 1106 (isolated incident, no harm, citing, inter alia, Kramer and Eisenberg infra); Office of Disciplinary Counsel v. Heffter, 98 Ohio St.3d 320, 2003 Ohio 775, 784 N.E.2d 693 (acknowledging Fowerbaugh rule but holding that significant mitigating factors justified six-month suspension with entire suspension stayed for notarizing signatures of minors outside their presence in violation of OH DR 1-102(A)(4)); Toledo Bar Ass'n v. Kramer, 89 Ohio St.3d 321, 731 N.E.2d 643 (2000) (while misuse of client funds violated OH DR 1-102(A)(4), exception to Fowerbaugh rule made for respondent, whose misconduct was isolated incident and occurred while he was being treated for depression brought about by his father's death; one-year suspension imposed with entire year stayed); and Office of Disciplinary Counsel v. Eisenberg, 81 Ohio St.3d 295, 690 N.E.2d 1282 (1998) (public reprimand for arranging for assistant to forge signatures of estate beneficiaries, where misconduct was isolated instance, had no adverse financial consequences, and signatures placed on legitimate estate documents for convenience of signers). See Dayton Bar Ass'n v. Millonig, 84 Ohio St.3d 403, 704 N.E.2d 568 (1999) (failure to file personal income tax returns violated OH DR 1-102(A)(4); Court acknowledged Fowerbaugh rule but nevertheless upheld sanction of public reprimand because "there is no evidence in the case that respondent ever lied to his clients or any court,"  id. at 405, 704 N.E.2d at 569).

Even an abundance of mitigating evidence, however, will not keep the Court from applying the Fowerbaugh actual-suspension rule for a violation of 1-102(A)(4) where the violation was a "deliberate effort to deceive"; "[i]ndeed, for the audacity of respondent's ethical violations, the general rule requiring an actual suspension from the practice of law must apply." Cleveland Bar Ass'n v. McMahon, 114 Ohio St.3d 331, 2007 Ohio 3673, 872 N.E.2d 261, at para. 28 (respondent fabricated letter supposedly recounting verbatim testimony at court hearing on traffic violation by client's adversary in personal-injury suit, including an admission of guilt – none of which occurred – and sent it to defendant's insurance company in effort to persuade insurer to enter into settlement negotiations; respondent cited other cases (e.g., Cuckler, Eisenberg) where significant mitigating evidence resulted in public reprimand, but "[i]n none of these cases, however, did the lawyers as deliberately exceed the bounds of our standard for truthfulness as has respondent." Id. at para. 26.).

A troubling Fowerbaugh-rule case is Disciplinary Counsel v. Carroll, 106 Ohio St.3d 84, 2005 Ohio 3805, 831 N.E.2d 1000, in which the respondent padded his hours as executive director of the Ohio State Barber Board. According to the Board of Commissioners, there was no evidence that, even though he charged for hours "when he actually had been in court representing his private legal clients," id. at para. 8, "he was not attempting to receive pay for work he did not perform," and therefore did not act "with a selfish or dishonest motive." Id. at para. 10. This "logic," however counterintuitive, redounded to respondent's benefit in the form of a stayed six-month suspension.

For an OH DR 1-102(A)(4) violation case in which the Fowerbaugh rule was neither applied nor acknowledged, see Columbus Bar Ass'n v. DiAlbert, 98 Ohio St.3d 386, 2003 Ohio 1091, 785 N.E.2d 747 (six-month suspension, all stayed). Accord Lake County Bar Ass'n v. Ezzone, 102 Ohio St.3d 79, 2004 Ohio 1774, 806 N.E.2d 991. See also Cleveland Bar Ass'n v. Russell, 114 Ohio St.3d 171, 2007 Ohio 3603, 870 N.E.2d 1164, Columbus Bar Ass'n v. Daugherty, 105 Ohio St.3d 307, 2005 Ohio 1825, 825 N.E.2d 1094, and Office of Disciplinary Counsel v. Mezacapa, 101 Ohio St.3d 156, 2004 Ohio 302, 803 N.E.2d 397, in each of which a public reprimand was issued under 1-102(A)(4) for respondent's violation of notary-public duties. (In Mezacapa, the respondent signed his client's name (with the client's permission) to a document and then notarized it; Fowerbaugh not mentioned. In Russell and Dougherty, respondents notarized signature(s) that they did not witness, which signatures turned out to be forged; Fowerbaugh rule and exceptions discussed.)

A lawyer who violates her obligations as a notary public does not always get off so easily, however. In Disciplinary Counsel v. Jones, 103 Ohio St.3d 590, 2004 Ohio 5697, 817 N.E.2d 841, the respondent pressed such violations over the edge, and, in conjunction with numerous other infractions, was disbarred:

respondent notarized the signatures on the quitclaim deed by falsely certifying that . . . she had witnessed four members of the Miller family sign the deed personally. Respondent also falsely certified in the notarization that . . . she had witnessed eight more members of the Miller family sign the deed. In addition, respondent forged the signature of a former paralegal, a purported witness, nine times on the quitclaim deed.

Id. at para. 12.

Given the breadth of actions covered by the language of Rule 8.4(c), examples of transgressions of that same standard under the Code are legion. Common instances in which this provision has been invoked are set forth in the subsections that follow.

Private conduct: In some cases, violations of former OH DR 1-102(A)(4) stemmed from essentially private conduct. For example, all of the following were sources of OH DR 1-102(A)(4) violations:

  • sexual misconduct, e.g., Butler County Bar Ass'n v. Williamson, 117 Ohio St.3d 399, 2008 Ohio 1196, 884 N.E.2d 55 (lying to conceal sexual relationship with client; denying in correspondence with lawyer for client's husband that he was representing her, "although he continued to assist her in secret," id. at para. 5; because of his affair with client while continuing to represent her, "respondent risked his client's legal and personal interests for his own advantage," id. at para. 6, thereby violating 1-102(A)(5) & (6) as well); Akron Bar Ass'n v. Williams, 104 Ohio St.3d 317, 2004 Ohio 6588, 819 N.E.2d 677 (taking sexual advantage of vulnerable client and then lying under oath about relationship; violation of OH DR 1-102(A)(4) & (6)); Office of Disciplinary Counsel v. Randall, 43 Ohio St.3d 149, 539 N.E.2d 160 (1989) (attorney convicted of gross sexual imposition and indecent exposure violated OH DR 1-102(A)(3)-(6));

  • drug offenses, e.g., Disciplinary Counsel v. May, 106 Ohio St.3d 385, 2005 Ohio 5320, 835 N.E.2d 372 (guilty plea to two counts of obtaining dangerous drug through deception; treatment in lieu of conviction; violation of OH DR 1-102(A)(3), (4) & (6); because of significant mitigating factors, including successful completion of treatment program, two-year stayed suspension imposed); Disciplinary Counsel v. Stern, 106 Ohio St.3d 266, 2005 Ohio 4804, 834 N.E.2d 351 (guilty plea to, inter alia, charge of conspiracy to distribute heroin; violation of DR 1-102(A)(3), (4) & (6); disbarment imposed); Office of Disciplinary Counsel v. O'Neill, 39 Ohio St.3d 337, 530 N.E.2d 1317 (1988) (attorney's conviction for illegal possession of drug documents under ORC 2925.23(B) constituted violation of OH DR 1-102(A)(3) & (4)).

  • tax violations, e.g., Lake County Bar Ass'n v. Ezzone, 102 Ohio St.3d 79, 2004 Ohio 1774, 806 N.E.2d 991 (failure to file federal income tax return violated OH DR 1-102(A)(4); Geauga County Bar Ass'n v. Bruner, 98 Ohio St.3d 312, 2003 Ohio 736, 784 N.E.2d 687 (failure to pay employee's withholding taxes; instead, respondent kept the amount withheld and then "tried to conceal his theft with false documentation," id. at para. 6); Dayton Bar Ass'n v. Seall, 81 Ohio St.3d 280, 690 N.E.2d 1271 (1998) (conviction for conspiracy to commit tax fraud violated OH DR 1-102(A)(4)); Office of Disciplinary Counsel v. Hess, 61 Ohio St.3d 101, 573 N.E.2d 83 (1991) (attorney convicted of filing false and fraudulent income tax return in one year and understating taxable income and taxes in three other years violated both OH DR 1-102(A)(3) & (4)). Income tax violations may necessitate discipline under any of a number of rules, such as OH DR 1-102(A)(3)-(6). See, e.g., section 8.4:300, at "Misconduct directed at the government";

  • petty theft, e.g., Toledo Bar Ass'n v. Lockhart, 84 Ohio St.3d 7, 701 N.E.2d 686 (1998) (shoplifting conviction violated OH DR 1-102(A)(4)).

  • identity theft, Cincinnati Bar Ass'n v. Zins, 116 Ohio St.3d 1, 2007 Ohio 5263, 875 N.E.2d 941 (while working as customer-service representative at bank, respondent conceived and executed plan to steal money from bank customers by means of identity theft, using bank records; two-year suspension, with no credit for time already served under interim suspension from felony conviction; three justices dissented and argued that respondent's misuse of position of trust justified indefinite suspension).

Overreaching in personal matters also has been disciplined under this provision. For example, in Akron Bar Ass'n v. Parker, 52 Ohio St.3d 262, 557 N.E.2d 116 (1990), the Court held that an attorney who caused his father to revoke a prior will and name the attorney trustee of the estate assets with unfettered discretion over them, and who arguably abused that discretion, violated several provisions, including OH DR 1-102(A)(4). See also Erie-Huron Counties Joint Certified Grievance Comm. v. Meyerhofer, 99 Ohio St.3d 62, 2003 Ohio 2467, 788 N.E.2d 1073 (in his capacity as successor trustee of deceased client's trust, respondent failed to distribute trust assets until 16 months after client's death and falsely advised one of beneficiaries prior to this time that distribution had already been made); Dayton Bar Ass'n v. Gross, 62 Ohio St.3d 224, 581 N.E.2d 520 (1991) (lawyer's improper use of power of attorney to deplete his mother's accounts for his personal use violated OH DR 1-102(A)(1), (3), (4) & (6)).

Fraudulent and dishonest schemes: Violations often arose from a lawyer's participation in schemes involving fraud or dishonesty or both. Embezzlement or other misappropriation from the

  • lawyer's firm, Disciplinary Counsel v. Zigan, 118 Ohio St.3d 180, 2008 Ohio 1976, 887 N.E.2d 334 (converting substantial amount of funds belonging to his law firm, plus preparing false documents on which he forged clients’ signatures, in attempt to conceal his theft from firm; disbarment ordered); Columbus Bar Ass'n v. DeVillers, 116 Ohio St.3d 33, 2007 Ohio 5552, 876 N.E.2d 530 (lying to firm members about withdrawals made by respondent from firm's trust account; respondent suspended for two years for this and other violations); Cincinnati Bar Ass'n v. Schwieterman, 115 Ohio St.3d 1, 2007 Ohio 4266, 873 N.E.2d 810 (numerous instances of converting law firm funds to his own use and on one occasion lying to firm that he never secured check from client; indefinite suspension); Toledo Bar Ass’n v. Crossmock, 111 Ohio St.3d 278, 2006 Ohio 5706, 855 N.E.2d 1215 (respondent converted to his own use over $300,000 belonging to his law firm (the amount was later repaid); indefinite suspension imposed for violation of DR 1-102(A)(4) & (6)); Cincinnati Bar Ass'n v. Washington, 109 Ohio St.3d 308, 2006 Ohio 2423, 847 N.E.2d 435 (billing firm clients $91,000 in fees for work not performed; converting retainers to his personal use; all motivated by cocaine and alcohol dependency); Office of Disciplinary Counsel v. Yajko, 77 Ohio St.3d 385, 674 N.E.2d 684 (1997) (twenty separate occasions on which respondent stole from his law firm violated OH DR 1-102(A)(4) & (6); indefinite suspension imposed despite (or perhaps because of) respondent's evidence in mitigation that he was "barely getting by," and yet elected to incur replacement and increased insurance costs for his boat, which had sunk,  id. at 387-88, 674 N.E.2d at 686); Office of Disciplinary Counsel v. Crowley, 69 Ohio St.3d 554, 634 N.E.2d 1008 (1994) (lawyer who received over $20,000 for improper expense reimbursement requests indefinitely suspended for violating OH DR 1-102(3), (4) & (6)); Columbus Bar Ass'n v. Osipow, 68 Ohio St.3d 338, 626 N.E.2d 935 (1994) (filing false travel expense vouchers violated OH DR 1-102(A)(4)),

  • his employer, Akron Bar Ass'n v. Carter, 115 Ohio St.3d 18, 2007 Ohio 4262, 873 N.E.2d 824 (misuse of company's credit card for personal expenses; two-year suspension with second year stayed on conditions); Cincinnati Bar Ass'n v. Blankemeyer, 109 Ohio St.3d 156, 2006 Ohio 2038, 846 N.E.2d 523 (embezzlement of over $184,000 to support prescription drug habit; permanent disbarment ordered); Dayton Bar Ass'n v. Rogers, 71 Ohio St.3d 283, 643 N.E.2d 539 (1994) (charging company for which he was officer fictitious consultant's fee to recoup bonuses he had personally paid to employees serving under him, which company allegedly had promised but failed to pay, violated OH DR 1-102(A)(3); cashing a check made out to respondent and wholly-owned subsidiary of company violated OH DR 1-102(A)(4); the presence of substantial mitigating factors, however, led to imposition of public reprimand only), or

  • other business associates, Toledo Bar Ass'n v. Galvin, 11 Ohio St.3d 37, 462 N.E.2d 1383 (1984) (attorney who diverted $37,000 from bank account of person with whom he had business relationship, but not attorney-client relationship, violated OH DR 1-102(A)(3), (4), & (6)),

clearly falls within this category.

More common in the reported cases were schemes or misrepresentations directed at others. Some illustrative examples include:

  • placing personal funds in client trust account in effort to shield them from creditors was “dishonest and prejudicial to the administration of justice”; “a lawyer may not use his trust account . . . as a ‘safe haven’ for his money to avoid his personal financial responsibilities.” Disciplinary Counsel v. Vogtsberger, 119 Ohio St.3d 458, 2008 Ohio 4571, 895 N.E.2d 158, at paras. 9, 10,

  • conviction of conspiracy to restrain trade in violation of Sherman Act, Disciplinary Counsel v. Margolis, 114 Ohio St.3d 165, 2007 Ohio 3607, 870 N.E.2d 1158,

  • pledging as collateral for personal loan $250,000 certificate of deposit of company of which respondent was managing director when bank thought it was on behalf of company, Cuyahoga County Bar Ass'n v. Garfield, 109 Ohio St.3d 103, 2006 Ohio 1935, 846 N.E.2d 45,

  • suggesting to client, after order of bankruptcy court allowing creditor to repossess car, that client hide car from creditors: "if they can't find it, they can't get it." Cuyahoga Bar Ass'n v. Freedman, 107 Ohio St.3d 25, 2005 Ohio 5831, 836 N.E.2d 559, at para. 8,

  • knowingly altering odometer on vehicle, a federal crime, Disciplinary Counsel v. Dragelevich, 106 Ohio St.3d 478, 2005 Ohio 5515, 835 N.E.2d 1261,

  • forging signatures of common pleas judge and magistrate on document purporting to be filed petition and consent judgment entry, which was then faxed by respondent to school officials as providing necessary documentation to allow client to obtain temporary custody of his cousin, thereby permitting the cousin to attend the preferred school without tuition. Disciplinary Counsel v. Insley, 104 Ohio St.3d 424, 2004 Ohio 6564, 819 N.E.2d 1109 (Court found Board's recommended sanction of two years, with second year stayed, "not commensurate with the duplicity respondent demonstrated," id. at para. 11; sanction increased to indefinite suspension),

  • wrongfully converting and selling shares pledged by debtor as security in loan transaction; falsely claiming that officer of debtor had authorized the sale, Office of Disciplinary Counsel v. Johnson, 100 Ohio St.3d 291, 2003 Ohio 5753, 798 N.E.2d 604,

  • altering QDRO documents to increase client's share of her ex-husband's 401(k) and pension benefits, which documents were thereafter filed with domestic relations court by one of respondent's employees, Office of Disciplinary Counsel v. Herman, 99 Ohio St.3d 362, 2003 Ohio 3932, 792 N.E.2d 1078 (violation of, inter alia, OH DR 1-102(A)(3)-(5),

  • falsely representing to client's successor attorney that he had refunded $2,000 of his client's money, Office of Disciplinary Counsel v. Treneff, 98 Ohio St.3d 348, 2003 Ohio 1011, 785 N.E.2d 434,

  • knowingly creating certificate of authenticity that falsely represented the value of paintings shipped to clients of telemarketing scheme, Office of Disciplinary Counsel v. Harris, 84 Ohio St.3d 3, 701 N.E.2d 682 (1998) (lawyer pled guilty to felony of conspiring to defraud the United States; violations of OH DR 1-102(A)(4) & (6) (but not (3), as charged), resulting in indefinite suspension),

  • general counsel's tangential involvement in and tacit approval of a scheme by the company's financial officer to submit a false payroll report in order to reduce worker's compensation premiums, Office of Disciplinary Counsel v. Dukat, 79 Ohio St.3d 189, 680 N.E.2d 972 (1997) (because of mitigating factors, respondent's suspension was made coextensive with probation being served for federal felony conviction (mail fraud) based on involvement in scheme),

  • instigating scheme attempting to buy, for his own profit, farm of clients in financial distress. "We are appalled by respondent's purchase scheme and by his coercive tactics to gain the Mowerys' approval of it." Columbus Bar Ass'n v. Ewing, 75 Ohio St.3d 244, 251, 661 N.E.2d 1109, 1114 (1996) (indefinite suspension),

  • falsifying documents (a traffic accident report, doctor's report, and civil action complaint) in an insurance claim file by inserting insured's name into all three documents in an effort to make it appear that insured had lied when he stated that he had not been involved in any prior traffic accidents, Office of Disciplinary Counsel v. Spencer, 71 Ohio St.3d 316, 643 N.E.2d 1086 (1994) (conduct violated OH DR 1-102(A)(4)-(6), warranting one-year suspension). A more recent example is Cincinnati Bar Ass’n v. Farrell, 119 Ohio St.3d 529, 2008 Ohio 4540, 895 N.E.2d 800, in which the respondent engaged in “multiple acts of duplicity,” including a forged power of attorney in order to obtain an increase in his and his wife’s line of credit from their bank, as well as fabricated multiple letters designed to deceive his wife as to his course of conduct,

  • participating in a scheme to submit fraudulent workers' compensation claims to the Industrial Commission, Bar Ass'n of Greater Cleveland v. Cassaro, 61 Ohio St.3d 62, 399 N.E.2d 545 (1980) (such conduct violated OH DR 1-102(A)(3)-(6) and OH DR 7-102); cf. Columbus Bar Ass'n v. Newsom, 59 Ohio St.2d 56, 391 N.E.2d 741 (1979) (filing fraudulent insurance claims violated OH DR 1-102(A)(3), (4) & (6)),

  • knowingly certifying false income data for an employee in order to secure a loan for them both, Cincinnati Bar Ass'n v. Wang, 59 Ohio St.3d 67, 570 N.E.2d 274 (1991) (conduct violated OH DR 1-102(A)(3), (4) & (6), but where attorney cooperated in investigation, lending institution suffered no financial harm, and attorney was involved in community and charitable causes, public reprimand was held to be sufficient punishment),

  • participation by an assistant prosecutor in a ticket-fixing operation, Office of Disciplinary Counsel v. Smakula, 39 Ohio St.3d 143, 529 N.E.2d 1376 (1988) (see discussion of Smakula in section 8.4:300 at "Obstruction of Justice"),

  • taking part in a fraudulent scheme to sell back to the true owner or insurer a truck that the attorney knew to be stolen, Bar Ass'n of Greater Cleveland v. Sandler, 51 Ohio St.2d 132, 364 N.E.2d 1168 (1977) (such conduct warranted only public reprimand, despite recommendation for indefinite suspension, where respondent was acquitted of criminal charges and ultimately took no fee),

  • adding a provision to agreed judgment entry without consent of opposing counsel or client, Lake County Bar Ass'n v. Walker, 17 Ohio St.3d 144, 478 N.E.2d 767 (1985), and

  • intentionally tampering with utility meters, resulting in the theft of utility services worth more than $775,000, Cincinnati Bar Ass'n v. Heekin, 9 Ohio St.3d 84, 459 N.E.2d 495 (1984) (conduct violated OH DR 1-102(A)(3), (4) & (6); lawyer disbarred).

The Cincinnati Bar Association warned that passing through cost mark-ups on client bills, such as marking up the fees charged to the firm by an outside attorney or an expert witness hired to work on a case, or the costs of deposition transcripts, without disclosure to the client, could violate OH DR 1-102(A)(4). Cincinnati Bar Ass'n Op. 95-96-02 (n.d.).

Misconduct in the judicial process: Another common cause for sanction under OH DR 1-102(A)(4) was behavior that undermined the judicial process. (Such conduct often involved a violation of OH DR 7-102 as well; see sections 3.3:200-:310, :500, :610, 3.4:200-:300, :600.) Inhibiting the investigation of a crime by knowingly keeping a client's contraband from authorities violated this provision. Cincinnati Bar Ass'n v. Freedman, 49 Ohio St.3d 65, 551 N.E.2d 143 (1990) (obstruction of justice). An assistant prosecutor's theft of cocaine from the scientific investigation unit, where it was being held as evidence in pending cases, did as well. Office of Disciplinary Counsel v. Columbro, 66 Ohio St.3d 195, 611 N.E.2d 302 (1993). So too did inducing an important witness in a case into the jurisdiction by the false assertion that the lawyer was representing the witness in another matter. Toledo Bar Ass'n v. James, 28 Ohio St.3d 148, 502 N.E.2d 1023 (1986). Obtaining and serving a subpoena to take a deposition without giving notice to opposing counsel or proceeding by stipulated agreement also violated OH DR 1-102(A)(4). Toledo Bar Ass'n Op. 88-2 (n.d.).

Misleading the court, by act or omission, likewise was ground for sanction under OH DR 1-102(A)(4). For example, before and then while he was a judge, the respondent in Disciplinary Counsel v. Hoskins, 119 Ohio St.3d 17, 2008 Ohio 3194, 891 N.E.2d 324, was the attorney for two estates; for one of which he was the executor and the other, administrator. Over a period of 6-8 years, respondent basically used the assets of the estates as his own private bank account – he withdrew attorney fees without the required prior court approval; he paid personal debts with estate assets; he manipulated fees, expenses, and transactions to his personal advantage; and he kept completely inadequate records and refused to respond in timely fashion to inquiries by the probate court and successor counsel for information and documentation, all in an effort to cover up his wrongdoing.
As stated by the Court,

Respondent’s acts were conscious and deliberate and committed with the intent of deceiving his clients, the probate court, and successor counsel. There can be no other reason for respondent’s repeated use of debit withdrawals, rather than the estate checkbook, to remove funds. The same is true with respect to respondent’s failure to file accounts and timely comply with requests for further documentation. These actions furthered one purpose – to help respondent evade detection of his unauthorized use of estate assets.

Id. at para. 68. Other examples of misleading the court include Akron Bar Ass'n v. Markovich, 117 Ohio St.3d 313, 2008 Ohio 862, 883 N.E.2d 1046 (filing unapproved dismissal order misled court and opposing counsel); Columbus Bar Ass'n v. Vogel, 117 Ohio St.3d 108, 2008 Ohio 504, 881 N.E.2d 1244 (falsely stating in response to question by court that subpoenas had been destroyed); Disciplinary Counsel v. Lord, 114 Ohio St.3d 466, 2007 Ohio 4260, 873 N.E.2d 273 (misrepresenting to court in order to obtain continuance that he had another hearing at same time; in fact respondent had already moved for continuance in other case); Cincinnati Bar Ass’n v. Lukey, 110 Ohio St.3d 128, 2006 Ohio 3822, 851 N.E.2d 493 (respondent violated the disciplinary rule “in failing to disclose his dual representation to the court and purporting to represent the grandson while pursuing the grandparent’s interests,” id. at para. 13).

One interesting, but troubling, decision in this regard is Office of Disciplinary Counsel v. Wrenn, 99 Ohio St.3d 222, 2003 Ohio 3288, 790 N.E.2d 1195. In Wrenn, respondent, an assistant county prosecutor, was representing the state in a child molestation and rape case. The twelve-year old alleged victim initially reported that the semen on his shirt was that of Derr, the accused. Prior to the pretrial, respondent was told orally by a detective working on the case that the state bureau of criminal investigation had concluded that the semen was the "victim's," not the accused's. When Derr's counsel reported at the pretrial that he believed the state was still waiting for test results, respondent stated that that was correct. He made no disclosure to either opposing counsel or the court that he had in fact been verbally informed of the results favorable to Derr. Later on the same day as the pretrial, respondent interviewed the victim, and the boy changed his story and admitted that the semen was his own. Respondent failed to disclose any of this information, and Derr was sentenced, after a guilty plea to one of the counts, to three years in prison. Relator charged respondent with violation of OH DR 102(A)(4) & (5), 7-102(A)(3), and 7-103(B). In a 2-1 vote, the panel found no 1-102(A)(4) violation and recommended a public reprimand. The Board adopted the view of the dissenting panel member, found a violation of 1-102(A)(4) as well as the other violations charged, and recommended a six-month suspension, all stayed.

