finding a violation of DR 6-101(A)(3), which prohibited neglect of an entrusted legal matter, when the client reasonably believed that the attorney was representing him and his son in a legal matter
How later courts described this case
- finding a violation of DR 6-101(A)(3), which prohibited neglect of an entrusted legal matter, when the client reasonably believed that the attorney was representing him and his son in a legal matter
Written by the judges who cited it.
The opinion
[This decision has been published in Ohio Official Reports at 93 Ohio St.3d 173.]
OFFICE OF DISCIPLINARY COUNSEL v. FURTH.
[Cite as Disciplinary Counsel v. Furth, 2001-Ohio-1308.]
Attorneys at law—Misconduct—Permanent disbarment—Myriad violations of
Disciplinary Rules forming a distinct pattern of disregard for the courts,
clients, and other professionals.
(No. 00-2341—Submitted April 3, 2001—Decided September 19, 2001.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 99-03.
__________________
MOYER, C.J.
{¶ 1} On February 1, 1999, relator, Office of Disciplinary Counsel, filed a
two-count complaint charging respondent, Thomas Craig Furth of Chagrin Falls,
Ohio, Attorney Registration No. 0033870, with violating numerous Disciplinary
Rules. On September 9, 1999, relator filed an amended, eleven-count complaint
alleging additional Disciplinary Rule violations. Respondent answered through
counsel and thereafter stipulated to a number of facts and exhibits. The matter was
heard by a panel of the Board of Commissioners on Grievances and Discipline of
the Supreme Court (“board”).
{¶ 2} Counts 1 through 5 concern respondent’s relationship with Scott
Johnson. On March 24, 1998, in Jonesboro, Arkansas, Mitchell Johnson, then age
thirteen, and Andrew Golden, then age eleven, were involved in a shooting at
Westside Middle School that left five people dead and ten others wounded. The
father of Mitchell Johnson is Scott Johnson, who lives in Grand Meadow,
Minnesota. Mitchell Johnson lives with Mr. Johnson’s ex-wife in Jonesboro,
Arkansas.
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{¶ 3} The shooting quickly became the focus of national and worldwide
media attention. Immediately upon learning of his son’s involvement, Mr. Johnson
traveled to Jonesboro. He described the media as being in a “feeding frenzy” and
that he was repeatedly pressed for interviews.
{¶ 4} Count 1 concerns respondent’s alleged improper solicitation and false
claims of specialization and expertise. The panel found that respondent’s
employee, Leo Tomeu, began calling Mr. Johnson to solicit permission for
respondent to be counsel of record for Mitchell Johnson. Mr. Johnson initially
indicated that he was not interested in representation, but after Tomeu asked if he
could fax some information regarding respondent, Mr. Johnson acquiesced.
{¶ 5} On March 27, 1998, respondent sent a letter to the public defenders
assigned to represent Mitchell Johnson and Andrew Golden. In the letter,
respondent stated that his “entire area of specialty and expertise is the
representation of children and young adults in criminal matters,” and that “[y]ou
will not find anyone in the United States that is more of an expert in this regard
than I am.”
{¶ 6} On or about March 28, 1998, respondent faxed a letter to Mr. Johnson,
specifically writing, “[M]y entire specialty is representing children and young
adults in (often major) criminal matters” (emphasis sic), that “I am the very best
at what I do,” and that “[t]his is what I do, almost exclusively, and in numerous
locations around the country.” Shortly thereafter, Mr. Johnson agreed to retain
respondent to represent Mitchell Johnson.
{¶ 7} On April 1, 1998, respondent appeared in the Chancery Court of
Craighead County, Arkansas, Western District, Juvenile Division, for the purpose
of gaining admission pro hac vice to represent Mitchell Johnson in charges relating
to the shooting. At the hearing, respondent stated that he specialized in juvenile
law, specifically stating to the judge, “[M]y entire specialty is in cases involving
children.”
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January Term, 2001
{¶ 8} Subsequently, respondent and Mr. Johnson appeared on several
national television shows. Respondent testified that Mr. Johnson insisted on
making media appearances, while Mr. Johnson testified that it was at respondent’s
insistence that Mr. Johnson make the television appearances. As a result of these
appearances, on April 15, 1998, the judge held a status conference relating to
respondent’s involvement in the case. Asked by the judge how he had become
involved, respondent replied, “I sent Mr. Johnson a condolence note and my
associate right here, did the same thing. He called us four or five days later, uh, he
was on an airplane flying to New York to do a television appearance.” During this
hearing, the court removed respondent from any further participation as attorney of
record for Mitchell Johnson. At the disciplinary hearing, respondent testified that
he had sent Mr. Johnson a condolence letter but that when retaining respondent,
Mr. Johnson was responding to the solicitation letter.
