Opinion

Disciplinary Counsel v. Byron

  • 178 Ohio St. 3d 255
  • 257 N.E.3d 153
  • 2024 Ohio 5433
Court
Ohio Supreme Court
Filed
Nov 20, 2024
Status
Published
Cited by
1 cases

The opinion

[This opinion has been published in Ohio Official Reports at 178 Ohio St.3d 255.]

DISCIPLINARY COUNSEL v. BYRON.

[Cite as Disciplinary Counsel v. Byron, 2024-Ohio-5433.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—

Conditionally stayed one-year suspension.

(No. 2024-1102—Submitted September 17, 2024—Decided November 20, 2024.)

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

Court, No. 2023-028.

__________________

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

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

dissented in part and would not stay the suspension. BRUNNER, J., did not

participate.

Per Curiam.

{¶ 1} Respondent, Evan Thomas Byron, of Pepper Pike, Ohio, Attorney

Registration No. 0081100, was admitted to the practice of law in Ohio in 2006.

{¶ 2} In a September 26, 2023 complaint, relator, disciplinary counsel,

charged Byron with professional misconduct arising from his misrepresenting to a

court the nature of his relationship with a client and mishandling his Interest on

Lawyers’ Trust Account (“IOLTA”). The parties entered into stipulations of fact,

misconduct as to the IOLTA-mishandling count, and mitigating factors and

submitted stipulated exhibits.

{¶ 3} A three-member panel of the Board of Professional Conduct found

that Byron committed the charged misconduct and recommended imposing a one-

year suspension, with the suspension stayed on the conditions that Byron commit

no further misconduct and pay the costs of the proceedings. The board adopted the

SUPREME COURT OF OHIO

panel’s findings of fact and conclusions of law and recommends that we impose a

one-year suspension, with the suspension stayed on the condition that Byron refrain

from further misconduct. Byron filed a no-objection brief in response to the board’s

findings and recommendations. See Gov.Bar R. V(17)(B)(2).

{¶ 4} After reviewing the record and our applicable caselaw, we adopt the

board’s findings of misconduct and recommended sanction.

MISCONDUCT

{¶ 5} In 2021, Byron met Helga Semaj, and they became romantically

involved for a few months. Despite ending their romantic relationship, they

remained friends. In March 2022, Semaj hired Byron on a contingent-fee basis to

sue her ex-boyfriend. Byron and Semaj soon resumed their romantic relationship.

{¶ 6} Beginning in July 2022, Byron also represented Semaj in two separate

protection-order cases (one she filed against her ex-husband and one he filed

against her), a criminal case, her divorce, and another lawsuit against her ex-

husband. Semaj verbally agreed to pay Byron a $15,000 retainer to be charged at

an hourly rate of $300 for his representation in the protection-order case she had

filed, her divorce, and her lawsuit against her ex-husband. This agreement was

never put into writing. Semaj paid the retainer in two payments in July and August,

both of which Byron deposited into his personal business account. At the time he

made the deposits, he had not billed the hours necessary to earn the retainer.

Semaj’s ex-husband hired Joseph Stafford to represent him in both protection-order

cases and the divorce, and he hired Christina Spallina to defend him in the civil

suit.

{¶ 7} When providing trial exhibits to Stafford in the protection-order case

Semaj had filed against her ex-husband, Byron unintentionally revealed his

relationship with Semaj. Stafford gave this evidence to Spallina, and on August

15, 2022, she sought Byron’s disqualification in the civil case. On August 16,

Stafford also moved to disqualify Byron in one of the protection-order cases. At

2

January Term, 2024

an August 17 hearing in the protection-order case, Byron misrepresented the status

of his relationship with Semaj, testifying, “[T]here is no relationship other than an

attorney/client relationship now.” The next day, in his written response to the

motion Spallina filed to disqualify him in the civil case, Byron again

mischaracterized his romantic relationship with Semaj as existing only in the past.

Byron later admitted to still being in a relationship with Semaj when he was

deposed in the divorce case.

{¶ 8} On September 21, Byron refunded Semaj’s retainer from his personal

account, and Semaj wrote a new check for the retainer. Byron deposited the check

into his IOLTA account and paid himself $10,000 without confirming that the funds

were available. Semaj’s check had not cleared, so Byron paid himself from other

clients’ funds. Semaj then wrote a new check that Byron deposited into his IOLTA

account, and that check cleared. Byron also deposited personal funds into his

IOLTA account during this time.

{¶ 9} The board found that Byron violated Prof.Cond.R. 1.15(a) (requiring

a lawyer to hold the property of clients in an interest-bearing client trust account,

separately from the lawyer’s own property), 1.15(b) (prohibiting a lawyer from

depositing his or her own funds in a client trust account except to pay or obtain a

waiver of bank service charges), 1.15(c) (requiring a lawyer to deposit advance

legal fees and expenses into a client trust account, to be withdrawn by the lawyer

only as fees are earned or expenses incurred), 3.3(a)(1) (prohibiting a lawyer from

knowingly making a false statement of fact or law to a tribunal), and 8.4(d)

(prohibiting a lawyer from engaging in conduct that is prejudicial to the

administration of justice). We adopt the board’s findings of misconduct.

SANCTION

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

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

3

SUPREME COURT OF OHIO

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

imposed in similar cases.

{¶ 11} The aggravating factors the board found were that Byron had had a

dishonest or selfish motive and refused to acknowledge the wrongful nature of his

conduct. See Gov.Bar R. V(13)(B)(2) and (7). The board found as the sole

mitigating factor Byron’s clean disciplinary record. See Gov.Bar R. V(13)(C)(1).