Despite acknowledging that respondent's

failure to disclose the information before the first plea was inexcusable and undermined the integrity of the criminal justice system[,]

id. at para. 23, the Supreme Court went along with the stayed suspension. In dissent, Chief Justice Moyer (joined by Justice Pfiefer) found this to be "inadequate punishment for such egregious behavior." Id. at para. 27. A significant factor in the majority's rationale for the minimal sanction imposed was the presence of mitigating evidence, with no aggravating factors. Yet, the first-mentioned "mitigating" factor was evidence heard by the panel "that respondent, age 61, was also a clinical psychologist and school psychologist." Id. at para. 17. In its sanction discussion, the Court asserted that "[w]ith his background in child psychology, [respondent] is well suited to prosecuting child abuse cases." Id. at para. 25. Given the way he prosecuted the child-abuse case underlying Wrenn, that assessment seems strange indeed.

Other examples of violation of OH DR 1-102(A)(4) by misleading the court include:

  • testifying falsely under oath, Disciplinary Counsel v. Tomlan, 118 Ohio St.3d 1, 2008 Ohio 1471, 885 N.E.2d 895 (concealment of estate assets); Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076,

  • filing false statements with the court, Disciplinary Counsel v. Simonelli, 113 Ohio St.3d 215, 2007 Ohio 1535, 864 N.E.2d 1039 (bankruptcy filings); Disciplinary Counsel v. Carlson, 111 Ohio St.3d 281, 2006 Ohio 5707, 855 N.E.2d 1218 (material nondisclosures in final accounting with probate court),

  • failure to disclose to the bankruptcy court respondent's multiple conflicting representations in bankruptcy matters, Cleveland Bar Ass'n v. Kodish, 110 Ohio St.3d 162, 2006 Ohio 4090, 852 N.E.2d 160,

  • filing inflated fee requests with Juvenile Court in connection with representation as appointed counsel, Disciplinary Counsel v. Johnson, 106 Ohio St.3d 365, 2005 Ohio 5323, 835 N.E.2d 354; accord Disciplinary Counsel v. Holland, 106 Ohio St.3d 372, 2005 Ohio 5322, 835 N.E.2d 361 (repeatedly deceiving juvenile court by double billing, resulting in "outrageous fee charges," id. at para. 8),

  • numerous misrepresentations -- to the bankruptcy court, a former client, relator's investigators, and the hearing panel -- which, together with other violations, the Court characterized as egregious and prevalent, Akron Bar Ass'n v. Holder, 105 Ohio St.3d 443, 2005 Ohio 2695, 828 N.E.2d 621 (for further transgressions of 1-102(A)(4), respondent was disbarred in Akron Bar Ass'n v. Holder, 112 Ohio St.3d 90, 2006 Ohio 6506, 858 N.E.2d 356, discussed this section infra at "Dishonesty in dealing with client"),

  • writing checks to the clerk of courts for filing fee, which checks were returned for insufficient funds, Cincinnati Bar Ass'n v. Weaver, 102 Ohio St.3d 264, 2004 Ohio 2683, 809 N.E.2d 1113,

  • misrepresentation to common pleas court at judicial release hearing as to where client was going to live and with whom, Disciplinary Counsel v. Cirincione, 102 Ohio St.3d 117, 2004 Ohio 1810, 807 N.E.2d 320,

  • creation of a false journal entry by fabricating signatures of opposing counsel and judicial officer, Disciplinary Counsel v. Hutchins, 102 Ohio St.3d 97, 2004 Ohio 1805, 807 N.E.2d 303 (Court agreed with assessment by Board that this conduct "is abhorrent to our legal system, id. at para. 31),

  • lying in the answer to a civil complaint filed against respondent for sexual harassment, in his deposition testimony in the case, and in his affidavit submitted to the court in that action, Office of Disciplinary Counsel v. Kafantaris, 99 Ohio St.3d 94, 2003 Ohio 2477, 789 N.E.2d 192 (violation of, inter alia, OH DR 1-102(A)(4) & (5)),

  • lying in testimony to the probate court that he had filed income tax returns for his client prior to her death for the years 1999 and 2000, Erie-Huron Counties Joint Certified Comm. v. Meyerhofer, 99 Ohio St.3d 62, 2003 Ohio 2467, 788 N.E.2d 1073,

  • lying to the court when questioned about compliance with a pretrial order regarding expert witnesses, Office of Disciplinary Counsel v. Brown, 90 Ohio St.3d 273, 737 N.E.2d 516 (2000) (conduct violated OH DR 1-102(A)(4) & (5)), and

  • filing, in a bankruptcy case, an affidavit purportedly signed by the client, but in fact signed and notarized by the lawyer, Toledo Bar Ass'n v. Slack, 88 Ohio St.3d 274, 725 N.E.2d 631 (2000). Compare Cincinnati Bar Ass'n v. Allen, 82 Ohio St. 3d 550, 697 N.E.2d 1989 (1998), where the Court, sua sponte, dismissed a complaint against a lawyer who had dictated to and had the client sign an admittedly false affidavit in support of a criminal complaint; Chief Justice Moyer wrote a powerful dissent in which he stated, among other things, that the conduct "clearly" violated OH DR 1-102(A)(4) and that "[r]espect for and the fair administration of our justice system cannot be sustained if lawyers are permitted to encourage and actively participate in misrepresentations to the court in order to 'serve' the client."  Id. at 553, 697 N.E.2d at 191.

An unusual invocation of DR 1-102(A)(4) in connection with misconduct in the judicial process occurred in Stark County Bar Ass'n v. Ake, 111 Ohio St.3d 266, 2006 Ohio 5704, 855 N.E.2d 1206. In Ake, respondent was representing himself in an acrimonious and protracted dissolution-of-
marriage proceeding, and, during the course thereof, on five separate occasions he deliberately and consciously violated court orders, because he thought the orders were in error or because it was in his economic interest to do so. These facts seem difficult to place in the 1-102(A)(4) slot; as Chief Justice Moyer persuasively pointed out in his dissent, joined by two other justices, the more appropriate application would have been DR 7-106(A) ("A lawyer shall not disregard . . . a ruling of a tribunal made in the course of the proceeding"), which was not even charged.

An attorney who altered a judgment entry without the knowledge or consent of the opposing party or counsel and then, when the entry subsequently was stricken, failed to inform his own client prior to the expiration of the time for appeal, violated a number of provisions, including OH DR 1-102(A)(4). Lake County Bar Ass'n v. Walker, 17 Ohio St.3d 144, 478 N.E.2d 767 (1985).

Misleading a bar association investigating alleged misconduct also was a basis for violation of OH DR 1-102(A)(4). See Disciplinary Counsel v. Broschak, 118 Ohio St.3d 236, 2008 Ohio 2224, 887 N.E.2d 1176 (misrepresenting to relator at deposition that he would take steps to rectify his misconduct concerning one client and to satisfy relator’s requests for additional information); Warren County Bar Ass’n v. Marshall, 113 Ohio St.3d 54, 2007 Ohio 980, 862 N.E.2d 519 (lying to bar investigator about his attorney-registration status); Disciplinary Counsel v. Lord, 111 Ohio St.3d 131, 2006 Ohio 5341, 855 N.E.2d 457 (lying to relator as to reason for failure to appear at agreed-upon meeting with relator); Akron Bar Ass'n v. Dietz, 108 Ohio St.3d 343, 2006 Ohio 1067, 843 N.E.2d 786 (falsely stating to bar investigators that he had not taken any funds from estate for which he was executor; 1-102(A)(4) also violated by his similar misrepresentation in accounting filed with probate court); Disciplinary Counsel v. Claflin, 107 Ohio St.3d 31, 2005 Ohio 5827, 836 N.E.2d 564 (falsely assuring bar association that settlement funds had never been disbursed (even though he had used them for personal purposes), thereby causing grievance committee, at that point, to dismiss charge); Office of Disciplinary Counsel v. Brumbaugh, 99 Ohio St.3d 65, 2003 Ohio 2470, 788 N.E.2d 1076 (falsely representing to certified grievance committee of local bar association that he had paid off, with estate funds in his possession, interest owing on decedent's home to U.S. government agency); Cincinnati Bar Ass'n v. Spitz, 89 Ohio St.3d 117, 729 N.E.2d 345 (2000) (respondent split fee with nonlawyer and then lied to bar association in letter denying that he had done so, submitted falsified invoice to bar association concerning payment to nonlawyer, and lied under oath about these matters at deposition by relator; indefinite suspension imposed). Cf. Disciplinary Counsel v. Watterson, 114 Ohio St.3d 159, 2007 Ohio 3615, 870 N.E.2d 1153 (repeated tirades involving threats and false accusations against bar association grievance committee and Disciplinary Counsel, as well as clients, violated DR 1-102(A)(4), among others; indefinite suspension). And see Ohio State Bar Ass'n v. Stern, 103 Ohio St.3d 491, 2004 Ohio 5464, 817 N.E.2d 14, where the Court dismissed an OH DR 1-102(A)(4) charge against a former prosecuting attorney, who had secretly videotaped a meeting with Disciplinary Counsel Office investigators (regarding a separate grievance that had been filed against the respondent) and who, when asked by the investigators, whether the meeting was being taped, answered "no." The primary rationale behind the dismissal was the uncertainty concerning the extent to which a prior head injury suffered by respondent may have affected his actions ("the wild card that prevents us from reaching many firm certainties about what occurred," id. at para. 37); as a result, the majority of the Court found that the Board had not met its burden in proving a violation of 1-102(A)(4). The majority conceded the existence of "understandable apprehension about allowing respondent to escape discipline for what can only be characterized as lying to ODC investigators," id. at para. 25, and emphasizes that its determination "is limited exclusively to this situation." Id. The three-justice dissent argued that "[s]uch situational ethics have no place in a lawyer discipline system." Id. at para. 41.

Under the Code, if a lawyer conducted a public records search prior to litigation and thereby obtained a copy of an inadvertently disclosed memorandum containing confidential or privileged information, the lawyer could read the memorandum and disclose its contents to the client. However, the lawyer had to notify the source and return a copy of the memorandum upon request. Bd. of Comm'rs on Grievances & Discipine Op. 93-11, 1993 Ohio Griev. Discip. LEXIS 1 (Dec. 3, 1993). In the view of the Board, failure to provide notification to opposing counsel "is dishonest and misleading and would violate DR 1-102(A)(4)." Id. at *7. Although the notify-and-return-upon-request advice stated in the syllabus of Opinion 93-11 was preserved in earlier drafts of Rule 4.4 cmt. [2], the final draft of that comment deleted this language without explanation. Even though it could be argued that the public records search situation is not a circumstance covered by a literal reading of Rule 4.4(b) and the final version of Comment [2] (receipt of documents mistakenly sent or produced by opposing parties or their lawyers), the "professional judgment" rule generally applicable, as set forth in Comment [3], probably applies here as well. Pursuant thereto, in addition to the obligation to promptly notify the source as set forth in the Rule itself, the lawyer may, but need not, return the document, unless required by other law to do so. Rule 4.4 cmt. [3]. See further discussion of this issue in section 4.4:300.

See also Good v. Krohn, 157 Ohio App.3d 832, 2002 Ohio 4001, 786 N.E.2d 480 (Allen), where in an automobile personal-injury case the court, in admonishing counsel for Lumbermens Insurance (which had issued a business auto policy containing uninsured/underinsured benefits to plaintiff's employer) for affirmatively misrepresenting the contents of the policy, invoked OH DR 1-102(A)(4):

DR 1-102(A) directs that a lawyer . . . shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation or any other conduct that is otherwise prejudicial to the administration of justice. . . . The propriety of Lumbermen's [sic] representations is questionable and raises grave concerns as to whether its conduct before this court and the trial court constitutes a deliberate, malicious, bad-faith attempt to mislead the judiciary and opposing party or merely a fortuitous incident of inadvertent neglect. Because it appears from the record that the trial court was led to commit this error in reliance upon Lumbermens' representations, on remand, the trial court may wish to consider whether Civ R 11 sanctions are appropriate.

Id. at para. 14 (bracketed material and ellipsis added).

Judges, too, could violate OH DR 1-102(A)(4), by both their private and professional conduct. In Disciplinary Counsel v. Ault, 110 Ohio St.3d 207, 2006 Ohio 4247, 852 N.E.2d 725, respondent, a municipal court judge, was found to have violated DR 1-102(A)(4) by deceitfully obtaining Schedule II, III, and IV narcotics from six different doctors, after having contracted with one of the doctors to obtain controlled-substance medications only from that doctor and no other. Respondent stipulated to having breached this promise repeatedly. "Respondent's duplicity resulted in his being prescribed medication far in excess of what any one of these physicians would have authorized." Id. at para. 8. This conduct led to his pleading no contest to attempting to obtain dangerous drugs by deception, a first-degree misdemeanor. Because of his successful completion of his contract with OLAP regarding his drug and alcohol problems, and because his addiction did not impair his performance on the bench, respondent received a two-year suspension, all stayed on conditions.

In a bizarre aspect of a bizarre case involving another municipal court judge, there was a turf war between the local police chief and the sheriff as to whose duty it was to bring a criminal defendant to respondent's courtroom from the jail.  Respondent's solution, at a meeting in chambers with defense counsel and the prosecutor, was to contact the police station by dialing 911 and ordering the answering officer to transport the defendant to court.  After the news media publicized respondent's use of the 911 emergency response system for this purpose, respondent thereafter offered a variety of conflicting stories as to what happened that day,

including the categorically false explanation that he called 911 at the prosecutor's direction and the preposterous claim that he called 911 to make a record of the in-chambers discussion, knowing that 911 calls are recorded.

Disciplinary Counsel v. Parker, 116 Ohio St.3d 64, 2007 Ohio 5635, 876 N.E.2d 556, at para. 40 (violation of Judicial Canons 1, 2, 4, and DR 1-102(A)(4), (5), (6), together with six other counts; eighteen-month suspension with six months stayed on conditions).

And see Disciplinary Counsel v. Medley, 104 Ohio St.3d 251, 2004 Ohio 6402, 819 N.E.2d 273, where a common pleas judge in a collection matter entered in the court's journal that the defendant had "appeared in open court and requested the opportunity to file an answer." Id. at para. 24.

This entry conveyed the false impression that Watson's [the defendant] request had been made in a formal court proceeding. Watson testified that no mention of a hearing occurred at that meeting, which he stated occurred in respondent's office rather than in court.

Similarly, the record supports the factual conclusion that the default-judgment creditor, Holzer, was not allowed an opportunity to be heard before the court entered the order, which, at best, constituted the grant of Civ. R. 60(B) relief made pursuant to an oral, out-of-court, ex parte motion to "[r]emove any Default judgments."

Id. at paras. 24-25.

In Disciplinary Counsel v. O'Neill, 103 Ohio St.3d 204, 2004 Ohio 4704, 815 N.E.2d 286, "the evidence established that respondent engaged in a pattern of misrepresentation in her interactions with judges, litigants, attorneys and court personnel," id. at para. 23, including written and oral misrepresentations to her fellow common pleas judges and the administrative judge. The Court subsequently looked to and quoted at length from the O'Neill case in determining the proper sanction in Disciplinary Counsel v. Squire, 116 Ohio St.3d 110, 2007 Ohio 5588, 876 N.E.2d 933 (two instances of violation of 1-102(A)(4), consisting of respondent's filing of an entry disqualifying herself from one of the cases pending before her, which entry contained "false and inflammatory statements," id. at para. 59, and her entries of recusal, reinstatement, and second recusal in another case, the last such entry falsely stating that a lawyer was directed by another judge to write a letter describing respondent's antics in exchange for the other judge's signing an agreed entry transferring an abused child of Native American heritage to the tribe's juvenile court in Oklahoma (such a transfer is mandatory under federal law; respondent nevertheless had refused to sign it). In imposing the same sanction as that in O'Neill (two years, with second year stayed on conditions), the Court had this to say:

Judge O'Neill, like respondent, engaged in "a pattern of rude, undignified, and unprofessional conduct that included verbal outbursts, unjustified expulsions from the courtroom, and berating or humiliating persons in the presence of others." Id. at para. 30. Like respondent, Judge O'Neill claimed that she had sufficient justification for her actions or offered versions of facts that completely contradicted that of other witnesses. Id. at para. 32.

Id. at para. 102.

The respondent in Disciplinary Counsel v. Hoskins, 119 Ohio St.3d 17, 2008 N.E.2d 3194, 891 N.E.2d 324, owned an office building, a portion of which was rented to the Adult Parole Authority. Respondent was the only common pleas judge in Highland County, and APA witnesses regularly appeared in his court as witnesses in criminal cases to make sentencing recommendations. After being warned that this situation could involve a conflict of interest raising questions about his impartiality regarding those sentencing recommendations, respondent entered into a number of transactions, with the assistance of his wife, to make it appear that he had divested himself of ownership of the building, even though he retained de facto authority over it. As a part of this authority, despite having divested himself of ownership on paper, respondent negotiated for sale of the building to a convicted felon, who respondent thought would use illegally acquired funds for the purchase. Respondent sought to advise the would-be purchaser how to avoid money-laundering statutes. In the process, he grossly exaggerated the value of the building to the prospective purchaser. All of this, needless to say, the Court found in violation of DR 1-102(A)(4) (as well as 1-102(A)(5) & (6) and the Judicial Canons). Judge Hoskins was also found to have violated 1-102(A)(4) in an unrelated count, where respondent suspended a criminal defendant’s sentence after lunching with the defendant’s cousin and then fabricated a “motion of defendant” that he purported to act on.

Misconduct in other governmental settings: While the majority of misconduct situations involving attorneys and their relationship with the government arose with respect to the courts, misconduct under the Code occurred in other contexts as well. Income-tax violations by lawyers and misleading conduct involving loans from the government already have been discussed. Other common examples include:

  • deceptively attempting to obtain Medicaid reimbursement for a client’s unsubstantiated health-care expenses, Cleveland Bar Ass’n v. Mitchell, 118 Ohio St.3d 98, 2008 Ohio 1822, 886 N.E.2d 222.

  • among other acts of fraud and deceit, respondent backdated a deed by the client to make it appear that the property had not been in the client's estate for the last three years, thereby seeking to qualify the client for Medicaid nursing-home care; respondent also ended up, through a tangled series of transactions and deeds, and revisions of deeds, taking a personal income tax charitable deduction for the value of the property, which had originally been deeded to respondent in her capacity as trustee of the client's living trust, Toledo Bar Ass'n v. Cook, 114 Ohio St.3d 108, 2007 Ohio 3253, 868 N.E.2d 973.

  • a public defender concealed from and falsely denied to her superiors the existence of an extended sexual relationship with her client, Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006 Ohio 1062, 843 N.E.2d 765.

  • padding time charges as executive director of the Ohio Barber Board, Disciplinary Counsel v. Carroll, 106 Ohio St.3d 84, 2005 Ohio 3805, 831 N.E.2d 1000 (curiously, respondent was found not to have acted with a selfish or dishonest motive in doing so).

  • bribery of government officials, see, e.g., Mahoning County Bar Ass'n v. Sinclair, 105 Ohio St.3d 65, 2004 Ohio 7014, 822 N.E.2d 360 (scheme to kick back a portion of his salary to U.S. Congressman Traficant in return for employment as member of Traficant's staff; because of mitigating factors, imposition of indefinite suspension, the minimum sentence imposed "when lawyers have paid either a bribe or a gratuity to a public official," id. at para. 25, found appropriate); Office of Disciplinary Counsel v. McClenaghan, 57 Ohio St.3d 21, 565 N.E.2d 572 (1991) (former Division of Real Estate of Ohio Department of Commerce Superintendent, who was affiliated with real-estate education enterprise, indefinitely suspended from practice after conviction of bribery for paying examiner of Division of Real Estate $500 for copies of present and future examinations; such conduct violated OH DR 1-102(A)(3), (4) & (6)).

  • acceptance of a bribe by a government lawyer, see, e.g., Office of Disciplinary Counsel v. Smith, 69 Ohio St.3d 475, 633 N.E.2d 1117 (1994); Office of Disciplinary Counsel v. DiCarlantonio, 68 Ohio St.3d 479, 628 N.E.2d 1355 (1994). Both cases are discussed in section 8.4:300 at "Acceptance of bribe by a lawyer/government official."

  • theft in office, see, e.g., Office of Disciplinary Counsel v. Pizzedaz, 68 Ohio St.3d 486, 628 N.E.2d 1359 (1994) (conduct found to violate OH DR 1-102(A)(3), (4) & (6)), where lawyer, who had been executive director of Northeast Ohio Coordinating Agency, was permanently disbarred for theft in office). In imposing this sanction, rather than the indefinite suspension that had been recommended, the Court remarked:

    Respondent's misconduct manifests the public's worst fear about lawyers. His crimes prove that he will take advantage of public trust if given the opportunity. Thus, unlike the board and panel, we are not impressed with respondent's admission of guilt, remorse, full restitution, and efforts to comply with the terms of his probation. Rather, we find respondent's dishonesty deserving of the full measure of our disciplinary authority.

    Id. at 487, 628 N.E.2d at 1360.

  • misleading government agency officials, see, e.g., Dayton Bar Ass'n v. Callahan, 36 Ohio St.3d 179, 522 N.E.2d 542 (1988) (filing INS forms in violation of federal law); Dayton Bar Ass'n v. Gross, 17 Ohio St.3d 206, 478 N.E.2d 792 (1985) (falsely reporting to Social Security Administration that client failed to receive checks when in fact checks had been sent to lawyer's office and cashed).

  • other breach of duty by government lawyer, see, e.g., Bar Ass'n of Greater Cleveland v. Kless, 17 Ohio St.3d 21, 476 N.E.2d 1035 (1985), where an assistant city law director who settled cases against the city without authorization from his superiors and in contravention of department policy, and then covered up his conduct, was found to have violated OH DR 1-102(A)(4) and OH DR 7-102(A)(3); a one-year suspension was imposed.

Misleading the public: Former OH DR 1-102(A)(4) was used to control attorney conduct that was, or could be, misleading to the public. Falsely stating in his notary's jurat that three witnesses had sworn to and signed affidavits in his presence violated this provision.  Mahoning County Bar Ass'n v. Melnick, 107 Ohio St.3d 240, 2005 Ohio 6265, 837 N.E.2d 1203 (noting harm caused to perception that official act of notary is worthy of public's trust). Accord Cleveland Bar Ass'n v. Kraus, 116 Ohio St.3d 302, 2007 Ohio 6458, 878 N.E.2d 1028 (falsely representing in notarization that he had witnessed client's signature on settlement agreement). In another more serious breach of proper notarization procedures, respondent violated DR 1-102(A)(4) (and (A)(6)) by causing his associate to improperly notarize his wife’s name (the associate failed to notice that the jurat on a mortgage and deed authenticated both signatures) and by adding his wife’s name after the notarization was effected. Disciplinary Counsel v. Freedman, 110 Ohio St.3d 284, 2006 Ohio 4480, 853 N.E.2d 291. In imposing a six-month stayed suspension, as opposed to the public-reprimand recommended by the Board, the Court expressly distinguished Melnick and a similar public-reprimand case as involving lawyers “who avoided for their convenience the requirements of proper notarization,” whereas in the case at bar “[r]espondent did not simply circumvent for convenience the notarization requirements[;] [h]e took advantage of [his associate’s] carelessness and consciously signed [his wife’s] name to the documents after they had been notarized.” Id. at paras. 15, 16 (bracketed material added).

Practicing law while one's license is suspended also fell in this category.  Akron Bar Ass'n v. Thorpe, 40 Ohio St.3d 174, 532 N.E.2d 752 (1988) (such conduct violated OH DR 1-102(A)(4) & (5) and 3-101(B), and warranted permanent disbarment). Compare Office of Disciplinary Counsel v. Noethlich, 94 Ohio St.3d 124, 760 N.E.2d 816 (2002) (practicing while under CLE suspension and while not registered with Supreme Court, together with filing of false affidavit that he had informed his clients of supspension, violated OH DR 1-102(A)(4) & (6); because of mitigating factors, six-month suspension imposed).

So too did participation in an "in-house law firm" created by an insurance company to handle cases for its insureds, staffed by the insurance company's salaried attorneys, but operating under a separate firm name. Such a scheme was found misleading because it implied the existence of a law firm that in fact did not exist, and it disguised the relationship of the insurance company and the lawyers involved. Bd. of Comm'rs on Grievances & Discipline Op. 95-14, 1995 Ohio Griev. Discip. LEXIS 1 (Dec. 1, 1995). But see Cincinnati Bar Ass'n v. Allstate Ins. Co., No. UPL 02-02 (Bd. of Comm'rs on Unauthorized Practice of Law Oct. 1, 2003), review denied, 100 Ohio St.3d 1514, 2003 Ohio 6460, 800 N.E.2d 33, discussed in section 5.4:300, at "Formation of in-house law firms," and section 5.5:300 at "Lawyer employees of corporation."

The respondent in Disciplinary Counsel v. Hauser, 110 Ohio St.3d 203, 2006 Ohio 4246, 852 N.E.2d 724, was disbarred for, among other reasons, violating 1-102(A)(4) when she misrepresented to an elderly couple that the annuities she was selling them in her role as an insurance agent had a fixed rate, when in fact the rate was variable.  "Respondent's repeated dishonesty and deceit in dealing with the elderly couple and her employer seriously breached the professional duty to the public to maintain personal integrity." Id. at para. 19.

