Disciplinary Counsel v. Rossi

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Rossi, Slip Opinion No. 2025-Ohio-5398.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2025-OHIO-5398

DISCIPLINARY COUNSEL v. ROSSI.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Rossi, Slip Opinion No.

2025-Ohio-5398.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct,

including making false statement in a pleading and attempting to thwart

prosecution of a criminal case—Six-month suspension.

(No. 2024-1722—Submitted May 14, 2025—Decided December 5, 2025.)

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

Court, No. 2024-010.

__________________

The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,

DEWINE, CARR, DETERS, HAWKINS, and SHANAHAN, JJ. DONNA J. CARR, J., of the

Ninth District Court of Appeals, sat for BRUNNER, J.

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, Gregg August Rossi, of Youngstown, Ohio, Attorney

Registration No. 0051224, was admitted to the practice of law in Ohio in 1990.

{¶ 2} In a March 2024 complaint, relator, disciplinary counsel, charged

Rossi with professional misconduct related to his representation of a single client

in an assault case wherein the victim was the client’s romantic partner. Specifically,

the complaint alleged that Rossi made a false statement to a tribunal and engaged

in conduct prejudicial to the administration of justice arising from his drafting a

nondisclosure agreement between the client and the victim that interfered with the

prosecution of his client’s criminal case.

{¶ 3} The parties entered into stipulations of fact and submitted 14

stipulated exhibits. During a hearing before a three-member panel of the Board of

Professional Conduct, relator presented testimony from Rossi and three other

witnesses. Rossi testified on his own behalf and submitted 36 additional exhibits.

{¶ 4} After the hearing, the panel issued a report in which it made findings

of fact and determined by clear and convincing evidence that Rossi had committed

the charged misconduct. The panel recommended that Rossi be suspended from

the practice of law for six months and that his reinstatement to the profession be

conditioned on his completion of six hours of continuing legal education (“CLE”)

focused on ethics, professionalism, and the application of Marsy’s Law in addition

to the hours required by Gov.Bar R. X. The board adopted the panel’s findings of

fact, conclusions of law, and recommended sanction.

{¶ 5} Rossi objects to the board’s report and recommendation, arguing that

the facts of this case do not warrant an actual suspension from the practice of law

and that a public reprimand or a conditionally stayed suspension would adequately

protect the public from further misconduct.

{¶ 6} After independently reviewing the record and our precedent, we

overrule Rossi’s objection, adopt the board’s findings of misconduct and

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recommended sanction, and suspend Rossi from the practice of law for six months

with his reinstatement to the profession dependent on his compliance with the

board’s recommended condition.

I. FACTS AND MISCONDUCT

{¶ 7} By the time of Rossi’s disciplinary hearing, he and Dr. John Yerkey

had known each other for more than 20 years. Their relationship was initially

professional—Yerkey, a chiropractor, referred clients to Rossi, who handled their

personal-injury cases. Yerkey eventually became a client of Rossi. At some point,

their business relationship developed into a social relationship.

{¶ 8} When Yerkey lost his home to foreclosure, Rossi purchased a home,

placing both their names on the deed. Yerkey lived in the home, using his skills to

renovate it, and Rossi paid him for the renovations. Unable to buy Rossi out,

Yerkey eventually transferred his interest in the property to Rossi. But he continued

to lease the property and live there through 2021 and 2022.

{¶ 9} In May 2021, Yerkey began a romantic relationship with T.D., a

pharmacist. That December, Yerkey was arrested and charged with the

misdemeanor assault of T.D. Rossi represented Yerkey in that matter.

{¶ 10} Yerkey was released on bond during the pendency of the case. One

condition of his bond was that he have no contact with T.D. Notwithstanding the

existence of the no-contact order, T.D. sent Yerkey a text message on Christmas

Eve 2021 inviting Yerkey to talk. Thereafter, Yerkey communicated with T.D. in

an attempt to influence the prosecution of his assault case, and T.D. attempted to

have the no-contact order lifted.

{¶ 11} Although Rossi reminded Yerkey of the no-contact order on at least

four occasions, Rossi also suggested that potential benefits might accrue from

Yerkey’s continuing communication with T.D. For example, Rossi sent Yerkey a

text message stating, “I cannot recommend you violate a court order. If you do[,]

that is at your own risk. Obviously if you are on good terms that will help you in

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the long run but your call.” In another text message, he asked Yerkey for

information about T.D. that Yerkey could obtain only by violating the no-contact

order.

{¶ 12} Yerkey also enlisted Rossi’s assistance to prevent the prosecution of

the assault charges against him. He requested that Rossi draft a nondisclosure

agreement to cover May 1, 2021, to February 10, 2022, which spanned the date of

the assault until right before a scheduled pretrial on the assault case, and asked that

it directly refer to the criminal case. While the criminal case remained pending,

Rossi drafted a document entitled “MUTUAL RELEASE, SETTLEMENT

AGREEMENT, AND NON-DISCLOSURE AGREEMENT” (“the nondisclosure

agreement” or “the agreement”) without ever speaking with T.D.

