Disciplinary Counsel v. Billingsley

[This opinion has been published in Ohio Official Reports at 175 Ohio St.3d 58.]

DISCIPLINARY COUNSEL v. BILLINGSLEY.

[Cite as Disciplinary Counsel v. Billingsley, 2024-Ohio-222.]

Attorneys—Misconduct—Violation of Prof.Cond.R. 8.4(c) by notarizing affidavit

under false jurat that stated affidavit was sworn to and subscribed in

attorney’s presence when it was not—Public reprimand.

(No. 2023-0976—Submitted September 12, 2023—Decided January 25, 2024.)

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

Court, No. 2022-051.

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Per Curiam.

{¶ 1} Respondent, Lon’Cherie’ Darchelle Billingsley, of Cleveland, Ohio,

Attorney Registration No. 0089450, was admitted to the practice of law in Ohio in

2012.

{¶ 2} In a December 2022 complaint, relator, disciplinary counsel, alleged

that Billingsley engaged in a single act of dishonesty, fraud, deceit, or

misrepresentation by notarizing an affidavit under a jurat stating that the affidavit

had been sworn to and subscribed in her presence when it had not. Billingsley

waived a probable-cause determination, and the matter proceeded to a hearing

before a three-member panel of the Board of Professional Conduct. Following the

hearing, the panel issued a report finding that Billingsley had committed the

charged misconduct and recommending that she be publicly reprimanded. No

objections have been filed.

{¶ 3} For the reasons that follow, we adopt the board’s finding of

misconduct and publicly reprimand Billingsley.

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Misconduct

{¶ 4} In August 2021, Billingsley’s employer, Tyresha Brown-O’Neal,

represented Shawnte and Lavelle Gibson, a married couple, in a juvenile-court case

involving their children, S.H. and G.G. Shawnte is the mother of both children,

and Lavelle is the father of G.G.

{¶ 5} In November 2021, Brown-O’Neal emailed an affidavit to Eddie

Hanson, the father of S.H., who allegedly was seeking to recant prior statements

about conditions in the Gibsons’ home and Shawnte’s parenting. Ten days later,

Brown-O’Neal informed Billingsley that she had witnessed Hanson sign the

affidavit electronically during a video conference, and Billingsley agreed to

notarize Hanson’s purported signature. The notary jurat on the affidavit stated,

“Sworn to and subscribed in my presence on this 29th day of November, 2021.”

Even though she had not in fact witnessed Hanson sign the affidavit, Billingsley

notarized it. The board therefore determined that the notary jurat was false.

{¶ 6} On December 1, 2021, Brown-O’Neal filed the affidavit in support of

the Gibsons’ emergency motion to terminate the juvenile court’s prior orders

awarding emergency temporary custody of S.H. and G.G. to Hanson and the

Cuyahoga County Division of Children and Family Services, respectively. Two

days later, Billingsley appeared on behalf of the Gibsons at a pretrial hearing before

Magistrate Eleanore E. Hilow. Before that hearing commenced, Hanson’s counsel

informed the magistrate that Brown-O’Neal had contacted Hanson without her

permission and that she had not been served with a copy of Brown-O’Neal’s

emergency-custody motion. Hanson’s counsel further stated that Hanson did not

recognize the affidavit that was filed with that motion as the affidavit he had signed

and that Billingsley had not been present when he signed the affidavit that Brown-

O’Neal had sent him.

{¶ 7} During Billingsley’s disciplinary hearing, Magistrate Hilow testified

that she had asked Billingsley whether she had notarized Hanson’s affidavit and

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that Billingsley admitted that she had notarized the document without witnessing

Hanson sign it. Magistrate Hilow testified that she was under the impression that

Billingsley had notarized the affidavit on Brown-O’Neal’s instruction. She stated

that she struck the emergency motion from the record because it was improperly

filed and not served on anyone. She also explained that she struck the affidavit

from the record because Hanson had said that it was not the document he had

approved and signed and because Billingsley had admitted that she did not see

Hanson sign the affidavit.

{¶ 8} The board found that Billingsley was a zealous advocate on her own

behalf and made many arguments in her defense at the hearing before the panel.

Billingsley initially argued that she had notarized the affidavit at the direction of

her supervising attorney, Brown-O’Neal, but then suggested that the in-person

requirement for notarization had been suspended because of COVID-19; she also

claimed that the law regarding the notarization of documents was confusing at that

time. At various points during her disciplinary hearing, Billingsley claimed that

her conduct was not wrong but was careless and that she did not draft the jurat

stating that the affidavit was signed in her presence. She suggested that the affidavit

was unimportant because it supported only the Gibsons’ request for a hearing. She

also suggested that the underlying juvenile-court case was highly emotional and

that the magistrate was already displeased with her office and her clients’ conduct.

{¶ 9} However, Billingsley eventually admitted her error:

So I own it. I absolutely own it. I know now that I did not

follow the requirements for a remote online notary. I know that the

jurat was incorrect. I know that I signed when Eddie Hanson was

not physically or virtually present in front of me. I know that. And

that is why I took remedial measures, because I know that what I did

was wrong, and the reasoning is why I’m here before you so that

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you understand why I did it, but I did do it, your Honors. I did. I

absolutely did.