A lawyer's allowing another to use his business envelopes for the purpose of mailing papers pertaining to a legal matter created the false impression that the lawyer was representing the party and violated OH DR 1-102(A)(4). Cleveland Bar Ass'n Op. 113 (Dec. 17, 1974) (condemning this practice where landlord used envelopes of attorney who was not representing him to send tenant five-day notice and complaint in forcible entry and detainer action). A comparable ploy was criticized in Ohio State Bar Ass'n Informal Op. 76-4, at 1 (July 16, 1976), discussed this section supra at "In general."

Dishonesty in dealing with client: Last, but certainly not least, OH DR 1-102(A)(4) was invoked where the lawyer lied to or otherwise misled or defrauded his or her own client. E.g., Columbus Bar Ass’n v. Gueli, 119 Ohio St.3d 434, 2008 Ohio 4786, 894 N.E.2d 1231 (lying to and falsely assuring clients about status of their cases and client funds); Disciplinary Counsel v. Broschak, 118 Ohio St.3d 236, 2008 Ohio 2224, 887 N.E.2d 1176 (telling client that he purposely allowed criminal appeal to be dismissed so that he could file judicial release motion, which he did not do; falsely telling another client that he was unaware that client’s criminal appeal had been dismissed with prejudice based on respondent’s failure to file appellate brief); Disciplinary Counsel v. Zigan, 118 Ohio St.3d 180, 2008 Ohio 1976, 887 N.E.2d 334 (converting funds belonging to clients and deceiving clients regarding his conduct); Disciplinary Counsel v. Higgins, 117 Ohio St.3d 473, 2008 Ohio 1509, 884 N.E.2d 1070 (failure to disclose to client that his law license was under suspension); Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008 Ohio 91, 880 N.E.2d 467 (manipulation of funds in IOLTA belonging to in-law clients, as part of scheme to defraud in-laws, as well as nursing homes providing for their care); Dayton Bar Ass'n v. Rogers, 116 Ohio St.3d 99, 2007 Ohio 5544, 876 N.E.2d 923 (deceiving clients by billing for work not done "and for work he had no sound reason for doing," id. at para. 18); Disciplinary Counsel v. McCauley, 114 Ohio St.3d 461, 2007 Ohio 4259, 873 N.E.2d 269 (misappropriating entrusted client funds for personal use and for payment of firm's creditors); Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076 (repeatedly lying and making misrepresentations to clients); Cincinnati Bar Ass’n v. Greenberger, 113 Ohio St.3d 162, 2007 Ohio 1255, 863 N.E.2d 167 (stealing clients’ funds); Toledo Bar Ass’n v. Shousher, 112 Ohio St.3d 533, 2007 Ohio 611, 861 N.E.2d 536 (writing checks to clients that were dishonored); Cincinnati Bar Ass’n v. Rothermel, 112 Ohio St.3d 443, 2007 Ohio 258, 860 N.E.2d 754 (improperly borrowing money from client and not fully repaying it); Akron Bar Ass’n v. Holder, 112 Ohio St.3d 90, 2006 Ohio 6506, 858 N.E.2d 356 (respondent violated DR 1-102(A)(4) “because he induced the husband [in potential divorce proceeding] . . . to endorse a disability check for $47,500 to him, ostensibly as a strategy to shield the money from the husband’s bankruptcy, and persuaded the wife to falsely acknowledge that she or her family trust had retained $25,000 of that amount.” Id. at para. 12.); Disciplinary Counsel v. Carlson, 111 Ohio St.3d 281, 2006 Ohio 5707, 855 N.E.2d 1218 (misleading client as to financial aspects of representation and then providing panel with account of his actions contrary to client’s; client’s testimony found credible; respondent’s “false and dishonest,” id. at 11); Disciplinary Counsel v. Lord, 111 Ohio St.3d 131, 2006 Ohio 5341, 855 N.E.2d 457 (misleading clients as to cause of dismissal of their case; failing to tell them case dismissed because of respondent’s nonappearance at two pretrial hearings); Disciplinary Counsel v. Greco, 107 Ohio St.3d 155, 2005 Ohio 6045, 837 N.E.2d 369 (repeatedly lying to clients to cover up neglect; because of diagnosed chemical dependency, for which respondent sought treatment successfully, sanction of two-year suspension, with 18 months stayed, imposed); Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418, 2005 Ohio 5411, 835 N.E.2d 707 (regarding violations of DR 1-102(A)(4) (and 9-102) "respondent treated [clients], to whom she owed a fiduciary duty [as guardian and trustee] with deceit and dishonesty." Id. at para. 35.); Disciplinary Counsel v. King, 103 Ohio St.3d 438, 2004 Ohio 5470, 816 N.E.2d 1040 (lying to client that trial date would be continued when in fact summary judgment had been granted to other side; surprisingly, even though this was the third violation of 1-102(A)(4) by respondent since 1990, the Court saw fit to note as a mitigating factor that he had a "general reputation for good character in the legal community"; two-year suspension, with second year stayed); Office of Disciplinary Counsel v. Grdina, 101 Ohio St.3d 150, 2004 Ohio 299, 803 N.E.2d 392 (falsely representing to client executor that necessary papers had been filed in probate court); Office of Disciplinary Counsel v. Holzer, 78 Ohio St.3d 309, 677 N.E.2d 1186 (1997) (charging client for work done for different client); Toledo Bar Ass'n v. Batt, 78 Ohio St.3d 189, 677 N.E.349 (1997) (defrauding client by padding bill with hours not worked violated both OH DR 1-102(A)(4) and 2-106(A)); Columbus Bar Ass'n v. Ewing, 75 Ohio St.3d 244, 661 N.E.2d 1109 (1996) (deceitful conduct designed to give respondent ownership interest in clients' farm); Cleveland Bar Ass'n v. Kaigler, 57 Ohio St.3d 197, 566 N.E.2d 673 (1991) (respondent transferred his ownership of property to his mother five days prior to settlement agreement with client, for purpose of avoiding debt to client; conduct also violated OH DR 1-102(A)(5)-(6) and 7-102(A)(6)); Lake County Bar Ass’n v. Walker, 17 Ohio St.3d 144, 478 N.E.2d 767 (1985) (failure to advise client that falsified provision added to judgment entry had been stricken, resulting in expiration of time for appeal).

That a conflict of interest can result in a DR 1-102(A)(4) (and (5) & (6)) violation is demonstrated by Columbus Bar Ass’n v. Gueli, 119 Ohio St.3d 434, 2008 Ohio 4768, 894 N.E.2d 1231. In Gueli, respondent represented the administrator of the estate of one Barnhill, killed in a one-vehicle automobile accident, and also acted as counsel for plaintiffs in the wrongful death action, which was brought against the driver of the car in which Barnhill was riding. The defendant was respondent’s half brother.  The decedent had three minor children.  Despite Gueli’s dual representation of the estate and the wrongful death plaintiffs, there was no appointment of a guardian to protect the interests of decedent’s children. As a result, at the expense of those he was representing in the wrongful death action, respondent engaged in a number of steps designed to minimize the potential exposure of his brother. As summed up by the Supreme Court, in addition to badly mishandling the estate, respondent

despite a patent conflict of interest, undertook the Barnhill wrongful death claim, using his position to protect his brother at the expense of the decedent’s children.

Id. at para. 21. (The Court’s discussion of the conflict issue is sometimes confusing. For example, at one point it states that respondent “concurrently represent[ed] the adverse interests of the decedent’s family and the respondent’s own brother.” Id. at para. 17. Since his brother clearly was not a client, presumably the Court was referring to Gueli’s looking out for his brother’s interests. If so, “concurrently represent” seems an unfortunate choice of words to convey that thought.) The count involving the Barnhill debacle resulted in violation of not only three subsections of DR 1-102, but also eight other disciplinary rules; the relator also proved its case against respondent in seven of the eight other counts, all involving other clients. Against this background, the Court’s sanction discussion was short and to the point:

Repeated misconduct of this magnitude and variety demands only one result.  Respondent is permanently disbarred from the practice of law in Ohio.

Id. at para. 48.

A case well illustrating that "misrepresentations by omission," as well as affirmative misrepresentations, are covered is Columbus Bar Ass'n v. Willette, 117 Ohio St.3d 433, 2008 Ohio 1198, 884 N.E.2d 581, where, in rejecting respondent's argument that there was no clear and convincing evidence of violation of DR 1-102(A)(4), the Court emphasized the numerous instances in which respondent "failed to disclose pertinent information to" his clients.  Among other nondisclosures were Willette's failure to tell his clients that his contract with the out-of-state firm engaged in marketing living trusts ("EPLS") "required him to use EPLS for trust-funding advice and document preparation," id. at para. 16, and his arranging for his clients to meet with an EPLS agent "under the pretext that the agent would witness their signatures on the trust document and explain the financial aspects of funding the trust," id. at para. 21; he did not disclose that the primary objective of the agent was to sell insurance on commission and that the clients would be subject to an insurance sales pitch.

A rather unusual application of OH DR 1-102(A)(4) (in conjunction with, inter alia, 6-101(A)(1)) occurred in Warren County Bar Ass'n v. Marshall, 105 Ohio St.3d 59, 2004 Ohio 7011, 822 N.E.2d 355, where the Court, in discussing the sanction (two-year suspension, stayed on conditions), noted that the Board

concluded that respondent acted dishonestly and with a selfish motive in that respondent knew in both cases that he was unqualified to undertake representation but did so anyway because of either indifference or financial need.

Id. at para. 8 (emphasis added). (A subsequent transgression of 1-102(A)(4) by respondent resulted in an unstayed two-year suspension.  Warren County Bar Ass'n v. Marshall, 113 Ohio St.3d 54, 2007 Ohio 980, 862 N.E.2d 519. See this section supra at " Misconduct in the judicial process.")

An Ohio lawyer's improper solicitation of representation of an Arkansas juvenile involved in a school shooting incident and "false claims of specialization and expertise," along with numerous other incidents of misconduct specified in ten other counts, resulted in an array of violations, including OH DR 1-102(A)(4), in Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 174, 754 N.E.2d 219, 222 (2001). The Court found that respondent violated this rule by virtue of his unverifiable assertions and misrepresentations that "'[y]ou will not find anyone in the United States that is more of an expert in this regard [representation of juveniles] than I am' and that he has developed a national reputation for representing juveniles."  Id. at 182, 754 N.E.2d at 229. The cumulative effect of this violation and the many others resulted in disbarment (even though the Board had recommended only a two-year suspension):

In only a few disciplinary cases has a lawyer violated so many rules of conduct as respondent has violated here. His myriad violations of express rules are not isolated incidents but form a distinct pattern of disregard for the courts, clients, other professionals, and for his own integrity. Because respondent has demonstrated blatant disregard for the most important standards by which members of the bar of Ohio are expected to conduct their professional activities, respondent is hereby permanently disbarred from the practice of law in Ohio.

Id. at 187, 754 N.E.2d at 232.

A series of acts violative of DR 1-102(A)(4) were present in Cleveland Bar Ass’n v. Mishler, 118 Ohio St.3d 109, 2008 Ohio 1810, 886 N.E.2d 818, where the respondent (1) entered into unauthorized settlement of state and federal employment discrimination cases for an amount that had been expressly rejected by the client, (2) negotiated the settlement check after endorsing the client’s name without his knowledge or approval, and (3) failed to inform his client about the settlement, who did not learn of it until more than six months after the cases were dismissed, at least one of which was dismissed with prejudice. (This pattern also violated 1-102(A)(5) & (6) and 7-101(A)(1) & (3).)

In one case, the lawyer engaged in deceit and misrepresentation, not only with her clients, but with her law firm as well.  Disciplinary Counsel v. Avirov Stempler, 103 Ohio St.3d 104, 2004 Ohio 4656, 814 N.E.2d 811. Avirov Stempler, while under suspension and an obligation to notify her clients and opposing counsel of that fact, did not do so; instead, she continued to practice and hold herself out as a licensed attorney. "From October 1995 through June 2002, respondent appeared as counsel of record in over 40 cases pending in Hamilton County Court of Common Pleas." Id. at para. 5. The Cincinnati law firm that had hired her also was not informed by respondent that her license was under suspension; when it found out, the firm fired her. For these and other violations, respondent was disbarred. Accord Disciplinary Counsel v. Bowman, 110 Ohio St.3d 480, 2006 Ohio 4333, 854 N.E.2d 480 (lying to law firm and clients).

Deceit, etc. coupled with other disciplinary violations: Conduct violative of OH DR 1-102(A)(4) often was subject to sanction under other disciplinary rules as well, such as OH DR 7-102(A)(5) (knowingly making false statements of law or fact). E.g., Bowman supra. Thus, a lawyer who continually lied to, among others, clients about the status of their cases was indefinitely suspended for violation of numerous provisions of the OHCPR, including OH DR 1-102(A)(4) and OH DR 7-102(A)(5).  Office of Disciplinary Counsel v. Trumbo, 76 Ohio St.3d 369, 667 N.E.2d 1186 (1996). Accord Cuyahoga County Bar Ass'n v. Churilla, 78 Ohio St.3d 348, 678 N.E.2d 515 (1997) (violations of OH DR 1-102(A)(4) and 7-102(A)(5), among litany of other provisions; lawyer permanently disbarred). Another example occurred when a client received a letter on stationary from the Hamilton County Juvenile Court advising him of a continuance in a change-of-custody action; in fact, the action had never been filed and evidence showed that the letter was typed on a machine in the lawyer's office.  Cincinnati Bar Ass'n v. Fennell, 63 Ohio St.3d 113, 406 N.E.2d 1129 (1980) (in addition to OH DR 1-102(A)(4) and 7-102(A)(5), conduct also violated 1-102(A)(6) and 6-101(A)(3)). OH DR 7-102(A)(5) and 1-102(A)(4) were also applied when, in a potential medical malpractice case, a lawyer told his client that he would have an expert review the client's medical records. The lawyer later told the client that an expert had reviewed them and had advised him there was no claim. Actually, the lawyer had never referred the matter to an expert.  Cincinnati Bar Ass'n v. Lange, 57 Ohio St.3d 43, 564 N.E.2d 1069 (1991) (public reprimand imposed). (The same lawyer's repetition of faslehoods to clients earned him an indefinite suspension in Cincinnati Bar Ass'n v. Lange, 71 Ohio St.3d 367, 653 N.E.2d 217 (1995)). Providing a client a case number and the name of the judge handling the case when, in fact, the complaint had never been filed also violated these provisions in Cincinnati Bar Ass'n v. Kasson, 53 Ohio St.3d 268, 560 N.E.2d 203 (1990).

Many instances of "illegal conduct involving moral turpitude," an OH DR 1-102(A)(3) offense, also involved the "dishonesty, fraud, deceit, or misrepresentation" prohibited by OH DR 1-102(A)(4). See, e.g., Toledo Bar Ass’n v. Mason, 118 Ohio St.3d 412, 2008 Ohio 2704, 889 N.E.2d 539 (misappropriation of client settlement funds, including purported “payment” of same by providing client with check drawn on nonexistent bank account); Cincinnati Bar Ass'n v. Blankenmeyer, 109 Ohio St.3d 156, 2006 Ohio 2038, 846 N.E.2d 523 (embezzlement from employer); Disciplinary Counsel v. Millonig, 108 Ohio St.3d 154, 2006 Ohio 420, 841 N.E.2d 779 (misappropriation of funds from escrow account); Office of Disciplinary Counsel v. Bozanich, 95 Ohio St.3d 109, 766 N.E.2d 145 (2002) (paying money (at judge's request) to judge before whom respondent appeared as counsel violated OH DR 1-102(A)(3)-(6)); Office of Disciplinary Counsel v. DiCarlantonio, 68 Ohio St.3d 479, 628 N.E.2d 1355 (1994) (city attorney's agreement to change city ordinance in exchange for bribe violated OH DR 1-102(A)(3), (4) & (6); Office of Disciplinary Counsel v. Columbro, 66 Ohio St.3d 195, 611 N.E.2d 302 (1993) (assistant prosecutor's theft of cocaine from the scientific investigation unit where it was being held as evidence in pending cases violated OH DR 1-102(A)(3)-(6)). See section 8.4:300.

Neglecting a matter, coupled with hiding that neglect from a client, violated both former OH DR 1-102(A)(4) and OH DR 6-101(A)(3). (As to neglect, see section 1.3:200-300.) E.g., Toledo Bar Ass’n v. Hickman, 119 Ohio St.3d 102, 2008 Ohio 3837, 892 N.E.2d 437 (lying to client about progress (or lack thereof) in case; failing to inform another client, contrary to his earlier representation, that he would not be reinstated); Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007 Ohio 5251, 875 N.E.2d 935 (neglecting to appropriately advise client of developments in lawsuit and then fabricating one or more letters to conceal his neglect); Cleveland Bar Ass'n v. Helfgott, 109 Ohio St.3d 360, 2006 Ohio 2579, 847 N.E.2d 1212 (neglect and dishonest assurances to client regarding status of matter; even though case involved conduct regarding two clients only and respondent had no prior disciplinary record during 28 years of practice, he was disbarred. Three justices would have imposed indefinite suspension). Compare with Helfgott, a case decided one week earlier, Lake County Bar Ass'n v. Ryan, 109 Ohio St.3d 301, 2006 Ohio 2422, 847 N.E.2d 430. Even though the fact pattern in Ryan involved, as did Helfgott, two instances of neglect in one case, coupled with misrepresentations to the client and even though the Court's characterization of the mitigating/aggravating balance was virtually the same (actually there was one more aggravating factor in Ryan than in Helfgott and the mitigating factor was identical, an unblemished record in 27-28 years of practice), the respondent in Ryan was given a two-year suspension, with the second year stayed, as compared with the permanent disbarment imposed in Helfgott. In addition to the obviously disparate sanction imposed for essentially similar conduct, another striking difference between the two cases was the penalty sought by each relator; The Cleveland Bar Association recommended disbarment; the Lake County Bar Association recommended a six-month suspension plus full restitution.

Other examples of neglect coupled with misrepresentation in cases decided under the Code include Dayton Bar Ass’n v. Ellison, 118 Ohio St.3d 128, 2008 Ohio 1808, 886 N.E.2d 836 (failing to file opposition to summary judgment motion with court (even though served opposing counsel), coupled with misleading client as to her knowledge of result after court granted the motion as unopposed; this misconduct also violated DR 1-102(A)(6)); Disciplinary Counsel v. Gosling, 114 Ohio St.3d 474, 2007 Ohio 4267, 873 N.E.2d 282 (repeatedly committing to take action on behalf of client, but failing to do so or doing so long after promised); Disciplinary Counsel v. Keller, 110 Ohio St.3d 240, 2006 Ohio 4354, 852 N.E.2d 1195 (lying to 82-year-old client that personal-injury lawsuit had been filed on her behalf of and then falsely stating that he had $30,000 settlement offer from tortfeasor’s insurer and that if she accepted offer, he would not charge her a fee; imposition of two-year suspension with final 18 months stayed; Court added additional requisite to reinstatement that respondent make restitution to client, whose personal-injury claim was barred by statute and whose malpractice judgment against respondent remained unsatisfied); Toledo Bar Ass'n v. Hickman, 107 Ohio St.3d 296, 2005 Ohio 6513, 839 N.E.2d 24 (respondent let statute of limitations run on wrongful-death and personal-injury actions on behalf of son of his clients; he then lied to his clients about pendency of both actions; for some reason relator joined with respondent in stipulating to one-year suspension with six months stayed for this egregious conduct, and the panel, the Board, and the Court bought it); Disciplinary Counsel v. Jaffe, 102 Ohio St.3d 273, 2004 Ohio 2685, 809 N.E.2d 1122 (misrepresenting to client that suit on client's behalf had been filed when it had not; telling another client that payment to her was in settlement of her personal injury claim, when "[i]n fact respondent had not filed a lawsuit, negotiated a settlement, or even requested the client's medical records. Respondent actually drew the $250 check from his IOLTA account and paid the client just to placate her." Id. at para. 4.); Cincinnati Bar Ass'n v. Deaton, 102 Ohio St.3d 19, 2004 Ohio 1587, 806 N.E.2d 503 (neglect and misrepresentation directed toward respondent's law firm, in contract case in which respondent was lead counsel representing his firm); Cleveland Bar Ass'n v. Clavner, 99 Ohio St.3d 53, 2003 Ohio 2464, 788 N.E.2d 1065 (both provisions violated when respondent promised but failed to complete qualified domestic relations order, thereby depriving client of almost $5,000 in monthly payments to which she was entitled); Cleveland Bar Ass'n v. Glatki, 88 Ohio St.3d 381, 726 N.E.2d 993 (2000) (respondent repeatedly made false assurances to clients that action would be taken and misrepresented status of cases to clients; although Board failed to find violation of OH DR 1-102(A)(4), Court did, in addition to confirming violations of OH DR 6-103(3) and 7-101(A)(1) & (2)); Bar Ass'n of Greater Cleveland v. Wilsman, 9 Ohio St.3d 5, 457 N.E.2d 824 (1984) (forging signature of government official on letter in order to demonstrate, falsely, to clients that lawyer had taken action on clients' application for charter on savings and loan association; indefinite suspension imposed). Mr. Wilsman's motion to modify the judgment of January 4, 1984 (9 Ohio St.3d 5, 457 N.E.2d 824) by reducing the sanction from an indefinite to a one-year suspension was granted in a 4-3 decision of the Court that was not officially reported. See 58 Ohio St. B. Ass'n Rep. 1201 (July 29, 1985). There was no majority opinion. Chief Justice Celebrezze filed an angry dissent.

This oft-recurring pattern of neglect and attempted cover up of that neglect by lying to clients as to the status of the case could result in violation of OH DR 7-102(A)(5) (knowingly making false statement of law or fact) in addition to 6-103(A)(3) and 1-102(A)(4). See, e.g., Columbus Bar Ass'n v. Foster, 97 Ohio St.3d 292, 2002 Ohio 6415, 779 N.E.2d 755 (violations of these and numerous other provisions "permeate[d]" respondent's practice, resulting in disbarment); Office of Disciplinary Counsel v. Maxwell, 83 Ohio St.3d 7, 697 N.E.2d 597 (1998); Cuyahoga Bar Ass'n v. Hunsinger, 77 Ohio St.3d 233, 673 N.E.2d 1270 (1997); Cuyahoga Bar Ass'n v. Caywood, 62 Ohio St.3d 185, 580 N.E.2d 1076 (1991) (misrepresentation to court as well as client).

Misuse of client funds, from commingling to outright theft, could constitute violation of both OH DR 1-102(A)(4) and the provisions of OH DR 9-102,which were designed to protect client property. (As to which, see section 1.15:200.) E.g., Cuyahoga County Bar Ass'n v. Mazanec, 114 Ohio St.3d 427, 2007 Ohio 4268, 872 N.E.2d 1209 (stealing significant amounts from client's trust fund, together with commingling personal funds with those held in client trust account violated both provisions, as well as DR 1-102(A)(6) and 7-101(A)(3); respondent disbarred); Cuyahoga County Bar Ass'n v. Jurczenko, 114 Ohio St.3d 229, 2007 Ohio 3675, 871 N.E.2d 564 (repeated instances of misappropriation of thousands of dollars from numerous clients violated 1-102(A)(4), 9-102(A)(2), (B)(3) & (4) and a host of other rules; disbarment ordered); Disciplinary Counsel v. Watson, 107 Ohio St.3d 182, 2005 Ohio 6178, 837 N.E.2d 764 (lying to clients about status of their cases, not to mention lying to disciplinary authorities, and failure to return property to which clients entitled violated both rules; together with numerous other infractions, respondent disbarred); Disciplinary Counsel v. Nagorny, 105 Ohio St.3d 97, 2004 Ohio 6899, 822 N.E.2d 1233 (both rules violated; misappropriation of funds from incompetent client's estate while acting as guardian; sanction for such conduct would ordinarily be disbarment, but because of significant mitigating factors, indefinite suspension imposed); Columbus Bar Ass'n v. Moushey, 104 Ohio St.3d 427, 2004 Ohio 6899, 819 N.E.2d 1112 (both rules violated; misappropriation of client checks to respondent intended for payment of client's estimated taxes; given these and other violations and respondent's track record of prior violations, he was disbarred); Cleveland Bar Ass'n v. Dixon, 95 Ohio St.3d 490, 2002 Ohio 2490, 769 N.E.2d 816 (misappropriation of more than $250,000 of client's money from joint and survivorship checking account established by respondent in her name and that of her client, violated OH DR 1-102(A)(4) and 9-102(A), as well as 1-102(A)(6) and 7-101(A)(3)); Office of Disciplinary Counsel v. Nasrallah, 94 Ohio St.3d 143, 148, 761 N.E.2d 11, 16 (2002) ("We have said on many occasions that taking client retainers and failing to carry out contracts of employment is tantamount to theft of the fee from the client"; both provisions, among others, violated; lawyer permanently disbarred).

In the Dixon case, the panel and the Board had recommended an indefinite suspension. The Supreme Court, however, concluded differently:

Because misappropriation of client funds is among Dixon's acts of admitted misconduct, we must begin our consideration with the presumptive sanction of disbarment.

95 Ohio St.3d 490, at para. 15. After an extensive discussion of the mitigating/aggravating factors present in this case (as to which, see section 0.2:240 at "Supreme Court order - Sanctions for misconduct"), the Court determined that an indefinite suspension was insufficient:

Misappropriation was but one form of Dixon's misconduct. As the board correctly explained, Dixon "has committed disciplinary rule violations involving incompetence, neglect, dishonesty and misrepresentation involving commingling and misappropriation of a client's funds, an attempt to charge an excessive fee, and failure to cooperate initially in the disciplinary process until she was advised to do so by retained counsel." Dixon's mitigating circumstances inadequately offset the more compelling interest of protecting the public.