{¶ 13} As drafted by Rossi, the nondisclosure agreement contained a

dismissal clause stating, “[T.D.] shall request that the charges in Case No. 2021

CRB 00385 in Mahoning County Area Court No. 5 be dismissed without

prejudice.” It also included a confidentiality clause in which the parties mutually

agreed as follows:

[N]either shall publish, disseminate, circulate, share, or otherwise

disclose in any manner any personal information between the parties,

including but not limited to texts, e-mails, phone calls, posts, pictures,

or any other means or form of communication, digital or otherwise,

between the parties or from or to either party or about either party that

were generated between May 1, 2021, and the execution of this

document.

The agreement further provided that any breach of its terms would result in a

monetary penalty of $1,000 per disclosure.

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January Term, 2025

{¶ 14} In response to relator’s letter of inquiry, Rossi wrote, “Nothing in

the Agreement was designed to force a dismissal.” But in his disciplinary-hearing

testimony, Rossi acknowledged that the agreement imposed a mandatory duty on

T.D. to request that the criminal case against Yerkey be dismissed and that she was

“contractually obligated” to do so.

{¶ 15} During Rossi’s disciplinary hearing, T.D. testified that Yerkey

initiated the conversation about the nondisclosure agreement. She believed that the

agreement would protect them both but stated that she felt pressured to sign it

because Yerkey had implied that he would contact and share pictures with her

employer if she did not cooperate. She understood his comments to be a threat to

her job and her occupation.

{¶ 16} At Yerkey’s instruction, on February 10, 2022, T.D. went to Rossi’s

office and signed the nondisclosure agreement in his presence. T.D. testified that

Rossi did not speak with her about the agreement before this appointment and that

he did not recommend that she obtain her own counsel. Rossi confirmed that he

did not speak with T.D. until she appeared at his office to sign the nondisclosure

agreement. A week after T.D. signed the agreement, Rossi informed Yerkey that

he needed to sign it “before Tuesday,” the day of the scheduled pretrial hearing in

his assault case. In his disciplinary-hearing testimony, Rossi explained that because

the nondisclosure agreement included a mutual release, it would not be binding

until both T.D. and Yerkey had signed it. Therefore, T.D. would not be

contractually obligated to request dismissal of the criminal case until Yerkey had

also signed the agreement.

{¶ 17} T.D. had initially cooperated in the prosecution of Yerkey’s assault

case. But after signing the nondisclosure agreement, she believed that the penalty

clause would apply if she continued to speak with prosecutors about the assault.

She therefore informed the prosecutor’s victim/witness coordinator that she could

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no longer talk about the case. The prosecutor’s office believed that it no longer had

the testimony of T.D.—a necessary witness—to prove its case.

{¶ 18} During Rossi’s disciplinary hearing, Mahoning County Assistant

Prosecuting Attorney Patrick Fening testified that after learning of the

nondisclosure agreement, he filed a motion to compel its disclosure. Rossi filed

written objections to that motion, in which he lied to the court, stating, “The terms

and conditions of this Agreement were negotiated between [T.D.] and undersigned

counsel and entered into, providing mutual release and a non-disclosure agreement

with respect to the alleged incident.” In fact, Yerkey asked Rossi to draft the

nondisclosure agreement, and Rossi admitted in his disciplinary-hearing testimony

that he did not speak to T.D. until she arrived at his office to sign it.

{¶ 19} Rossi testified that his statement to the court about negotiating the

nondisclosure agreement with T.D. was a “mistake.” The panel, however, did not

find Rossi’s claim of “mistake” to be credible. Instead, the panel found that Rossi

falsely claimed that he had negotiated the terms of the nondisclosure agreement

with T.D. so that the court would not learn that Yerkey was violating the no-contact

condition of his bond and potentially violating Marsy’s Law, Ohio Const., art. I,

§ 10(A) (guaranteeing certain rights to victims of criminal offenses). The board

agreed with the panel and found that Rossi had intentionally lied to the court.

{¶ 20} The testimony of Fening and Judge Molly Johnson, both of whom

were originally assigned to Yerkey’s criminal case, supports the board’s

determination. Fening testified that had he known that Yerkey was in contact with

T.D., he would have at least brought the issue to the court’s attention and perhaps

moved the court to revoke Yerkey’s bond. Moreover, Judge Johnson testified that

her practice is to schedule a bond-revocation hearing when a defendant has violated

a no-contact order with a bond condition. The judge further testified that if she had

been informed about the communications between Yerkey and T.D. in this case,

she “absolutely” would have considered a revocation hearing.

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January Term, 2025

{¶ 21} Judge Johnson ultimately conducted an in camera review of the

nondisclosure agreement. After reviewing its contents, she recused herself from

Yerkey’s case and filed a grievance with relator against Rossi. The chief justice

appointed a retired judge to preside over Yerkey’s case.

{¶ 22} At Judge Johnson’s suggestion, T.D. spoke with an attorney about

the nondisclosure agreement and eventually resumed her cooperation with the

prosecutor’s office. Yerkey waived his right to a jury trial, and his case was tried

to the bench. The court found Yerkey guilty of assault and subsequently sentenced

him to the maximum sentence of 180 days’ incarceration, with credit for time

served. State v. Yerkey, Mahoning C.C. 5 No. 2021 CRB 00385, (Apr. 11, 2024).

