Mahoning Cty. Bar Assn. v. Rohrbaugh

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Mahoning Cty. Bar Assn. v. Rohrbaugh, Slip Opinion No. 2024-Ohio-5127.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2024-OHIO-5127

MAHONING COUNTY BAR ASSOCIATION v. ROHRBAUGH.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Mahoning Cty. Bar Assn. v. Rohrbaugh, Slip Opinion No.

2024-Ohio-5127.]

Attorneys—Misconduct—Attorney violated the Rules of Professional Conduct by

registering a fictitious entity in Ohio as part of a financial-crimes scheme

culminating in his felony convictions—Indefinite suspension with credit for

time served under interim felony suspension.

(No. 2024-1105—Submitted September 3, 2024—Decided October 29, 2024.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2024-002.

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The per curiam opinion below was joined by DEWINE, DONNELLY,

STEWART, and DETERS, JJ. KENNEDY, C.J., and FISCHER, J., concurred in part and

dissented in part and would not award credit for time served under the interim

felony suspension. BRUNNER, J., did not participate.

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, Robert James Rohrbaugh II, of Youngstown, Ohio,

Attorney Registration No. 0071668, was admitted to the practice of law in Ohio in

1999. On February 15, 2023, this court suspended Rohrbaugh’s license on an

interim basis following his felony convictions on four counts related to his

involvement in a scheme aimed at obtaining fraudulent federal-income-tax refunds.

See In re Rohrbaugh, 2023-Ohio-432. That suspension remains in effect.

{¶ 2} In a January 2024 complaint, relator, the Mahoning County Bar

Association, charged Rohrbaugh with five violations of the Rules of Professional

Conduct arising from conduct related to his financial crimes. Relator subsequently

dismissed three of the charged violations.

{¶ 3} The parties submitted stipulations of fact, misconduct, and

aggravating and mitigating factors, and they jointly recommended that Rohrbaugh

serve an indefinite suspension with credit for time served under the February 2023

interim felony suspension. The parties stipulated and a three-member panel of the

Board of Professional Conduct found that Rohrbaugh had committed the two

remaining violations charged in the complaint. The panel agreed with the parties’

joint recommendation that an indefinite suspension from the practice of law with

credit for time served under the February 2023 interim felony suspension is the

appropriate sanction for Rohrbaugh’s misconduct. The board adopted the panel’s

findings of fact and misconduct and its recommended sanction. The parties filed a

joint waiver of objections to the board’s report.

{¶ 4} After reviewing the record and our precedent, we adopt the board’s

findings of misconduct and recommended sanction.

MISCONDUCT

{¶ 5} In 2020, a federal grand jury in the United States District Court for

the Northern District of Ohio returned an indictment, followed by a superseding

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indictment, charging Rohrbaugh with (1) conspiracy to commit offenses against the

United States, in violation of 18 U.S.C. 371, (2) aiding and abetting in the theft of

government property, in violation of 18 U.S.C. 641 and 2, (3) aiding and abetting

in the filing of false claims against the United States, in violation of 18 U.S.C. 287

and 2, (4) conspiracy to commit money laundering, in violation of 18 U.S.C.

1956(h), and (5) filing a false income-tax return, in violation of 26 U.S.C. 7206(1).

See United States v. Rohrbaugh, N.D. Ohio No. 4:20-CR-00342-3 (Sept. 24, 2020).

The charges stemmed from a scheme in which Rohrbaugh and his coconspirators

created fictious business entities and trusts, prepared and filed federal corporate-

and estate-tax returns falsely reporting large tax withholdings for those entities and

trusts, and received tax-refund checks to which they were not entitled.