{¶ 9} Based on these facts, as to Count 1, the panel concluded that
respondent had violated DR 2-105(A) (a lawyer shall not hold himself out publicly
as a specialist or as limiting his practice), 2-103(A) (a lawyer shall not recommend
employment, as a private practitioner, of himself, his partner, or associate to a
nonlawyer who has not sought his advice regarding employment of a lawyer, except
as provided in DR 2-101), 2-101(F)(1) (a lawyer shall not make any solicitation of
legal business in person or by telephone, except as provided in DR 2-103 and 2-
104), and 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation). The panel dismissed one alleged violation under Count 1 for
lack of clear and convincing evidence.
{¶ 10} Count 2 concerns respondent’s neglect of legal matters regarding the
Johnson case. The panel found that on or about May 29, 1998, respondent faxed a
memorandum to Mr. Johnson recommending several specific legal actions. These
included preparation and filing of a federal lawsuit on Mitchell’s behalf against
Craighead County for alleged violation of his civil rights, preparation and filing of
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a federal lawsuit on respondent’s behalf to ensure his ability to represent Mr.
Johnson, preparation of a lawsuit against Mower County, Minnesota, on Mitchell’s
behalf, filing bar grievances with the state of Arkansas against the two public
defenders, the judge who removed respondent from the Johnson case, and the
prosecutor, announcement of “the rest of” Mitchell’s legal team, and preparation of
custody documents in the hiring of local Minnesota counsel to modify the custody
order for Mr. Johnson’s other son, Monte.
{¶ 11} Respondent never pursued any of the legal actions outlined in this
memorandum and testified that he had never agreed to represent Mr. Johnson in
these matters or file documents pertaining to them. Instead, respondent testified
that he coordinated Mitchell Johnson’s cases in various locations.
{¶ 12} Based on these facts, the panel concluded that the evidence was not
clear and convincing that respondent had agreed to represent Mr. Johnson in the
matters outlined in Exhibit 4 and found no neglect. Accordingly, the panel
dismissed Count 2.
{¶ 13} Count 4 concerns respondent’s advancing of financial assistance to
Scott Johnson. The panel found that beginning in April 1998 and continuing during
the course of his representation, respondent paid more than $6,000 to Mr. Johnson.
Mr. Johnson testified that the $6,000 was not for expenses related to the case or
investigation and was to be used in any way he chose. Respondent testified that the
money was advanced for living expenses.
{¶ 14} Based on these facts, the panel found by clear and convincing
evidence that respondent had advanced money to Mr. Johnson in violation of DR
5-103(B) (a lawyer shall not advance or guarantee financial assistance to his client).
The panel dismissed the remaining alleged violation under Count 4.
{¶ 15} Count 5 concerns respondent’s failure to return files to Scott
Johnson. Mr. Johnson testified that during the course of respondent’s
representation, he had forwarded documents to respondent that Mr. Johnson had
4
January Term, 2001
obtained from Mitchell’s attorney in the Minnesota juvenile case. On October 19,
1998, Mr. Johnson sent respondent a letter complaining of respondent’s neglect of
the case, respondent’s attempts to sell publication rights, and respondent’s desire to
appear in the media. In his letter of October 23, 1998, terminating respondent, Mr.
Johnson asked “that all records, including school records be returned to me with a
written statement by you releasing me and my family from any past, current, or
future financial responsibility.” Respondent testified that he had sent Mr. Johnson
“everything.” However, respondent failed to produce a transmittal letter indicating
that he returned the documents and also testified that he destroyed files for his
juvenile clients. He added, “[A] lot of my files were taken by Mr. Tomeu, including
a lot of the files that would contain what you’re talking about.” Mr. Johnson
testified that he received no response.
{¶ 16} Based on this evidence, the panel found that Mr. Johnson was unable
to identify which documents had not been returned by respondent and was unable
to state how respondent’s failure to return any of these unidentifiable documents
prejudiced the legal matters in which his son was involved. Accordingly, the panel
dismissed the alleged violations under Count 5.
