Columbus Bar Assn. v. Elsass

[This opinion has been published in Ohio Official Reports at 86 Ohio St.3d 195.]

COLUMBUS BAR ASSOCIATION v. ELSASS.

[Cite as Columbus Bar Assn. v. Elsass, 1999-Ohio-93.]

Attorneys at law—Misconduct—Indefinite suspension—Continuing to practice law

while under suspension—Repeated acts of dishonesty, deceit, and failure to

abide by Supreme Court’s order—Filing lawsuit to intimidate former client

who had filed grievance against him—ADA does not prevent the discipline

of attorneys with disabilities.

(No. 98-2662—Submitted March 30, 1999—Decided July 28, 1999.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 97-14.

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{¶ 1} On June 10, 1998, the Columbus Bar Association (“relator”) filed a

five-count amended complaint against Tobias H. Elsass of Columbus, Ohio,

Attorney Registration No. 0024436 (“respondent”). The complaint alleged several

violations of the Disciplinary Rules. Respondent answered, and the matter was

heard by a panel of the Board of Commissioners on Grievances and Discipline of

the Supreme Court (“board”).

{¶ 2} This is not the first time respondent has appeared before this court on

a disciplinary matter. On December 20, 1995, we suspended respondent from the

practice of law for a period of six months. See Columbus Bar Assn. v. Schlosser

(1995), 74 Ohio St.3d 174, 657 N.E.2d 500. Count One of the June 10, 1998

complaint involved respondent’s representation of Kevin L. Bartholomew in a case

in the Franklin County Court of Common Pleas while under this suspension. Upon

being suspended, respondent notified Bartholomew that he should seek other

counsel because respondent was not eligible to practice law. However,

Bartholomew was unable to obtain other counsel before the scheduled

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commencement of the case on April 30, 1996. The complaint alleged that

respondent had his secretary prepare a motion for continuance, which purported to

be a pro se pleading. Respondent sent the motion for continuance to Bartholomew

for his signature and instructed him to return it to respondent for filing. The motion

for continuance was denied. Respondent then had his secretary prepare a notice of

voluntary dismissal of the case, which also purported to be a pro se pleading.

Bartholomew signed the notice and respondent subsequently filed it with the court.

{¶ 3} Count One also alleged that respondent committed similar conduct in

a separate case involving the representation of Tricia Beckwith. Again, respondent

had his secretary prepare a purportedly pro se motion for a continuance on her

behalf while he was suspended from the practice of law. The panel concluded that

respondent’s actions constituted the unauthorized practice of law in violation of DR

3-101(B) (practicing law in violation of the regulations) and 1-102(A)(4) (engaging

in conduct involving dishonesty, deceit, or misrepresentation).

{¶ 4} Count Two concerned respondent’s filing of a lawsuit against Evalena

Tabler after she had filed a grievance against the respondent with the Office of

Disciplinary Counsel of the Supreme Court of Ohio. Tabler’s grievance alleged

that respondent had engaged in professional misconduct in the preparation of a will

for her father and the subsequent representation of the estate.

{¶ 5} In response, respondent filed suit against Tabler in the Court of

Common Pleas of Franklin County, alleging that Tabler had defamed and slandered

him by filing the grievance. In the complaint, respondent sought compensatory and

punitive damages in the amount of $500,000 plus costs and attorney fees. In light

of our decision in Hecht v. Levin (1993), 66 Ohio St.3d 458, 613 N.E.2d 585, that

a complaint filed with the grievance committee of a local bar association enjoys an

absolute privilege against a civil action based thereon, the panel found that

respondent’s lawsuit was unwarranted and harassing, and that his conduct violated

DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice),

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7-102(A)(1) (filing a suit, asserting a position, or taking action knowing that such

action would serve merely to harass or maliciously injure another), and 7-102(A)(2)

(knowingly advancing an unwarranted claim).

{¶ 6} Respondent was reinstated to the practice of law on July 12, 1996.