{¶ 23} The board found that clear and convincing evidence demonstrated

Rossi’s violation of Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly

making a false statement of fact or law to a tribunal) when he wrote that he had

negotiated the nondisclosure agreement with T.D.

{¶ 24} In addition, the board found by clear and convincing evidence that

Rossi violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct

that is prejudicial to the administration of justice) by (1) implicitly encouraging

Yerkey to violate the court’s bond condition of no contact with T.D., (2) drafting

the nondisclosure agreement in part to influence the prosecution of Yerkey’s

criminal case, (3) failing to explain the nondisclosure agreement to T.D. or to

suggest that she obtain counsel before signing the agreement, and (4) delaying the

criminal proceedings and necessitating the appointment of a new judge in Yerkey’s

criminal case. We adopt the board’s findings that Rossi’s conduct violated

Prof.Cond.R. 3.3(a)(1) and 8.4(d).

II. RECOMMENDED SANCTION

{¶ 25} When imposing sanctions for attorney misconduct, we consider all

relevant factors, including the ethical duties that the lawyer violated, the

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aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

{¶ 26} The board found three aggravating factors and three mitigating

factors in this case. The aggravating factors consist of Rossi’s dishonest or selfish

motive, his multiple rule violations, and his refusal to acknowledge the wrongful

nature of his misconduct. See Gov.Bar R. V(13)(B)(2), (4), and (7). The board

expressly declined to find that “the vulnerability of and resulting harm” to the

victim, Gov.Bar R. V(13)(B)(8), was an aggravating factor.

{¶ 27} As for mitigating factors, the board found that Rossi did not have a

history of prior discipline, exhibited a cooperative attitude toward the disciplinary

proceeding, and submitted evidence of his good character and reputation. See

Gov.Bar R. V(13)(C)(1), (4), and (5).

{¶ 28} The board recommended that we suspend Rossi from the practice of

law for six months and that his reinstatement to the profession be conditioned on

proof of his completion of six hours of CLE focused on ethics, professionalism, and

the application of Marsy’s Law in addition to the hours required by Gov.Bar R. X.

In support of that sanction, the board relied on three cases imposing six-month

suspensions for comparable misconduct. See Disciplinary Counsel v. Spinazze,

2020-Ohio-957 (a part-time city prosecutor made false representations to a court

about his reasons for offering a plea agreement and then made additional

misrepresentations to his supervisor to conceal his misconduct); Disciplinary

Counsel v. Rohrer, 2009-Ohio-5930 (an attorney deliberately violated a juvenile

judge’s order barring communications with the media and then made false

statements to the judge denying his conduct); Lake Cty. Bar Assn. v. Speros, 1995-

Ohio-205 (an attorney filed an affidavit in court bearing the forged signature of a

notary and containing a false statement claiming that his failure to timely file an

appellate brief was the result of a clerical error).

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III. ROSSI’S OBJECTION TO THE RECOMMENDED SANCTION

{¶ 29} Rossi raises a single objection to the board’s report, arguing that the

facts of this case, including what he characterizes as “substantial” and “impressive”

mitigating evidence, do not warrant an actual suspension from the practice of law

and that a public reprimand or a conditionally stayed suspension would be sufficient

to protect the public.

IV. ANALYSIS

A. Rossi does not appreciate the full extent of his misconduct

{¶ 30} Rossi has not objected to the board’s findings of misconduct. In his

objections, he acknowledges that he made a single false statement in a pleading that

he filed in court in violation of Prof.Cond.R. 3.3(a)(1). However, Rossi

maintains—as he did in the proceedings below—that the nondisclosure agreement

he drafted was legal, valid, and enforceable. He suggests that the board found that

his conduct in drafting the agreement was prejudicial to the administration of justice

in large part because it delayed Yerkey’s criminal proceedings.

{¶ 31} But the delay occasioned by the prosecutor’s motion to compel

disclosure of the nondisclosure agreement was just one of several reasons why the

board found that Rossi had engaged in conduct that was prejudicial to the

administration of justice in violation of Prof.Cond.R. 8.4(d). The board also found

that Rossi violated that rule by implicitly encouraging Yerkey to violate the court’s

bond condition of no contact with T.D., by drafting the nondisclosure agreement to

influence the prosecution of Yerkey’s criminal case, and by failing to explain the

nondisclosure agreement to T.D. or to suggest that she obtain counsel before

signing the agreement.

B. Rossi’s conduct was prejudicial to the administration of justice

{¶ 32} After reviewing the record, we find by clear and convincing

evidence that Rossi engaged in conduct that was prejudicial to the administration

of justice in violation of Prof.Cond.R. 8.4(d) in three respects.