This court hereby disbars Dixon from the practice of law.

Id. at paras. 27-28 (emphasis by the Court). Accord Cincinnati Bar Ass'n v. Al'Uqdah, 99 Ohio St.3d 358, 2003 Ohio 3888, 792 N.E.2d 1074 ("myriad duties to his client" violated, in addition to OH DR 1-102(A)(4), id. at para. 16; Dixon cited; respondent disbarred).

For a case in which a lawyer was found to have violated OH DR 1-102(A)(4) for misuse of nonclient funds, see Cincinnati Bar Ass'n v. Stidham, 87 Ohio St.3d 455, 721 N.E.2d 977 (2000) (in transaction involving transfer of ownership of bar, lawyer agreed to act as escrow agent for portion of purchase price paid by buyer (respondent's client) and owing to seller; lawyer failed to set up escrow account on seller's behalf, put the money in his IOLTA account instead, drew upon it for other purposes, and, when seller inquired as to status of escrow money, lawyer answered with misleading and threatening letter. Because the money was ultimately paid to the seller and for other mitigating reasons, respondent's sanction was reduced by Court from Board's recommended sanction of indefinite suspension to two-year suspension, with second year stayed).

8.4:500 Conduct Prejudicial to the Administration of Justice

  • Primary Ohio References: Ohio Rule 8.4(d)
  • Background Reference: ABA Model Rule 8.4(d)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.28-1.31
  • Commentary: ABA/BNA § 101:501; ALI-LGL § 2; Wolfram § 3.3.2

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.28-1.31 (1996).

In general: Ohio Rule 8.4(d) provides, as did former OH DR 1-102(A)(5), that a lawyer shall not "engage in conduct that is prejudicial to the administration of justice." While lawyers occasionally are sanctioned for purely private conduct under this provision, see, e.g., Disciplinary Counsel v. Hiltbrand, 110 Ohio St.3d 214, 2006 Ohio 4250, 852 N.E.2d 733, (numerous scrapes with law over two-year period, most having to do with DUI or DUI-related offenses); Office of Disciplinary Counsel v. Randall, 43 Ohio St.3d 149, 539 N.E.2d 160 (1989) (attorney convicted of gross sexual imposition and indecent exposure violated OH DR 1-102(A)(3)-(6)), its primary focus is on misconduct directed toward the justice system itself. Such misconduct usually falls into one of several broad categories, including: (1) misconduct directed at a tribunal, (2) misconduct by adjudicatory officials or other agents of the government, and (3) misconduct directed at clients. For a case involving misconduct directed at both tribunals and clients, see Disciplinary Counsel v. Lord, 111 Ohio St.3d 131, 2006 Ohio 5341, 855 N.E.2d 457 (respondent violated DR 1-102(A)(5), among other provisions, because "he has shown disrespect to his clients and the courts by failing to attend court hearings and by failing to apprise his clients about the status of their cases," as well as offering "misleading half-truths to clients, courts, and fellow lawyers," id. at para. 28). Respondent's "blatant neglect" of an estate likewise adversely affected both the probate court and the client in Dayton Bar Ass'n v. Gerren, 110 Ohio St.3d 297, 2006 Ohio 4482, 853 N.E.2d 302 (violation of 1-102(A)(5), 6-101(A)(3) & 7-101(A)(2)).

Non-private misconduct does not always fall within these three categories, however. For example, Bd. of Commissioners on Grievances & Discipline Op. 91-22, 1991 Ohio Griev. Discip. LEXIS 7 (Oct. 18, 1991), declared that a criminal defense attorney, who was the sibling of a prosecutor, would violate OH DR-1-102(A)(5) by accepting criminal cases to be prosecuted by the sibling where the prosecutor had no assistant to appoint. The prosecutor would be called upon regularly to appoint special prosecutors to handle these matters, creating both a financial and administrative burden. Behavior by the criminal defense attorney necessitating such a burden would be prejudicial to the administration of justice. Compare Ohio State Bar Ass'n Informal Op. 97-5 (Sept. 22, 1997), opining that a law firm's representation of respondents before a certified grievance committee of a bar association, when a partner of the firm is a member of the association's board of trustees, does not violate OH DR 1-102(A)(5), because trustees are barred from serving on the grievance committee and because investigatory information gathered by the committee is confidential and may not be shared with board members.

Conduct policed under this provision often violated other disciplinary provisions as well. E.g., Disciplinary Counsel v. Zigan, 118 Ohio St.3d 180, 2008 Ohio 1976, 887 N.E.2d 334 (seven counts of converting funds belonging to respondent’s law firm or his clients violated, inter alia, DR 1-102(A)(4)-(6); disbarment ordered); Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008 Ohio 91, 880 N.E.2d 467 (scheme to defraud in-law clients and nursing homes caring for them violated DR 1-102(A)(3)-(6) and 9-102(B)(3)). Respondents occasionally complained that it was improper to predicate multiple disciplinary violations on the same alleged misconduct. This argument appeared strongest when a broad general provision like OH DR 1-102(A)(5) was cited along with a specific provision in the OHCPR that appeared to speak more directly to the wrongdoing in question. Nevertheless, the Ohio Supreme Court was unreceptive to such arguments. See Office of Disciplinary Counsel v. Bell, 15 Ohio St.3d 118, 472 N.E.2d 1069 (1984). In Bell, an attorney who charged exorbitant fees for arranging a private adoption and made a false accounting of them to the probate court was given an indefinite suspension. The attorney challenged the action in part on the ground that the numerous Code violations asserted against him (OH DR 1-102(A)(1)-(6), 2-106(A), and 7-102(A)(3)-(8)) arose from the same conduct and thus were merely cumulative in nature. The Ohio Supreme Court rejected the argument.

Misconduct directed at a tribunal: Numerous cases involving violation of former OH DR 1-102(A)(5) concerned misconduct before a tribunal. Indeed, one such case was the first disciplinary case in which the Supreme Court applied the Rules of Professional Conduct. See Columbus Bar Ass'n v. Vogel, 117 Ohio St.3d 108, 2008 Ohio 504, 881 N.E.2d 1244 (false accusations against one judge in 2005 case; lying to another judge in criminal case in which respondent represented defendant in late January and early February 2007.  DR 1-102(A)(5) applied in first case; both 1-102(A)(5) and Rule 8.4(d) applied in second case, inasmuch as the conduct occurred both before and after February 1, 2007, the effective date of the OHRPC. See Vogel at n.2.).

Such misconduct took many forms. In some it consisted of rude or inappropriate behavior toward the court. (Conduct of this sort often also violated OH DR 7-106(C)(6), which prohibited a lawyer, when appearing in a professional capacity before a tribunal, from engaging in undignified or discourteous conduct that is degrading to a tribunal. See Rule 3.5(a)(6) and section 3.5:400.) In, for example, Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229, 2005 Ohio 4630, 833 N.E.2d 1235, a respondent who consistently ignored the court's rulings, used inappropriate facial and physical reactions, and generally behaved disrespectfully toward the court, witnesses, and jury, was found in violation of OH DR 1-102(A)(5) & (6) and 7-106(C)(6). In Office of Disciplinary Counsel v. Pridemore, 28 Ohio St.3d 106, 502 N.E.2d 635 (1986), the Ohio Supreme Court held that a mentally unstable attorney who engaged in bizarre courtroom behavior that disrupted a criminal proceeding, together with erratic and threatening behavior toward doctors, thereby violated OH DR 1-102(A)(5) & (6). (The courtroom behavior included "telling the court about his health, an alleged wiretap of his telephone, and about his meeting with a Pulitzer prize winner, a political cartoonist, and a close relative of the chief writer of T.V. Guide magazine."  Id. at 106, 502 N.E.2d at 635). Similarly, Mahoning County Bar Ass'n v. Cregan, 62 Ohio St.3d 444, 584 N.E.2d 656 (1992), involved a mentally ill lawyer, who was at times "completely out of control," sanctioned under this provision for making insulting and demeaning racial remarks to other attorneys and to a counselor who appeared in court to assist a mentally handicapped client of the attorney, and for engaging in harassing and threatening telephone calls and conduct directed to employees of the counseling center helping the client. In Trumbull County Bar Ass'n v. Landers, 61 Ohio St.3d 88, 572 N.E.2d 677 (1991), a lawyer, who on three occasions appeared in court while intoxicated, was found to have violated OH DR 1-102(A)(5) & (6). Accord Cincinnati Bar Ass'n v. Bregger, 63 Ohio St.3d 374, 588 N.E.2d 781 (1992). Apparently, unjust criticism of the court also falls into this category.  Akron Bar Ass'n v. Spittal, 51 Ohio St.3d 121, 554 N.E.2d 1338 (1990) (repeatedly and without justification impugning integrity, impartiality, and intelligence of federal and state judges violated both OH DR 1-102(A)(5) & 8-102(B), warranting permanent disbarment). See also Office of Disciplinary Counsel v. Grimes, 66 Ohio St.3d 607, 614 N.E.2d 740 (1993), discussed in section 8.4:1000 at "Common misconduct." For a somewhat unusual twist on the application of OH DR 1-102(A)(5) with respect to conduct directed at a tribunal, see Office of Disciplinary Counsel v. Cicero, 78 Ohio St.3d 351, 678 N.E.2d 517 (1997), where a lawyer, appointed by a judge to represent a criminal defendant in an action pending before her, was sanctioned under this rule for getting involved in a sexual relationship with the judge after she had recused herself from the case.

Other misconduct prejudicial to the administration of justice strikes more directly at the heart of the judicial process. Examples include:

  • attempted bribery of government officials, see, e.g., Cleveland Bar Ass'n v. Jurek, 62 Ohio St.3d 318, 581 N.E.2d 1356 (1991) (bribing common pleas bond commissioner, to circumvent court's random-assignment process for criminal cases in order to assure that certain cases were not assigned to particular judges, violated OH DR 1-102(A)(3) & (5)); Bar Ass'n of Greater Cleveland v. Italiano, 24 Ohio St.3d 204, 494 N.E.2d 1113 (1986) (attempted bribe of police officer, in exchange for reduction of charge against his client, violated OH DR 1-102(A)(3) & (5) and 7-102(A)(5)); Ohio State Bar Ass'n v. Consoldane, 50 Ohio St.2d 337, 364 N.E.2d 279 (1977) (solicitation of funds from client for stated purpose of using funds as bribe to influence public official in performance of official duties, here to obtain shock probation, violated OH DR 1-102(A)(3)-(5), 7-102(A)(7) & (8), and 9-101(C)),

  • altering judgment entries, see, e.g., Office of Disciplinary Counsel v. Williams, 51 Ohio St.3d 36, 553 N.E.2d 1082 (1990) (attorney, who unilaterally altered judgment entry by substituting his client for opposing party in provision granting benefit and who was found in contempt for doing so, was publicly reprimanded for violating OH DR 1-102(A)(5)); Lake County Bar Ass'n v. Walker, 17 Ohio St.3d 144, 478 N.E.2d 767 (1985) (attorney who altered judgment entry without knowledge or consent of opposing party or counsel, and then failed to inform his own client when the entry subsequently was stricken, violated a number of provisions, including OH DR 1-102(A)(4) & (5)),

  • seeking to defraud, improperly withholding information from, or otherwise misleading a tribunal, see, e.g., Disciplinary Counsel v. Walker, 119 Ohio St.3d 47, 2008 Ohio 3321, 891 N.E.2d 740 (presenting forged deed during administration of former client’s estate; conduct violated DR 1-102(A)(3), (4), and (6), as well as (5)); Akron Bar Ass'n v. Markovich, 117 Ohio St.3d 313, 2008 Ohio 862, 883 N.E.2d 1046 (misleading court and opposing counsel by filing unapproved dismissal order violated DR 1-102(A)(5); also (A)(4) and (A)(6)); Dayton Bar Ass’n v. Korte, 111 Ohio St.3d 273, 2006 Ohio 5705, 855 N.E.2d 1211 (in failing to provide medical reports to claimant and workers’ compensation bureau or Industrial Commission as required by law, respondents “thereby commited an act prejudicial to the administration of justice,” id. at para. 17); Disciplinary Counsel v. Hutchins, 102 Ohio St.3d 97, 2004 Ohio 1805, 807 N.E.2d 303 (creating false and misleading Agreed Magistrate's Order); Office of Disciplinary Counsel v. Herman, 99 Ohio St.3d 362, 2003 Ohio 3932, 792 N.E.2d 1078 (filing falsified QDROs with domestic relations court); Office of Disciplinary Counsel v. Kafantaris, 99 Ohio St.3d 94, 2003 Ohio 2477, 789 N.E.2d 192 (lying in answer to sexual-harassment complaint filed against respondent by former employee; falsehoods repeated at deposition and in affidavit filed with trial court); Office of Disciplinary Counsel v. Frenden, 74 Ohio St.3d 601, 660 N.E.2d 1152 (1996) (violation of OH DR 1-102(A)(5) found where lawyer, in representing client in probation violation hearing, described client as otherwise never having been in trouble when in fact lawyer knew there was at that time warrant outstanding in another jurisdiction for client's arrest for improper use of credit card); Office of Disciplinary Counsel v. Spencer, 71 Ohio St.3d 316, 643 N.E.2d 1086 (1994) (falsifying documents in a civil action; conduct violated OH DR 1-102(A)(4)-(6); one-year suspension), Columbus Bar Ass'n v. Wright, 58 Ohio St.3d 126, 568 N.E.2d 1218 (1991) (attorney's possible complicity in clients' concealment of assets in bankruptcy proceeding and clear failure to disclose concealment to tribunal violated numerous provisions of OHCPR, including DR 1-102(A)(3)-(6)); Toledo Bar Ass'n v. Fell, 51 Ohio St.2d 33, 364 N.E.2d 872 (1977) (attorney, knowing that Industrial Commission would deny permanent total disability benefits to client/claimant on notice of claimant's death, deliberately withheld that information from tribunal to obtain fee to which he was not entitled, thus violating DR 1-102(A)(5) & (6) and DR 7-102(A)(3)),

  • violating a court order, see, e.g., Dayton Bar Ass’n v. Randall, 118 Ohio St.3d 408, 2008 Ohio 2709, 889 N.E.2d 535 (disregard of district court orders requiring respondent to show cause why his clients’ cases should not be dismissed for want of prosecution; conduct also violative of DR 1-102(A)(6)); Cuyahoga County Bar Ass'n v. Wagner, 117 Ohio St.3d 456, 2008 Ohio 1200, 884 N.E.2d 1053 (failure to comply with number of orders requiring respondent to appear before bankruptcy judges and show cause why he should not be held in contempt or otherwise sanctioned; conduct also violated 1-102(A)(6)); Akron Bar Ass'n v. Markovich, 117 Ohio St.3d 313, 2008 Ohio St.3d 862, 883 N.E.2d 1046 (civil protection order precluding his client or "any other person" from initiating contact with named persons or their "babysitters"; in violation thereof, respondent appeared at named person's house and sought to intimidate her babysitter; conduct also violated 1-102(A)(6)); Stark County Bar Ass’n v. Ake, 111 Ohio St.3d 266, 2006 Ohio 5704, 855 N.E.2d 1206 (deliberately ignoring court orders while representing himself in acrimonious divorce action violated 1-102(A)(5), among other rules; three justices in dissent argued that disregard of court order should result in actual rather than stayed six-month suspension); Disciplinary Counsel v. Hiltbrand, 110 Ohio St.3d 214, 2006 Ohio 4250, 852 N.E.2d 733 (discussing deposition testimony outside of courtroom setting, in violation of protective order entered in case); Office of Disciplinary Counsel v. Dillon, 28 Ohio St.3d 114, 502 N.E.2d 637 (1986) (respondent directed his client, executor of estate, to issue estate checks for attorney fees and fiduciary compensation after fiduciary's removal by probate court),

  • repeatedly failing to respond to discovery orders, Office of Disciplinary Counsel v. Mesi, 72 Ohio St.3d 45, 647 N.E.2d 473 (1995) (conduct, which resulted in sanctions being levied against the attorney under OH Civ R 37, violated OH DR 1-102(A)(5)), and

  • otherwise obstructing justice, see, e.g., Cincinnati Bar Ass'n v. Freedman, 49 Ohio St.3d 65, 551 N.E.2d 143 (1990). See also Office of Disciplinary Counsel v. Smakula, 39 Ohio St.3d 143, 529 N.E.2d 1376 (1988). Both cases are discussed in section 8.4:300 at "Obstruction of justice."

Removal of information from court files and failing to return it on a timely basis violated this disciplinary rule. For example, in Mahoning County Bar Ass'n v. Boano, 46 Ohio St.3d 146, 545 N.E.2d 896 (1989), Boano removed and accidentally discarded part of a client's court file that showed the client's prior convictions; as a result, the client was treated as a first-time offender. The hearing panel of Board of Commissioners found as follows:

[H]aving removed part of the criminal history from the court file, respondent had the highest duty to safeguard and return that history to the file, even though the removal may have followed the usual patterns of counsel in similar circumstances and even though the destruction of the history was negligence, rather than an intentional act calculated to prejudice the prosecution's case.

Id. at 146, 545 N.E.2d at 897. Further, the respondent had informed another assistant prosecutor about the prior convictions and did not intentionally hide the fact from the assistant prosecutor who appeared at the hearing. Nevertheless, it was due to the respondent's conduct that the prosecutor did not have the record available to him in the case jacket at the time of the hearing. The Court found that this conduct violated OH DR 1-102(A)(5) and warranted a public reprimand.

In an interrelated series of cases, the Ohio Supreme Court reviewed a common practice in the Toledo courts, where lawyers in traffic and criminal matters would remove affidavits from court files, and fail to return them promptly, often waiting until a request was made by the clerk of courts to do so. Each of the cases contained this common definition of the affidavits at issue: "Affidavits are official court papers that specify the alleged offense, contain a history of proceedings in the case, and play a vital role in the system used by the Toledo Municipal Court to administer its caseload." See, e.g., Toledo Bar Ass'n v. Wittenberg, 60 Ohio St.3d 94, 94 n.1, 573 N.E.2d 641, 642 n.1 (1991). While the affidavits were out of the file, the case would not proceed. Lawyers gave a variety of excuses for their conduct, including that they were attempting

  • to contact a client, Toledo Bar Ass'n v. Browarsky, 60 Ohio St.3d 100, 573 N.E.2d 72 (1991); Toledo Bar Ass'n v. Wittenberg, 60 Ohio St.3d 94, 573 N.E.2d 641 (1991),

  • to secure a continuance, Toledo Bar Ass'n v. Dow, 60 Ohio St.3d 103, 573 N.E.2d 646 (1991),

  • to avoid the issuance of a bench warrant, Toledo Bar Ass'n v. Wittenberg, 60 Ohio St.3d 94, 573 N.E.2d 641 (1991),

  • to avoid having the case assigned to a particular judge, Toledo Bar Ass'n v. Doyle, 60 Ohio St.3d 106, 573 N.E.2d 648 (1991); Toledo Bar Ass'n v. Sweeney, 60 Ohio St.3d 104, 573 N.E.2d 647 (1991); Toledo Bar Ass'n v. Dow, 60 Ohio St.3d 103, 573 N.E.2d 646 (1991); Toledo Bar Ass'n v. Sparrow, 60 Ohio St.3d 102, 573 N.E.2d 74 (1991); Toledo Bar Ass'n v. Wittenberg, 60 Ohio St.3d 94, 573 N.E.2d 641 (1991),

  • to allow tempers to cool in an emotionally charged case, Toledo Bar Ass'n v. Richardson, 60 Ohio St.3d 98, 573 N.E.2d 645 (1991),

  • as well as blaming the general time constraints of practice, Toledo Bar Ass'n v. Wingate, 60 Ohio St.3d 96, 573 N.E.2d 643 (1991).

While the cases varied somewhat in terms of the disciplinary violations raised, the conduct was treated for the most part as a violation of OH DR 1-102(A)(5) and 7-102(A)(8). E.g., Doyle, 60 Ohio St.3d 106, 573 N.E.2d 648. Occasionally the conduct and surrounding circumstances constituted violations of OH DR 1-102(A)(6) as well. See, e.g., Wingate, 60 Ohio St.3d 96, 573 N.E.2d 643. In terms of punishment, most of the lawyers involved received a pubic reprimand, rather than a more severe penalty, presumably because the conduct was common practice at the time. E.g., Sweeney, 60 Ohio St.3d 104, 573 N.E.2d 647. Aggravating circumstances, such as an excessive number of instances of the practice or use of the practice with respect to a case in which the lawyer was a defendant, warranted more severe penalties. See, e.g., Wingate, 60 Ohio St.3d 96, 573 N.E.2d 643 (66 instances involved, resulting in two-year suspension with second year stayed subject to successful completion of monitored supervision); Wittenberg, 60 Ohio St.3d 94, 573 N.E.2d 641 (over 200 instances involved, resulting in two-year suspension with final eighteen months stayed pending satisfactory completion of supervised probationary period); Browarsky, 60 Ohio St.3d 100, 573 N.E.2d 72 (where attorney removed his own traffic-violation affidavit along with criminal affidavits of clients from courthouse, six-month suspension from practice was warranted, rather than recommended public reprimand).

Another common ground for finding an OH DR 1-102(A)(5) violation was the failure of an attorney to cooperate in the disciplinary proceeding itself. See, e.g., Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008 Ohio 3836, 894 N.E.2d 31 (violation of 1-102(A)(6) and Gov Bar R V 4(G), as well as 1-102(A)(5)); Disciplinary Counsel v. Mathewson, 113 Ohio St.3d 365, 2007 Ohio 2076, 865 N.E.2d 891 (ignoring investigator’s letter of inquiry and other communications violated DR 1-102-(A)(5), as well as Gov Bar R V 4(G)); Disciplinary Counsel v. Lord, 111 Ohio St.3d 131, 2006 Ohio 5341, 855 N.E.2d 457 (similar conduct, as well as making false statements and unkept promises to relator, violated 1-102(A)(5) & (6) and Gov Bar R V 4(G)); Allen County Bar Ass'n v. Linnon, 104 Ohio St.3d 189, 2004 Ohio 6386, 819 N.E.2d 210 (failure to cooperate in disciplinary investigation violated 1-102(A)(5) & (6)); Columbus Bar Ass'n v. Port, 102 Ohio St.3d 395, 2004 Ohio 3204, 811 N.E.2d 535 (violation of Gov Bar R V 4(G) and OH DR 1-102(A)(5)). See also Columbus Bar Ass'n v. Beatty, 102 Ohio St.3d 267, 2004 Ohio 2684, 809 N.E.2d 1117 (failure to comply with administrative requirements of contempt order arising out of prior disciplinary proceeding violated OH DR 1-102(A)(5)). Attempts to limit the participation of former clients in disciplinary proceedings also would violate this provision.  Cuyahoga County Bar Ass'n v. Berger, 64 Ohio St.3d 454, 597 N.E.2d 81 (1992) (seeking to suppress bar association's investigation by means of fee-dispute settlement agreement that purported to limit ability of former client to comment to disciplinary authorities on settlement and underlying dispute violated OH DR 1-102(A)(5) & (6)). It has even been suggested that, where a lawyer has proper grounds for serious complaint that a judge violated the Code of Judicial Conduct, the failure to file a grievance with the authorities may itself be grounds for discipline against the lawyer as conduct prejudicial to the administration of justice. Cleveland Bar Ass'n Op. 92-3 (Apr. 16, 1993). See also section 8.2:300.

If failure to cooperate violates 1-102(A)(5), then it goes without saying that libelous verbal attacks on and threats directed at both former clients and disciplinary authorities, which misconduct was indicative of "intentional disregard of and open contempt for the disciplinary process," will do so as well. Disciplinary Counsel v. Watterson, 114 Ohio St.3d 159, 2007 Ohio 3615, 870 N.E.2d 1153, at para. 30 (violation of DR 1-102(A)(4)-(6) and 8-102(B); indefinite suspension imposed in order, inter alia, "to ensure the orderly administration of justice," id. at para. 30).

Failure to comply with continuing-legal-education, bar-registration, or other requirements set forth in the Rules for the Government of the Bar could likewise result in a DR 1-102(A)(5) violation. E.g., Cleveland Bar Ass’n v. Mitchell, 118 Ohio St.3d 98, 2008 Ohio 1822, 886 N.E.2d 222 (failure to keep Attorney Registration Section apprised of current residence and office address; see Gov Bar R VI 1(D); conduct violated 1-102(A)(6) as well); Disciplinary Counsel v. Redfield, 116 Ohio St.3d 262, 2007 Ohio 6039, 878 N.E.2d 10 (failure to make child-support payments; see Gov Bar R V 5); Disciplinary Counsel v. MacLean, 106 Ohio St.3d 50, 2005 Ohio 3672, 831 N.E.2d 423 (CLE; see Gov Bar R VI 1); Office of Disciplinary Counsel v. DeLong, 98 Ohio St.3d 470, 2003 Ohio 1743, 786 N.E.2d 1280 (CLE and registration; see Gov Bar R X).