However, on November 26, 1997, we found respondent in contempt and again

suspended him until such time as he purged himself of contempt. On April 1, 1998,

we determined that respondent had substantially complied with the November 26,

1997 order; therefore, the contempt and suspension orders were lifted. Counts

Three, Four, and Five of the relator’s amended complaint alleged activity that

occurred during this contempt suspension period.

{¶ 7} Count Three of the complaint alleged that respondent failed to notify

his client Maria Wells of his suspension pursuant to the contempt order of

November 26, 1997. Respondent claimed that he sent a letter notifying Wells of

his suspension, but Wells denied receiving this letter. Furthermore, on December

15, 1997, respondent sent a letter to Wells enclosing an authorization to allow

another attorney to review her file. This letter did not mention that respondent had

been found in contempt and was suspended from the practice of law. Thereafter,

Wells’s husband called the respondent to inquire about the status of his wife’s case.

Respondent again failed to mention that he had been suspended from the practice

of law.

{¶ 8} Although the panel determined that relator failed to prove by clear and

convincing evidence that respondent did not send notice of his suspension, it did

find that respondent’s other correspondence and conversations with his client and

her husband as related in Count Three violated DR 1-102(A)(4).

{¶ 9} Count Four involved the respondent’s mailing of a Christmas card to

his client Lucy Molitor while under suspension for contempt. Enclosed with the

card was a letter addressed “Dear Clients,” which stated, among other things, that

“[t]he new year will bring a new direction to my law practice and a new location

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* * *. Beginning January 1, 1998, I will continue to represent my old and existing

clients on pending matters, but will be restricting my practice.” The letter did not

mention that the respondent had been found in contempt and was suspended from

the practice of law until such time as he purged himself of contempt. The panel

concluded that respondent’s correspondence with Molitor violated DR 1-

102(A)(4).

{¶ 10} Finally, Count Five of the complaint alleged that Donna Herdman, a

resident of California, contacted respondent on March 1, 1998, and asked him to

assist her in the administration of her late husband’s estate. Respondent agreed to

perform legal services for Herdman, even though he was still under suspension at

that time. The respondent did not inform Herdman that he was legally unable to

represent her. On March 4, 1998, Herdman sent a check in the amount of $500 as

a retainer to the respondent. Respondent deposited the check on March 12, 1998.

Respondent asserted that he mistakenly deposited the check believing it was rent

due from property he owned and attempted to return the $500 after the matter was

already under investigation. The panel determined that respondent’s actions

relating to Count Five constituted a violation of DR 1-102(A)(4).

{¶ 11} In mitigation, the respondent provided several attorneys, former

clients, and other acquaintances as character witnesses. The witnesses indicated

that respondent was careful not to give legal advice during the periods of his prior

suspensions, and also testified to his truthful nature. The witnesses also testified to

his active participation in various youth organizations and in his church. The panel

also noted that respondent has continued a successful recovery from drug addiction

and alcohol abuse.

{¶ 12} The panel recommended that respondent be suspended from the

practice of law for a period of two years, with the second year stayed on the

condition that the respondent dismiss his lawsuit against Evalena Tabler with

prejudice and reimburse her to the satisfaction of the relator. The board adopted

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the panel’s findings of fact and conclusions of law. However, based on

respondent’s repeated acts of dishonesty, deceit, and failure to abide by the court’s

order, the board recommended an indefinite suspension.

__________________

Bruce A. Campbell, Eleanor B. Haynes and Stephen E. Chappelear, for

relator.

John W. Leibold and Tobias H. Elsass, pro se, for respondent.

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FRANCIS E. SWEENEY, SR., J.

{¶ 13} Respondent offers numerous objections to the findings of fact and

conclusions of law of the board. For the following reasons, we reject his objections

and adopt the findings of fact, conclusions of law, and recommendation of the

board.