{¶ 17} Count 10 concerns respondent’s use of a misleading firm name. The
panel found that from March 24, 1998 through November 1, 1998, respondent’s
letterhead indicated that his office was called “Tom Furth and Associates,
Attorneys & Counselors at Law.” However, no other attorneys were associated
with respondent during this period. Respondent admitted that this was a violation
of the Disciplinary Rules at the hearing. Accordingly, the panel concluded that
respondent violated DR 2-102(B) (a lawyer in private practice shall not practice
under a name that is misleading). The panel dismissed other alleged violations in
Count 10.
{¶ 18} Count 11 concerns respondent’s use of unverifiable, subjective, and
self-laudatory language in public communication. The panel found that respondent
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participated in or assisted in the creation of an Internet site relating to an Arkansas
case involving Neal and Jesse Eldridge, two brothers accused of killing their father.
The website contained information regarding respondent, including the following
statements: “A passionate and aggressive advocate on behalf of his clients, Mr.
Furth is well known for helping children and their families both within the legal
system and outside of it” and “I tend to be tirelessly passionate on behalf of all of
my young clients.” Respondent testified that he was responsible for the content of
the website concerning his qualifications.
{¶ 19} The panel also found that respondent had placed an advertisement in
an edition of the Hudson Monthly that included the following statements: “Tom
Furth * * * Nationally noted. Amazingly affordable. Incredibly dedicated. He’s
our neighbor and he’s known from coast to coast. * * * Top notch legal services
with a GUARANTEE of satisfaction and 24 hour a day access.” (Emphasis sic.)
Respondent testified that he was responsible for the content of this advertisement.
He further testified that he has vast experience of representing children in legal
matters. The panel found that letters and affidavits submitted on his behalf as well
as testimony from witnesses confirmed his testimony.
{¶ 20} Based on these facts, the panel concluded that the information
contained on the website did not rise to the level of a Disciplinary Rule violation.
Accordingly, the panel dismissed all the alleged violations in Count 11.
{¶ 21} Count 7 concerns the mishandling of a personal injury settlement of
Angela Catania. On or about April 25, 1998, Angela Catania was involved in a car
accident in Solon, Ohio. Catania received medical treatment as a result of physical
injuries that she sustained in the accident. During the course of his representation
of Catania, respondent sent Westfield Insurance Company (the tortfeasor’s insurer)
a draft affidavit from Catania indicating that Dr. John P. Wilson, a psychologist and
expert in posttraumatic stress disorder, would be treating her. Respondent testified
that Catania had helped draft the affidavit. However, Catania testified that she
6
January Term, 2001
never saw Dr. Wilson and that she did not believe that she was in need of any mental
health treatment as a result of her accident. She also testified that she was not
consulted by respondent regarding the affidavit and that it was inaccurate in several
respects.
{¶ 22} In addition to the affidavit, respondent sent Westfield Insurance a
letter stating, “It is my sincere hope that you will take into account the fact that her
injuries are real, that she continues to suffer quite a bit, and that her psychological
state is indicative of her need for a great deal of such care.” Sometime thereafter,
respondent reached a settlement with Westfield Insurance in the amount of $14,750
for Catania’s claim. As respondent was being pursued by creditors, he asked his
brother, Doug Furth, to deposit the settlement check in his own account at the stock
brokerage firm of Merrill Lynch. Doug Furth deposited the check, and, according
to respondent’s instructions, kept a separate accounting of the money and disbursed
portions of it to Catania.
{¶ 23} The panel also found that respondent later provided Catania with a
disbursement schedule detailing that Dr. Wilson had been paid $1,500. However,
Dr. Wilson had never even met with Catania, had not billed for any matters related
to her accident, and had never received any payment from respondent related to
those matters. Finally, respondent also withheld $731.55 for additional bills and
fixed costs, stating, “Any unused portion of this remaining balance [will] be paid
to Angela in 30 days after all final reports from doctors, etc.”
{¶ 24} Respondent admitted that he provided no additional accounting
regarding the $731.55 and that he had made no payment to Dr. Wilson. At the
hearing, over a year after respondent provided Catania with the disbursement
schedule, respondent was still in possession of the monies and only then agreed to
return both the $731.55 and $1,500 sums to Catania.