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1. Rossi implicitly encouraged Yerkey to violate the no-contact order

{¶ 33} First, Rossi engaged in conduct that was prejudicial to the

administration of justice by implicitly encouraging Yerkey to violate the county

court’s no-contact order. We acknowledge that on several occasions, Rossi

reminded Yerkey by text message not to contact T.D. Indeed, in a separate text

message, he told Yerkey, “I cannot recommend you violate a court order” and

added, “If you do[,] that is at your own risk.”

{¶ 34} But in that same text message, Rossi suggested that remaining in

contact with T.D. benefitted Yerkey, stating, “Obviously if you are on good terms

that will help you in the long run.” Then, instead of reiterating his previous advice

that Yerkey not contact T.D., Rossi closed the text message: “[B]ut your call,”

leaving to Yerkey’s discretion whether to comply with the court’s no-contact order.

A few days later, Rossi sent Yerkey a text message asking, “What’s up with [T.D]?”

Yerkey’s subsequent text messages to Rossi, arranging a time for T.D. to sign the

nondisclosure agreement at Rossi’s office, leave no doubt that Yerkey continued

speaking with T.D. in violation of the no-contact order and that Rossi encouraged

that conduct.

2. Rossi made a false statement in a pleading filed in the county court

{¶ 35} Second, Rossi engaged in conduct prejudicial to the administration

of justice by making the false statement to the county court about the origin of the

nondisclosure agreement. Rossi falsely claimed that he had negotiated the terms of

the nondisclosure agreement with T.D. even though he knew that (1) he had had no

direct contact with T.D., (2) Yerkey was the one who had negotiated with T.D., and

(3) Yerkey’s communication with T.D. was in direct violation of that court’s no-

contact order.

{¶ 36} Rossi’s communications with Yerkey were subject to attorney-client

privilege, and under Prof.Cond.R. 1.6, Rossi could not reveal that Yerkey had

violated the county court’s no-contact order without Yerkey’s informed consent

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unless that information fell within an exception to the privilege. However, nearly

20 years ago, we agreed with the Supreme Court of Nebraska, which counseled:

“An attorney owes his first duty to the court. He assumed his

obligations toward it before he ever had a client. His oath requires him

to be absolutely honest even though his clients’ interests may seem to

require a contrary course. The [lawyer] cannot serve two masters; and

the one [he has] undertaken to serve primarily is the court.”

(Brackets added in Nienaber.) Cincinnati Bar Assn. v. Nienaber, 1997-Ohio-314,

¶ 13, quoting In re Integration of Nebraska State Bar Assn., 133 Neb. 283, 289

(1937).

{¶ 37} The comments to Prof.Cond.R. 3.3 further advise:

Performance of [the attorney’s duties as an advocate], while

maintaining confidences of the client . . . is qualified by the advocate’s

duty of candor to the tribunal. Consequently, although a lawyer in an

adversary proceeding is not required to present an impartial exposition

of the law or to vouch for the evidence submitted in a cause, the lawyer

must not allow the tribunal to be misled by false statements of law or

fact or evidence that the lawyer knows to be false.

Prof.Cond.R. 3.3, Comment 2.

{¶ 38} Despite his duty of honesty and candor to the court, Rossi chose to

lie to the court about the origin of the nondisclosure agreement, claiming that he

negotiated the agreement with T.D. when he should have remained silent on the

issue. That false statement was not intended to preserve Yerkey’s confidential

information. Rather, it was intended to conceal Yerkey’s violation of the court’s

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no-contact order by deflecting any suspicion that Yerkey had violated that order,

thereby avoiding bond-revocation proceedings against Yerkey. Rossi’s conduct

was prejudicial to the administration of justice.

3. Rossi drafted a nondisclosure agreement intended to thwart the prosecution of

criminal charges pending against his client

{¶ 39} Third, Rossi engaged in conduct that was prejudicial to the

administration of justice by drafting a nondisclosure agreement that attempted to

silence T.D. and thwart the prosecution of the criminal charges against Yerkey.

{¶ 40} Rossi has insisted throughout this disciplinary process that the

nondisclosure agreement was designed to protect the professional relationships of

Yerkey and T.D. by “keep[ing] them from spreading unflattering information,

including photographs, each about the other.” He contends that the agreement “did

not call for [T.D.] to refuse to cooperate with the prosecution,” but merely called

for her to “request” that the prosecutor dismiss Yerkey’s criminal case.

{¶ 41} Rossi insists that if the prosecutor refused to dismiss the case,

“[T.D.] was not contractually bound to refuse to speak to the prosecutor, to ignore

a subpoena or to ignore a court directive to answer questions.” But as we read the

agreement, T.D. would have been contractually obligated to maintain the

confidentiality of her interactions with Yerkey even if she were to respond to a

subpoena or appear as a witness at trial.

{¶ 42} As drafted by Rossi, the agreement identifies the parties to the

agreement and states that they had been involved in a personal relationship since

May 2021. The agreement places Yerkey’s criminal case front and center, stating,

“[T.D.] filed a police report arising out of an interaction between the parties on

December 18, 2021 in N. Lima, Ohio, and [Yerkey] has been charged in Mahoning

County Court No. 5 with Assault.”