Finally, the unauthorized practice of law not only violated former Canon 3, but could also be prejudicial to the administration of justice. Cases in which both provisions (among others) were found to be violated by practicing law while under suspension, where not licensed, or while on inactive status include Ohio State Bar Ass'n v. Good, 114 Ohio St.3d 204, 2007 Ohio 3602, 871 N.E.2d 542 (unauthorized practice in Florida); Cincinnati Bar Ass'n v. Rose, 114 Ohio St.3d 177, 2007 Ohio 3606, 870 N.E.2d 1168 (practicing while on inactive status); Office of Disciplinary Counsel v. Allison, 98 Ohio St.3d 322, 2003 Ohio 776, 784 N.E.2d 695 (practicing while under suspension); Office of Disciplinary Counsel v. Zingarelli, 89 Ohio St.3d 210, 729 N.E.2d 1167 (2000) (same). Absent significant mitigating circumstances, the penalty for practicing while under suspension is typically disbarment, as was ordered in Allison. See also Dayton Bar Ass'n v. Atkins, 58 Ohio St.2d 194, 389 N.E.2d 506 (1979) (accepting fee to represent client in federal court where lawyer was not admitted to practice violated OH DR 1-102(A)(5)). Regarding unauthorized practice, see section 5.5:210. Not surprisingly, aiding a nonlawyer in the unauthorized practice of law can likewise result in a 1-102(A)(5) violation, as in Disciplinary Counsel v. Maley, 119 Ohio St.3d 217, 2008 Ohio 3923, 893 N.E.2d 180 (inadequate supervision of secretary, who was performing legal work for respondent’s clients, violated, inter alia, DR 1-102(A)(5) & (6), as well as 3-101(A)). Regarding aiding unauthorized practice, see section 5.5:240.

Misconduct by adjudicatory officials: Occasionally, misconduct by adjudicatory officials results in a violation of OH DR 1-102(A)(5). One of the more recent is Disciplinary Counsel v. Hoskins, 119 Ohio St.3d 17, 2008 Ohio 3194, 891 N.E.2d 324, where respondent, the common pleas judge in Highland County, violated the rule by publicly commenting on the positive results of a polygraph test administered to one of his court employees, Tammy Sandlin, when he knew that deficiencies in the test rendered the results unreliable and meaningless. In a second count, respondent violated 1-102(A)(5) by failing to recuse himself in a criminal case involving someone whom he had defended in private practice and who happened to be the son of his employee, Ms. Sandlin. For his multiple violations of the Judicial Canons and six different disciplinary rules, many of which are noted throughout the Rule 8.4 and other portions of the treatise, Judge Hoskins was disbarred. Another is Disciplinary Counsel v. Medley, 104 Ohio St.3d 251, 2004 Ohio 6402, 819 N.E.2d 273, where the respondent's court, pursuant to procedures instituted by the judge, functioned as a free small-claims collection service, rather than a court of law. This, the Court found, "prejudiced the administration of justice, in violation of DR 1-102(A)(5)." Id. at para. 37. A further example is Cleveland Bar Ass'n v. Cleary, 93 Ohio St.3d 191, 754 N.E.2d 235 (2001), where a former common pleas judge was suspended from the practice of law for six months for violation of OH DR 1-102(A)(5) (as well as Code of Judicial Conduct [CJC] Canons 3(B)(5) and 3(E)(1)). The conduct involved: (1) offering a defendant, in the sentencing phase of a fifth-degree felony case, a quid pro quo -- if the defendant, who was pregnant, agreed to carry her child to term, she would be given probation; if she intended to terminate the pregnancy, she would go to prison; and (2) subsequently, instructing her bailiff to prepare, sign her name, and file an order revoking an appellate bond granted by another judge sitting in Judge Cleary's absence. The Supreme Court found that each of these actions violated OH DR 1-102(A)(5), pursuant to which a judge has a duty to deal fairly with attorneys and litigants who come before the court. This standard is not met "when the judge engages in conduct that would appear to an objective observer to be unjudicial and prejudicial to the public esteem for the judicial office." 93 Ohio St.3d at 191, 754 N.E.2d at 237 (syllabus). Applying this rule to the case before it, the Court concluded that

Cleary took extraordinary action to countermand an entry of the acting administrative judge, despite having declared herself to be otherwise unavailable for judicial duty. To an objective observer, Cleary appeared to go out of her way to hamper [defendant's] efforts to obtain legal relief, in the form of an appellate bond, which may have allowed [her] to terminate her pregnancy.

Id. at 206, 754 N.E.2d at 250.

Another case in which a judge exhibited unmistakable symptoms of "robe fever" is Disciplinary Counsel v. O'Neill, 103 Ohio St.3d 204, 2004 Ohio 4704, 815 N.E.2d 286. Respondent's DR 1-102(A)(5) transgressions included: repeatedly acting "in an unbecoming, unprofessional, and discourteous fashion towards her staff, other court personnel, visiting judges, law enforcement personnel, attorneys, probation officials, and members of the public," id. at para. 29; attempting to force defendants in her courtroom to plead against their wishes; and misrepresenting judicial events to other judges, attorneys and court personnel, thereby "undermin[ing] public confidence in the integrity of the judicial system." Id. at para. 27. Respondent was suspended for two years with one year stayed on conditions, including a mental health evaluation.

Closely parallel to O'Neill in both misconduct and sanction is Disciplinary Counsel v. Squire, 116 Ohio St.3d 110, 2007 Ohio 5588, 876 N.E.2d 933. Judge Squire was found guilty of ten DR 1-102(A)(5) violations, among them, failing or refusing to follow Ohio law with respect to ex parte petitions for civil protection order; refusing to consider the matters brought before her in the CPO and other cases; refusing timely to disqualify herself and proceeding with hearings in two different cases after the filing of affidavits of disqualification, which filing operates to stay all proceedings pending before the judge in question; and making various improper ex parte contacts. Also citing O'Neill (as well as Medley) is Disciplinary Counsel v. Parker, 116 Ohio St.3d 64, 2007 Ohio 5635, 876 N.E.2d 556, where the respondent, a municipal court judge, was found to have violated 1-102(A)(5) in all but one of the seven counts in the complaint against him. The charges including jailing a courtroom spectator without cause, attempting to coerce plea agreements in criminal cases, mistreatment of a victim of domestic violence, and telephoning a defendant's alleged drug dealer from open court.  An eighteen-month suspension was imposed, with the last six months stayed on conditions involving mental-health measures.  Parker is also discussed in section 8.4:400 supra, at "Misconduct in the judicial process."

Other instances include a case in which a common pleas judge was found to have violated this rule (as well as OH CJC Canon 3(B)(7)) as a result of his unannounced visit to, and ex parte contact with, the legal administrator of a Cuyahoga County department, during which he asked that the department terminate its opposition to motions to consolidate cases pending before the judge. (The department was a party to some of the cases subject to the motion to consolidate.) Finding the Board's recommendation of public reprimand inadequate, the Court suspended respondent from the practice of law, and, pursuant to the mandatory provisions of Rule for the Government of the Judiciary (Gov Jud R) III 7(A), from his judgeship without pay, for six months.  Office of Disciplinary Counsel v. Ferreri, 88 Ohio St.3d 456, 727 N.E.2d 908 (2000). Similarly, a judge violated OH DR 1-102(A)(5) and CJC Canon 3(B)(7) (among others) in Office of Disciplinary Counsel v. Karto, 94 Ohio St.3d 109, 760 N.E.2d 412 (2002), where respondent, in addition to ex parte communication with juvenile-probation department employee, abused his contempt power, held a juvenile-detention hearing without the juveniles' attorney present, forcing juveniles to cross-examine the state's witnesses themselves, and failing promptly to recuse himself from the proceedings after instructing the prosecutor to bring felony charges against the juveniles. The Court quoted the language from Cleary set forth above (conduct appearing to objective observer to be unjudicial and prejudicial to public esteem for judicial office) and imposed a six-month suspension that, in accordance with Gov Jud R III 7(A), mandates that the judge also be immediately suspended from office without pay for the term of the suspension.

The respondent in Cleveland Bar Ass'n v. Katalinas, 90 Ohio St.3d 140, 735 N.E.2d 432 (2000), was permanently disbarred for his misconduct, which included practicing law while a sitting municipal court judge, refusing to return case files and unearned retainers, and abusing a durable power of attorney granted him by a childhood friend by appropriating the friend's bank accounts for his own personal use, in violation of former OH DR 1-102(A)(3)-(6), among other rules. In Office of Disciplinary Counsel v. Mestemaker, 78 Ohio St.3d 92, 676 N.E.2d 870 (1997), a former municipal court judge was found to have violated OH DR 1-102(A)(5) by making derogatory remarks based on a litigant's national origin and by engaging in other instances of poor judicial temperment. In Office of Disciplinary Counsel v. Konet, 40 Ohio St.3d 256, 532 N.E.2d 1313 (1988), a referee was found in violation of this provision and given a public reprimand for accepting loans from attorneys who practiced law before him and for failing to disclose a loan of over $100 on his financial disclosure statement or judicial compensation report. And in Ohio State Bar Ass'n v. Gibson, 55 Ohio St.2d 99, 377 N.E.2d 751 (1978), an acting municipal judge was found to have violated OH DR 1-102(A)(5), 9-101(A), and the OH CJC, and given a public reprimand for serving as both judge and counsel for an accused in different phases of the same criminal proceeding. A lawyer who made numerous unwelcome sexual comments and physical contacts directed at his employees while in private practice, and at court employees or lawyers appearing before him while a judge, was suspended from practice for one year.  Office of Disciplinary Counsel v. Campbell, 68 Ohio St.3d 7, 623 N.E.2d 24 (1993) (conduct found to violate OH DR 1-102(A)(5) & (6), as well as several provisions of the CJC). In condemning this behavior, the Court wrote:

The Code of Professional Responsibility and the Code of Judicial Conduct serve many purposes. Foremost among them are to ensure a legal system of the highest caliber and to instill and maintain public confidence in that system. Respondent's acts not only do not further these goals, they undermine them. Such conduct would be unacceptable by any member of society. We, however, find it particularly intolerable by an attorney and abhorrent for a member of the judiciary.

Id. at 11, 623 N.E.2d at 27.

For a case not involving disciplinary proceedings (the judge had resigned from the practice of law before the completion of his criminal appeals, 53 Ohio St. B. Ass'n Rep. No. 43, at 1848 (Nov. 10, 1980)), see State v. Barbuto, C.A. No. 9835, 1981 Ohio App. LEXIS 12396 (Ohio App. Summit July 15, 1981), where the court of appeals affirmed the conviction of a former court of common pleas judge for, inter alia, gross sexual imposition (ORC 2907.05(A)(1)) involving a 21 year-old former employee of the Summit County Clerk of Court's office.

The Supreme Court publicly reprimanded the respondent for violation of OH DR 1-102(A)(5) in Cincinnati Bar Ass'n v. Sauter, 96 Ohio St.3d 136, 2002 Ohio 3610, 772 N.E.2d 620. Demonstrating an appalling lack of judgment, the respondent, a law clerk to a state court of appeals judge, shortly before oral argument sent an email to an assistant city solicitor friend for forwarding (respondent didn't have the ultimate recipient's address) to an attorney representing the City of Cincinnati in a case pending before a panel that included her judge. In it she pointed out recent cases, decided by the three judges on the panel, in which the court had used a formulation for abuse of discretion ("not based on a sound reasoning process") different from the traditional arbitrary and unreasonable standard. She noted that "this type of review is probably better for the city, so you might want to hammer on the lack of sound reasoning by the lower court. This message will self-destruct in two hours." Id. at paras. 5-6. The intended recipient was out of town, so the intermediary forwarded it to co-counsel for the city, who reported it to his superiors, who reported it to the court administrator of the court of appeals and then informed opposing counsel of the incident. As a result of this debacle, respondent's judge recused himself from the case. The judge "also questioned Sauter about her actions. Sauter resigned her clerkship effective October 13, 2000." Id. at para. 18. The Sauter case is also discussed in section 3.5:300.

Misconduct by a prosecutor also can be prejudicial to the administration of justice. At times, the misconduct involves mishandling of evidence. For example, in Cuyahoga County Bar Ass'n v. Gerstenslager, 45 Ohio St.3d 88, 543 N.E.2d 491 (1989), the Court found that where a prosecuting attorney failed to provide full disclosure of exculpatory information as requested by defense counsel and failed to comply with a court order requiring full disclosure of hospital records to defense counsel due to gross negligence and "sloppiness," a violation of OH DR 1-102(A)(5) was established and a public reprimand appropriate. Because a knowing failure to turn over evidence was not involved, a OH DR 7-103(B) violation was not shown. Id. Compare Office of Disciplinary Counsel v. Wrenn, 99 Ohio St.3d 222, 2003 Ohio 3288, 790 N.E.2d 1195, where both OH DR 1-102(A)(5) and 7-103(B) were found to have been violated. The assistant prosecutor received a six-month stayed suspension for failure to disclose material exculpatory information of which he had knowledge. The Wrenn case is further discussed in section 8.4:400 at "Misconduct in the judicial process." Theft of cocaine by an assistant prosecutor from the scientific investigation unit where it was being held as evidence in pending cases also violated this provision.  Office of Disciplinary Counsel v. Columbro, 66 Ohio St.3d 195, 611 N.E.2d 302 (1993) (conduct violated OH DR 1-102(A)(3)-(6) and warranted indefinite suspension).

Misconduct also was found where the prosecutor abused the power of his position. For example, a prosecutor's conditioning the dismissal of a criminal charge, which the prosecutor knew lacked merit, on the defendant's executing a release of all civil claims against the city and its employees arising from the arrest, was prejudicial to the administration of justice. In such an agreement, the quid pro quo is illusory -- it allows the prosecutor to secure the waiver of a citizen's civil rights in exchange for the prosecutor fulfilling his preexisting ethical duty not to prosecute criminal charges that lack merit. Bd. of Comm'rs on Grievances & Discipline Op. 94-10, 1994 Ohio Griev. Discip. LEXIS 5 (Aug. 12, 1994). See sections 3.8:200 and 8.4:900. The Board also found that it would violate OH DR 1-102(A)(5), among other provisions, for a prosecutor to negotiate a plea agreement that waives the defendant's appellate or postconviction claims of prosecutorial misconduct. See Bd. of Commr's on Grievances & Discipline Op. 2001-6, 2001 Ohio Griev. Discip. LEXIS 7 (Dec. 7, 2001):

A prosecutor should not attempt through a plea agreement to excuse himself or herself from following the disciplinary rules governing a prosecutor's behavior. A prosecutor does not serve justice by attempting to shield his or her past or future misconduct from scrutiny by obtaining a criminal defendant's waiver of appellate or postconviction claims based on allegations of prosecutorial misconduct. This Board's view is that [such a waiver] is an improper attempt to insulate the prosecutor from his or her duties under DR 7-102, 7-103, and DR 1-102(A)(5) of the [OHCPR].

Id. at *7.

For a case in which a public defender attempted to use OH DR 1-102(A)(5) as a basis for refusing to turn over records under the Ohio Records Act, see State ex rel. Beacon Journal Publishing Co. v. Bodiker, 134 Ohio App.3d 415, 731 N.E.2d 245 (Franklin 1999). The public defender argued that his ethical obligation to refrain from engaging in conduct prejudicial to the administration of justice prohibited him from releasing the financial and time records relating to prior representation on appeal and in habeas proceedings in a capital-murder case. The court rejected the argument; it did not

discern[] how the release of the requested information at this time, after all judicial proceedings involving [the defendant] have concluded, will prejudice the administration of justice . . . .

Id. at 426, 731 N.E.2d at 253.

Even private conduct may have special implications in this context. In Office of Disciplinary Counsel v. Abookire, 63 Ohio St.3d 391, 588 N.E.2d 793 (1992), a lawyer convicted of shoplifting was sanctioned under OH DR 1-102(A)(3) & (4) for the underlying conduct. He was found in violation of OH DR 1-102(A)(5) also, because the activity occurred while he was serving as a village prosecutor. For someone in that position to engage in shoplifting was determined to be prejudicial to the administration of justice.

While the problems that arise when a lawyer attempts to represent both the government (or a quasi-government entity) and private clients typically were addressed under other disciplinary rules (see sections 1.7:310-:320, 8.4:600), they occasionally were treated here as well. For example, in a 1993 opinion, the Board found it improper for a member of a certified grievance committee, or a partner or associate of the member, to represent private clients in matters in which the certified grievance committee was involved. Such conduct "erodes public confidence in the system [and thus] is prejudicial to the administration of justice." Bd. of Comm'rs on Grievances & Discipline Op. 93-6, 1993 Ohio Griev. Discip. LEXIS 6, at *6 (Aug. 13, 1993) (but allowing representation before other bodies where the certified grievance committee of which the lawyer was a member was not involved).

Misconduct directed at clients: Misconduct directed at clients typically violates other more particular provisions of the OHCPR, but may constitute conduct prejudicial to the administration of justice as well. Common overlapping provisions include:

  • acts of neglect, e.g., Disciplinary Counsel v. Broschak, 118 Ohio St.3d 236, 2008 Ohio 2224, 887 N.E.2d 1176 (multiple instances of failure to file transcript or brief in criminal appeals, resulting in dismissal of appeals; violation of DR 1-102(A)(6), as well as 1-102(A)(5) and 6-101(A)(3)); Disciplinary Counsel v. Sabol, 118 Ohio St.3d 65, 2008 Ohio 1594, 886 N.E.2d 191 (missing deadline to refile case violated DR 1-102(A)(5) and 6-101(A)(3)); Cleveland Bar Ass'n v. Kraus, 116 Ohio St.3d 302, 2007 Ohio 6458, 878 N.E.2d 1028 (failure to appear for client's sentencing proceedings violated DR 1-102(A)(5) and DR 6-101(A)(3)); Cleveland Bar Ass’n v. Church, 114 Ohio St.3d 41, 2007 Ohio 2744, 867 N.E.2d 834 (“abandoning” cases of two clients violated 1-102(A)(5) and 6-101(A)(3)); Cleveland Bar Ass’n v. McNally, 109 Ohio St.3d 560, 2006 Ohio 3258, 849 N.E.2d 1022 (failure to file divorce petition, and lying to client that it had been filed, violated 1-102(A)(4)-(6) and 6-101(A)(3), among other provisions); Disciplinary Counsel v. Greco, 107 Ohio St.3d 155, 2005 Ohio 6045, 837 N.E.2d 369 (multiple acts of neglect and deceit regarding multiple clients); Columbus Bar Ass'n v. Torian, 106 Ohio St.3d 14, 2005 Ohio 3216, 829 N.E.2d 1210 (failure to file application for commutation of sentence for incarcerated daughter of clients); Disciplinary Counsel v. Johnson, 104 Ohio St.3d 313, 2004 Ohio 6555, 819 N.E.2d 674 (failure to appear at hearing on motion to hold client in contempt in domestic-relations case; respondent found in contempt for that failure to appear and then failed to appear at her own contempt hearing); Office of Disciplinary Counsel v. Grdina, 101 Ohio St.3d 150, 2004 Ohio 299, 803 N.E.2d 392 (failure to file necessary probate-court papers; failure to file timely federal and state estate tax returns, resulting in penalties against the estate; violations of, inter alia, 1-102(A)(5), 6-101(A)(3), and 7-101(A)(3); Office of Disciplinary Counsel v. Brown, 90 Ohio St.3d 273, 737 N.E.2d 516 (2000) (numerous instances of failure to attend hearings and failure to file appellate briefs violated 1-102(A)(5) and 6-101(A)(3), among other provisions).  See sections 1.3:200-:300.

  • failure to fulfill the professional relationship, see, e.g., Disciplinary Counsel v. Lord, 114 Ohio St.3d 466, 2007 Ohio 4260, 873 N.E.2d 273 (pattern of ignoring clients and abandoning their cases violated, inter alia, OH DR 1-102(A)(5) and 7-101(A); Office of Disciplinary Counsel v. Russo, 21 Ohio St.3d 15, 487 N.E.2d 296 (1986) (failure to file personal-injury claim and to ask client for consent to settlement, misappropriation of settlement proceeds, and failure to cooperate in investigation violated numerous provisions, including 1-102(A)(5) and 7-101(A)). See section 1.2:250.

  • and misuse of client assets, see, e.g. Disciplinary Counsel v. Maley, 119 Ohio St.3d 217, 2008 Ohio 3923, 893 N.E.2d 180 (commingling client funds in firm business account violated DR 1-102(A)(5) & (6) as well as 9-102(A) & (B)(3)); Disciplinary Counsel v. McCauley, 114 Ohio St.3d 461, 2007 Ohio 4259, 873 N.E.2d 269 (misuse of IOLTA account and misappropriation of client funds to pay creditors of respondent's firm violated 1-102(A)(4)-(6) and 9-102(B); Cuyahoga County Bar Ass'n v. Jurczenko, 114 Ohio St.3d 229, 2007 Ohio 3675, 871 N.E.2d 564 (pattern of misappropriation of clients' or their creditors' funds over many years violated numerous provisions, including 1-102(A)(5) and 9-102(B); respondent disbarred). See sections 1.15:200, :220-:230, :300.

A case in which the respondent violated the conflict-of-interest rules as well as 1-102(A)(5) is Disciplinary Counsel v. McNamee, 119 Ohio St.3d 269, 2008 Ohio 3883, 893 N.E.2d 490. As the Court summed it up,

[r]espondent continued to represent all sides to the Summer Brooke development despite obvious conflicts of interest which he never disclosed to his clients and which they never waived, despite repeated calls for his disqualification, and despite the likelihood that he would be called as a witness.

Id. at para. 32 (violations of DR 5-101(A)(1) & (B), 5-104(A), and 5-105(B), in addition to 1-102(A)(5)).

Basic overreaching of the client by counsel also may be sanctioned under this provision. Office of Disciplinary Counsel v. Sagen, 61 Ohio St.3d 62, 572 N.E.2d 658 (1991) (attorney who forged name of grantor on deed falsely alleging authority and who prepared quitclaim deed granting himself remainder interest in client's property violated OH DR 1-102(A)(4)-(6); Akron Bar Ass'n v. Parker, 52 Ohio St.3d 262, 557 N.E.2d 116 (1990) (attorney who caused his father to revoke prior will and name attorney trustee of estate assets with unfettered discretion and who arguably abused that discretion violated number of provisions, including OH DR 1-102(A)(4)-(6)).

Where a lawyer with a workers' compensation and personal-injury practice also had an economic interest in a health facility to which he referred his clients, such referrals, if they subsequently compromised the clients' interests, could be conduct prejudicial to the administration of justice. Ohio State Bar Ass'n Informal Op. 90-1 (May 4, 1990). Depending on the nature of the relationship, lawyer-nonlawyer joint ventures can raise various other ethical issues, including improper solicitation and referrals (Rule 7.2; see section 7.2:400), aiding the unauthorized practice of law (Rule 5.5(a); see section 5.5:240), creation of a partnership with a nonlawyer (Rule 5.4(b); see section 5.4:300), improper fee sharing (Rule 5.4(a); see section 5.4:200), conflict of interest (Rule 1.7(a)(2); see section 1.7:500), and third-party influence concerns (Rule 1.8(f); see section 1.8:710).

Entering into a settlement where authorization to settle is unclear and failing to communicate the terms of the settlement to the client also violated former OH DR 1-102(A)(5).  Cincinnati Bar Ass'n v. Wilson, 65 Ohio St.3d 296, 603 N.E.2d 985 (1992). See section 1.2:320. Similarly, in Disciplinary Counsel v. Ita, 117 Ohio St.3d 477, 2008 Ohio 1508, 884 N.E.2d 1073, respondent was sanctioned under 1-102(A)(5) for filing an unauthorized claim on behalf of his client's wife and then dismissing it with prejudice and without the wife's consent.  Because of numerous mitigating factors and because "[n]o one has suggested . . . that these ill-advised actions resulted from anything other than carelessness." id. at para. 10, respondent received a public reprimand.

A decision in which DR 1-102(A)(5) (as well as 1-102(A)(6)) was invoked, where the victim may not have been a client, is Cuyahoga County Bar Ass’n v. Griffin, 112 Ohio St.3d 550, 2007 Ohio 810, 862 N.E.2d 94. As stated by the Court, “[w]hether Dalton was in fact a client of respondent’s or not [respondent had a durable power of attorney from Dalton naming respondent as Dalton’s attorney-in-fact], respondent certainly had a duty as a member of the bar to cooperate and provide all relevant information when Dalton’s guardian questioned respondent’s expenditure of Dalton’s funds. Respondent’s actions show a lack of respect for the probate court, for other attorneys, and for the justice system as a whole.” Id. at para. 13. Fair enough, as a 102(A)(5) matter, but one wonders why the fact that “respondent had ‘conceal[ed] or convey[ed] away assets’ belonging to Charles Dalton,” and then “compounded that misconduct by failing to account for the funds that he withdrew from Dalton’s account” id. – in effect stealing – did not merit a charge under DR 1-102(A)(4), which was not limited to misconduct directed at clients. A similar question can be asked of Columbus Bar Ass’n v. Gueli, 119 Ohio St.3d 434, 2008 Ohio 4786, 894 N.E.2d 1231, where one of the counts dealt with respondent’s “theft and flagrant disregard of clients’ interests,” id. at para. 7, resulting in violations of, inter alia, 1-102(A)(5) & (6), but not (4). Compare Disciplinary Counsel v. Tomlan, 118 Ohio St.3d 1, 2008 Ohio 1471, 885 N.E.2d 895, where the concealment of estate assets by respondent did result in a DR 1-102(A)(4) charge and violation.  The 1-102(A)(5) (and (A)(6)) violation in Tomlan was premised on his undue delay in performing his duties as executor – among other things, a 16-month delay in admitting the estate to probate.

