The opinion
[This opinion has been published in Ohio Official Reports at 84 Ohio St.3d 85.]
CINCINNATI BAR ASSOCIATION v. DEARDORFF.
CINCINNATI BAR ASSOCIATION V. HAAS.
[Cite as Cincinnati Bar Assn. v. Deardorff, 1998-Ohio-311.]
Attorneys at law—Misconduct—One-year suspension with six months stayed and
two-year suspension with one year stayed—Engaging in conduct involving
moral turpitude—Engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation—Engaging in conduct prejudicial to the
administration of justice—Participating in the creation or preservation of
evidence known to be false.
(Nos. 98-377 and 98-378—Submitted June 24, 1998—Decided November 25,
1998.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 96-74.
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{¶ 1} On October 15, 1996, relator, Cincinnati Bar Association, filed a
complaint charging that respondents, Timothy J. Deardorff of Cincinnati, Ohio,
Attorney Registration No. 0006308, and Loren S. Haas of Cincinnati, Ohio,
Attorney Registration No. 0001848, violated several Disciplinary Rules. After
respondents filed their answers, the matter was heard by a panel of the Board of
Commissioners on Grievances and Discipline of the Supreme Court (“board”).
{¶ 2} The panel received testimony that respondent Haas, who had
previously represented Arnold Wilson in a criminal matter, was retained by Wilson
in May 1995 to defend him with respect to a domestic violence charge filed by his
wife, Nori St. Paul. On May 3, 1995, after St. Paul accused Wilson of molesting
her daughter, Wilson, who was working on a crossword puzzle on a lap board, told
St. Paul to leave their bedroom. He testified that he then threw the board aside,
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flipping it into the air, but not at St. Paul. St. Paul testified that the board struck her
on the hip. St. Paul alleged that when she still refused to leave, Wilson pushed her
out of the room and into a wall, causing her to fall, and that during the fall Wilson’s
hand struck St. Paul’s mouth, causing her lip to bleed. Wilson claimed that he “took
[St. Paul’s] arm and then she grabbed me * * * by both arms.” St. Paul called the
police, who not only arrested Wilson, but also took St. Paul to the police station.
At the station, St. Paul voluntarily signed an affidavit prepared by a police officer
with respect to the event. St. Paul later said that she was not coerced into filing the
affidavit and that at no time did she want to withdraw it.
{¶ 3} However, Haas testified that on May 9, 1995, St. Paul told her that
she had filed a false affidavit and wanted to drop the charges against Wilson, but
was afraid of the police, who had threatened to arrest her if she did. Wilson hired
Haas as his attorney.
{¶ 4} On May 15, 1995, Wilson and St. Paul, who were again living
together, met with Haas. At that time, according to Wilson and Haas, St. Paul said
that the altercation was her fault and that she had been drinking. According to Haas,
St. Paul again said that she had filed a false affidavit and expressed her fear of the
police. On May 17, 1995, St. Paul recorded a telephone conversation with Haas, in
which Haas asked for a $2,000 retainer to represent Wilson and said that her law
firm would be making a campaign contribution to the judge assigned to Wilson’s
case. Haas said that in the near future she would talk to the judge regarding his
policy on domestic violence cases. Under the impression that Haas would use part
of the retainer to attempt to bribe the judge assigned to the case, St. Paul wrote a
check to Haas for $2,000 for Wilson’s legal fees and immediately withdrew the
funds from her bank account so that the check would not clear. Haas testified that
the $2,000 was going to be used solely for legal fees. On May 18, 1995, Haas wrote
a check to the judge’s campaign fund for $125.