{¶ 10} As the hearing progressed, Billingsley more forthrightly conceded

her error and eventually acknowledged that she made a misrepresentation in

notarizing the affidavit. Yet she maintained that her conduct was not willful and

that it did not violate Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in

conduct involving dishonesty, fraud, deceit, or misrepresentation). The board,

however, found that Billingsley’s placement of her notarial signature on the

affidavit under the false jurat constituted a willful misrepresentation. The board

found by clear and convincing evidence that Billingsley’s conduct violated

Prof.Cond.R. 8.4(c). We adopt this finding of misconduct.

Sanction

{¶ 11} 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.

{¶ 12} The board found that one aggravating factor is present here—

Billingsley caused harm to vulnerable persons because the affidavit was stricken

from the record and further proceedings were necessary to address the issues raised

in the emergency motion. See Gov.Bar R. V(13)(B)(8). As for mitigating factors,

the board found that Billingsley had a clean disciplinary record, had not acted with

a dishonest or selfish motive, had made full and free disclosure to the board and

exhibited a cooperative attitude toward the proceedings, and had submitted letters

from two attorneys attesting to her good character. See Gov.Bar R. V(13)(C)(1),

(2), (4), and (5). The board also attributed mitigating effect to the fact that

Billingsley had attended a class and obtained authorization to serve as an online

notary public shortly after the magistrate struck the emergency motion and affidavit

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from the record in the underlying juvenile-court case. See R.C. 147.60(J); Ohio

Adm.Code 111:6-1-01(O).

{¶ 13} In determining the appropriate sanction to recommend for

Billingsley’s misconduct, the board considered two cases that she had cited in

support of her contention that no sanction was warranted for her misconduct. In

Disciplinary Counsel v. Freedman, 110 Ohio St.3d 284, 2006-Ohio-4480, 853

N.E.2d 291, Freedman asked an associate attorney in his office to notarize his

signatures on a mortgage and deed. Id. at ¶ 4. The associate notarized the

documents without realizing that the jurat indicated that she was notarizing the

signatures of Freedman and Freedman’s wife, whose signature lines remained

blank. Id. After the documents had been notarized, Freedman signed his wife’s

name to them. Id. at ¶ 5. At her disciplinary hearing, Billingsley noted that we

imposed discipline on Freedman, the attorney who sought the improper

notarization, but did not impose any discipline on the associate attorney who had

carelessly notarized the documents. But Freedman is distinguishable from this case

in that the associate mistakenly believed she was notarizing the signature only of

Freedman, who had appeared before her, whereas here, Billingsley knowingly

notarized the signature of a person who had not appeared before her.

{¶ 14} In addition, Billingsley noted that in Mahoning Cty. Bar Assn. v.

Macejko, 166 Ohio St.3d 503, 2022-Ohio-322, 187 N.E.3d 532, we declined to

discipline an attorney who prenotarized several documents, one of which was later

signed outside his presence. Macejko prenotarized estate-planning documents

before traveling to his clients’ home to review the documents and obtain their

signatures. Id. at ¶ 6 (lead opinion). When he arrived at the clients’ home, Macejko

was informed that one of them was unwell. Id. at ¶ 7. He left the documents for

their review with the expectation that they would arrange another meeting to sign

the documents, but that meeting never occurred and the clients eventually obtained

new counsel. Id. at ¶ 7-8. Macejko later discovered that a durable power of

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attorney that he had prepared and prenotarized for one of the clients was signed

outside his presence. Id. at ¶ 10. Upon being informed of that fact, Macejko self-

reported his conduct to the local bar association. Id. (lead opinion).

{¶ 15} In a split decision, this court dismissed the case against Macejko,

with three justices finding that he had not willfully engaged in dishonesty, fraud,

deceit, or misrepresentation by prenotarizing the documents, because he had always

intended that his clients would execute them in his presence. Id. at ¶ 22-24 (lead

opinion); id. at ¶ 25, 27 (Kennedy, J., concurring). One justice concurred in

judgment only. And three dissenting justices would have found that Macejko’s

conduct violated Prof.Cond.R. 8.4(c); they would have publicly reprimanded him

by finding that regardless of his intention, his actions in prenotarizing the

documents created a risk that the power of attorney could be used for an unlawful

purpose. Id. at ¶ 41 (Brunner, J., dissenting).

{¶ 16} This case is distinguishable from Freedman and Macejko because

we have found by clear and convincing evidence that Billingsley, knowing that the

affiant had not appeared before her, engaged in a willful misrepresentation of fact

by placing her notarial signature under a jurat falsely stating that the document had

been “[s]worn to and subscribed in [her] presence.”

{¶ 17} At the disciplinary hearing, relator argued that Billingsley should

receive a fully stayed six-month suspension for her misconduct because she had

failed to acknowledge the wrongfulness of her conduct. But the board made no

such finding. Instead, the board considered ten cases in which we publicly

reprimanded attorneys for similar ethical violations resulting from the improper

notarization of documents.