8.4:600 Implying Ability to Influence Public Officials

  • Primary Ohio References: Ohio Rule 8.4(e)
  • Background References: ABA Model Rule 8.4(e)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 9.24
  • Commentary: ABA/BNA § 101:701; ALI-LGL § 113(2)

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 9.24 (1996).

Ohio Rule 8.4(e) prohibits lawyers from stating or implying an ability that they can improperly influence "a government agency or official or . . . achieve results by means that violate the Ohio Rules of Professional Conduct or other law." Former OH EC 9-4 presented the rationale for the former disciplinary rule, OH DR 9-101(C), which is similar in import to Rule 8.4(e). It emphasized that our legal system is based on fair consideration of the merits of each matter through established procedures, and that any suggestion by an attorney that the attorney could circumvent that process undermines public confidence in the legal system. To properly understand the operation of Rule 8.4(e), several points must be highlighted.

Stating or implying the ability to exert improper influence over a government agency or official:  To constitute a violation, the Rule does not require that a lawyer actually attempt to influence a government body improperly. If the lawyer merely states or even implies that he can do so, a violation occurs. For example, in Cuyahoga County Bar Ass'n v. Wise, 108 Ohio St.3d 164, 2006 Ohio 550, 842 N.E.2d 35, the Court expressly rejected respondent's argument that he could not have violated former OH DR 9-101(C) by threatening to talk with his "good friend" the county prosecutor and the Cleveland Safety Director

because he was not in reality acquainted with the county prosecutor or city safety director. DR 9-101(C), however, prohibits a lawyer from implying that he is able to improperly influence a public official.

Id. at para. 27 (emphasis by the Court).

Similarly, in Dayton Bar Ass'n v. O'Brien, 103 Ohio St.3d 1, 2004 Ohio 3939, 812 N.E.2d 1263, respondent neither collected money from his client nor acted on his statements that a sufficient amount of cash might persuade the sentencing judge to allow the client to withdraw his guilty plea. Nevertheless, a violation of OH DR 9-101(C) was found. Most of the Court's opinion was spent making clear that this was "egregious" conduct warranting indefinite suspension, a sanction far more severe than either the six-month suspension, all stayed, recommended by the panel or the even more lenient public reprimand recommended by the Board. Noting that lawyers "who engage in errant behavior do so at their own peril,"  id. at para. 15, and that in prior precedent "[w]e explicitly stated that a sanction of indefinite suspension did not constitute unduly harsh punishment in light of the seriousness of the conduct,  id. at para. 9 (citing Columbus Bar Ass'n v. Beris, 5 Ohio St.3d 199, 499 N.E.2d 1305 (1983)), the Court elaborated that

we have repeatedly stressed our disdain for any statements by an attorney that imply the corruptibility of the judicial system or that the attorney can improperly influence a judicial officer. We have consistently imposed severe sanctions on attorneys who choose to engage in such conduct. This case warrants a similar sanction.

103 Ohio St.3d 1, at para. 12.

In Ohio State Bar Ass'n v. Consoldane, 50 Ohio St.2d 337, 364 N.E.2d 279 (1977), the Ohio Supreme Court likewise ordered indefinite suspension, rather than the public reprimand suggested by the Board, of an attorney who told his client and the client's family that they should give him $2,500 with which he would pay off government officials, who would use their influence to secure shock probation for the client. Severe punishment was warranted, even though the attorney never intended to make such payments, and apparently employed the suggestion of bribery only as a device to secure his fee from the client for past services.

A more egregious instance occurred in Office of Disciplinary Counsel v. Atkin, 84 Ohio St.3d 383, 704 N.E.2d 244 (1999). In Atkin, the respondent obtained $550,000 from his client by falsely representing that he could bribe a federal judge. He appropriated the money for his personal use and did not report it on his tax return. After respondent's conviction of 29 counts of violation of federal law was affirmed, United States v. Atkin, 107 F.3d 1213 (6th Cir. 1997), the Ohio Supreme Court considered the disciplinary proceeding brought against him. Focusing on OH DR 9-101(C) (even though, amazingly, violation of this rule apparently was not charged in the complaint, see 84 Ohio St.3d at 384, 704 N.E.2d at 245), the Court made clear that lack of intent to carry out the bribe is not a mitigating factor and minced no words in stating what it thought of such misconduct:

We are particularly disturbed by respondent's suggestion that he could bribe United States District Judge George W. White, Jr. Representations of this kind deserve the severest of sanctions. First, such statements violate DR 9-101(C) . . . . Suggestions by an attorney, however untrue, that a judge might be bribed weaken the public's respect for the judicial system and the faith of the people in a rule of law over men, and are intolerable.

Id. at 385, 704 N.E.2d at 245. The Court went on to emphasize that the claim, while totally false, caused Judge White serious inconvenience and hardship, and, however unfairly, inevitably had an adverse impact on his reputation in the community. Atkin was permanently disbarred by a unanimous Court.

An interesting case in which an OH DR 9-101(C) violation was not found is Office of Disciplinary Counsel v. Cicero, 78 Ohio St.3d 351, 678 N.E.2d 517 (1997). Cicero, who had been appointed by a common pleas judge to represent a criminal defendant in a case pending before the judge,

led several members of the bar, including the opposing assistant prosecuting attorney, to believe that respondent had an ongoing sexual relationship with the judge. At one point, respondent indicated to the prosecutor that the judge would probably deny a continuance because of her desire to get the case resolved so that she could engage respondent in sex over the Christmas holidays. . . . The evidence additionally suggests that respondent's client became aware of respondent's boasting and informed other inmates that they should retain respondent.

Id. at 351, 678 N.E.2d at 518. Despite the fact that this evidence would seem to imply an ability to improperly influence the proceedings, the Court rebuffed relator's claim of error in the Board's failure to find a 9-101(C) violation, based on a "a lack of clear and convincing evidence to support [the] violation." Id. at 352, 678 N.E.2d at 518.

While it is not per se improper for a lawyer who is a city council member to represent private clients in civil matters before a municipal court for which the city council has funding responsibilities, "[i]t would be particularly offensive for [the] lawyer through any words or conduct to suggest that a legal matter for which the attorney provides representation could be influenced by the attorney's act of appropriating operating expenses for a court or compensation for the judges." Bd. of Comm'rs on Grievances & Discipline Op. 96-6, 1996 Ohio Griev. Discip. LEXIS 4, at *7 (Aug. 9, 1996).

Conduct that constitutes improper influence of a government agency or official: Rule 8.4(e) speaks to the lawyer's suggesting that he or she has the ability to influence a government agency or official "improperly." (The disciplinary rule referred to ability to influence "improperly or upon irrelevant grounds." Perhaps the drafters feared that "improper influence" might be limited to things like bribery and that the addition of "irrelevant grounds" would provide broader coverage.) In any event, the Rules do not define what falls into the category of "improper influence." Presumably, it includes limitations found in criminal, civil, and administrative law. The broader language under the Code encompassed a case like Cincinnati Bar Ass'n v. Chacksfield, 50 Ohio St.2d 305, 364 N.E.2d 260 (1977), where the lawyer, seeking to have criminal charges against himself dropped, wrote a letter to the judge handling the matter. In the letter, the lawyer reminded the judge of the help he had provided the judge on past political campaigns and, in a separate letter to the judge's bailiff, "impl[ied] that there were certain influential persons who would not want [the lawyer] 'destroyed.'"  Id. at 306, 364 N.E.2d at 261. While the Court cited Canon 9 generally to support its imposition of an indefinite suspension, OH DR 9-101(C) appeared to be the operative provision. And of course both Rule 8.4(e) and former DR 9-101(C) reach statements of supposed ability to wield improper influence when coupled with bribery of the supposed beneficiary. See, e.g., under the Code, Disciplinary Counsel v. Phillips, 108 Ohio St.3d 331, 2006 Ohio 1064, 843 N.E.2d 775, where an assistant prosecutor for was disbarred for, inter alia, violating 9-101(C) by accepting a $2,000 bribe from a criminal defendant in return for a promise to speak to the judge about the defendant's case. He also told another "defendant" – actually an undercover informant – that he would "fix" his case and "[t]hat's going to cost you." Id. at para. 4.

Types of relationships from which an inference of improper influence may arise: While Rule 8.4(e) appears to be addressed to specific actions by the lawyer that are intended to create the impression that the lawyer can improperly influence government officials, at times merely undertaking representation when there is a tie between the lawyer and the government official may create a public impression of improper influence. (These situations also can raise conflict-of-interest concerns. See sections 1.7:230, 1.7:310-:320.) A lawyer who has both a family and an employment relationship with the judge should not appear before that judge, in part because their relationship raises the implication that the lawyer can improperly influence the tribunal. See, e.g., Bd. of Comm'rs on Grievances & Discipline Op. 87-022, 1987 Ohio Griev. Discip. LEXIS 19 (June 22, 1987) (law partner and son of part-time judge could not practice in court on which his father sat, nor could son, as city law director, hire an assistant to appear in his place before his father). The Board predicated its response in part on former OH DR 9-101(C), although it cited the provision for the broader principle that lawyers "must avoid even the appearance of impropriety."

An employment relationship in and of itself may be sufficient to raise these concerns. Thus, while the statement in the syllabus of Opinion 87-022 that law partners or associates of a part-time judge cannot practice before the court on which the part-time judge serves has been disavowed by the Board in its Op. 2005-4, 2005 Ohio Griev. Discip. LEXIS 4 (Apr. 15, 2005), discussed below, the lawyer may not appear before the part-time judge who is the lawyer's partner or associate. Id. Likewise, a lawyer who has an employment relationship with a government official should not handle a matter in which that official is involved, in part because of the implication arising from their relationship that the lawyer can improperly influence the individual. Bd. of Comm'rs on Grievances & Discipline Op. 93-6, 1993 Ohio Griev. Discip. LEXIS 6 (Aug. 13, 1993) (finding it improper, on these grounds (including implication of improper influence), for a member of a certified grievance committee, or a partner or associate of the member, to represent private clients in matters in which the certified grievance committee was involved).

A similar concern arises when the relationship is that of family, although the Board did not expressly invoke OH DR 9-101(C) in these opinions. See Bd. of Comm'rs on Grievances & Discipline Op. 93-7, 1993 Ohio Griev. Discip. LEXIS 5 (Aug. 13, 1993) (county prosecutor and criminal-defense attorney who were spouses could not represent opposing parties in criminal matter, without client consent; such conduct could violate numerous provisions, including creation of appearance of impropriety); Bd. of Comm'rs on Grievances & Discipline Op. 91-22, 1991 Ohio Griev. Discip. LEXIS 7 (Oct. 18, 1991) (county prosecutor and criminal-defense attorney who were siblings could not represent opposing parties in criminal matter; such conduct would violate OH DR 5-101(A) and create appearance of impropriety, particularly where they also have continuing financial relationship stemming from former joint practice).

As the family or employment relationship becomes more attenuated, the mere implication of influence stemming from the relationship itself was insufficient to trigger disciplinary concerns. Nevertheless, even in these circumstances, the lawyer had to remain sensitive to the underlying problem. See Bd. of Comm'rs on Grievances & Discipline Op. 87-024, 1987 Ohio Griev. Discip. LEXIS 17 (June 22, 1987) (while acknowledging that spouse of common pleas judge could appear before other judges on the same court, the Board warned against engaging in conduct that might suggest an ability to improperly influence the tribunal); Ohio State Bar Ass'n Informal Op. 77-15 (Sept. 8, 1977) (lawyer who served as part-time law clerk for one judge in multi-division court of common pleas could represent clients before other judges on court if lawyer had not worked on case for any judge, but lawyer had to be careful to comply with former OH EC 9-4 and OH DR 9-101(C)).

The cautious approach to this problem was further illustrated in Bd. of Comm'rs on Grievances & Discipline Op. 94-2, 1994 Ohio Griev. Discip. LEXIS 12 (Feb. 18, 1994). In addition to stating that a lawyer may not appear before a part-time judge with whom the lawyer was in practice as an associate or partner (to do so would create an appearance of improper influence), the Board went on to consider whether practice before other judges on the same court would be prohibited and concluded that the result varies by the circumstances. If the court in which the part-time judge served was not divided into separate geographical areas of jurisdiction, then the prohibition extended to practice before any of the judges on the court. If the court was divided, the prohibition extended only to those judges who shared jurisdiction with the part-time judge. If a part-time judge sat by assignment on another court, the prohibition would extend to practice before that court as well until the assignment was terminated. Opinion 94-2, however, was modified in Bd. of Comm'rs on Grievances & Discipline Op. 2005-4, 2005 Ohio Griev. Discip. LEXIS 4 (Apr. 15, 2005), to allow more leeway. Pursuant to Opinion 2005-4, not only was the separate-divisions distinction discarded, but also a lawyer who was an associate or partner of a part-time county judge could properly practice before any county court judge of the court upon which the part-time judge sits, other than the part-time judge himself.

In another 1994 opinion, the Board addressed the propriety of a part-time prosecutor sharing office space and co-counseling on civil cases with a lawyer whose practice in part involved representation of criminal defendants. Bd. of Comm'rs on Grievances & Discipline Op. 94-14, 1994 Ohio Griev. Discip. LEXIS 1 (Dec. 2, 1994). The Board acknowledged that the arrangement might "suggest to the public that the defense attorney is in a position to influence the conduct of the assistant prosecutor" on criminal matters. Id. at *4. Nevertheless, the Board found the possibility too remote to raise Canon 9 concerns, particularly when the office-sharing arrangement was undertaken in compliance with other protections in the former OHCPR pertaining to client confidences, fee divisions, and other practices to assure the public that the lawyers are practicing as separate firms. See sections 1.5:800 (at "Defining 'lawyers' and 'same firm'"), 1.6:220, and 5.3:300-:400.

As noted above, Bd. of Comm'rs on Grievances & Discipline Op. 93-6, 1993 Ohio Griev. Discip. LEXIS 6 (Aug. 13, 1993), found it improper for a certified grievance committee member, or his partner or associate, to represent private clients before that grievance committee. The Board went on, however, to indicate that representation before other disciplinary bodies, where the certified grievance committee of which the lawyer is a member is not involved, would be permissible, since the implication of improper influence would no longer be present. For similar reasons, a lawyer in the same firm as a member of the Board of Commissioners on Grievances and Discipline may represent private clients in disciplinary matters, provided the Board member recuses himself should the matter come before the Board. Id. at *11.

The implication of an ability to wield improper influence also can arise from seemingly innocuous advertising. Statements by a former judge, on his letterhead, business cards, or other pronouncements directed to the general public, which statements identified the lawyer's former judicial position, were deemed improper by the Board; they were found to imply that the lawyer might be able to influence government conduct on a client's behalf because of his former position. Bd. of Comm'rs on Grievances & Discipline Op. 93-8, 1993 Ohio Griev. Discip. LEXIS 4 (Oct. 15, 1993) (conduct also violates former OH DR 2-101(A) and 2-102(A)). In contrast, such statements directed to attorneys, through such devices as professional announcement cards and listings in professional law directories, were deemed permissible, presumably on the theory that lawyers, unlike members of the lay public, would be unlikely to draw the same inference of undue influence from factual statements about a lawyer's prior service as a judge. Compare Cleveland Bar Ass'n Op. 89-6 (Mar. 30, 1990) (lawyer may list former government position both on professional announcements and in advertising, provided reference is factual, not misleading, not likely to create unjustified expectations as to results possible, and does not state or imply specialization or that lawyer may obtain results not obtainable by one without such background). It seems likely that the opinion of the Cleveland Bar Association, not that of the Board, will prevail under the new Rules; see Ohio Code Comparison to Ohio Rule 7.5, discussed in section 7.1:220, at "Misleading communications about competence or methods."

Improper influence directed at a government agency or official: Rule 8.4(e) prohibits a lawyer from suggesting that he can exert improper influence over "a government agency or official." This language would seem to encompass all government bodies and their agents. See, e.g., under the Code's "any tribunal, legislative body, or public official" language, Columbus Bar Ass'n v. Benis, 5 Ohio St.3d 199, 449 N.E.2d 1305 (1983) (misconduct involved suggesting an ability to improperly influence an employee in the governor's office to aid in pursuing a clemency application); Cincinnati Bar Ass'n v. Chacksfield, 50 Ohio St.2d 305, 364 N.E.2d 260 (1977) (involving, in part, attempted improper influence directed toward a court bailiff). Indeed, in a subsequent opinion, the Ohio Supreme Court held that suggestions by the respondent that he could improperly influence the Board of Commissioners on Character and Fitness, through his evaluations of certain of his employees when they applied for admission to the bar, violated former OH DR 9-101(C).  Cincinnati Bar Ass'n v. Young, 89 Ohio St.3d 306, 731 N.E.2d 631 (2000).

Stating or implying the ability to achieve results by improper means: In addition to concerns about suggesting or implying the ability to influence improperly government agencies and officials, Rule 8.4(e) also prohibits suggesting or implying that the lawyer can "achieve results by means that violate the Ohio Rules of Professional Conduct or other law." Note that this provision is not limited to suggestions regarding improper interactions with government agencies or officials. The suggestion that the lawyer would violate the Rules or the law to achieve an outcome is sufficient.  This reflects a simple policy – that lawyers should not suggest to others that they will act outside the law to achieve desired ends. The quoted language, not found in former OH DR 9-101(C), was added by the ABA to MR 8.4(e) by the 2002 amendments to the Model Rules (without the specific reference to "Ohio," of course). It was formerly a part of MR 7.1(b) as one of the activities constituting a false or misleading communication, but was moved to MR 8.4 to make clear that "the prohibition is not limited to statements made in the context of advertisements." ABA, Annotated Model Rules of Professional Conduct 599 (6th ed. 2007) (commentary). This alteration is reflected in Ohio's transition to the Rules: Like former MR 7.1(b), OH DR 2-101(C)(2) contained the same provision under communication that was false or misleading; as has been done under the Model Rules, it is now a part of Ohio Rule 8.4(e). We found no Ohio opinions dealing with this language in former DR 2-101(C)(2).

8.4:700 Assisting Judge or Official in Violation of Duty

  • Primary Ohio References: Ohio Rule 8.4(f)
  • Background References: Model Rule 8.4(f)
  • Commentary: ALI-LGL § 113

Under Ohio Rule 8.4(f), a lawyer may not "knowingly assist a judge or judicial officer in conduct that is a violation of the Ohio Rules of Professional Conduct, the applicable rules of judicial conduct, or other law." (There is no direct Code analog; cf. OH DR 1-102(A)(5) (conduct prejudicial to the administration of justice).)

As their titles suggest, this section ("Assisting Judge or Official in Violation of Duty") and section 3.5:210 ("Improperly Influencing a Judge") have significant overlap. The material dealing with Rule 3.5(a)(2) (lending anything of value or giving anything of more than de minimis value to a judge, official, or employee of a tribunal) is set forth in section 3.5:210. The relatively few cases involving misconduct instigated or initiated by a judge or court official, which misconduct the lawyer assists, are treated here. Another related section is section 8.4:600 ("Implying Ability to Influence Public Officials").

The classic Ohio case of assisting a judge in the violation of his duty under the Code is Office of Disciplinary Counsel v. Bozanich, 95 Ohio St.3d 109, 766 N.E.2d 145 (2002). In Bozanich, respondent was disbarred for, inter alia, making payments to a judge (at the judge's request) before whom the lawyer was appearing and failing to report the judge's misconduct to the investigatory authorities. On one occasion, at a Christmas party, the judge asked the respondent for $1,000. In making this request, the judge reminded respondent that "[y]ou are appearing in my court next week,"  id. at 109, 766 N.E.2d at 146. Respondent made the payment. Subsequently, pursuant to the judge's instruction, respondent put $400 in the judge's coat pocket in chambers, at a time when he was appearing before the judge. These two events occurred in 1992 and 1996. Respondent, however, did not report the judge's conduct to disciplinary authorities until 1999, after the judge had pled guilty to extortion and obstruction-of-justice charges. Respondent's acts of misconduct were found to have violated former OH DR 1-102(A)(3)-(6) and 1-103(A).

Other cases in which a lawyer was sanctioned for assisting a judge or other court official in violation of her duty include the bribery cases of Cleveland Bar Ass'n v. Jurek, 62 Ohio St.3d 318, 581 N.E.2d 1356 (1991) (at invitation of common pleas court bond commissioner who was in charge of randomly assigning cases to judges and who told respondent that he could "predict the future,"  id. at 319, 581 N.E.2d at 1357, respondent made monetary payments to commissioner, who would then see to it that respondent's criminal cases were assigned to judge of respondent's choice, rather than going through random assignment process; violation of OH DR 1-102(A)(3) and (5) among other provisions; respondent disbarred); and Office of Disciplinary Counsel v. Melamed, 62 Ohio St.3d 187, 580 N.E.2d 1077 (1991) (same). See Office of Disciplinary Counsel v. Smakula, 39 Ohio St.3d 143, 529 N.E.2d 1376 (1988) (assistant county prosecutor sanctioned for involvement in court of common pleas bailiff's ticket-fixing scheme, in exchange for occasional case referrals for prosecutor's private practice). See also Office of Disciplinary Counsel v. Cox, 96 Ohio St.3d 47, 2002 Ohio 2989, 770 N.E.2d 1007 (in order to obtain funds to support his gambling addiction, judge borrowed and accepted money over period of years from attorneys who appeared before him in court of appeals, resulting in indefinite suspension from practice of law; conduct termed "deplorable and egregious" by Court, id. at para. 9). (Two of the attorneys who made gifts/loans to the judge were identified in the Cox opinion; disciplinary action was commenced against one of them but he resigned from the practice of law with the disciplinary action pending. See  In re Resignation of Banks, 88 Ohio St.3d 1204, 723 N.E.2d 577 (2000). Disciplinary action was taken against an attorney having the same name as the second lawyer identified in Cox, but the complaint did not include any charges relating to the loans to the judge. See Office of Disciplinary Counsel v. Goldberg, 94 Ohio St.3d 337, 763 N.E.2d 119 (2002).) See also Office of Disciplinary Counsel v. Konet, 40 Ohio St.3d 256, 532 N.E.2d 1313 (1988) (referee's acceptance of loans, at a time when he was experiencing financial difficulties, from two attorneys who had practiced before him warranted public reprimand; we found no indication in the reported decisions that either of the two lawyers was the subject of disciplinary action).

8.4:800 Discrimination in the Practice of Law

  • Primary Ohio References: Ohio Rule 8.4(g)
  • Background References: None
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.34
  • Commentary: ABA/BNA § 91:301

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.34 (1996).

Ohio Rule 8.4(g), which tracks the first sentence of former OH DR 1-102(B) (added by amendment in 1994), prohibits a lawyer from engaging, in a professional capacity, in conduct involving unlawful discrimination based on race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability. (The second sentence of 1-102(B) is now found in Rule 8.4 cmt. [3].) Several aspects of this Rule deserve further mention.

It applies only to discriminatory conduct undertaken "in a professional capacity." Purely personal acts of discrimination are not covered. Whether the phrase "in a professional capacity" is meant to involve all activities undertaken as a lawyer or only those in which professional service is being provided was, until recently, unclear. Under the "all activities" interpretation, acts of employment discrimination at a law firm would be covered. Under the "only in professional service" interpretation, they would not. In its first opinion dealing with the disciplinary rule, the Ohio Supreme Court applied it to acts of employment discrimination at a law firm.  Cincinnati Bar Ass'n v. Young, 89 Ohio St.3d 306, 731 N.E.2d 631 (2000). Thus, the "in a professional capacity" language encompasses all activities undertaken as a lawyer.

The Young decision is instructive concerning OH DR 1-102(B) (and Rule 8.4(g)) in a number of other respects as well. The respondent in that case argued that an attorney could not be charged with a violation of the disciplinary rule unless a preliminary finding of discrimination has been made by a state or federal court or by the Ohio Civil Rights Commission or the federal EEOC. The Court had little difficulty rejecting this reading and held that such a finding is not a prerequisite to a finding of violation of former OH DR 1-102(B).  89 Ohio St.3d at 307, 731 N.E.2d at 633 (syllabus). The second argument addressed by the Court was that respondent's conduct did not rise to a level of discrimination "prohibited by law." In deciding that, with respect to one of his female employees, respondent's conduct did rise to that level, the Court looked to ORC Chapter 4112, the Ohio discrimination statute, and agreed with the Board that respondent had violated this provision of law by creating a hostile work environment for the employee in question. In so concluding, the Court invoked federal Title VII (42 USC § 2000e et seq. (2000)) precedents for the elements that must be shown: (1) the victim must have been subjected to "unwelcome harassment" (2) based on the victim's sex, (3) which conduct was sufficiently severe to support a finding, both objectively and subjectively, that a hostile or abusive work environment existed. Respondent's numerous sexual remarks to the employee in question (asking her if she was a virgin; suggesting that she had been hired to be his mistress, etc., etc.) were more than sufficient to meet the standard.  89 Ohio St.3d at 315-18, 731 N.E.2d at 639-41. Finally, it is important to note that the sanction imposed for violation of OH DR 1-102(B) (respondent also violated OH DR 1-102(A)(6) and 9-101(C)) was not a slap on the wrist; because the violations involved "appalling" and "egregious" conduct, respondent was suspended from the practice of law for two years, with the second year stayed in favor of a one-year probation period during which respondent was obligated to take at least six hours of professionalism instruction.  89 Ohio St.3d 320-21, 731 N.E.2d at 643.

