The opinion
[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 300.]
BUTLER COUNTY BAR ASSOCIATION v. DERIVAN.
[Cite as Butler Cty. Bar Assn. v. Derivan, 1998-Ohio-542.]
Attorneys at law—Misconduct—Six-month suspension—Failing to file a case
within the appropriate statute of limitations and then deliberately
manufacturing a document to exonerate himself and presenting it as
genuine in a formal disciplinary proceeding.
(No. 97-2259—Submitted January 14, 1998—Decided April 1, 1998.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 96-03.
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{¶ 1} On April 5, 1992, as Mrs. Leroy Purifoy was leaving a Wilson
Cardinal Foods supermarket in Middletown, Ohio, she was detained briefly by the
store manager, who asked to look in her purse for an article taken from the store.
The police, having been called by the manager, also searched Mr. Purifoy, who had
left the store ahead of his wife. Nothing was found. Although not taken into
custody or handcuffed, Mrs. Purifoy was, nevertheless, embarrassed. Three days
later, the Purifoys engaged respondent, H.T. Derivan of Middletown, Ohio,
Attorney Registration No. 0006092, to investigate the possibility of a suit against
the store.
{¶ 2} Respondent’s notes indicate that most of the witnesses on the list that
the Purifoys provided to him in July 1992 had not been present at the incident. One
witness who had heard about the matter said that it did not affect her opinion of the
Purifoys. The Purifoys did not reply to respondent’s requests for lists of other
witnesses. Respondent also interviewed the owner of Wilson Cardinal Foods.
{¶ 3} Believing that a two-year statute of limitations applied, respondent
filed suit against the supermarket, its owner, and former manager on behalf of the
SUPREME COURT OF OHIO
Purifoys on April 4, 1994. The defendants filed a motion to dismiss for failure to
bring an action within the applicable one-year statute of limitations, and the case
was dismissed on May 19, 1994.
{¶ 4} The Purifoys filed a grievance against respondent, and on July 20,
1995 at a hearing before the relator, Butler County Bar Association, respondent
produced a letter dated January 20, 1993 purporting to inform the Purifoys of the
one-year statute of limitations. Within three weeks thereafter, respondent told a
representative of relator that the letter was manufactured by him for the purpose of
the investigation and was never sent to the Purifoys, and he so testified at a
reconvened meeting of relator’s committee.
{¶ 5} On October 20, 1995, respondent paid the Purifoys $4,000 in full
satisfaction of their claims against him.
{¶ 6} Based upon these facts, relator filed a complaint against respondent
charging him with violations of several Disciplinary Rules. After respondent
answered, a panel of the Board of Commissioners on Grievances and Discipline of
the Supreme Court (“board”) heard the matter and concluded that respondent had
violated DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation). The panel received in mitigation testimony from a judge
who appeared in response to a subpoena, respondent’s secretary, his law partner,
and his wife. The panel also received letters from sixteen attorneys, a neighbor, a
client, and a friend. The mitigating evidence related both to respondent’s legal
ability and to his honesty, integrity, and devotion to community and public service
during his thirty years of practice.
{¶ 7} The panel considered that respondent had paid $4,000 to his former
clients on a claim “of questionable value,” and that although he fabricated a letter
to exonerate himself, he reappeared before the committee and brought the
fabrication to its attention. The panel considered respondent’s long and
unblemished record, distinguished his situation from that in Disciplinary Counsel
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January Term, 1998
v. Fowerbaugh (1995), 74 Ohio St.3d 187, 658 N.E.2d 237, and concluded that
“this single incident does not constitute a course of action that would require actual
suspension from the practice of law.” The panel recommended that respondent
receive a public reprimand.
{¶ 8} The board adopted the findings, conclusions, and recommendation of
the panel.
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Michael T. Gmoser and Gregory K. Pratt, for relator.
Frank J. Schiavone, for respondent.
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Per Curiam.
{¶ 9} We have reviewed the record and adopt the findings and conclusions
of the board. However, we believe a more severe sanction is warranted. This case
involves more than respondent’s negligence in failing to file a case within the
appropriate statute of limitations. Respondent deliberately manufactured a
document to exonerate himself and presented it as genuine in a formal disciplinary
proceeding. Respondent is hereby suspended from the practice of law in Ohio for
six months. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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