holding that an attorney who engages in a course of conduct involving dishonesty, fraud, deceit, or misrepresentation will be actually suspended from the practice of law for an appropriate period of time
How later courts described this case
- holding that an attorney who engages in a course of conduct involving dishonesty, fraud, deceit, or misrepresentation will be actually suspended from the practice of law for an appropriate period of time
- creating a presumption that an attorney who has engaged in a course of conduct involving dishonesty, fraud, deceit, or misrepresentation will receive an actual suspension
- creating 5 SUPREME COURT OF OHIO a presumption that an attorney who has engaged in a course of conduct involving dishonesty, fraud, deceit, or misrepresentation will receive an actual suspension
Written by the judges who cited it.
The opinion
OFFICE OF DISCIPLINARY COUNSEL V. FOWERBAUGH.
[Cite as Disciplinary Counsel v. Fowerbaugh (1995), ___ Ohio
St.3d ___.]
When an attorney engages in a course of conduct that violates DR 1-
102(A)(4), the attorney will be actually suspended from
the practice of law for an appropriate period of time.
Attorneys at law -- Misconduct -- Misleading or lying to a client
concerning a legal matter entrusted to the lawyer by a client --When
an attorney engages in conduct involving dishonesty, fraud, deceit,
or misrepresentation, the attorney will be actually suspended from
the practice of law for an appropriate period of time.
(No. 95-394 -- Submitted September 13, 1995 -- Decided
December 12, 1995.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 94-25.
Relator, Office of Disciplinary Counsel, filed a complaint with
the Board of Commissioners on Grievances and Discipline of the
Supreme Court (“board”), charging respondent, Albert E.
Fowerbaugh of Cleveland, Ohio, Attorney Registration No. 0001535,
with violating DR 6-101(A)(2) (handling a legal matter without
preparation adequate in the circumstances), 6-101(A)(3) (neglecting
an entrusted legal matter), 1-102(A)(4) (engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation), and 1-
102(A)(6) (engaging in conduct that adversely reflects upon his
fitness to practice law). Respondent stipulated to all charged
disciplinary violations, as well as many of the allegations in the
complaint. The matter was heard by a panel of the board on January
13, 1995.
The stipulations and testimony before the hearing panel
establish that in April 1992, Patricia Veale, a resident of Florida,
retained respondent to represent her in obtaining a parentage and
child support order for her minor child. Beginning in May 1992,
respondent conducted negotiations with the attorney for the putative
father concerning a settlement on these issues. By July 1993, Veale
had become concerned with respondent’s representation after
numerous telephone calls to respondent were made without
response. Moreover, respondent had ignored Veale’s requests to
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have the putative father pay the cost of the blood test used in
determining paternity.
Apparently in an attempt to placate his client, respondent
misrepresented to Veale that he was proceeding with a paternity
action in Summit County Juvenile Court. In late September 1993,
Veale repeatedly inquired as to the status of her case and requested
copies of court documents that would confirm to her that respondent
had actually filed the paternity action. On September 28, 1993,
Veale received what appeared to be a copy of a complaint filed in
Summit County Juvenile Court. Actually, the document was a fake.
Respondent testified that shortly after misrepresenting to Veale
about the filing of the case, he attempted to file the complaint with
the juvenile court. The court refused to accept the complaint for filing
as the case should have been filed with the Child Support
Enforcement Agency (“CSEA”). However, the CSEA would not
accept the complaint because of Veale’s non-resident status. In an
effort to stall his client’s inquiries, respondent created a false
document by superimposing an official time stamp from another
3
document onto the rejected complaint, adding a fictitious case
number, and “assigning” an actual Summit County judge to the
action. Respondent then faxed the fabricated document to his client.
After receiving the fraudulent “complaint”, Veale called the
Summit County Juvenile Court to determine if a complaint had been
filed. The clerk informed her that the court was not issuing numbers
in the range of the case number appearing on the “complaint”.
Respondent perpetuated his dishonest conduct by falsely
indicating to Veale that a hearing on her paternity action had been
scheduled for November 4, 1993. Continuing to mislead his client,
respondent called Veale in late October 1993 to confirm the fictitious
hearing date. Still suspicious, Veale nonetheless purchased an
airline ticket in anticipation of attending the hearing. Further
deceiving his client, respondent prepared and sent to Veale what
appeared to be an official request for production of documents.