{¶ 12} In recommending a sanction for Byron’s misconduct, the board

recognized that violations of ethical rules prohibiting dishonesty, fraud, deceit, or

misrepresentation carry a presumption that an actual suspension from the practice

of law will be imposed. See Disciplinary Counsel v. Fowerbaugh, 1995-Ohio-261,

syllabus. However, the board noted that Byron had no history of discipline and that

his client had suffered no harm. Citing cases in which we imposed fully stayed

suspensions for violations of Prof.Cond.R. 3.3(a)(1), the board recommends that

we suspend Byron for one year, with the suspension fully stayed on the condition

that he refrain from further misconduct. We agree with the board’s

recommendation based on a review of our caselaw.

{¶ 13} In Medina Cty. Bar Assn. v. Cameron, 2011-Ohio-5200, the attorney

hired an expert witness and paid him a $2,000 retainer. After the expert prepared a

report, he billed Cameron for his work. Cameron failed to pay the invoice, and the

expert sued him. After Cameron failed to timely file an answer, the expert moved

for a default judgment and the court scheduled a hearing. In response, Cameron

sought a continuance, falsely representing to the court that he and the expert had

settled the case. Ultimately, the parties did reach an agreement, and the complaint

was dismissed. We concluded that a conditionally stayed one-year suspension was

the appropriate sanction based on the isolated nature of the misconduct and the

limited amount of harm Cameron had caused. Id. at ¶ 17-18.

{¶ 14} In Disciplinary Counsel v. Henderson, 2002-Ohio-1756, the

attorney used letterhead falsely suggesting that he was a partner of another attorney

4

January Term, 2024

and misrepresented to a court the fees he was going to charge clients, though he did

render the agreed-upon services to his clients. Regarding mitigation, we noted that

Henderson was well-respected and had no prior discipline. Id. at ¶ 11. Based on

the conduct and mitigation, we concluded that a fully stayed six-month suspension

was appropriate. Id. at ¶ 11-12.

{¶ 15} In Toledo Bar Assn. v. DeMarco, 2015-Ohio-4549, the attorney

made comments that threatened violence against his own expert witness,

deliberately concealed evidence from the court, and initially failed to show remorse

for his misconduct. In his attempt to conceal evidence from the court, DeMarco

repeatedly lied to opposing counsel and the court and continued his dishonesty until

confronted with evidence of his lying. Based on his misconduct, clean disciplinary

record, and evidence of his good character and reputation, we concluded that a one-

year suspension, with six months conditionally stayed, was warranted. Id. at ¶ 15.

{¶ 16} After considering Byron’s misconduct and our caselaw on

dishonesty and IOLTA-rule violations, we conclude that a conditionally stayed

one-year suspension is warranted. Like the attorneys in Cameron and Henderson,

Byron made misrepresentations to a court by lying about his relationship with his

client in response to opposing counsel’s motions to disqualify him. And while

Byron’s misrepresentations were material like the dishonesty in Cameron, they did

not harm his client and essentially were an isolated incident, repeating the same

falsehood one day apart. Moreover, like the dishonesty in Henderson, Byron’s

misrepresentations were not related to the underlying merits of the cases. In

contrast, the attorney in DeMarco made repeated misrepresentations to the court,

threatened violence to a third party, and tried to conceal facts from the court.

Therefore, Byron’s misconduct is not as egregious as DeMarco’s. Instead, his

dishonesty is more akin to that of Cameron and Henderson, whose suspensions we

conditionally stayed.

5

SUPREME COURT OF OHIO

{¶ 17} “Although an actual suspension from the practice of law is the

general sanction when an attorney engages in dishonest conduct, a lesser sanction

may be appropriate when the misconduct is an isolated incident in an attorney’s

career or when little or no harm resulted from the misconduct.” Cameron, 2011-

Ohio-5200, at ¶ 17. Thus, despite the presumptive sanction of an actual suspension

for an attorney’s dishonest conduct, we have conditionally stayed suspensions in

full when the attorney’s misrepresentations were made in the context of

representing a single client, see Disciplinary Counsel v. Farris, 2019-Ohio-4810,

¶ 16, and when the dishonest conduct did not result in any harm to the client, see

Mahoning Cty. Bar Assn. v. Macala, 2024-Ohio-3158, ¶ 45.

{¶ 18} “[W]e have consistently recognized that the primary purpose of

disciplinary sanctions is not to punish the offender, but to protect the public.”

Disciplinary Counsel v. Edwards, 2012-Ohio-5643, ¶ 19, citing Disciplinary

Counsel v. O’Neill, 2004-Ohio-4704, ¶ 53. So, although the presumptive sanction

for Byron’s misconduct is an actual suspension from the practice of law under

Fowerbaugh, we conclude that a conditionally stayed one-year suspension is

sufficient to protect the public from further misconduct. We therefore adopt the

board’s recommended sanction.

CONCLUSION

{¶ 19} Accordingly, Evan Thomas Byron is suspended from the practice of

law in Ohio for one year, with the suspension fully stayed on the condition that he

refrain from further misconduct. If Byron violates the condition of the stay, the

stay will be lifted and he will serve the one-year suspension in its entirety. Costs

are taxed to Byron.

Judgment accordingly.

__________________

Joseph M. Caligiuri, Disciplinary Counsel, and Ryan N. Sander and

Matthew A. Kanai, Assistant Disciplinary Counsel, for relator.

6

January Term, 2024

Evan Byron, pro se.

__________________

7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.