{¶ 6} At his disciplinary hearing, Rohrbaugh testified that a jury acquitted

him of the count charging him with filing a false tax return but deadlocked on the

remaining four counts, but after a second jury trial, he was convicted of the

remaining charges. He was sentenced to 52 months’ imprisonment on each count,

with each term to be served concurrently. Rohrbaugh, N.D. Ohio No. 4:20-CR-

00342-3 (June 16, 2023). Rorhbaugh was also sentenced to a period of postrelease

supervision—three years for each of the four counts on which he was convicted,

with each term to be served concurrently. Id. He was also ordered to pay a special

assessment of $400 and to pay restitution in the amount of $569,938.81 to the IRS

by paying 25 percent of his gross income each month through the Federal Bureau

of Prisons Inmate Financial Responsibility Program. Id. If any of the restitution

owed remains due after his release from prison, Rohrbaugh is ordered to pay 10

percent of his gross monthly income “during the term of [his] supervised release

and thereafter as prescribed by law.” Id. Rohrbaugh did not appeal his convictions.

{¶ 7} As a result of Rohrbaugh’s convictions, on February 15, 2023, we

imposed an interim felony suspension pursuant to Gov.Bar R. V(18)(A)(1)(a). In

re Rohrbaugh, 2023-Ohio-432, ¶ 1-2.

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{¶ 8} At his disciplinary hearing, Rohrbaugh testified that the majority of

the criminal conduct—creating the fictitious entities and filing false tax returns—

occurred before he joined the conspiracy, and he claimed that all he did was register

one of the fictitious businesses in Ohio. He asserted that if he had known that the

primary charge against him was based only on registering that entity, he would have

accepted responsibility and pleaded guilty.

{¶ 9} Rohrbaugh also testified about the effect his convictions have had on

him and his family. With Rohrbaugh out of work, his family had to sell everything

they had, including their furniture, clothes, and shoes. Despite this, Rohrbaugh said

he felt “pretty good” in learning that he did not really need everything he used to

have and that he could live with far less.

{¶ 10} Rohrbaugh expressed remorse for his conduct in bringing disrepute

on the legal profession. He recognized that being a lawyer was a “great

opportunity” and that he “blew it at one point in time,” letting his family down and

damaging the image of the legal profession.

{¶ 11} Since being in prison, Rohrbaugh has participated in a residential

substance-abuse-treatment program, been significantly involved in spiritual groups

and activities, and stayed sober. He has also learned new skills in plumbing and

hopes those skills will help him secure a commercial-plumbing job after his release

from prison. Rohrbaugh is also paying restitution, but because the amount he is

obligated to pay each month is more than his monthly prison income, his family

has to pay the difference.

{¶ 12} Rohrbaugh submitted eight letters attesting to his good character and

reputation. The authors of the letters range from judges to a former employee and

a former coworker, and they highlight Rohrbaugh’s compassion, his skills as an

attorney, and his being deserving of a second chance.

{¶ 13} The board found that Rohrbaugh’s criminal conduct was

“aberational,” and it noted that the trial-court judge had acknowledged Rohrbaugh’s

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January Term, 2024

acceptance of responsibility for his crimes by giving him a lesser sentence, either

through downward deviation or point reduction under the sentencing guidelines.

The board also noted that Rohrbaugh did not establish any of the fictitious entities

or obtain federal-employer-identification numbers for the fictitious entities; instead,

his criminal conduct was limited to registering one of the entities in Ohio.

{¶ 14} Based on Rohrbaugh’s conduct, the parties stipulated and the board

found that Rohrbaugh violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from

committing an illegal act that reflects adversely on the lawyer’s honesty or

trustworthiness) and 8.4(c) (prohibiting a lawyer from engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation).

SANCTION

{¶ 15} When imposing sanctions for attorney misconduct, we consider all

relevant factors, including the ethical duties that the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases. We have consistently recognized that “the goal of

disciplinary proceedings is not to punish the errant lawyer, but to protect the

public.” Toledo Bar Assn. v. Hales, 2008-Ohio-6201, ¶ 21. And “[w]hile

consistency is also a goal, ‘we examine each case individually and impose the

discipline we believe appropriate based on the unique circumstances of each case.’

” Id., quoting In re Disciplinary Action Against Ruffenach, 486 N.W.2d 387, 390

(Minn. 1992).

{¶ 16} In terms of aggravating factors, the parties stipulated and the board

found that Rohrbaugh exhibited a dishonest or selfish motive, see Gov.Bar R.

V(13)(B)(2), and that he committed multiple offenses, see Gov.Bar R. V(13)(B)(4).