As the Young case makes clear, the Rule speaks only to conduct "involving discrimination prohibited by law." Discriminatory conduct that does not violate the substantive law is not governed by this provision. Such conduct (or conduct that may well have violated the substantive law but antedated the adoption of OH DR 1-102(B)) was, however, sanctioned under other provisions of the OHCPR, such as OH DR 1-102(A)(5) and (6), and OH DR 7-106(C). See, e.g., Mahoning County Bar Ass'n v. Cregan, 62 Ohio St.3d 444, 584 N.E.2d 656 (1992), and other cases cited in sections 3.4:600, 8.4:500, and 8.4:1000.

Rule 8.4 cmt. [3] exempts from the scope of Ohio Rule 8.4(g) otherwise offensive conduct arising in confidential communications to a client. (“Division (g) does not apply to a lawyer's confidential communication to a client . . . .”) It also permits "legitimate advocacy" where race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability issues are relevant to the proceeding in which the advocacy occurs. The comment does not define when, if ever, legitimate advocacy would allow a lawyer to engage in discrimination prohibited by law. The provision is better read simply as an acknowledgment that issues of race and the like are relevant at times and that nothing in the Rule prohibits a lawyer from addressing them.

It should be further noted that the Ohio Code of Judicial Conduct also contains detailed provisions dealing with discrimination. See OH CJC Canons 3(B)(5)-(6) & (4)(B).

Although the Model Rules do not contain a rule provision dealing expressly with discrimination, a comment states that knowingly manifesting bias or prejudice in the course of representing a client can violate MR 8.4(d) "when such actions are prejudicial to the administration of justice." MR 8.4 cmt. [3].

Finally, in Columbus Bar Ass'n v. Winkfield, 107 Ohio St.3d 360, 2006 Ohio 6, 839 N.E.2d 924, the Court found that respondent had violated OH DR 1-102(B). We discovered no indication in the opinion of such a violation, unless the inappropriate and unwelcome sexual overtures made to the client were deemed "discriminatory." There was no discussion of the issue. See id. at paras. 28-29.

8.4:900 Threatening Prosecution [see section 1.2:900]

The rule on threatening to present criminal charges or allegations of professional misconduct is now set forth in Ohio Rule 1.2(e). See section 1.2:900.

8.4:1000 Conduct That Adversely Reflects on Fitness to Practice Law

  • Primary Ohio References: Ohio Rule 8.4(h)
  • Background References: None
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.32-1.33

(This section has been added in order to cover Ohio Rule 8.4(h), a provision not found in MR 8.4.)

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.32-1.33 (1996).

The standard in general: Ohio Rule 8.4(h), as did its Code predecessor (OH DR 1-102(A)(6)), prohibits a lawyer from engaging "in any other conduct that adversely reflects on the lawyer's fitness to practice law." Since the language of the Code and Rule provisions is identical, DR 1-102(A)(6) precedent, discussed below, should be fully applicable in applying Rule 8.4(h).

As phrased, the provision appears to contain two limitations. First, it is intended to be a residual category, dealing with improper conduct not included under the seven other provisions of Rule 8.4; hence the language the lawyer shall not engage in "any other conduct" that adversely reflects on fitness to practice. Second, within this open-ended grant, the prohibition is limited to conduct that "reflects on the lawyer's fitness to practice law." That said, as the rest of this section reflects, the Disciplinary Rule has been applied far more broadly. Despite this broad reading, DR 1-102(A)(6) still was upheld in the face of claims that the language was unconstitutionally vague.  Dayton Bar Ass'n v. Zarka, 24 Ohio St.3d 157, 493 N.E.2d 1363 (1986).

The standard - Fitness to practice - Misconduct in the practice of law:  There are many decisions finding DR 1-102(A)(6) violations stemming from practice misconduct. Some examples are:  Disciplinary Counsel v. Newcomer, 119 Ohio St.3d 351, 2008 Ohio 4492, 894 N.E.2d 50 (commingling his own and entrusted client funds); Disciplinary Counsel v. Broschak, 118 Ohio St.3d 236, 2008 Ohio 2224, 887 N.E.2d 1176 (refusal to return client file on request); Disciplinary Counsel v. Scurry, 115 Ohio St.3d 201, 2007 Ohio 4796, 874 N.E.2d 521 (intoxicated when meeting with clients and at other times while practicing); Disciplinary Counsel v. Freedman, 110 Ohio St.3d 284, 2006 Ohio 4480, 853 N.E.2d 291 (having signatures on documents improperly notarized); Disciplinary Counsel v. Holland, 106 Ohio St.3d 372, 2005 Ohio 5322, 835 N.E.2d 361 (double-billing juvenile court for services as court-appointed counsel); Office of Disciplinary Counsel v. Moore, 101 Ohio St.3d 261, 2004 Ohio 734, 804 N.E.2d 423 (grossly unprofessional sexual remarks, concerning the size of his penis and preferred sexual positions, during consultations with young female client); Dayton Bar Ass’n v. Pankowski, 94 Ohio St.3d 227, 762 N.E.2d 350 (2002) (neglect and other misconduct while acting as court-appointed guardian).

The standard - Fitness to practice - Misconduct outside the practice of law:  While the provision focuses on conduct that "reflects on the lawyer's fitness to practice law," it is not restricted to conduct undertaken in the practice of law. Illustrative cases include: Cincinnati Bar Ass’n v. Heisler, 119 Ohio St.3d 573, 2008 Ohio 5221, 895 N.E.2d 839 (violation of DR 1-102(A)(6) and Rule 8.4(h) for failing to comply with child-support order); Disciplinary Counsel v. LoDico, 118 Ohio St.3d 316, 2008 Ohio 2465, 888 N.E.2d 1097 (parking lot incident involving menacing with firearm); Columbus Bar Ass'n v. Shea, 117 Ohio St.3d 55, 2008 Ohio 263, 881 N.E.2d 847 (lying to attorney for county child support agency in attempt to obtain evidence for use in filing grievance against partner at respondent's former firm); Disciplinary Counsel v. Margolis, 114 Ohio St.3d 165, 2007 Ohio 3607, 870 N.E.2d 1158 (Sherman Act conviction for conspiracy in restraint of trade while running father-in-law's business; 1-102(A)(6) (and (A)(4)) violated); Disciplinary Counsel v. Hiltbrand, 110 Ohio St.3d 214, 2006 Ohio 4250, 852 N.E.2d 733 (multiple DUI charges, to which respondent pleaded no contest, together with other infractions unrelated to the practice of law; “respondent’s misconduct did not involve her work on behalf of clients, and there is no evidence that her actions harmed any clients, id. at para. 16; failure by respondent to address alcohol-dependency problems; indefinite suspension imposed). Cuyahoga County Bar Ass'n v. Lazzaro, 106 Ohio St.3d 379, 2005 Ohio 5321, 835 N.E.2d 367 (respondent convicted of cocaine possession and use; 1-102(A)(6) violated; despite felony conviction, 1-102(A)(3) not charged; compare Disciplinary Counsel v. May, 106 Ohio St.3d 385, 2005 Ohio 5320, 835 N.E.2d 372, decided five days later, finding 1-102(A)(3) violation flowing from comparable drug-felony conviction); Disciplinary Counsel v. Freeman, 106 Ohio St.3d 334, 2005 Ohio 5142, 835 N.E.2d 26 (soliciting former client to perform sex acts for money); Disciplinary Counsel v. Goodall, 103 Ohio St.3d 501, 2004 Ohio 5583, 817 N.E.2d 23 (1-102(A)(6) violation found for aggravated assault on husband during domestic dispute; six-month suspension with credit for time served under prior suspension resulting from assault conviction). In Columbus Bar Ass'n v. Patterson, 95 Ohio St.3d 502, 2002 Ohio 2487, 769 N.E.2d 826, respondent was arrested for failure to pay child support, he failed to file federal income tax returns for two years, and he pled guilty to a DUI charge. The Court suspended him for one year for violation of DR 1-102(A)(6) (and 1-102(A)(5)), with the entire time credited for time served under a prior suspension.

A unique application of DR 1-102(A)(6) to conduct not occurring in the practice of law occurred in Disciplinary Counsel v. Taft, 112 Ohio St.3d 155, 2006 Ohio 6525, 858 N.E.2d 414 – unique because the respondent was both on inactive status and serving as the Governor of Ohio when the misconduct occurred. Governor Taft pled no contest and was found guilty on four counts of violation of ORC 102.02(D), a first degree misdemeanor, for knowingly filing false disclosure statements regarding 59 gifts in excess of $75, most of which were golf outings paid for by someone else over a period of six years. Respondent conceded to the Ethics Commission that his filings had been deficient, but, despite the “knowingly” element of the misdemeanor to which he pled no contest, the Board “attributed respondent’s nondisclosures to oversight, rather than to a conscious effort to conceal certain relationships.” Id. at para. 11. Because of strong mitigating factors and no aggravating factors, the panel, Board, and Court accepted the consent-to-discipline sanction of a public reprimand.

And see the decisions cited under “Sexual misconduct or substance abuse,” this section infra.

The standard - Fitness to practice - The nexus (or lack thereof) between misconduct and fitness to practice: The fitness limitation appears in many instances to be largely ignored. Indeed, in one case in which the respondent failed to pay federal income taxes and was sanctioned for violation of DR 1-102(A)(6), the Court quoted the panel's finding that respondent's "problems were 'of a financial nature, and deal exclusively with the IRS, not with his practice, or his capacity as an attorney.'" Toledo Bar Ass'n v. Abood, 104 Ohio St.3d 655, 2004 Ohio 7015, 821 N.E.2d 560, at para. 10. Such an approach comes rather close to reading the fitness-to-practice requisite out of the rule. Another decision can be read in similar fashion.  Disciplinary Counsel v. Connor, 105 Ohio St.3d 100, 2004 Ohio 6902, 822 N.E.2d 1235, involved a sitting common pleas judge who had had multiple DUI convictions but had then gone into treatment and apparently effected full recovery. For the second time, the Court found this respondent in violation of former OH DR 1-102(A)(6). In the sanction phase, however, in the course of imposing a six-month stayed sentence, the Court went out of its way to state that respondent's "performance on the bench remains above reproach," id. at para. 20, and that "[t]here was no evidence that respondent's alcoholism had compromised the performance of his duties on the bench." Id. at para. 10. A comparable result obtained in a case involving a practicing lawyer who had been convicted of domestic violence involving his adult son.  Akron Bar Ass'n v. Gatskie, 105 Ohio St.3d 327, 2005 Ohio 1828, 825 N.E.2d 1111. Noting respondent's rehabilitation from alcoholism, the Court again imposed a stayed six-month sentence for violation of OH DR 1-102(A)(6) and in the course thereof quoted with approval a judge's letter stating that respondent "'continues to represent his clients with diligence without any complaints from the bench.'" Id. at para. 8. (Perhaps the result in such cases can be explained by the fact that, while actual performance as a lawyer or judge was not affected, the conduct nevertheless "reflected" adversely on fitness.)

As these decisions indicate, where former OH DR 1-102(A)(6) was cited as an independent ground for discipline, often little if any explicit attention was given to linking the conduct involved to fitness-to-practice concerns; rather, it was simply presumed. Another example is Office of Disciplinary Counsel v. Michaels, 38 Ohio St.3d 248, 527 N.E.2d 299 (1988), where an attorney was sanctioned under this provision after causing a fatal motor vehicle accident and pleading guilty to involuntary manslaughter, driving while intoxicated, reckless operation, and operating a motor vehicle without reasonable control. (The attorney was also charged with violating OH DR 1-102(A)(3) for engaging in illegal conduct involving moral turpitude, but that charge was dropped.) In defense, the attorney argued, in part, that this single instance of poor judgment, in light of an otherwise superlative record as a lawyer (ten character witnesses, including judges, prosecuting attorneys and the chief of police, all testified to this effect), did not reflect adversely on his fitness to practice law. While not addressing this argument directly, the Court pointed out that "misconduct based on criminal convictions for actions unrelated to the practice of law have frequently resulted in disciplinary sanctions."  Id. at 250, 527 N.E.2d at 301. The Court then concluded:

Although respondent's illegal conduct was unintentional, the imposition of an appropriate sanction in this case must necessarily take into account the fact that the life of another person ended as a result of respondent's abuse of alcohol.

Id. at 251, 527 N.E.2d at 301. Whether the Court meant to suggest that the implication of the conduct for fitness to practice law was irrelevant, or only that conduct arising outside the practice of law can reflect on fitness to practice, is unclear; probably the latter was intended.

On the other hand, there are decisions in which the link between fitness to practice and the misconduct involved is convincingly made. One of the more explicit is Toledo Bar Ass'n v. Cook, 114 Ohio St.3d 108, 2007 Ohio 3253, 868 N.E.2d 973. Although there were multiple violations in Cook, the Court analyzed each disciplinary rule separately; regarding DR 1-102(A)(6), it stated that respondent's "acts of dishonesty and deceit"– involving a complicated scheme in which she took personal advantage of her 90-year old client –

violated 1-102(A)(6) because these acts reflect egregiously on a lawyer's fitness to practice law.

Id. at para. 37.

In a more recent example, the respondent argued that the finding of violation of 1-102(A)(6) was based solely on his unwillingness to admit all charges and on his efforts to put forth a good-faith defense. Rejecting this challenge, the Court's language sheds light on fitness requisites:

Rather, it was respondent's inability to recognize the inherent conflict between his business relationship with EPLS [the out-of-state law firm marketing living trusts, which, pursuant to their contract, respondent agreed would be his "sole and exclusive agent for marketing, sales, and estate-planning packages," id. at para. 3] and his duty to [his clients] the Trotts. . . . Even now, respondent appears unable to grasp the true nature and extent of his misconduct or to fully comprehend his professional obligations.  Accordingly, we find that clear and convincing evidence exists to support a violation of DR 1-102(A)(6).

Columbus Bar Ass'n v. Willette, 117 Ohio St.3d 433, 2008 Ohio 1198, 884 N.E.2d 581, at para. 39. Similarly, in Akron Bar Ass’n v. Catanzarite, 119 Ohio St.3d 313, 2008 Ohio 4063, 893 N.E.2d 835, the respondent sought to “derail” the disciplinary proceeding by attempting to intimidate relator’s counsel by means of a sham grievance that had supposedly been filed against counsel; by such conduct, in the words of the Court, respondent “violated his duty to assist in the process that polices the legal profession,” id. at para. 38; Gov Bar R V(4)(G) also violated, as well as 1-102(A)(6), by these tactics.

Another case involving a violation only of former 1-102(A)(6), is Cuyahoga Count Bar Ass'n v. Lazzaro, 106 Ohio St.3d 379, 2005 Ohio 5321, 835 N.E.2d 367, where the Supreme Court included in its opinion the Board's finding that "respondent's possession and use of cocaine violated his general duty to the legal profession and judicial system to comply with the law . . . ." Id. at para. 7. The Court stressed that "the sanction must also safeguard the legal profession and the judicial system from illegal conduct that adversely reflects on the practice of law." Id. at para. 14. Rather than focusing on the abstract and general duty to comply with the law, as in Lazzaro, the Court in Columbus Bar Ass’n v. Hayes, 118 Ohio St.3d 336, 2008 Ohio 2466, 889 N.E.2d 109, found a direct link between respondent’s substance abuse and his inability to adequately serve his clients, based on respondent’s admission that his neglect of his clients was “a direct and proximate result of both his drug addition and underlying psychological disorders.” Id. at para. 21.

A rationale similar to that in Lazarro, this time expressly emphasizing the duties of honesty and integrity, appears in Cincinnati Bar Ass'n v. Blankemeyer, 109 Ohio St.3d 156, 2006 Ohio 2038, 846 N.E.2d 523, where the Court justified its upping a recommended sanction of indefinite suspension to permanent disbarment in language relevant to the 1-102(A)(6) fitness standard: "An attorney who has been convicted of felony theft offenses has violated the basic professional duty to act with honesty and integrity." Id. at para. 12. (DR 1-102(A)(3), (4) & (6) violated). The Supreme Court reached the same conclusion in a case also involving violation of DR 1-102(A)(3), (4) & (6) as the result of criminal activity (apparently private conduct unrelated to the practice of law), Disciplinary Counsel v. Stern, 106 Ohio St.3d 266, 2005 Ohio 4804, 834 N.E.2d 351:

A lawyer who engages in the kind of criminal conduct committed by respondent [drug trafficking, arson, bank fraud, money laundering] violates the duty to maintain personal honesty and integrity, which is one of the most basic professional obligations owed by lawyers to the public.

Id. at para. 8.

In Columbus Bar Ass'n v. Riebel, 69 Ohio St.2d 290, 432 N.E.2d 165 (1982), where, as in Lazarro, the only charge was violation of DR 1-102A(A)(6), the Ohio Supreme Court found that the use of obscenities in discussion and correspondence with another attorney breached the disciplinary rule, warranting a public reprimand. At the core of the Court's decision is a belief in the law as a profession and that the conduct in question was not professional. In another of the relatively few decisions in which the Court actually discussed why the conduct at issue reflected adversely on one's fitness to practice law, it stated as follows:

The conduct involved here is not that of improper representation of a client, nor a claimed infraction of rules of proper conduct in a courtroom; nor is there present here a claimed disrespect for a judge or other court officials. The charges here involve verbal and written statements to an adverse party to a divorce proceeding, which party was a long-time friend of respondent; and involved certain specific commentary stamped, or written, on correspondence to other attorneys involved in pending litigation.

Although the board, and now this court, is dealing only with certain language uttered and transmitted by the respondent, rather than misconduct of counsel to client or court, these acts must be reviewed as to whether they reflect upon the user's fitness to practice law.

As stated in Cheatham, Cases and Materials on the Legal Profession, at page 32:

"Law, like medicine, teaching, and the ministry, is generally referred to as a profession, to set it apart from business and the ordinary run of callings. Professional activities are regarded in the community as carrying special prestige, privileges, and responsibilities, and from the status of the law as a profession conclusions are frequently drawn as to the conduct appropriate for lawyers. * * * [S]ome methods which are unobjectionable in a trade or business may still be open to criticism in an attorney because they detract from the objects for which his profession exists."

It is within the real meaning and intent of our Code of Professional Responsibility that lawyers should always be cognizant of the necessity for good manners, courtesy and discourse, both to client and other practitioners, as being part of our professional ethics.

The zeal employed by an attorney in guarding the interests of his clients must always be tempered so as not to inject his personal feelings or display a demeanor that subjects parties to a proceeding or opposing counsel to certain indignities.

We are in agreement with the conclusions of the board that since respondent appears to have adopted a volatile style of script and expression which manifests itself more than occasionally, the respondent has violated DR 1-102(A)(6) of the Code of Professional Responsibility.

Id. at 291-92, 432 N.E.2d at 166-67 (bracket and ellipsis supplied by the Court).

Although the Court did not couch its opinion in those terms, a lack of professionalism would also seem to underlie its decision in Office of Disciplinary Counsel v. Pollack, 100 Ohio St.3d 280, 2003 Ohio 5752, 798 N.E.2d 594. In Pollack, waging all-out legal war against numerous defendants, respondent filed, either on his clients' behalf or pro se, more than 20 lawsuits, sought to have criminal charges brought against opposing counsel and against at least one of the defendants (a Cleveland police officer), and made unfounded accusations of high-level conspiracies by public officials, among other acts. While respondent conceded in the Supreme Court that his conduct violated OH DR 1-102(A)(5) (and two other rules) as charged, he insisted that he did not violate, inter alia, OH DR 1-102(A)(6). In rejecting a respondent’s argument, the Court concurred in the panel's finding that

respondent had "crossed the line" [in the panel’s words, id. at para. 43, “between zealous, but principled, advocacy and the zealousness that "comes from personalizing the litigation’"] and thereby violated DR . . . 1-102(A)(6).

Id. at para. 46. The Court referred to respondent's participation in the underlying cases as a "personal crusade no longer driven by his clients' interests," id., and chose to quote the description of respondent used by the Eighth District Court of Appeals in the course of affirming an award of sanctions against respondent and one of his clients in related litigation: "'an obnoxious litigator bent on abusing the courts to further an illegitimate agenda.'" Id. Respondent was suspended for one year, with six months stayed.

Another important decision under 1-102(A)(6) is Disciplinary Counsel v. Goldblatt, 118 Ohio St.3d 310, 2008 Ohio 2458, 888 N.E.2d 1091. The respondent in Goldblatt sought to arrange a sexual encounter with “a girl of about ‘nine or ten or eleven’ and ‘the younger the better’”; he agreed to pay $200 “to do as much sexually with the child as that amount would buy.” Id. at para. 12. These arrangements were made (in the Court’s word, “unwittingly”), not with a pimp, but with an undercover FBI agent. In condemning this conduct in the strongest possible terms (“reprehensible,” risk of “unspeakable harm”), the Court for purposes of 1-102(A)(6) drew heavily upon the analysis of the Maryland Court of Appeals in a similar case, Atty. Grievance Comm. v. Thompson, 367 Md. 315, 327, 786 A.2d 763, 770-71 (2001):

“Respondent’s behavior in pursuing the child/victim in this case grossly overstepped the boundaries of appropriate adult-child relationships. In so doing, Respondent demonstrated, and even acknowledged to himself, that he may not be trusted around children in general. Although adult-child interactions are not related directly to Respondent’s practice of law, the concept of trust is an inseparable element of any attorney’s practice.  It is inconceivable, therefore, how we may presently authorize and entrust Respondent with the enumerable confidential, fiduciary, and trust based relationships that attorneys, by their profession, are required to maintain in their dealings with their clients or the public.”

Id. at para. 27 (bracketed material added). Echoing the further language of the Maryland court, our Supreme Court concluded as follows:

Respondent’s trustworthiness and fitness to practice law have been severely undermined by his criminal behavior. We are convinced that an indefinite suspension will help protect the public, deter other lawyers from similar wrongdoing, and preserve the public’s trust in the legal profession.

Id. at para. 30. It seems fair to say that conduct putting trustworthiness into question, whether or not that conduct is related to the practice of law, raises fitness concerns under 1-102(A)(6), and will undoubtedly will continue to do so under the identical language of Rule 8.4(h).

Another case that seems fairly to fall within the ken of 1-102(A)(6) is Cuyahoga Bar Ass’n v. Kehn, 112 Ohio St.3d 547, 2007 Ohio 809, 862 N.E.2d 92. There, respondent had a fee dispute with a client; the dispute ultimately went to binding arbitration in favor of the client. Respondent, however, not only failed to comply with the arbitration award, but also argued that an earlier investigation, which had been dropped because the Board determined that it could be more appropriately resolved by mediation or other ADR alternatives, was res judicata of the new investigation relating to the failure to comply with the arbitration award. Such an argument was, of course, meritless. Even though the Court did not expressly articulate why this conduct violated 1-102(A)(6) (the only disciplinary rule involved), both the conduct and the argument leave something to be desired in terms of fitness to practice. 

Finally, a case shedding some light on the fitness-to-practice standard, by articulating why the conduct there at issue did not violate DR 1-102(A)(6), is Dayton Bar Ass’n v. Korte, 111 Ohio St.3d 273, 2006 Ohio 5705, 855 N.E.2d 1211. Thus, in Korte, “[b]ecause respondents had acted in accordance with their best, albeit misguided, professional judgment [in failing to provide medical reports to the other side in workers’ compensation matter], . . . the board rejected the stipulation that they had violated DR 1-102(A)(6).” Id. at para. 17. Korte supports the view that proceeding in accordance with one’s own best professional judgment, even if that judgment turns out to be wrong, does not constitute conduct adversely reflecting on fitness to practice.

In other cases, while there was no discussion of the conduct's tie to fitness-to-practice concerns, that linkage was obvious from the conduct itself. E.g., Columbus Bar Ass’n v. Ellis, 120 Ohio St.3d 89, 2008 Ohio 5278, 896 N.E.2d 703 (panoply of neglect, deceit, failing to return unearned retainers, etc.; respondent, a solo practioner with no office support, became “overwhelmed”; he “shut down” and eventually stopped going to the office altogether); Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008 Ohio 91, 880 N.E.2d 467 (filing complaint asserting that one of respondent's clients (his mother-in-law) was incompetent, with supporting affidavit from wife so stating; one month later respondent witnessed document signed by mother-in-law giving wife power of attorney to act for her mother); Disciplinary Counsel v. Scurry, 115 Ohio St.3d 201, 2007 Ohio 4796, 874 N.E.2d 521 (four counts, all involving 1-102(A)(6) and all involving respondent's intoxication – while attempting to meet with criminal-defendant clients (counts I and II), when telephoning various law enforcement agencies (count III), and when calling the municipal court clerk's office about cases in which he had an interest (count IV));  Richland County Bar Ass'n v. Akers, 106 Ohio St.3d 337, 2005 Ohio 5144, 835 N.E.2d 29 (regularly allowing former secretary to sign respondent's name on court documents). See also Cleveland Bar Ass’n v. Kodish, 110 Ohio St.3d 162, 2006 Ohio 4090, 852 N.E.2d 160, where the Court found that respondent’s bouncing a check written on her IOLTA account and attempting to limit her liability for misconduct adversely reflected on her fitness to practice as well as violating a number of other disciplinary rules.