Shortly before the fictitious hearing date, respondent falsely
represented to Veale that the November 4 court date, which had
never been scheduled, had been canceled due to a scheduling error
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by the court. After this final blatant misrepresentation, respondent
sent a letter to Veale terminating the attorney-client relationship and
returning the retainer fee. Nowhere in the letter did respondent
acknowledge his failure to file the action with the juvenile court or his
subsequent pattern of misrepresentation to her.
The hearing panel found that despite the testimony of the
complaining witness and respondent’s stipulations that he had
violated all the Disciplinary Rules charged in the complaint, the
evidence supported only a violation of DR 6-101(A)(2) for “handling”
a legal matter without preparation adequate in the circumstances and
a violation of DR 1-102(A)(4) for engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation.
In recommending a public reprimand for this misconduct, the
hearing panel considered that respondent did not create financial
hardship or pecuniary loss to Veale, that Veale was receiving $450
per month which respondent had negotiated, that he had practiced
for thirty years with no history of disciplinary violations, and that he
had been candid with the panel. The panel also considered that
5
respondent had been suffering personal problems and upheaval in
his office, both of which have since been corrected. The board
adopted the panel’s findings and recommended that respondent
receive a public reprimand.
-----------------------------
Geoffrey Stern, Disciplinary Counsel, and Alvin E. Mathews,
Assistant Disciplinary Counsel, for relator.
Albert E. Fowerbaugh, pro se.
-----------------------------
MOYER, C.J. This disciplinary case presents the court with an
opportunity to provide guidance to certified grievance committees
and the Board of Commissioners on Grievances and Discipline in all
cases where an attorney engages in a pattern of conduct of
misleading or lying to a client concerning a legal matter entrusted to
the lawyer by the client. DR 1-102(A)(4) is straight forward and
unambiguous. It states that a “lawyer shall not *** [e]ngage in
conduct involving dishonesty, fraud, deceit, or misrepresentation.”
6
In discipline cases where an attorney has deceived a client, we
have imposed a varying range of sanctions. In Disciplinary Counsel
v. Gwyn (1994), 71 Ohio St.3d 8, 640 N.E.2d 1141, we publicly
reprimanded an attorney for violating DR 6-101(A)(3) and 1-
102(A)(4). In Gwyn, the respondent told his client that he had filed a
lawsuit when in fact he had not filed the suit. The misrepresentations
continued for two years. The respondent even fabricated pleadings
falsely indicating that the case had been filed and dismissed. During
that time, however, the respondent made other efforts to resolve the
matter, including research into the legal issues involved in the case
and attempts at discovery. Because of respondent’s forthright
testimony and numerous character witnesses, the court adopted the
board’s recommendation that respondent receive only a public
reprimand. Gwyn, 71 Ohio St.3d at 10, 640 N.E.2d at 1142.
In Toledo Bar Assn. v. Dzienny (1995), 72 Ohio St.3d 173, 648
N.E.2d 499, the respondent failed to file a medical malpractice
lawsuit before the statute of limitations expired. Converting an act of
malpractice into a violation of the Code of Professional
7
Responsibility, respondent concealed his malpractice and continually
misled his clients regarding the status of the lawsuit. The Board of
Commissioners on Grievances and Discipline found that the
respondent had violated both the DR 6-102(A) and 1-102(A)(4), and
recommended a six-month suspension that should be stayed. In
rejecting respondent’s plea for a public reprimand the court adopted
the board’s recommendation, stating that “[i]n light of the significant
and lengthy deception of his clients, the respondent’s argument that
he deserves the lightest punishment possible under the rules is
without merit.” Dzienny, 72 Ohio St.3d at 175, 648 N.E.2d at 501,
(Moyer, C.J., dissenting to the stay of the suspension).
More recently we moved closer to the rule we announce today.
In Lake Cty. Bar Assn. v. Speros (1995), 73 Ohio St.3d 101, 104,
652 N.E.2d 681, 683, we stated that “[d]ishonesty toward a client,
whose interests are the attorney’s duty to protect, is reprehensible.