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January Term, 1998
{¶ 5} On May 19, 1995, St. Paul recorded a telephone conversation with
Haas, in which St. Paul told Haas that she feared that the charges against Wilson
would not be dropped. She said that she did not know what to say in order to
accomplish that. Haas said that she would set up an appointment with her partner,
respondent Deardorff, to discuss the best possible way of getting the charges against
Wilson dropped and protecting St. Paul. They also discussed that one or both of
the respondents would be attending a fundraising event for the judge who was
assigned to the case, had “left the money,” and would talk to the judge. Because of
St. Paul’s belief that Haas’s language suggested that the lawyers intended to bribe
the judge, she contacted the prosecutor’s office.
{¶ 6} On May 23, 1995, carrying a concealed tape recorder furnished by the
police, St. Paul went to the offices of Haas and Deardorff, not to obtain their help,
but for the sole purpose of obtaining admissions to use against Haas. St. Paul
believed that Haas had harmed her emotionally on previous occasions.
{¶ 7} Haas characterized the May 23, 1995 meeting, which was the first and
only time Deardorff encountered St. Paul, as a brainstorming session at which Haas
and Deardorff considered different options for handling St. Paul’s false affidavit
and her claim that she wanted to drop the charges against Wilson. One option
discussed was securing a dismissal by having St. Paul invoke the Fifth Amendment
when called as a witness. Another option suggested by Haas was that St. Paul leave
the jurisdiction for a month. Deardorff asked whether St. Paul might say that she
started the fight and Wilson was defending himself. Because of her previous
conversation with St. Paul, Haas suggested that St. Paul could say that she had been
drinking. After St. Paul asked whether she could say that she pushed Wilson first,
Deardorff inquired as to whether she was coerced into filing the affidavit against
Wilson. St. Paul volunteered that on the trip to the police station she was in the
back seat of a police car, felt like a convict, and was being told that she would be
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arrested if she tried to drop the charges against Wilson. She later testified that this
statement was not entirely truthful.
{¶ 8} However, based on the statement, the attorneys explored the
circumstances under which St. Paul signed the affidavit, whether she had a change
of heart before she signed the affidavit, and whether there was case law on the
subject of coerced affidavits.
{¶ 9} Deardorff then questioned whether the law firm had a problem in
representing both the defendant and a complaining witness who did not wish to
testify. The attorneys concluded that they could undertake such representation,
since the opposing parties in the criminal action were not St. Paul and Wilson, but
the state of Ohio and Wilson. They determined that they could do so if both Wilson
and St. Paul waived any potential conflict.
{¶ 10} About two-thirds of the meeting had transpired when the respondent
attorneys indicated that they had settled on the motion to dismiss as the best
approach. When St. Paul asked, “What if I went in and like you said, I said Well,
you know I pushed him and this that and the other,” Deardorff replied, “Well, but
you don’t have to do that if the motion is dismissed.” When St. Paul asked again
about testifying with respect to the affidavit, Deardorff indicated that the motion
was the only approach presently under consideration, saying, “if we lose our
motion, Lorie and I want some time to think about our next move.” To which Haas
replied, “Right. Right.” Later, Deardorff again told St. Paul that she did not have
to testify about the real case on the motion to dismiss, only about her change of
heart on the way to the police station. St. Paul then mused, “if it doesn’t get
dismissed or something,” and Deardorff replied, “Then we got the trial and that’s
next. What we can do then—” and Haas interjected, “Then that’s next. But we’re
going to do one step at a time. We’ll deal with that later.”
{¶ 11} When St. Paul again asked whether the lawyers were confident that
the case would be dismissed, Deardorff said, “If you go to trial, it’s pretty clear you
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January Term, 1998
are going to have to testify, if you don’t * * * take the Fifth.” Deardorff told St.
Paul that if the case went to trial and she was granted immunity, she could “tell
them Santa Claus was there * * * you can lie through your teeth.” After some
further discussion, Haas said, “We don’t want you to lie, we’re just making up—
we’re just cracking jokes.” However, Haas then said, “If they grant you immunity,
then we want you to tell the rest of the story, which we will say is that you started—
you got physical with him first and you were pushing him in his face and he was
just pushing you off of him.” Later in the meeting the respondents again reviewed
this scenario with St. Paul.
