Cincinnati Bar Assn. v. Statzer

[Cite as Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649.]

CINCINNATI BAR ASSOCIATION v. STATZER.

[Cite as Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649.]

Attorneys at law — Misconduct — Six-month suspension with sanction stayed on

condition that attorney engage in no further misconduct — Engaging in

conduct involving dishonesty, fraud, deceit, or misrepresentation —

Appearing in a professional capacity before a tribunal and alluding to a

matter that will not be supported by admissible evidence.

(No. 2003-1109 — Submitted September 16, 2003 — Decided December 31,

2003.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 02-45.

__________________

O’CONNOR, J.

{¶1} Respondent, Joni Elizabeth Statzer of Cleves, Ohio, Attorney

Registration No. 0067179, was admitted to the Ohio bar in 1996. On June 17,

2002, relator, Cincinnati Bar Association, charged respondent with violations of

the Code of Professional Responsibility in a two-count complaint. Relator later

amended its complaint to include a third count of misconduct.

{¶2} A panel appointed by the Board of Commissioners on Grievances

and Discipline heard the cause on May 14, 2003, and made findings of fact,

conclusions of law, and a recommendation. The panel dismissed the first and

second counts of the complaint, finding no clear and convincing evidence that

respondent had violated any Disciplinary Rules. See Gov.Bar R. V(6)(H); Ohio

State Bar Assn. v. Reid (1999), 85 Ohio St.3d 327, 708 N.E.2d 193, paragraph two

of the syllabus. The first count alleged that, to avoid discipline, respondent had

induced her former legal assistant to execute a false affidavit claiming that her

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law office had prepared a client’s file for retrieval. The second count alleged that

respondent knew but did not report to relator that a former associate had induced

the same legal assistant to provide false testimony to absolve the associate of

blame for having missed a hearing. The panel determined that the testimony of

the legal assistant, a central witness on these counts, lacked credibility. The panel

also found that respondent’s counsel had sufficiently reported to relator that

respondent had knowledge of claimed misconduct involving the former associate.

{¶3} With respect to the third count, the record shows that respondent

deposed her former legal assistant on November 20, 2002, in anticipation of the

panel hearing, at the office of one of relator’s attorneys. During the proceeding,

which was attended by respondent’s and relator’s legal counsel, respondent

conspicuously placed nine audio cassette tapes in front of her former legal

assistant. By suggestively labeling the tapes and referring to them during

questioning, respondent implied that she had recorded conversations with the

legal assistant that could impeach and personally embarrass the legal assistant.

Respondent also intermittently cautioned the legal assistant to answer truthfully or

risk perjuring herself.

{¶4} Respondent’s suggestive display of the cassettes was intended to

mislead the legal assistant. The tapes were actually blank or held information

unrelated to the legal assistant, and consequently, respondent did not offer the

tapes as evidence during or after the deposition. The panel found that respondent

had thereby violated DR 1-102(A)(4), which prohibits a lawyer from engaging in

conduct involving fraud, deceit, dishonesty, or misrepresentation, and DR 7-

106(C)(1), which prohibits a lawyer appearing in a professional capacity before a

tribunal from alluding to any matter that will not be supported by admissible

evidence.

{¶5} In recommending a sanction for this misconduct, the panel

reviewed the mitigating and aggravating considerations listed in Section 10 of the

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Rules and Regulations Governing Procedure on Complaints and Hearings Before

the Board of Commissioners on Grievances and Discipline of the Supreme Court.

The panel determined that in attempting to mislead the legal assistant, respondent

“engaged in a deceptive practice during the disciplinary process.” The panel

found no other aggravating factors and identified no mitigating factors.

{¶6} Having found that respondent violated DR 1-102(A)(4), the panel

concluded that she should receive an actual suspension of her law license, the

sanction ordinarily required for this infraction. See Cincinnati Bar Assn. v.