{¶ 43} The agreement later requires T.D. to “request that the charges in

Case No. 2021 CRB 00385 in Mahoning County Area Court No. 5 be dismissed

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without prejudice.” Then, following a mutual release of any claims resulting from

or connected with their personal relationship, the agreement broadly prohibits

Yerkey and T.D. from disclosing “any personal information between the parties,

including but not limited to texts, e-mails, phone calls, posts, pictures, or any other

means or form of communication, digital or otherwise” that were generated

between May 1, 2021, and the execution of the agreement—a period that includes

the incident underlying the criminal case against Yerkey. The agreement then

establishes a monetary penalty of $1,000 for each disclosure of protected

information.

{¶ 44} Rossi correctly asserts that the agreement required T.D. to speak

with the prosecutor to seek dismissal of the criminal charges against Yerkey. But

he also contends that the nondisclosure agreement did not prevent T.D. from

cooperating with the prosecution of the criminal case. We disagree.

{¶ 45} Paragraph four of the nondisclosure agreement prohibits the parties

from disclosing the terms of the nondisclosure agreement or the negotiations

leading up to the agreement, “except to the extent required by law.” But that

exception applies only to the prohibitions set forth in that paragraph. The

nondisclosure agreement does not contain a comparable exception that would

permit T.D. to disclose “to the extent required by law” any of the communications

between herself and Yerkey related to the criminal charge against Yerkey. And to

the extent that the nondisclosure agreement prohibits T.D. from disclosing the

communications between herself and Yerkey related to the conduct underlying

Yerkey’s criminal case, it is unenforceable.

{¶ 46} “Liberty of contract is not an absolute and unlimited right, but upon

the contrary is always subservient to the public welfare.” Pittsburgh, C., C. & St.

L. Ry. Co. v. Kinney, 95 Ohio St. 64, at syllabus (1916). For more than 200 years,

this court has recognized that “the right of making contracts at pleasure is a personal

privilege of great value, and ought not to be slightly restrained; but it must be

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restrained when contracts are attempted against the public law, general policy, or

public justice.” Key v. Vattier, 1 Ohio 132, 147 (1823). The test for determining

whether a contract provision is void as against public policy is “‘whether its purpose

is “injurious to the public or contravenes some established interest of society.”‘”

Rhoades v. Equitable Life Assur. Soc. of U.S., 54 Ohio St.2d 45, 47 (1978), quoting

L’Orange v. Med. Protective Co., 394 F.2d 57 (6th Cir. 1968),

quoting McCullough Transfer Co. v. Virginia Sur. Co., Inc., 213 F.2d 440, 443

(6th Cir. 1954).

{¶ 47} We have held, “A release, executed between parties, the

consideration of which, in whole or in part, is the suppression of criminal

prosecution, is void because of a lack of consideration.” Brown v. Best Prods., Inc.,

18 Ohio St.3d 32 (1985), syllabus, applying Springfield Fire & Marine Ins. Co. v.

Hull, 51 Ohio St. 270 (1894), paragraph one of the syllabus (“A contract, the

consideration of which, in whole or in part, is the suppression of a criminal

prosecution, is without any legal efficacy, either as a cause of action or as a defense

to an action not founded on or arising out of the agreement.”). In the cited cases,

however, the defendants had used the threat of bogus criminal charges to coerce the

plaintiffs into agreeing not to pursue legitimate civil remedies. Brown at 34-35;

Springfield Fire at 277-278.

{¶ 48} But a contractual provision that frustrates the prosecution of a

criminal case is void against public policy even absent such coercion. In Fomby-

Denson v. Dept. of Army, 247 F.3d 1366 (Fed.Cir. 2001), the United States Court

of Appeals for the Federal Circuit considered whether public policy prohibited the

enforcement of a contract between the United States Army and an enlistee in which

the army agreed not to refer fraud allegations against the enlistee to civilian law

enforcement. Id. at 1369, 1373.

{¶ 49} Relying on decisions of the United States Supreme Court, the Tenth

Circuit Court of Appeals, and several state supreme courts, the Federal Circuit

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determined, “[I]t is a long-standing principle of general contract law that courts will

not enforce contracts that purport to bar a party . . . from reporting another party’s

alleged misconduct to law enforcement authorities for investigation and possible

prosecution.” Id. at 1377-1378; see, e.g., Branzburg v. Hayes, 408 U.S. 665, 696

(1972) (“[I]t is obvious that agreements to conceal information relevant to

commission of crime have very little to recommend them from the standpoint of

public policy”); Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853

(10th Cir. 1972) (“It is public policy in Oklahoma and everywhere to encourage the

disclosure of criminal activity. . . .”); Baker v. Citizens Bank of Guntersville, 282

Ala. 33, 39 (1968) (“[A] contract based upon a promise or agreement to conceal or

keep secret a crime which has been committed is opposed to public policy and

offensive to the law.”); Groening v. Nowlen, 369 Mich. 28, 33 (1963) (“[A]

contractual obligation, or a conveyance, based on a promise, expressed or implied,

to refrain from instituting or pressing a criminal charge or to obtain the suppression

thereof, is opposed to public policy and is invalid on the ground of illegality of

consideration.”).