{¶ 25} Based on this evidence as to Count 7, the panel concluded that
because the money was commingled with other funds belonging to respondent,
7
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there was a violation of DR 9-102(A) (all funds of clients paid to a lawyer or law
firm, other than advances for costs and expenses, shall be deposited into one or
more identifiable bank accounts and no funds belonging to the lawyer or law firm
shall be deposited therein). The panel concluded that, although respondent’s
accounting was sloppy, it did not rise to a violation of DR 1-102(A)(4).
Additionally, the panel concluded that there was no clear and convincing evidence
of the remaining violations alleged under this count.
{¶ 26} Count 8 concerns respondent’s presentation of forged documents in
his own personal injury suit and in matters relating to three individuals: Joseph
Leonetti, Linda Wander, and Jason Widing. The panel found that on or about
January 23, 1994, respondent was robbed at gunpoint at a hotel in Florida. As a
result of the robbery, respondent pursued a personal injury claim against the hotel.
Florida attorney Peter W. Martin represented him in the matter.
{¶ 27} On or about March 23, 1998, respondent faxed a letter to Martin.
The letter was purported to have been written and signed by Kim Goldhamer, a
friend of respondent who was also an independent social worker licensed to practice
in Ohio. The letter, which claimed that respondent had undergone one hundred
fifty counseling sessions over a two-year period with Goldhamer, was sent by
Martin to the hotel as support for respondent’s claims of damages. However,
Goldhamer testified that she had never provided counseling to respondent, had
neither written nor signed the letter, and had never authorized anyone else to write
or sign the letter. Respondent testified that he had faxed the letter to his attorney in
Florida but had not read it; he insisted, however, that Goldhamer had provided him
with extensive counseling. Respondent subsequently settled with the hotel in
question for $75,000.
{¶ 28} The second matter in Count 8 concerns Joseph Leonetti, a former
business associate of respondent. The panel found that during the course of
Leonetti’s divorce, an issue arose concerning Leonetti’s alleged ownership of
8
January Term, 2001
securities in an account in respondent’s name. As a result, the Geauga County
Court of Common Pleas issued an order freezing respondent’s account. On or about
March 23, 1998, respondent filed a motion with the court requesting that the court
vacate its order. Testimony at the hearing established that respondent prepared the
motion to vacate, proofread it, signed it, and was responsible for its filing.
{¶ 29} Respondent supported the motion with an affidavit that was
purportedly signed by Goldhamer, whose signature respondent had notarized.
However, once again, Goldhamer testified that she had neither written nor signed
the letter and did not authorize anyone else to write or sign the letter. Moreover,
she testified that the basic premise of the affidavit was false, i.e., that she and
respondent shared business interests and plans. Respondent admitted that he had
not witnessed Goldhamer sign the affidavit.
{¶ 30} The third matter in Count 8 concerns respondent’s client, Linda
Wander, who was charged with driving under the influence of alcohol in 1997.
Respondent appeared as attorney of record for Wander in Portage County
Municipal Court. Respondent submitted a letter to the court, purportedly written
and signed by Goldhamer, which stated that Wander had attended a seventy-two-
hour alcohol course with Goldhamer. Once again, Goldhamer testified that she had
never written or signed the letter and had not authorized anyone else to write or
sign it. In addition, she testified that respondent had contacted her requesting such
a letter but that she had refused because she had not provided the course to Wander;
respondent was “extremely upset” when she refused.
{¶ 31} Although respondent testified that he had not submitted the letter to
the court, Agreed Stipulation 16 states, “On or about April 13, 1998, respondent
appeared in court on behalf of Ms. Wander and presented Stipulated Exhibit 5.”
Respondent further testified that he had not prepared it.
{¶ 32} The fourth and final matter in Count 8 concerns respondent’s client,
Jason Widing. The panel found that respondent represented Widing on a personal
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injury claim resulting from a motor vehicle accident and that he submitted two
letters to an insurance company on Widing’s behalf during negotiations. The letters
were purportedly written by Goldhamer and referred to psychological damage
caused Widing as a result of the accident.
{¶ 33} Goldhamer testified that she learned of the reports only when
Widing’s new attorney contacted her and requested that they be updated. She
further testified that she had never prepared or signed the documents and that they
were forgeries.