{¶ 12} At the conclusion of the meeting, St. Paul asked whether it would
make any difference to make a “healthier contribution” to the judge’s cause.
Deardorff replied, “No, you’re going to have to make a healthier contribution to
our cause,” and “No. I wouldn’t do that.”
{¶ 13} After the meeting the lawyers decided to prepare a motion to dismiss,
to be signed by Haas as Wilson’s lawyer. And because St. Paul had changed her
story several times, the attorneys decided that the motion should be accompanied
by an affidavit signed by St. Paul based on what Haas believed was St. Paul’s
original story. Haas requested an associate in the law firm to prepare the affidavit
and the motion. However, St. Paul became hostile to the attorneys, and the draft
affidavit was never presented to her. The case was ultimately dismissed.
{¶ 14} On September 26, 1995, both respondents were charged with
obstructing justice based on the May 19 telephone call and the May 23 meeting. In
January 1996, Haas, who was afraid of the criminal process and going to jail, pled
no contest to attempted obstruction of justice, and was fined $750. The charge
against Deardorff was dropped.
{¶ 15} The panel concluded that respondents Haas and Deardorff violated
DR 1-102(A)(3) (engaging in conduct involving moral turpitude), 1-102(A)(4)
(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-
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102(A)(5) (engaging in conduct prejudicial to the administration of justice), and 7-
102(A)(6) (participating in the creation or preservation of evidence when the lawyer
knows that the evidence is false). The panel noted in mitigation that Haas was
deeply remorseful about her conduct and, as of December 1995, had ceased to
practice law. It noted that Deardorff believed that he was unfairly prosecuted and
that he did not do anything wrong. The panel heard witnesses testify to Deardorff’s
excellent reputation for truth, honesty, and ability, and received letters with respect
to Haas’s good reputation in the legal community. The panel recommended that
Deardorff be suspended from the practice of law for one year and that six months
of the suspension be stayed. The panel recommended that Haas be suspended from
the practice of law for two years and that one year of the suspension be stayed. The
panel further recommended that each respondent enroll in six hours of continuing
legal education in ethics to be completed by the end of each respondent’s
suspension period. The board adopted the findings, conclusions, and
recommendations of the panel.
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Paul M. De Marco, John G. Slauson and Robert J. Hollingsworth, for
relator.
Mark H. Aultman and Gary A. Rosenhoffer, for respondent Timothy J.
Deardorff (No. 98-377).
John H. Burlew and Bradley G. Haas, for respondent Loren S. Haas (No.
98-378).
__________________
Per Curiam.
{¶ 16} We adopt the findings of the board. In order to avoid having St. Paul
testify falsely, the respondent attorneys had decided to employ the tactic of a motion
to dismiss based on what they at the time believed were the desires and fears of St.
Paul, and the facts surrounding her affidavit.
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January Term, 1998
{¶ 17} However, the attorneys went further. They then proceeded to discuss
with St. Paul possible contingent courses of action. Although St. Paul led them into
manufacturing a story by continually asking what would happen if the motion to
dismiss were denied, the attorneys should not have suggested that St. Paul testify
that she was the instigator of the altercation when that approach had no basis in
fact. Although one of the respondents told St. Paul that they were not telling her to
lie, the respondents did tell her that if granted immunity she could say anything she
wished and they produced the story she might tell, if required. We therefore adopt
the conclusion of the board that the respondents violated the specific Disciplinary
Rules. We also note that the respondents’ attempt to represent both the defendant
and the principal witness against the defendant was inimical to the administration
of justice.
{¶ 18} We adopt also the board’s recommendation that respondent
Deardorff be suspended for one year, with six months of that suspension stayed.
Respondent Haas is hereby suspended from the practice of law for two years, with
one year of that suspension stayed. Both respondents will also enroll in six hours
of continuing legal education in ethics to be completed within the term of each
respondent’s suspension. Costs taxed to respondents.
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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