The standard - The “any other conduct” criterion - Used as an end-around other rules: Even when OH DR 1-102(A)(6) was applied as an independent standard, at times the provision appeared to be employed simply as an end-around other disciplinary rules. Conduct which implicated concerns in other rules, but did not violate them, nevertheless was sanctioned under 1-102(A)(6). For example, in Toledo Bar Ass'n v. Wood, 32 Ohio St.3d 166, 512 N.E.2d 671 (1987), the Court found that the attorney's abrupt and unexplained termination of his law practice, without making any provision for entrusted legal matters, failed to protect his client's interests and thus violated OH DR 1-102(A)(6). This conduct could have violated other provisions, such as OH DR 6-101(A)(3) (neglecting a legal matter), 7-101(A)(1) (failing to seek the lawful objectives of a client), and 7-101(A)(2) (failing to carry out the employment contract). Although violations of these provisions (among others) were alleged, the panel that heard the case did not believe the burden of proof was met on these charges. Nevertheless, the totality of the circumstances was seen as supporting a violation of OH DR 1-102(A)(6). Accord Cleveland Bar Ass'n v. Perry, 87 Ohio St.3d 217, 718 N.E.2d 1276 (1999) (conduct consistent with neglect, failing to seek lawful objectives of client, etc., found to be violative only of OH DR 1-102(A)(6), even though the complaint charged violation of "several [unidentified] Disciplinary Rules."  Id. at 218, 718 N.E.2d at 1276); Cincinnati Bar Ass'n v. Wallace, 83 Ohio St.3d 496, 500, 700 N.E.2d 1238, 1241 (1998) (no clear and convincing evidence that misleading interrogatory response, technically correct when provided, violated OH DR 1-102(A)(4), 7-102(A)(3), (A)(5), or (A)(7), but conduct "shows a serious lack of professionalism" in violation of 1-102(A)(6), even though (A)(6) violation not charged; due process argument by respondent rejected because, according to the Court, (A)(6) was "in essence an included offense to the charged violations").

The standard - The “any other conduct” criterion - Applied to conduct not covered by another rule: As phrased, both the disciplinary rule and the professional conduct rule talk in terms of “any other conduct” adversely reflecting on fitness. Reasonably read, this would appear to make the fitness standard a catch-all, applicable to conduct not covered by any other of the misconduct provisions. Arguably the “end-around” cases supra, fall into this category. And perhaps Disciplinary Counsel v. Scurry, 115 Ohio St.3d 201, 2007 Ohio 4796, 874 N.E.2d 521, qualifies (dealing with clients, law enforcement agencies, and court personnel when in an intoxicated state), but even there an argument could be made that such conduct also was prejudicial to the administration of justice. Another candidate is Columbus Bar Ass’n v. Riebel, 69 Ohio St.2d 290, 432 N.E.2d 165 (1982) (obscenities in discussion and correspondence with opposing counsel).

The standard - The “any other conduct” criterion - Applied to conduct also sanctioned under another rule: Despite the supposed “any other conduct” limitation, in the vast majority of cases, DR 1-102(A)(6) was invoked, not as an independent basis for discipline, but as a cumulative citation -- the conduct violated another standard and also adversely reflected on the lawyer's fitness to practice. See, e.g., Cuyahoga County Bar Ass’n v. Nance, 119 Ohio St.3d 55, 2008 Ohio 3333, 891 N.E.2d 746 (DR 1-102(A)(6) and 9-102(A) violated by impermissibly paying employee with check from his trust account, later returned for insufficient funds); Akron Bar Ass’n v. Finan, 118 Ohio St.3d 106, 2008 Ohio 1807, 886 N.E.2d 229 (signing client’s name on affidavit as authorized by client, and then notarizing the false signature violated DR 1-102(A)(5) as well as (A)(6)); Disciplinary Counsel v. Lord, 114 Ohio St.3d 466, 2007 Ohio 4260, 873 N.E.2d 273 (pattern of mishandling cases for clients, together with failure to cooperate, violated, inter alia, 1-102(A)(6); because respondent had previously been indefinitely suspended for similar misconduct, he was disbarred); Cuyahoga County Bar Ass'n v. Jurczenko, 114 Ohio St.3d 229, 2007 Ohio 3675, 871 N.E.2d 564 (violation of many disciplinary rules, including 1-102(A)(6), by lying about and misappropriating client's money, by failing to pay client's creditors and mishandling that client's bankruptcy, and by failing to pay another client's creditors and then misappropriating that money); Disciplinary Counsel v. Morgan, 114 Ohio St.3d 179, 2007 Ohio 3604, 870 N.E.2d 1171 (commingling of funds in IOLTA account violated 1-102(A)(6) as well as 9-102(A)); Disciplinary Counsel v. Houser, 110 Ohio St.3d 203, 2006 Ohio 4246, 852 N.E.2d 724 (representing to elderly couple that variable-rate annuities were fixed-rate annuities, which couple bought to their prejudice, together with numerous other acts of dishonesty and deceit, violated 1-102(A)(4) & (6); Columbus Bar Ass'n v. Mills, 109 Ohio St.3d 245, 2006 Ohio 2290, 846 N.E.2d 1253 (various sloppy and unprofessional acts of misconduct, including filing complaint in wrong court, double billing, and "questionable collection practices," pursuant to which respondent requested and received from the client's mother "authorization to charge various fees to the mother's credit card." Id. at para. 7); Disciplinary Counsel v. Greco, 107 Ohio St.3d 155, 2005 Ohio 6045, 837 N.E.2d 369 (neglect and deceit of clients; delays in refunding unearned retainers; violation of DR 1-102(A)(4) & (6), 2-110(A), and 6-101(A)(3), among others); Office of Disciplinary Counsel v. Spencer, 71 Ohio St.3d 316, 643 N.E.2d 1086 (1994) (falsifying documents in a civil action violated 1-102(A)(4)-(6)).

Other cumulative citation decisions in which the misconduct at issue seems to reflect adversely on the respondent’s fitness to practice are Cuyahoga County Bar Ass'n v. Wagner, 117 Ohio St.3d 456, 2008 Ohio 1200, 884 N.E.2d 1053 (noncompliance with court show cause orders); Akron Bar Ass'n v. Markovich, 117 Ohio St.3d 313, 2008 Ohio 862, 883 N.E.2d 1046 (misleading court and opposing counsel; violating terms of civil protection order); Disciplinary Counsel v. Roberts, 117 Ohio St.3d 99, 2008 Ohio 505, 881 N.E.2d 1236 (forging and then notarizing the forged signatures on documents); Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006 Ohio 1062, 843 N.E.2d 765 (providing improper financial assistance to client, with whom respondent had sexual relationship, which she concealed from her public defender superiors); Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229, 2005 Ohio 4630, 833 N.E.2d 1235 (unprofessional language and conduct during trial; disrespectful conduct to court, jury and witnesses).

Common misconduct: Many types of conduct were sanctioned under former OH DR 1-102(A)(6), both when used as an independent and as a cumulative source for discipline. Typical instances included those involving

  • Abusive conduct with a client: Abusive conduct in dealing with a client is subject to sanction under this provision. Thus, threatening language toward a client, together with unfounded claims of fraud and dishonesty directed at the bar association grievance committee investigating charges against respondent, resulted in violation of multiple disciplinary and governing bar rules, including DR 1-102(A)(6), in Disciplinary Counsel v. Watterson, 114 Ohio St.3d 159, 2007 Ohio 3615, 870 N.E.2d 1153. In Mahoning County Bar Ass'n v. Pagac, 39 Ohio St.3d 1, 528 N.E.2d 948 (1988), the Court imposed a six-month suspension on a lawyer for intimidating a client into paying additional, excessive fees. While the fee itself was subject to sanction under former OH DR 2-106(A), the intimidation raised OH DR 1-102(A)(6) concerns. In Pagac, the intimidation involved an attempt to secure additional fees in a criminal representation. The conduct included threatening "to make sure that other charges would be filed against her husband if she did not pay," by asserting that the "prosecution's deal was only good while he was the attorney of record," and by making the fee request the last day a favorable plea bargain by the prosecution remained on the table.  Id. at 2, 528 N.E.2d at 949. Cf. Columbus Bar Ass’n v. Hayes, 118 Ohio St.3d 336, 2008 Ohio 2466, 889 N.E.2d 109, where respondent directed abusive and obscene language at his client’s mother.

    Abusive conduct in dealing with a client was also at issue in Office of Disciplinary Counsel v. Dillon, 28 Ohio St.3d 114, 502 N.E.2d 637 (1986). In setting up and then exploiting for his own self-interest a power of attorney for an elderly, rest-home resident without immediate family, the attorney's actions violated numerous disciplinary rules, including OH DR 1-102(A)(6), resulting in an indefinite suspension. The portion of the opinion pertinent to DR 1-102(A)(6) is as follows:

    Relator further states that respondent violated DR 1-102(A)(6), in that the respondent acknowledged the "great sensitivity" of his relationship with the elderly, widowed, rest home resident, a childless farmer, but took no special measures to assure that no criticism would be generated by his admittedly perilous conduct. Such knowing disregard adversely reflects on his fitness to practice law.

    Id. at 118, 502 N.E.2d at 640.

    A more recent case involving abusive conduct toward a client is Office of Disciplinary Counsel v. Liviola, 94 Ohio St.3d 408, 763 N.E.2d 588 (2002). Liviola was disbarred for preying on a college "friend" from New York suffering from schizophrenia. The friend thought he needed legal help and met with respondent. Respondent recommended a nonexistent New York lawyer and proceeded to collect substantial sums from his friend, supposedly to be forwarded to the imaginary lawyer for legal services but not so used. In addition to DR 1-102(A)(6), respondent was found to have violated 1-102(A)(3)-(5) as well. See also Cleveland Bar Ass’n v. McNally, 109 Ohio St.3d 560, 2006 Ohio 3258, 849 N.E.2d 1022 (falsely reassuring client more than once that client’s divorce petition had been filed, when it had not, violated DR 1-102(A)(4)-(6), among other provisions).

  • Federal income tax violations: Former OH DR 1-102(A)(6) was occasionally invoked against a respondent who failed to pay income taxes or file returns. "[O]ur precedent in such cases requires a one-year suspension from the practice of law." Office of Disciplinary Counsel v. Baker, 65 Ohio St.3d 302, 304, 603 N.E.2d 990, 991 (1992) (willful failure to file; 1-102(A)(6) violated); Office of Disciplinary Counsel v. Bowen, 38 Ohio St.3d 323, 528 N.E.2d 172 (1988) (failure to file for multiple years violated DR 1-102(A)(3), (5) & (6)). A more recent OH DR 1-102(A)(6) case, while acknowledging the one-year general rule, found that a one-year suspension with six months stayed was appropriate where there were significant mitigating factors, even though the "sheer breadth of respondent's default [failure to pay for multiple years] must be seen as an aggravating circumstance." Toledo Bar Ass'n v. Abood, 104 Ohio St.3d 655, 2004 Ohio 7015, 821 N.E.2d 560, at para. 19. The predictability of sanctions for income tax violations is further lessened by an intervening 1-102(A)(6) case, Cleveland Bar Ass’n v. Smith, 102 Ohio St.3d 10, 2004 Ohio 1582, 806 N.E.2d 495, where multiple violations, including failure to file federal income tax returns for nine years, which failure resulted in violations of 1-102(A)(3) and (5), as well as (6). Nevertheless, because of significant mitigating factors and none on the aggravation side (notwithstanding the “sheer breadth of respondent’s default”), respondent’s sanction was a stayed six-month suspension. Neither Baker nor Bowen was cited in determining the sanction.

  • Inappropriate language: In addition to the highly improper and unprofessional remarks at issue in Office of Disciplinary Counsel v. Moore, 101 Ohio St.3d 261, 2004 Ohio 734, 804 N.E.2d 423, and those in Columbus Bar Ass’n v. Riebel, 69 Ohio St.2d 290, 432 N.E.2d 165 (1982), both discussed this section supra, the following cases fall into this category:  Contemptuous conduct before two judges, including false accusations against one judge and lying in response to question by the other, Columbus Bar Ass'n v. Vogel, 117 Ohio St.3d 108, 2008 Ohio 504, 881 N.E.2d 1244. The Vogel case also has the distinction of being the first Ohio Supreme Court disciplinary case to invoke and apply the Rules of Professional Conduct. Because of the difference in timing of his actions before the two judges, respondent was found to have violated DR 1-102(A)(6) in the first instance, and Rule 8.4(h) in the second, which took place in February 2007 after the effective date of the Rules.

  • Toledo Bar Ass'n v. Bell, 78 Ohio St.3d 88, 676 N.E.2d 527 (1997), concerned respondent's screaming of epithets and racial slurs while attempting to recover a client’s pit bull from the dog warden, in violation of DR 1-102(A)(6). And in Office of Disciplinary Counsel v. Grimes, 66 Ohio St.3d 607, 614 N.E.2d 740 (1993), a lawyer was found in violation of 1-102(A)(6) and publicly reprimanded for referring to a juvenile court judge as a "sonofabitch" in a conversation with a reporter who was interviewing him about a controversial local case. The comment subsequently appeared in the reporter's published story. (It could be argued that the conduct would have been better treated under former EC 8-6 and DR 8-102(B), which dealt specifically with criticism of judges. But the Ethical Consideration, which warned against "intemperate statements" and advised the use of "appropriate language" in criticizing a judge, was aspirational only, and the disciplinary rule spoke only to false accusations against a judge. See Ohio Rule 8.2(a) and section 8.2:200.) Writing in dissent in Grimes, Justice Pfeifer observed:

    I would dismiss the complaint against the respondent. The conduct at issue was not only out of character but was also inconsequential.

    . . . [W]hich of us who have ever practiced law has not muttered a choice epithet about our favorite judge? More important, which of us who are judges has not done something to earn an occasional raspberry? It is obvious in this case that the respondent did not expect his mild outburst to be quoted in the newspaper. Respondent self-administered the appropriate disciplinary measure by publicly apologizing to Judge Heydinger.

    Id. at 610, 614 N.E.2d at 742.

    In Crawford County Bar Ass'n v. Nicholson, 66 Ohio St.3d 585, 613 N.E.2d 1025 (1993), the lawyer was sanctioned under 1-102(A)(6) for making offensive sexual remarks to court personnel, notwithstanding his contention that the remarks were intended as jokes. In one instance the lawyer, while in a telephone conversation with a female court official, commented that "he was sitting in his office with his girlfriend on his lap, caressing her thigh." In another, he wrote to a female court employee to correct a notice of assignment erroneously listing a case as No. 269, rather than No. 500:

    "I appreciate your office appointing me as appellate counsel for Herb Taylor, however you have the wrong case # on the order. I thought Herb's case # was 500! Of course if you foxy females who work for Judge Henson are trying to be coy, go ahead and throw this letter away as I would be glad to do case # two sixty nine with you! If you know what I mean."

    Id. at 586-87, 613 N.E.2d at 1026. Accord Office of Disciplinary Counsel v. Campbell, 68 Ohio St.3d 7, 623 N.E.2d 24 (1993) (numerous unwelcome and offensive sexual comments by lawyer directed at employees while in private practice, and at court employees or lawyers appearing before him as judge, violated both provisions, as well as numerous provisions of the Code of Judicial Conduct); Columbus Bar Ass'n v. Baker, 72 Ohio St.3d 21, 22, 647 N.E.2d 152, 152 (1995), involved violation of 1-102(A)(6) (as well as 1-102(A)(3)) where a lawyer used "inappropriate, vulgar, sexually explicit or sexually suggestive language" in front of a seventeen year-old high school student in his employ, who was embarrassed and offended by the remarks. (Respondent also failed timely to pay the employee until after the grievance was filed.)

  • Lack of cooperation in disciplinary proceedings:  Failure to cooperate in disciplinary proceedings usually is treated as a violation of Gov Bar R V 4(G) or as an aggravating factor in assessing discipline, but it also has been cited as a violation of former OH DR 1-102(A)(6), either in conjunction with V 4(G), e.g., Disciplinary Counsel v. Peden, 118 Ohio St.3d 244, 2008 Ohio 2237, 887 N.E.2d 1183; Disciplinary Counsel v. Millonig, 108 Ohio St.3d 154, 2006 Ohio 420, 841 N.E.2d 779; Columbus Bar Ass'n v. Beatty, 102 Ohio St.3d 267, 2004 Ohio 2684, 809 N.E.2d 1117, or independently, e.g., Toledo Bar Ass'n v. Wood, 32 Ohio St.3d 166, 512 N.E.2d 671 (1987). In other instances, the conduct was treated as a violation of OH DR 1-102(A)(5) (conduct prejudicial to the administration of justice; see section 8.4:500), or both (A)(5) and (A)(6). E.g., Allen County Bar Ass'n v. Linnon, 105 Ohio St.3d 189, 2004 Ohio 6386, 819 N.E.2d 210 (both). Sometimes a violation of all three provisions results from failure to cooperate, as in Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008 Ohio 3836, 894 N.E.2d 31.

    Failure to comply with other requirements of the Rules for the Government of the Bar also has been found to violate OH DR 1-102(A)(6). Disciplinary Counsel v. Redfield, 116 Ohio St.3d 262, 2007 Ohio 6039, 878 N.E.2d 10 (failure to pay child support, resulting in noncompliance with Gov Bar R V 5(D)(1)(b) and (c)); Office of Disciplinary Counsel v. Beane, 72 Ohio St.3d 480, 650 N.E.2d 1356 (1995) (repeated failures to register under Gov Bar R VI 1 or to meet CLE requirements of Gov Bar R. X). See Office of Disciplinary Counsel v. Gettys, 90 Ohio St.3d 250, 737 N.E.2d 29 (2000) (practicing law while not registered violated this provision, 1-102(A)(5), and 3-101(B)); Office of Disciplinary Counsel v. Jefferson, 83 Ohio St.3d 317, 699 N.E.2d 930 (1998) (continuing to practice after suspension for failure to comply with Gov Bar R X CLE requirements; lawyer permanently disbarred); Office of Disciplinary Counsel v. Blackwell, 79 Ohio St.3d 395, 683 N.E.2d 1074 (1997) (same; because of mitigating factors, Court imposed two-year suspension with second year stayed). See Office of Disciplinary Counsel v. Noethlich, 94 Ohio St.3d 124, 760 N.E.2d 816 (2002) (practicing while under CLE suspension and while not registered with Supreme Court, together with filing with Court affidavit falsely stating that clients had been informed of suspension, violated OH DR 1-102(A)(4) & (6); because of mitigating factors, six-month suspension imposed).

  • Naming oneself as beneficiary in will: Where an attorney, on behalf of a client, prepared a will in which the lawyer was named as a beneficiary, the Court regularly applied former OH DR 1-102(A)(6), either independently, e.g., Office of Disciplinary Counsel v. Galinas, 76 Ohio St.3d 87, 666 N.E.2d 1083 (1996), or in conjunction with other disciplinary rules, e.g., Cincinnati Bar Ass'n v. Clark, 71 Ohio St.3d 145, 642 N.E.2d 611 (1994); Office of Disciplinary Counsel v. Slavens, 63 Ohio St.3d 162, 586 N.E.2d 92 (1992). The sanction in these cases ranged from one-year to indefinite suspension. Such conduct is now expressly prohibited by Ohio Rule 1.8(c). See section 1.8:400.

    Disciplinary Counsel v. Tomlan, 118 Ohio St.3d 1, 2008 Ohio 1471, 885 N.E.2d 895, is a case in which DR 1-102(A)(6) was violated, even though the respondent "properly advised his client that he could not ethically prepare a will that named him as a beneficiary and that she would have to hire another attorney," id. at para. 7, because he then turned around and, without the ninety-year-old client’s consent, transferred assets of the client to joint and survivorship accounts, thereby ensuring that title to the assets would pass to respondent.  (A second violation of 1-102(A)(6) involved respondent's undue delay in the performance of his duties as executor of his client's estate.)

  • Sexual misconduct or substance abuse: Misconduct involving sex or substance abuse often was handled under OH DR 1-102(A)(3), which prohibited illegal conduct involving moral turpitude. See Ohio Rule 8.4(b) and section 8.4:300. However, where the conduct in question either was not illegal or, when taken in context, did not suggest moral turpitude, it fell outside that provision. Under those circumstances, the conduct could still be subject to sanction under OH DR 1-102(A)(6) as other conduct that adversely reflected on fitness to practice law.

    For example, see Disciplinary Counsel v. Quatman, 108 Ohio St.3d 389, 2006 Ohio 1196, 843 N.E.2d 1205, in which the respondent, during an appointment with his client, made physical contact with his client's breasts, which he judged as "nice."

    The physical contact, coupled with the inappropriate remark about [the client's] breasts, was unethical and unprofessional.

    Id. at paras. 14, 23 (stayed one-year suspension). Accord Toledo Bar Ass'n v. Burkholder, 109 Ohio St.3d 443, 2006 Ohio 2817, 848 N.E.2d 840 ("relentless" pursuit of vulnerable client seeking to terminate her marriage, together with "recklessly unprofessional" physical contact and sexual remark violated this provision (and DR 5-101(A)(1), id. at para. 11; stayed six-month suspension); Office of Disciplinary Counsel v. Moore, 101 Ohio St.3d 261, 2004 Ohio 734, 804 N.E.2d 423 (respondent's consensual sexual relations with client violated DR 1-102(A)(6) and 5-101(A)(1)); Akron Bar Ass'n v. Williams, 104 Ohio St.3d 317, 2004 Ohio 6588, 819 N.E.2d 677 (sex with vulnerable client, plus lying under oath to hide misdeeds, resulted in DR 1-102(A)(6) and (A)(4) violations; two-year suspension with eighteen months stayed; Moore (stayed one-year suspension) distinguished in terms of sanction because this case "more egregious." id. at para. 15); Cleveland Bar Ass'n v. Feneli, 86 Ohio St.3d 102, 712 N.E.2d 119 (1999) (sexual relations with client, coupled with proposal to reduce fees in exchange for sexual favors, resulted in eighteen-month suspension with six months stayed); Office of Disciplinary Counsel v. DePietro, 71 Ohio St.3d 391, 643 N.E.2d 1145 (1994) (public reprimand issued for violation of 1-102(A)(6) (and 5-101(A)) involving two instances of consensual sexual relations with clients; in each case conduct led to conflict of interest). Under the Rules of Professional Conduct, sexual "activity" with clients is prohibited, unless a consensual sexual relationship existed prior to the commencement of the attorney-client relationship. Ohio Rule 1.8(j). See section 1.8:210.

    Although accepting drugs and assaulting a police officer who witnessed the transaction could be considered illegal conduct involving moral turpitude, it was treated instead as an OH DR 1-102(A)(6) violation, warranting a six-month suspension, stayed on conditions, in Office of Disciplinary Consel v. Baker, 52 Ohio St.3d 142, 556 N.E.2d 466 (1990), probably because of the surrounding circumstances. In Baker the attorney first refused the drugs but then accepted them after having had a few drinks at a concert. The attorney did not ingest the drugs and there was no evidence that he had ever taken drugs unlawfully. See also Office of Disciplinary Counsel v. Gross, 11 Ohio St.3d 48, 463 N.E.2d 382 (1984) (misdemeanor pleas for possession of marijuana and quaaludes as well as DUI conviction apparently not considered conduct involving moral turpitude, but still warranted discipline under OH DR 1-102(A)(6)). For a case in which a felony conviction for presenting a false or forged prescription for a Schedule IV drug violated OH DR 1-102(A)(6) but, because of mitigating factors, resulted only in a public reprimand, see Office of Disciplinary Counsel v. Bell, 83 Ohio St.3d 310, 699 N.E.2d 925 (1998).

    While, as the above decisions illustrate, OH DR 1-102(A)(6) was sometimes applied where, for various reasons, OH DR 1-102(A)(3) was not, conduct could violate both provisions. E.g., Columbus Bar Ass’n v. Linnen, 111 Ohio St.3d 507, 2006 Ohio 5480, 857 N.E.2d 539 (conduct of “Naked Photographer,” involving numerous instances of approaching solitary women and taking their pictures (and sometimes touching the victim and “maybe” masturbating in front of the first few victims), resulted in guilty plea to 53 misdemeanors). Disciplinary Counsel v. White, 106 Ohio St.3d 108, 2005 Ohio 3957, 832 N.E.2d 51 (violation of both, arising from guilty plea to drug-related felony). Respondent White repeated this double violation in Disciplinary Counsel v. White, 109 Ohio St.3d 402, 2006 Ohio 2709, 848 N.E.2d 504, for which he was permanently disbarred.

  • Other misconduct: OH DR 1-102(A)(6) was invoked in Disciplinary Counsel v. Carroll, 106 Ohio St.3d 84, 2005 Ohio 3805, 831 N.E.2d 1000, where the respondent improperly claimed compensatory time on timesheets in connection with his position as executive director of Ohio State Barber Board. One rather implausible aspect of the sanction discussion (six months, all stayed) is that in which the Board found

    no evidence that respondent acted with a selfish or dishonest motive. His record-keeping was deficient, but he was not attempting to receive pay for work he did not perform, according to the board.

    Id. at para. 10. (Compare the language in para. 4: "respondent claimed on some of his timesheets that he had put in full days working for the barber board when in fact he had spent part of the workday out of the office attending court proceedings for his private legal clients.") See also Columbus Bar Ass'n v. Ashton, 108 Ohio St.3d 37, 2006 Ohio 78, 840 N.E.2d 618 (taking unauthorized expense-account advances from his law firm violated DR 1-102(A)(6)).

    DR 1-102(A)(6) was violated, along with numerous other rules, by respondent's scheme to defraud his in-laws and nursing homes that had provided them care. Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008 Ohio 91, 880 N.E.2d 467. And in Disciplinary Counsel v. Hiltbrand, 110 Ohio St.3d 214, 2006 Ohio 4250, 852 N.E.2d 733, respondent transgressed DR 1-102(A)(6) by violating a protective order barring respondent from discussing testimony outside a courtroom setting.