{¶ 34} Relator presented all the forged documents purported to have been
written by Goldhamer to a handwriting expert who examined handwriting samples
from respondent, Leo Tomeu, and Goldhamer. Although the expert eliminated
Goldhamer and respondent as the signers of the documents, the expert could not
rule out Leo Tomeu.
{¶ 35} Based on these facts, as to Count 8, the panel concluded, “It strains
credibility for the Respondent to contend that he did not read a letter that dealt with
him and was going to be used in his own personal injury case.” Accordingly, the
panel found violations of DR 7-102(A)(5) (knowingly making a false statement of
law or fact) and 1-102(A)(4) (engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation). However, the panel concluded that the evidence was
not clear and convincing that respondent knew that the other letters, affidavits, and
reports were forged and dismissed the remaining allegations. Finally, the panel
concluded that respondent had not witnessed the signature of Kim Goldhamer for
her affidavit, as a notary is sworn to do.
{¶ 36} Count 3 concerns respondent’s interest in publication rights
regarding the Jonesboro tragedy. Count 6 involves respondent’s failure of
cooperation with the disciplinary investigation. The panel dismissed Counts 3 and
Count 9 concerns the allegation that respondent aided the unauthorized practice of
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January Term, 2001
law. As relator presented no evidence on this count, the panel dismissed it, and
relator has withdrawn it.
{¶ 37} In mitigation, the panel found that respondent admitted that he had
violated DR 2-102(B) (a lawyer in private practice shall not practice under a name
that is misleading) and 2-105(A) (a lawyer shall not hold himself out publicly as a
specialist or as limiting his practice). The panel also found that respondent admitted
to not properly supervising his paralegal employee, Leo Tomeu. The panel asserted
that Tomeu was involved with every grievance filed against respondent.
Respondent also admitted that he lacked the proper resources to undertake the
defense of Mitchell Johnson. The panel found that although respondent should
avoid representing clients in matters for which he does not have adequate resources,
he has a sincere interest in working with juveniles, and “[w]hile not necessarily a
trial advocate, it is clear that Respondent is an advocate for doing the right thing for
the juveniles he has been hired to help.”
{¶ 38} The board adopted the findings of fact and conclusions of law of the
panel and recommended that respondent be suspended from the practice of law for
a period of two years. The board also recommended that the Supreme Court notify
the Governor’s Notary Commission of respondent’s violation of the statute
governing notaries public.
{¶ 39} Relator has objected to the board’s recommendation and raises the
following six legal arguments:
(1) Respondent’s conduct as outlined in Count 1 violates Disciplinary Rules
in addition to the violations identified by the board.
(2) Respondent assumed responsibility for a number of legal matters for
Scott and Mitchell Johnson and neglected them all, thereby violating the Code of
Professional Responsibility.
(3) Respondent’s misconduct includes his failure to return documents to his
client after the attorney-client relationship ended.
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(4) Respondent’s conduct as detailed in Count 7 violates additional
Disciplinary Rules.
(5) Respondent’s conduct as detailed in Count 8 violates additional
Disciplinary Rules.
(6) Respondent used unverifiable, subjective, and self-laudatory language
in his website and his advertising.
{¶ 40} The Supreme Court is not bound by the conclusion of either the panel
or the board regarding the facts or law when determining the propriety of an
attorney’s conduct and the appropriate sanction. Ohio State Bar Assn. v. Reid
(1999), 85 Ohio St.3d 327, 330, 708 N.E.2d 193, 197. Therefore, in making our
determination, we have considered not only the board’s findings of fact and
conclusions of law, but the record, testimony, the exhibits, the pleadings, the
stipulations, and the legal arguments presented to the court.
{¶ 41} In disciplinary proceedings, the relator bears the burden of proving
by clear and convincing evidence the facts necessary to establish a violation. Id. at
331, 708 N.E.2d at 197, citing Gov.Bar R. V(6)(J) and Disciplinary Counsel v.
Jackson (1998), 81 Ohio St.3d 308, 310, 691 N.E.2d 262, 263. “ ‘Clear and
convincing evidence’ [is] ‘that measure or degree of proof which is more than a
mere “preponderance of the evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’ “ Ohio State Bar Assn. v. Reid, 85 Ohio St.3d at 331, 708 N.E.2d at
197, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d
118, paragraph three of the syllabus. Upon review, we find that relator met its
burden of proof on all of the counts as recommended by the board. We conclude
that relator has met its burden on several other alleged violations that the panel and
the board inappropriately dismissed.