In addition, the parties stipulated and the board found four mitigating factors

present: the absence of prior discipline, see Gov.Bar R. V(13)(C)(1), full and free

disclosure to the board and a cooperative attitude toward the disciplinary

proceedings, see Gov.Bar R. V(13)(C)(4), good character and reputation, see

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Gov.Bar R. V(13)(C)(5), and the imposition of other penalties, see Gov.Bar R.

V(13)(C)(6).

{¶ 17} The board found the following additional factors in mitigation: (1)

Rohrbaugh promptly reported his conviction to relator; (2) his culpability was

“significantly lesser in degree, scope, and motivation” than that of his

coconspirators; (3) his failure to plead guilty was justified; (4) his sentence and

decision not to appeal his convictions reflect an acceptance of responsibility for his

conduct; (5) his incarceration, payment of restitution, and “suffering of other

consequences” further his rehabilitation, see Gov.Bar R. V(13)(C)(8); and (6) his

attitude toward his criminal and ethical wrongdoing, the criminal and disciplinary

proceedings against him, and his future and that of his family is healthy and

realistic.

{¶ 18} The parties jointly recommended that Rohrbaugh be indefinitely

suspended for his misconduct with credit for time served under his interim felony

suspension.

{¶ 19} The board agrees that an indefinite suspension with credit for time

served under the interim felony suspension is the appropriate sanction. In coming

to that conclusion, the board cited numerous cases in which this court imposed an

indefinite suspension on attorneys whose misconduct involved either federal

financial crimes or federal tax crimes. See Disciplinary Counsel v. George, 2020-

Ohio-2902 (conspiracy to commit wire fraud and securities fraud); Cleveland

Metro. Bar Assn. v. King, 2019-Ohio-4715 (money laundering and attempted

money laundering); Disciplinary Counsel v. Rosenfield, 2016-Ohio-1583 (willfully

failing to withhold, account for, and pay federal-income taxes for law-firm

employees); Disciplinary Counsel v. Smith, 2011-Ohio-957 (conspiring to defraud

the IRS, making false tax returns, and corruptly endeavoring to obstruct and impede

an IRS investigation); Cincinnati Bar Assn. v. Kellogg, 2010-Ohio-3285 (money

laundering, conspiracy to commit money laundering, and conspiracy to obstruct

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January Term, 2024

proceedings before two federal agencies); Disciplinary Counsel v. Gittinger, 2010-

Ohio-1830 (conspiracy to commit bank fraud and money laundering); Disciplinary

Counsel v. Bennett, 2010-Ohio-313 (unlawfully structuring financial transactions);

Ohio State Bar Assn. v. Tzagournis, 46 Ohio St.2d 367 (1976) (willfully and

knowingly failing to make a federal income-tax return); Ohio State Bar Assn. v.

Vaporis, 46 Ohio St.2d 364 (1976) (same); Cleveland Bar Assn. v. Stein, 29 Ohio

St.2d 77 (1972) (same); Dayton Bar Assn. v. Carter, 40 Ohio St.2d 43 (1974) (tax

evasion by filing fraudulent tax returns); Cincinnati Bar Assn. v. Bowman, 15 Ohio

St.2d 220 (1968) (same).

{¶ 20} After reviewing these cases, in which we disciplined attorneys who

were convicted of various federal financial crimes, we agree with the board that an

indefinite suspension is the appropriate sanction for Rohrbaugh. Our decisions in

George and King provide guideposts for our decision here.

{¶ 21} In George, the attorney was convicted of conspiracy to commit wire

fraud and securities fraud for participating in a scheme aimed at defrauding

investors. He violated Prof.Cond.R. 8.4(b), 8.4(c), and 8.4(h) (prohibiting a lawyer

from engaging in conduct that adversely reflects on the lawyer’s fitness to practice

law). The aggravating factors were a history of prior discipline, a pattern of

misconduct, multiple offenses, and harm to vulnerable persons. George at ¶ 11. In

mitigation, the attorney exhibited a cooperative attitude toward the disciplinary

proceedings, submitted numerous letters as evidence of his good character and

reputation, and had other penalties or sanctions imposed in the form of his prison

sentence and a restitution order. Id. We determined that an indefinite suspension

was the appropriate sanction, and in doing so, we considered the attorney’s candor

during his criminal and disciplinary proceedings, his genuine remorse, and the

significant evidence of his good character and reputation and extensive community

involvement. Id. at ¶ 19.