{¶ 50} Applying these principles to a settlement agreement with a

nondisclosure clause similar in scope and purpose to the nondisclosure agreement

at issue here, the United States District Court for the Eastern District of

Pennsylvania held, “[T]o the extent a [confidential settlement agreement] purports

to prevent its signatories from voluntarily disclosing information about crimes to

law enforcement authorities, it is unenforceable as against public policy.” Cosby

v. Am. Media, Inc., 197 F.Supp.3d 735, 742 (E.D.Penn. 2016).

{¶ 51} Despite Rossi’s repeated denials, one of the clear purposes of the

nondisclosure agreement he drafted was to prohibit T.D.’s cooperation with law-

enforcement authorities and subvert the truth-seeking function of the trial process.

We therefore conclude that Rossi’s drafting of the nondisclosure agreement to

specifically identify the criminal case against Yerkey and prohibit T.D. from

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disclosing in any manner any communication that occurred between the parties

during the period in which the alleged criminal offense occurred was unethical and

prejudicial to the administration of justice to the extent that it purported to prevent

T.D. from disclosing information about Yerkey’s alleged crimes to law-

enforcement authorities.

C. An actual suspension is an appropriate sanction for Rossi’s misconduct

1. This is not a false-notary case

{¶ 52} In his objection, Rossi contends that the facts of this case do not

support the board’s recommendation that he be suspended from the practice of law

for six months. Arguing that he has not engaged in a pattern of misconduct and

that he has presented substantial mitigating evidence, he contends that the

appropriate sanction for his misconduct is either public reprimand or a conditionally

stayed suspension.

{¶ 53} In support of his argument that a public reprimand is the appropriate

sanction for his misconduct, Rossi relies primarily on ten cases imposing that

sanction on attorneys whose misconduct arose entirely from the false notarization

of documents and the filing of those documents with a court. In four of those cases,

the attorney signed a client’s name to a document with authorization, notarized that

signature without indicating that fact on the face of the document, and then filed

the document with a court. See Disciplinary Counsel v. Moore, 2017-Ohio-883;

Disciplinary Counsel v. Wilson, 2014-Ohio-5487; Disciplinary Counsel v.

Mezacapa, 2004-Ohio-302; Cincinnati Bar Assn. v. Thomas, 2001-Ohio-1344.

{¶ 54} In three other cases that Rossi relies on, the attorney signed a client’s

name to a document without obtaining the client’s consent, falsely notarized the

signature, and then filed the document with the court or another public office. See

Disciplinary Counsel v. Bush, 2023-Ohio-4200; Disciplinary Counsel v. Bryant,

2021-Ohio-375; Columbus Bar Assn. v. Craig, 2012-Ohio-1083.

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{¶ 55} And in the remaining three cases, the attorneys notarized one or more

documents that were not signed in their presence. See Counsel v. Billingsley, 2024-

Ohio-222; Mahoning Cty. Bar Assn. v. Melnick, 2005-Ohio-6265; Disciplinary

Counsel v. Simon, 1994-Ohio-11.

{¶ 56} Rossi’s misconduct differed from those notary cases in intent and

scope because he intentionally lied to the county court to prevent the judge from

learning that his client was violating that court’s no-contact order. Rossi also

engaged in other serious misconduct not present in the notary cases by implicitly

encouraging his client to violate the court’s no-contact order and by drafting a

nondisclosure agreement that was void as against public policy because it sought

to silence the victim of a crime and impede a criminal case.

2. A fully stayed suspension is not appropriate here

{¶ 57} We have held, “When an attorney engages in a course of conduct

that violates [an ethical rule prohibiting dishonesty, fraud, deceit, or

misrepresentation], the attorney will be actually suspended from the practice of law

for an appropriate period of time.” Disciplinary Counsel v. Fowerbaugh, 1995-

Ohio-261, syllabus. But as we recently explained in Mahoning Cty. Bar Assn. v.

Macala, 2024-Ohio-3158, “We have tempered the presumptive sanction of an

actual suspension for an attorney’s dishonest conduct in two sets of circumstances.

First, we have done so when an attorney has engaged in an isolated incident of

dishonest conduct,” id. at ¶ 24. “Second, we have recognized that ‘an abundance

of mitigating evidence can justify a lesser sanction.’” Id. at ¶ 25, quoting

Disciplinary Counsel v. Markijohn, 2003-Ohio-4129, ¶ 8.

{¶ 58} We have consistently recognized that “the goal of disciplinary

proceedings is not to punish the errant lawyer, but to protect the public.” Toledo

Bar Assn. v. Hales, 2008-Ohio-6201, ¶ 21. And “[w]hile consistency is also a goal,

‘we examine each case individually and impose the discipline we believe

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appropriate based on the unique circumstances of each case.’” Id., quoting In re

Disciplinary Action Against Ruffenach, 486 N.W.2d 387, 390 (Minn. 1992).