Count 1
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January Term, 2001
{¶ 42} Relator argues that in addition to the violations identified by the
board, respondent violated DR 1-102(A)(4) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(6) (engaging in conduct
adversely reflecting on his fitness to practice law), 2-104(A) (a lawyer who has
given unsolicited advice to a layman that he should obtain counsel or take legal
action shall not accept employment resulting from that advice), and 7-102(A)(5)
(knowingly making a false statement of law or fact). We agree.
{¶ 43} The panel found that testimony at the hearing indicated that
respondent concentrated his practice in representation of juveniles. However, of
the forty-two juveniles with whom respondent claimed to have had some
involvement, relator was able to verify only seven cases from the Cleveland area.
Furthermore, respondent provided no evidence to justify his claim of a national
reputation. Therefore, although respondent may have concentrated on juveniles in
his law practice, we hold that relator proved unverifiable by clear and convincing
evidence respondent’s assertions that “[y]ou will not find anyone in the United
States that is more of an expert in this regard than I am” and that he has developed
a national reputation for representing juveniles. Accordingly, we hold that
respondent violated DR 1-102(A)(4).
{¶ 44} Lying to a court is unacceptable and will not be tolerated. “ ‘An
attorney owes his first duty to the court. He assumed his obligations toward it
before he ever had a client.’ “ Cincinnati Bar Assn. v. Nienaber (1997), 80 Ohio
St.3d 534, 537, 687 N.E.2d 678, 681, quoting In re Integration of Nebraska State
Bar Assn. (1937), 133 Neb. 283, 289, 275 N.W. 265, 268. Evidence proves that
respondent knowingly made a false statement of fact when he told the Chancery
Court of Craighead County, Arkansas, that he had become involved with Scott
Johnson by sending him a condolence note. As respondent testified before the
panel, respondent sent a solicitation letter to the public defenders assigned to
represent Mitchell Johnson, attempted to contact the public defenders, and signed
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and faxed a solicitation letter to Scott Johnson, all before he supposedly sent a
condolence note. Neither the panel nor the board stated a reason for dismissing
clear evidence of a violation of respondent’s duty to be honest when
communicating with a client. Accordingly, we conclude that relator proved by
clear and convincing evidence that respondent violated DR 7-102(A)(5).
{¶ 45} The panel found that respondent was responsible for the actions of
his employee in the original solicitation. However, the panel inexplicably
dismissed the alleged violation of DR 2-104(A). Respondent’s six-page solicitation
letter to Mr. Johnson is replete with unsolicited advice detailing Mitchell Johnson’s
need for a comprehensive plan, including legal, psychological, and public relations
actions that respondent felt were in Mitchell’s best interests. Accordingly, we hold
that relator proved by clear and convincing evidence that respondent violated DR
2-104(A).
{¶ 46} Finally, respondent’s conduct in soliciting Scott Johnson, falsely
holding himself out as a specialist to both Scott Johnson and the public defenders,
offering unsolicited advice, and misrepresenting facts to a court establish that
respondent engaged in conduct adversely reflecting on his fitness to practice law.
Accordingly, we hold that respondent violated DR 1-102(A)(6).
Count 2
{¶ 47} The board found no violations under Count 2, based on its
conclusion that the evidence was not clear and convincing that respondent ever
agreed to represent Scott Johnson concerning any legal matters other than the
criminal charge. Relator argues that respondent violated DR 6-101(A)(3)
(neglecting a legal matter entrusted to him), 7-101(A)(1) (failing to seek the lawful
objectives of his client), 7-101(A)(2) (failing to carry out a contract of
employment), and 1-102(A)(6) (engaging in conduct that adversely reflects on his
fitness to practice law). We agree.
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January Term, 2001
{¶ 48} Respondent’s documents to Mr. Johnson show that he agreed to
represent Mitchell in his Minnesota case as well as in several civil lawsuits relating
to the Arkansas shooting. The May 28, 1998 memorandum even gave filing
deadlines for two of the proposed lawsuits: one of the federal lawsuits was to be
filed on June 3, 1998, and the Minnesota lawsuit on June 4, 1998. Respondent
participated in a telephone conference in a Minnesota case as Mitchell’s attorney
and was ordered to draft a plea agreement with the prosecutors. Respondent
concedes that he “agreed to represent Mitchell Johnson in a Juvenile case pending
in Minnesota for the sole purpose of finalizing a Judgment Entry.” Indicative of
respondent’s neglect, respondent never obtained a signature on the document and
never sent it back to the Minnesota court. Third, respondent’s own press release
identified him as “attorney for the Johnson family, for Mitchell Johnson relative to
Minnesota criminal charges, and Arkansas civil charges, and member of the
Arkansas criminal defense team.”