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{¶ 22} In King, the attorney was convicted of money laundering and

attempted money laundering after accepting and issuing checks related to drug

trafficking. The attorney violated Prof.Cond.R. 8.4(b), 8.4(c), and 8.4(h). King,

2019-Ohio-4715, at ¶ 7. A single aggravating factor was present—a dishonest or

selfish motive. Id. at ¶ 11. In mitigation, the attorney cooperated with the

disciplinary investigation, presented evidence of his good character and skills as a

lawyer, had other penalties or sanctions imposed for his criminal conduct, and

completed an alcohol-and-drug treatment program as part of his rehabilitation. Id.

at ¶ 8. The board recommended that the attorney be disbarred, but we disagreed.

Id. at ¶ 19. Based on the facts and significant mitigating evidence, we

acknowledged the attorney’s potential to rehabilitate himself and return to the

practice of law. We therefore concluded that an indefinite suspension was the

appropriate sanction. Id. at ¶ 19-20.

{¶ 23} These cases and others cited by the board militate in favor of

imposing an indefinite suspension here. Like the attorney in George, Rohrbaugh

played a role in a criminal scheme rooted in fraud. Like the attorney in George,

Rohrbaugh cooperated in the disciplinary proceedings, presented evidence of his

good character and reputation, and had other penalties or sanctions imposed for his

misconduct, including a prison sentence and an order to pay restitution. Rohrbaugh

had additional mitigation that was not present in George, and unlike the attorney in

that case, Rohrbaugh did not violate Prof.Cond.R. 8.4(h).

{¶ 24} The facts of King similarly aid our decision here. Like Rohrbaugh,

the attorney in King violated Prof.Cond.R. 8.4(b) and 8.4(c), although the attorney

in that case also violated Prof.Cond.R. 8.4(h). Rohrbaugh and the attorney in King

further share the aggravating factor of a dishonest or selfish motive and mitigating

factors of cooperating in the disciplinary proceedings, presenting evidence of their

good character and reputation, and having other penalties or sanctions imposed for

their misconduct. Our focus in King on the attorney’s potential for rehabilitation is

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January Term, 2024

also instructive here. Like the attorney in that case, Rohrbaugh has taken steps to

rehabilitate himself by attending a substance-abuse-treatment program, maintaining

his sobriety, participating in spiritual groups and activities, and focusing on

acquiring skills to help him find a job upon his release from prison.

{¶ 25} We recognize that Rohrbaugh has a 52-month sentence to serve

before there is any chance that he will be able to return to the practice of law. But

given the facts of this case and the mitigation presented here, we will not foreclose

that possibility. For this reason, an indefinite suspension is the appropriate sanction

for Rohrbaugh’s misconduct.

{¶ 26} We have recognized that credit for time served under an interim

felony suspension may be appropriate when “the disciplined lawyer[] presented

credible evidence of remorse and acceptance of responsibility, convincing us that

the criminal conduct was a one-time, never-to-be-repeated mistake.” Disciplinary

Counsel v. Margolis, 2007-Ohio-3607, ¶ 26. Rohrbaugh’s lesser culpability than

that of his coconspirators and his show of remorse and acceptance of responsibility

for his crimes persuade us that he will be able to resume a law-abiding life upon his

release from prison. We therefore give him the benefit of credit for time served

under his interim felony suspension.

{¶ 27} Having reviewed the record and our precedent, we conclude that an

indefinite suspension with credit for the time served under his interim felony

suspension is the appropriate sanction for Rohrbaugh’s misconduct in this case.

CONCLUSION

{¶ 28} Accordingly, Robert James Rohrbaugh II is indefinitely suspended

from the practice of law with credit for time served under his February 15, 2023

interim felony suspension. Costs are taxed to Rohrbaugh.

Judgment accordingly.

__________________

J. Michael Thompson, Bar Counsel, for relator.

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John B. Juhasz, for respondent.

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