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.
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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
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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
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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
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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
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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.
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{¶ 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.
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Joseph M. Caligiuri, Disciplinary Counsel, and Ryan N. Sander and
Matthew A. Kanai, Assistant Disciplinary Counsel, for relator.
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Evan Byron, pro se.
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