{¶ 49} Finally, Mr. Johnson’s letter of October 19, 1998, specifically
complained about respondent’s neglect of Mitchell’s Minnesota case, a civil suit
brought by families of the victims, Scott Johnson’s child support obligation case,
and a federal lawsuit relating to treatment Mr. Johnson received by Arkansas
authorities. In his termination letter to respondent, Mr. Johnson stated, “I have
asked you repeatedly about the Federal case filings, civil answers, etc., and you
always answer that there is no hurry, or that you’re almost finished with the paper
work.”
{¶ 50} Again, we disagree with the board’s conclusion that these facts do
not clearly and convincingly prove that Mr. Johnson reasonably believed that
respondent was representing him and his son on all of the matters to which
respondent referred in his own communication. Accordingly, we hold that relator
proved by clear and convincing evidence that respondent violated DR 6-101(A)(3),
7-101(A)(1), 7-101(A)(2), and 1-102(A)(6).
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Count 5
{¶ 51} The board found no violation, based on its conclusion that relator
failed to prove by clear and convincing evidence that respondent did not return all
of the documents to Mr. Johnson.
{¶ 52} Relator argues that respondent violated DR 2-110(A)(2) (failing to
deliver to the client all papers and property to which the client is entitled), 1-
102(A)(5) (engaging in conduct that is prejudicial to the administration of justice),
1-102(A)(6) (engaging in conduct that adversely reflects on his fitness to practice
law). We agree.
{¶ 53} Mr. Johnson expressly requested that respondent return all records
in his possession, including school records, in his letter of October 23, 1998. In his
testimony, Mr. Johnson denied receiving any documents from respondent.
Respondent’s testimony regarding this point was inconsistent: he initially testified
that he had returned Mr. Johnson’s documents but in later testimony stated that
Tomeu had taken many of his files, including those of Mr. Johnson. Respondent
also testified that he had a practice of destroying files for his juvenile clients. We
find these facts prove by clear and convincing evidence that respondent did not
return all of the documents to Mr. Johnson. Accordingly, we hold that respondent
violated DR 2-110(A)(2), 1-102(A)(5), and 1-102(A)(6).
Count 7
{¶ 54} We adopt the panel’s findings of fact in Count 7. However, we
decline to adopt the panel’s conclusions of law and hold that there is clear and
convincing evidence that respondent violated several additional Disciplinary Rules
with respect to his representation of Angela Catania. Respondent intentionally
misled the insurance company during negotiations by falsely asserting that Catania
suffered psychological injuries. Respondent prepared a false settlement document
by listing a nonexistent medical bill of $1,500 and withheld, without justification,
an additional $731.55. Finally, respondent gave the settlement proceeds to his
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January Term, 2001
brother, Doug Furth, to be deposited in his brother’s personal checking account.
Accordingly, we hold that respondent violated DR 1-102(A)(4) (engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(6)
(engaging in any other conduct adversely reflecting on a lawyer’s fitness to practice
law), 9-102(B)(4) (a lawyer shall promptly pay or deliver to the client as requested
by the client funds in the possession of the lawyer which the client is entitled to
receive), and 9-102(B)(3) (a lawyer shall maintain complete records of all funds of
the client coming into the possession of the lawyer and render appropriate accounts
to his client regarding the same). Were we to adopt the recommendations of the
panel and the board on these facts, we would thereby send a message to the bar that
could not be rationalized with our professional standards.
Count 8
{¶ 55} Although the panel found that respondent violated Disciplinary
Rules regarding his own personal injury case, it concluded that the evidence was
not clear and convincing that respondent knew that the letters, affidavits, and
reports in the matters concerning Joseph Leonetti, Linda Wander, and Jason Widing
were false. We disagree. It is illogical to conclude that respondent intentionally
wrote and used a false affidavit with a forged signature in his own personal injury
case, yet conclude that the other false affidavits, letters, and reports purportedly
prepared by the same person do not constitute clear and convincing evidence that
respondent used falsified documents. Moreover, if the panel believed Goldhamer’s
testimony that she did not write or sign the affidavit in respondent’s personal injury
case, it follows that her testimony regarding the other cases would also be credible.