{¶ 14} Regarding Count One, respondent argues that there was no witness

testimony that he prepared the motions in the Bartholomew and Beckwith cases.

Both respondent and his legal secretary testified that respondent did not dictate

those documents. Furthermore, a letter to Bartholomew, which accompanied the

motion for continuance, stated, “[w]e have taken the liberty of preparing a motion

for continuance of your case. Please sign it and return it to the above address and

I will mail it to the Clerk’s office for acceptance by them. We need to do this as

soon as possible since the trial date is April 30, 1996.” Respondent alleges that the

word “we” in the letter indicates that he was acting in the capacity of a law clerk in

transmitting the information from Laura Peterman, his associate, to Suzanne

Brown, the office manager at that time. Respondent maintains that at best, the

testimony and evidence create only an inference that he prepared the documents,

and that such an inference cannot be considered clear and convincing evidence.

{¶ 15} However, the panel determined that the evidence contradicted

respondent’s assertion that he was acting in the capacity of a law clerk. In

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particular, the testimony of Peterman refuted his claim. Respondent argues that

Peterman’s testimony was biased, as she was engaged in litigation with the

respondent in a contract dispute. However, “[w]here the evidence is in conflict, the

trier of facts may determine what should be accepted as the truth and what should

be rejected as false.” Cross v. Ledford (1954), 161 Ohio St. 469, 478, 53 O.O. 361,

365, 120 N.E.2d 118, 123-124. Thus, despite conflicting testimony, the panel

properly determined that the evidence indicating that respondent had prepared the

documents was sufficiently clear and convincing.

{¶ 16} Regarding Count Two, respondent argues that the board abused its

discretion by usurping the judicial function of the court system in interpreting Hecht

v. Levin, supra, as creating an absolute privilege against civil action when a person

files a grievance against an attorney. Hecht states, “[a] statement made in the course

of an attorney disciplinary proceeding enjoys an absolute privilege against a civil

action based thereon as long as the statement bears some reasonable relation to the

proceeding.” Id. at paragraph two of the syllabus. Although Hecht creates an

absolute privilege, the statement in question must still bear some reasonable

relation to the attorney disciplinary proceeding. We reject respondent’s contention

that this is an issue exclusively for the courts and find that the board or hearing

panel may determine the question whether there is such a relation. The board may

make such a determination because it has “exclusive jurisdiction” to recommend

disciplinary action against an attorney and is “empowered to receive evidence,

preserve the record, make findings and submit recommendations to this court

concerning complaints of attorney misconduct.” Hecht, 66 Ohio St.3d at 461, 613

N.E.2d at 588. In respondent’s case, the panel properly determined that a

reasonable relation existed and concluded that respondent filed the lawsuit against

Tabler merely to harass her. Respondent was specifically aware of the Hecht

decision, yet deliberately filed the defamation and slander lawsuit. Furthermore,

he deliberately violated Civ.R. 8(A) in order to intimidate Tabler by demanding

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$500,000 in damages. Civ.R. 8(A) prohibits a party who seeks more than $25,000

from specifying in the demand for judgment the amount of recovery sought, except

in a claim founded on an instrument. Thus, the board did not abuse its discretion,

and we find respondent’s argument without merit.1

{¶ 17} As to Count Five, respondent claims that the board abused its

discretion in finding a violation under DR 1-102(A)(4) when he did not provide any

legal services for Herdman. However, an attorney may be found to have engaged

in conduct involving dishonesty, deceit, or misrepresentation under DR 1-

102(A)(4) without having performed legal services for a client. In this case, the

panel found that respondent’s conduct was dishonest and deceitful. The panel

found by clear and convincing evidence that while under suspension, respondent

had talked with Herdman about legal work she wanted done and did not tell her that

he was under suspension. Herdman thought that she was retaining respondent to

perform legal services based on her conversation with respondent and sent him a

letter and a retainer check, which respondent subsequently negotiated. The fact that

respondent subsequently performed no legal services for her is irrelevant.