{¶ 18} In four of the cases considered by the board, we publicly

reprimanded attorneys who, like Billingsley, notarized documents that were signed

outside their presence. See Cincinnati Bar Assn. v. Gottesman, 115 Ohio St.3d 222,

2007-Ohio-4791, 874 N.E.2d 778, ¶ 1, 3, 7; Mahoning Cty. Bar Assn. v. Melnick,

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107 Ohio St.3d 240, 2005-Ohio-6265, 837 N.E.2d 1203, ¶ 2, 4-6, 17; Columbus

Bar Assn. v. Dougherty, 105 Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094,

¶ 1, 6-8, 17; Disciplinary Counsel v. Simon, 71 Ohio St.3d 437, 438, 644 N.E.2d

309 (1994). In two of those cases, it was later determined that the notarized

signatures were forgeries. See Gottesman at ¶ 3; Dougherty at ¶ 8. And in

Cincinnati Bar Assn. v. Thompson, 129 Ohio St.3d 127, 2011-Ohio-3095, 950

N.E.2d 550, we publicly reprimanded an attorney who notarized unsigned

documents at the request of his former law partner. Id. at ¶ 1, 3, 9.

{¶ 19} In four of the ten cases considered by the board, we publicly

reprimanded attorneys who signed the name of another person with that person’s

authorization and then notarized that signature without indicating that fact on the

face of the document. See Disciplinary Counsel v. Moore, 149 Ohio St.3d 509,

2017-Ohio-883, 75 N.E.3d 1252, ¶ 2-4, 8-9; Disciplinary Counsel v. Wilson, 142

Ohio St.3d 439, 2014-Ohio-5487, 32 N.E.3d 426, ¶ 2, 4, 7-8, 20; Disciplinary

Counsel v. Flowers, 139 Ohio St.3d 338, 2014-Ohio-2123, 11 N.E.3d 1174, ¶ 1, 6;

Disciplinary Counsel v. Mezacapa, 101 Ohio St.3d 156, 2004-Ohio-302, 803

N.E.2d 397, ¶ 2, 5. Like Billingsley, three of those attorneys caused (or allowed)

the falsely notarized documents to be filed in court. See Moore at ¶ 4; Wilson at

¶ 8; Mezacapa at ¶ 2.

{¶ 20} And in the final case considered by the board, Columbus Bar Assn.

v. Craig, 131 Ohio St.3d 364, 2012-Ohio-1083, 965 N.E.2d 287,1 an attorney

forged a client’s signature on an affidavit of transfer on death, notarized the forged

signature, and filed the document in the county recorder’s office. Id. at ¶ 1. Craig

stipulated that in addition to engaging in conduct involving dishonesty, fraud,

1. The board identifies the case as “Warren Cty. Bar Assn. v. Craig, 131 Ohio St.3d 338, 2012-

Ohio-1083.” But the cite 2012-Ohio-1083 is assigned to Columbus Bar Assn. v. Craig, 131 Ohio

St.3d 364, 2012-Ohio-1083, 965 N.E.2d 287, and the parenthetical summary of facts set forth by

the board matches the facts of that case.

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deceit, or misrepresentation, he also violated rules that required him to keep his

client reasonably informed about the status of the client’s matter and prohibited him

from making false statements of material fact or law. Id. at ¶ 3. Despite those

additional rule violations, and in the presence of mitigating factors nearly identical

to those in this case, we adopted the parties’ consent-to-discipline agreement and

publicly reprimanded Craig for his misconduct. Id. at ¶ 4-6.

{¶ 21} The board ultimately concluded that Billingsley’s misconduct in this

case was no more egregious than the misconduct at issue in those cases. It therefore

recommended that we publicly reprimand Billingsley for her misconduct.

{¶ 22} We have admonished that “lawyers must not take a cavalier attitude

toward their notary responsibilities” by acknowledging the signatures of people

who have not appeared before them. Lorain Cty. Bar Assn. v. Papcke, 81 Ohio

St.3d 91, 93, 689 N.E.2d 549 (1998). In this case, we find that Billingsley did not

forge a signature, know of a forgery, or engage in deceit or other misconduct

beyond failing to witness a signature, as required of a notary. See Dougherty, 105

Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094, at ¶ 15. Although she offered

many excuses for her conduct throughout the disciplinary process, Billingsley

ultimately admitted to the facts of her misconduct and attended a class to learn

proper notarial procedure where she obtained authorization to serve as an online

notary public. On these facts, we agree that a public reprimand is the appropriate

sanction in this case.

Conclusion

{¶ 23} Accordingly, Lon’Cherie’ Darchelle Billingsley is publicly

reprimanded for the above-described misconduct. Costs are taxed to Billingsley.

Judgment accordingly.

KENNEDY, C.J., and FISCHER, DEWINE, STEWART, and DETERS, JJ., concur.

DONNELLY and BRUNNER, JJ., not participating.

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January Term, 2024

Joseph M. Caligiuri, Disciplinary Counsel, and Kelli C. Murphy, Assistant

Disciplinary Counsel, for relator.

Lon’Cherie’ Darchelle Billingsley, pro se.

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