The panel offers no reason to make a distinction. Accordingly, we hold that
respondent violated DR 1-102(A)(4) (engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct that is
prejudicial to the administration of justice), 1-102(A)(6) (conduct adversely
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reflecting on his fitness to practice law), 7-102(A)(4) (knowingly using false
evidence), and 7-102(A)(5) (knowingly making a false statement of law or fact).
Count 10
{¶ 56} Respondent admitted that he violated DR 2-102(B) (a lawyer in
private practice shall not practice under a name that is misleading), and the board
found a violation. We agree.
Count 11
{¶ 57} The board found no violation, concluding that information contained
within the website did not rise to a level of the Disciplinary Rule violation. We
conclude otherwise. In Medina Cty. Bar Assn. v. Grieselhuber (1997), 78 Ohio
St.3d 373, 678 N.E.2d 535, we held that inclusion of the statement “We Do It Well”
in an advertisement was unverifiable and a violation of DR 2-101(A)(4) (a lawyer
shall not use any form of public communication that is not verifiable).
{¶ 58} Similarly, in Disciplinary Counsel v. Bradley (1998), 82 Ohio St.3d
261, 695 N.E.2d 248, an attorney mailed to the general public brochures that
described the attorney as a “leader in the creation of quality living trust documents”
and published the brochure in a newspaper. We held this conduct to be a violation
of DR 2-101(A)(1) (a lawyer shall not use any form of public communication that
contains any false, fraudulent, misleading, deceptive, self-laudatory, or unfair
statement).
{¶ 59} Under the standard of Bradley and Grieselhuber, respondent’s
statements in the website and his advertisement are clearly unverifiable and self-
laudatory. Accordingly, we find that respondent violated DR 2-101(A)(4) and 2-
101(A)(1).
Sanction
{¶ 60} In recommending a two-year suspension, the board found that
respondent engaged in the following instances of misconduct:
• Holding himself out as a specialist,
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January Term, 2001
• Soliciting Scott Johnson,
• Making misrepresentations of fact to an Arkansas court,
• Paying his client, Scott Johnson, more than $6,000,
• Failing to deposit Catania’s settlement funds in a trust account,
• Knowingly using a forged letter in his own personal injury case, and
• Using a misleading firm name.
{¶ 61} Concluding that respondent’s misconduct occurred during a nine-
month period beginning with solicitation of Scott Johnson, the board recommended
that respondent be suspended for a period of two years. However, the forged letter
that respondent used in his own personal injury case was dated March 4, 1998,
weeks before the Arkansas shooting. And his misconduct with regard to Catania
all occurred after he was terminated by Scott Johnson. We agree with relator that
the record compels a reevaluation of the sanction recommended by the board based
upon the following conduct:
• Making misrepresentations in his solicitation letters to the Arkansas public
defenders and to Scott Johnson,
• Advising a nonlawyer that he should obtain counsel and accepting
employment resulting from that advice,
• Lying to a court,
• Neglecting legal matters,
• Using false affidavits to vacate a court order and to obtain money
settlements in his own and in others’ personal injury cases,
• Withholding settlement monies from a client, and
• Using unverifiable and self-laudatory statements in advertisements.
{¶ 62} In only a few disciplinary cases has a lawyer violated so many rules
of conduct as respondent has violated here. His myriad violations of express rules
are not isolated incidents but form a distinct pattern of disregard for the courts,
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clients, other professionals, and for his own integrity. Because respondent has
demonstrated blatant disregard for the most important standards by which members
of the bar of Ohio are expected to conduct their professional activities, respondent
is hereby permanently disbarred from the practice of law in Ohio. Costs are taxed
to respondent.
Judgment accordingly.
PETREE, RESNICK, F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ.,
concur.
PFEIFER, J., dissents and would indefinitely suspend respondent.
CHARLES R. PETREE, J., of the Tenth Appellate District, sitting for
DOUGLAS, J.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, for relator.
Crabbe, Brown & James, Larry H. James and Christina L. Corl, for
respondent.
__________________
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