{¶ 18} Finally, respondent asserts that the board failed to address his claim

of discrimination in violation of the Americans with Disabilities Act (“ADA”).

Respondent is a recovering drug addict and contends that his past addiction was the

basis for charges brought by relator. However, respondent has presented no

evidence that would support a claim for relief under the ADA. The Americans with

Disabilities Act, Section 12101 et seq., Title 42, U.S.Code (“ADA”), does not

prevent the discipline of attorneys with disabilities. State ex rel. Oklahoma Bar

Assn. v. Busch (Okla.1996), 919 P.2d 1114, 1119-1120. See Cincinnati Bar Assn.

1. Regarding respondent’s lawsuit against Tabler, the Tenth District Court of Appeals recently

upheld the trial court’s granting of summary judgment in favor of Evalena Tabler. The court of

appeals held that pursuant to Hecht, Tabler’s statements in her grievance bore a reasonable relation

to the Columbus Bar Association proceedings against appellant. See Elsass v. Tabler (Mar. 25,

1999), Franklin App. No. 98AP-837, unreported, 1999 WL 163259.

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v. Komarek (1998), 84 Ohio St.3d 90, 96, 702 N.E.2d 62, 67. This is because the

primary purpose of attorney discipline is to protect the public, and this court has a

constitutional duty to oversee the bar and to ensure that its members are fit to

practice law. Busch, 919 P.2d at 1117-1120.

{¶ 19} We adopt the conclusions of law by the board that respondent has

violated DR 3-101(B), 1-102(A)(4), 1-102(A)(5), 7-102(A)(1), and 7-102(A)(2).

We note that “the normal penalty for continuing to practice law while under

suspension is disbarment.” Disciplinary Counsel v. Koury (1997), 77 Ohio St.3d

433, 436, 674 N.E.2d 1371, 1373. However, in mitigation the board determined

that respondent, so far, has successfully recovered from drug and alcohol abuse,

and otherwise has generally been an upstanding and active member of the

community. Nevertheless, due to respondent’s repeated acts of dishonesty, deceit,

and failure to abide by this court’s orders, we adopt the recommendation of the

board. Respondent is hereby indefinitely suspended from the practice of law in the

state of Ohio. Costs taxed to respondent.

Judgment accordingly.

DOUGLAS, Acting C.J., RESNICK and PFEIFER, JJ., concur.

T. BRYANT, COOK and SHAW, JJ., dissent.

THOMAS F. BRYANT, J., of the Third Appellate District, sitting for MOYER,

C.J.

STEPHEN R. SHAW, J., of the Third Appellate District, sitting for Lundberg

Stratton, J.

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SHAW, J., dissenting.

{¶ 20} I concur with the analysis and findings of the majority, but

respectfully disagree with the final disposition. The majority opinion thoroughly

and effectively details on the part of respondent the intentional disregard of known

legal authority of this court in an effort to harass and intimidate a former client who

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filed a disciplinary grievance against him, a pattern of deceitful conduct with clients

and trial courts, the deliberate disobedience of a contempt order issued by this court,

and an effort to evade responsibility for his own conduct via a less than bona fide

effort to invoke relief under the ADA—all occurring while respondent was under

one or the other of two different suspension orders of this court. In my view, the

aggressive pattern of professional deceit and dishonesty exhibited by respondent

towards the courts, the public, and the disciplinary process itself is not outweighed

by indications that in his personal life, respondent may be presently recovering from

drug and alcohol abuse or involved in certain community affairs. Given these

circumstances, a departure from the normal rule of Disciplinary Counsel v. Koury

(1997), 77 Ohio St.3d 433, 674 N.E.2d 1371, seems neither warranted in this case

nor prudent for future cases. I believe the only appropriate sanction here is an order

of permanent disbarment.

T. BRYANT and COOK, JJ., concur in the foregoing dissenting opinion.

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