{¶ 59} Rossi advances no fewer than ten cases to support his argument that

if we reject the sanction of a public reprimand, a conditionally stayed suspension is

the appropriate sanction for his misconduct. But based on the nature and scope of

the misconduct and the relevant aggravating and mitigating factors, the facts and

circumstances of this case are readily distinguishable from those of the cases

advanced by Rossi.

{¶ 60} For example, in Disciplinary Counsel v. Harmon, 2019-Ohio-4171,

four members of this court voted to impose a two-year conditionally stayed

suspension on an attorney who had committed multiple and serious ethical

violations while representing a personal friend and mentor who had been diagnosed

with dementia. Id. Harmon’s misconduct included filing a frivolous lawsuit

against his client’s family members to harass and embarrass them in an attempt to

collect an excessive fee and falsely stating to a magistrate that his client had been

kidnapped. The lead opinion noted that Harmon was practicing in an unfamiliar

area of the law and that his “emotional involvement and his desire to protect his

friend and mentor of more than 40 years clouded his judgment.” Id. at ¶ 40. While

the record here demonstrates that Rossi and Yerkey are friends and that Rossi was

Yerkey’s landlord at the time of Rossi’s misconduct, Rossi has not presented any

evidence that his judgment was similarly clouded by his personal relationship with

his client.

{¶ 61} We also imposed a conditionally stayed one-year suspension in

Columbus Bar Assn. v. Ryan, 2024-Ohio-5570. There, the attorney failed to

diligently and promptly represent a client, and after the client filed a grievance, the

attorney made false statements to pressure the client both to withdraw the grievance

and to falsely inform relator that the client would not waive attorney-client privilege

or permit the attorney to cooperate with the resulting disciplinary investigation.

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{¶ 62} Although Ryan had prior discipline and engaged in a pattern of

misconduct, she also made a good-faith effort to make restitution, exhibited a

cooperative attitude and submitted evidence of her good character and reputation.

We also acknowledged several additional mitigating circumstances that are not

present in this case, including (1) Ryan’s efforts to complete the client’s

representation for free, (2) the role that the COVID-19 pandemic played in delaying

the client’s case, and (3) Ryan’s uncertainty regarding her potentially competing

duties to cooperate in the disciplinary investigation and to simultaneously safeguard

her client’s privileged information from falling into the hands of an adverse party.

Id. at ¶ 16.

{¶ 63} In Columbus Bar Assn. v. Villarreal, 2024-Ohio-5165, we imposed

a conditionally stayed 18-month suspension on an attorney who failed to provide

competent representation to three clients, filed at least three legal proceedings that

were unsupported by law or lacked a good-faith argument for an extension,

modification, or reversal of existing law, and engaged in other frivolous conduct.

Among other things, Villarreal also submitted a client’s affidavit to a court knowing

that the affidavit contained false statements.

{¶ 64} In a unanimous opinion, we imposed a conditionally stayed 18-

month suspension for Villarreal’s misconduct. Id. at ¶ 36. Although Villarreal was

found to have committed more ethical violations than Rossi has committed in this

case, she also took full responsibility for her actions, showed genuine remorse for

her misconduct, and had paid $48,000 in sanctions levied against her for her

dishonest conduct. Id. at ¶ 32.

{¶ 65} On these facts, Villarreal does not support the imposition of a fully

stayed suspension for Rossi’s misconduct. Our decisions in four other cases

advanced by Rossi—Disciplinary Counsel v. Byron, 2024-Ohio-5433; Disciplinary

Counsel v. Moore, 2024-Ohio-5198; Columbus Bar Assn. v. Davis, 2022-Ohio-

1286; and Disciplinary Counsel v. Oviatt, 2018-Ohio-5091—are similarly

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distinguishable on their facts and offer no support for the imposition of a fully

stayed suspension here.

3. A six-month suspension is the appropriate sanction for Rossi’s misconduct

{¶ 66} In his objections, Rossi contends that his misconduct was “less

egregious and his mitigation far weightier” than the misconduct and mitigation at

issue in Toledo Bar Assn. v. DeMarco, 2015-Ohio-4549, but that the sanction

imposed in DeMarco “is the same punishment that the Board proposes [here].”

DeMarco made comments that threatened violence against his own expert witness,

deliberately concealed evidence from the court, and initially failed to show remorse

for his misconduct. DeMarco repeatedly lied to opposing counsel and the court in

an attempt to conceal evidence from the court until confronted with evidence of his

deceit.

{¶ 67} The same three mitigating factors that are present in this case were

present in DeMarco. But in comparison to the three aggravating factors present

here, the sole aggravating factor in DeMarco was a dishonest motive. There, we

found no compelling reason to deviate from the rule that dishonest and deceitful

conduct mandates an actual suspension. Id. at ¶ 14. We imposed a one-year

suspension for DeMarco’s misconduct but stayed the final six months of that

suspension based on his character references, which indicated that his misconduct

“was an aberration in an otherwise unblemished 45-year legal career.” Id. at ¶ 15.

Contrary to Rossi’s assertions, a one-year suspension with six months conditionally

stayed is a greater sanction than a six-month suspension. And we agree that that

sanction is not appropriate in this case.