And, as we continue to see such violations of DR 1-102(A)(4), we
recognize that this misconduct may hereafter require more severe
8
discipline than we have previously imposed.” Respondent was
suspended from the practice of law in Ohio for six months.
We express our growing concern with the increase in the
discipline matters referred to us by the Board of Commissioners on
Grievances and Discipline in which members of the bar of Ohio have
deceived their clients or a court. A lawyer who engages in a material
misrepresentation to a court or a pattern of dishonesty with a client
violates at a minimum, the lawyer’s oath of office that he or she will
not “knowingly employ or countenance any *** deception, falsehood
or fraud.” Gov. Bar R.I(8)(A). Such conduct strikes at the very core
of a lawyer’s relationship with the court and with the client. Respect
for our profession is diminished with every deceitful act of a lawyer.
We cannot expect citizens to trust that lawyers are honest if we have
not yet sanctioned those who are not. Therefore, recognizing that
the sanctions that we have imposed heretofore against lawyers who
have violated DR 1-102(A)(4) are apparently not causing some
lawyers to understand the importance of being honest with courts
and clients, we announce a rule that will be applied to this case and
9
future cases. When an attorney engages in a course of conduct
resulting in a finding that the attorney has violated DR 1-102(A)(4),
the attorney will be actually suspended from the practice of law for an
appropriate period of time.
In the instant case, respondent engaged in a continuing course
of deceit and misrepresentation designed to cover up his inaction on
an entrusted legal matter. After lying to his client about proceeding
with the case, respondent fabricated documents to perpetuate the
fraud until he finally withdrew from the case. Respondent argues that
his cover-up was merely an effort to stall his client’s inquiries, and
that his reliance on misinformation that he received from the juvenile
court necessitated the deception. We find these arguments to be
spurious. Rather than accepting personal responsibility for his
actions, respondent attempts to justify his conduct. Furthermore,
respondent’s protracted deception would not have been uncovered if
his client had not taken it upon herself to verify her own attorney’s
actions.
10
While we are cognizant of the pressures and demands, both
professional and personal, that attorneys may face, this court “cannot
permit attorneys who lie either to their clients or to the court to
continue practicing law without interruption.” Disciplinary Counsel v.
Greene (1995), 74 Ohio St.3d 13, ___, ___ N.E.2d ___, ___.
Therefore, we hold that when an attorney engages in a course of
conduct that violates DR 1-102(A)(4), the attorney will be actually
suspended from the practice of law for an appropriate period of time.
In spite of respondent’s stipulation that he violated DR 6-
101(A)(2), 6-101(A)(3), 1-102(A)(4), and 1-102(A)(6), the hearing
panel and the board dismissed both the 6-101(A)(3) and 1-102(A)(6)
charges because they believed these charges had not been proven
by clear and convincing evidence. We defer to the board and will not
disturb that finding. However, we remind the board that an attorney’s
conduct may constitute neglect when the attorney fails “‘to advance a
client matter for which he has been retained. Neglect is different
from negligence and usually requires a pattern of disregarding
11
obligations or repeated omissions by an attorney.’ [Citation omitted].”
Dzienny, 72 Ohio St.3d at 176, 648 N.E.2d at 502.
For the foregoing reasons, we order that respondent be
suspended from the practice of law in the state of Ohio for six
months. Costs taxed to respondent.
Judgment accordingly.
WRIGHT, F.E. SWEENEY and COOK, JJ., concur.
DOUGLAS and RESNICK, JJ., concur in judgment only.
PFEIFER, J., dissents and would suspend respondent for six
months, stayed.
Alice Robie Resnick, J., concurring in judgment. For the reasons set
forth in my dissenting opinion in Disciplinary Counsel v. Greene (1995), 74
Ohio St.3d 13, ___ N.E.2d ___, I concur in judgment only. It is the
responsibility of this court to give guidance as to what conduct constitutes a
violation of the Disciplinary Rules. It is not the province of this court to use
syllabus law to mandate a particular sanction once a violation has been
found. The sanction in each individual’s case should be determined based
upon the unique facts and circumstances of that case.
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DOUGLAS, J., concurs in the foregoing opinion.
13