{¶ 68} After considering the record and our precedent, including each of the

cases advanced by Rossi in support of a lesser sanction, we are persuaded that the

facts of this case are most comparable to those of two cases the board relied on to

support its recommended sanction—Spinazze, 2020-Ohio-957, and Rohrer, 2009-

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Ohio-5930. In each of those cases, we imposed a six-month license suspension on

an attorney who, like Rossi, interfered in criminal proceedings.

{¶ 69} Spinazze, a part-time city prosecutor, offered a plea to a defendant

in a criminal matter, agreeing to reduce the charge of operating a vehicle while

under the influence of alcohol to a physical-control offense. But when confronted

by the judge presiding over the case, Spinazze misrepresented his reasons for

offering the plea and falsely claimed that the arresting officers had consented to the

plea agreement. Relying on those false representations, the judge accepted the plea.

Spinazze then made a false notation on the file and made several misrepresentations

to his supervisor in an effort to conceal his misconduct. An acting judge later

granted the city’s motion to vacate the plea and eventually found the defendant

guilty of OVI.

{¶ 70} In addition to the same professional-conduct violations at issue in

this case, we found that Spinazze had violated Prof.Cond.R. 8.4(c) (prohibiting a

lawyer from engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation). But just one aggravating factor was present in that case—a

dishonest motive—while Rossi also committed multiple offenses and refused to

acknowledge the wrongful nature of his conduct. Along with the three mitigating

factors present here (a clean disciplinary record, cooperation in the disciplinary

proceedings, and evidence of good character), Spinazze also had another sanction

imposed for his misconduct in that his employment was terminated. See Gov.Bar

R. V(13)(C)(6).

{¶ 71} And in Rohrer, 2009-Ohio-5930, an attorney deliberately directed a

staff member to deliver a copy of a motion he had filed in a case to a local

newspaper in violation of the juvenile court’s verbal order prohibiting counsel from

discussing the case with the media. To avoid being removed from the case, Rohrer

falsely told the court that his staff had misconstrued his instructions and leaked the

information to the media. Then, after firing his assistant for divulging confidential

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information, he wrote a letter to the unemployment-compensation bureau falsely

suggesting that his assistant was responsible for the leak.

{¶ 72} Rohrer’s conduct violated Prof.Cond.R. 3.3(a)(1) and 8.4(d) as

Rossi’s conduct did in this case, but it also violated Prof.Cond.R. 3.4(c) (prohibiting

a lawyer from knowingly disobeying an obligation under the rules of a tribunal),

8.4(c), and 8.4(h) (prohibiting an attorney from engaging in conduct that adversely

affects his fitness to practice law). Rohrer at ¶ 20-23. The aggravating and

mitigating factors were identical to those in this case except that Rohrer, like

Spinazze, also had other sanctions imposed for his misconduct. Finding that

Rohrer’s repeated lies to the juvenile court and his subsequent misrepresentations

to the unemployment-compensation bureau “strongly militate[d] against a stayed

suspension,” we suspended him from the practice of law for six months. Rohrer at

¶ 53-54.

{¶ 73} Rossi argues that his misconduct “was nowhere as egregious” as

Rohrer’s misconduct and emphasizes that Rohrer “showed no remorse” for his

misconduct. However, Rossi also fails to acknowledge the seriousness of his own

misconduct, which consists not only of making a single false representation to the

county court but also includes implicitly encouraging his client to violate a court’s

no-contact order and drafting a nondisclosure agreement that was intended to thwart

the prosecution of a pending criminal case.

{¶ 74} We acknowledge that Rossi has submitted 22 character letters—16

from attorneys, five from judges, and one from a magistrate—declaring that he is a

well-respected, dedicated, and zealous advocate who is known for his honesty,

strong work ethic, and community service—including his past service as the

president of the Mahoning County Bar Association. We find that those letters,

combined with Rossi’s clean disciplinary record and cooperation in the disciplinary

proceeding are insufficient to overcome the misconduct in this case.

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{¶ 75} We find that an actual license suspension is necessary both to protect

the public and to impart on Rossi the full extent of the wrongfulness of his

misconduct. We therefore adopt the board’s recommendation that Rossi be

suspended from the practice of law for six months. We also adopt the board’s

recommendation that his reinstatement to the profession be conditioned on his

completion of six hours of CLE focused on ethics, professionalism, and the

application of Marsy’s Law in addition to the hours required by Gov.Bar R. X.

V. CONCLUSION

{¶ 76} Accordingly, Gregg August Rossi is suspended from the practice of

law in Ohio for six months. In addition to the requirements of Gov.Bar R. V(24),

Rossi’s reinstatement to the practice of law shall be conditioned on his submission

of proof that he has completed six hours of CLE focused on ethics, professionalism,

and the application of Marsy’s Law in addition to the hours required by Gov.Bar

R. X. Costs are taxed to Rossi.

Judgment accordingly.

__________________

Joseph M. Caligiuri, Disciplinary Counsel, and Matthew A. Kanai,

Assistant Disciplinary Counsel, for relator.

John B. Juhasz, for respondent.

__________________

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