Florez, 98 Ohio St.3d 448, 2003-Ohio-1730, 786 N.E.2d 875, and Disciplinary

Counsel v. Fowerbaugh (1995), 74 Ohio St.3d 187, 658 N.E.2d 237. But, see,

Cleveland Bar Assn. v. Cox, 98 Ohio St.3d 420, 2003-Ohio-1553, 786 N.E.2d

454, ¶ 18; Toledo Bar Assn. v. Kramer (2000), 89 Ohio St.3d 321, 323, 731

N.E.2d 643 (A lesser sanction may be appropriate for an attorney’s violation of

DR 1-102[A][4] where the misconduct is an isolated incident in an otherwise

unblemished legal career). The panel also found respondent’s misconduct similar

to that committed in Columbus Bar Assn. v. King (1998), 84 Ohio St.3d 174, 702

N.E.2d 862, wherein two attorneys were disciplined for surreptitiously taping a

telephone call in which one of them had solicited arguably slanderous remarks

about his client from an opposing party and then added the slander allegation to

the pending claim. In King, we suspended one attorney from the practice of law

for one year, suspended the other attorney for six months, and conditionally

stayed both suspensions. Here, the panel recommended suspending respondent’s

license for one year and staying six months of that sanction on the condition that

she engage in no further misconduct. Pursuant to Gov.Bar R. V(6)(L), the board

adopted the panel’s findings and recommendation.

{¶7} Relator urges us to find that respondent lied during the

investigation leading to Count I about whether she had actually returned the

client’s case file that was the subject of the prior grievance against her. In

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response to relator’s inquiry, respondent assured the investigator in writing that

the client’s file had been copied and made available to the client, and she included

with her response the legal assistant’s affidavit, later recanted, to this effect.

Relator argues that this representation is contradicted by other documents in

which respondent stated that she would not release the file until the client paid her

legal fees, by the client’s new attorneys, who testified that respondent did not

comply with their requests for the file, and by her former client, who testified that

she never received the file. Relator insists that these contradictions discredit

respondent’s story, notwithstanding the legal assistant’s unreliable account of

what may or may not have happened after the client discharged respondent.

{¶8} Upon review, we acknowledge that these inconsistencies exist;

however, they do not warrant disregarding the panel’s findings as adopted by the

board. The panel observed the witnesses firsthand and thus possessed an enviable

vantage point in assessing the credibility and weight of their testimony. For this

reason, we ordinarily defer to a panel’s credibility determinations in our

independent review of professional discipline cases unless the record weighs

heavily against those findings. Cleveland Bar Assn. v. Cleary (2001), 93 Ohio

St.3d 191, 198, 754 N.E.2d 235.

{¶9} Here, the panel questioned respondent at length and unanimously

dismissed Count I after finding insufficient evidence to conclude that she had

acted dishonestly. Supplanting the panel’s judgment on this issue would require

proof of the variety in Findlay/Hancock Cty. Bar Assn. v. Filkins (2000), 90 Ohio

St.3d 1, 734 N.E.2d 764, in which we rejected recommended findings of

misconduct because the panel had relied largely on the uncorroborated testimony

of a witness who had admittedly lied often, including once under oath. The

inconsistencies asserted by relator simply do not compare. Relator’s first

objection, therefore, is overruled, and we adopt the recommendation to dismiss

Count I.

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{¶10} Additionally, relator objects to the panel’s unanimous decision to

dismiss Count II. Relator argues that respondent had a duty to report under DR 1-

103(A) (a lawyer possessing unprivileged knowledge of misconduct as defined by

DR 1-102 shall report such knowledge to an appropriate authority) that her legal

assistant told respondent that she had testified falsely at the direction of

respondent’s former associate. We disagree, again out of deference to the panel.

The panel found that the allegations in Count II depended “in large part” on the

legal assistant’s “frail credibility.” We take from this that the panel considered

the legal assistant’s claim so inherently unreliable that, in retrospect, it did not

invoke the reporting requirement in DR 1-103(A), regardless of whether the claim

ultimately turned out to be true. Moreover, the panel found that respondent’s

counsel did report to relator other allegations of misconduct against the associate

that were based on respondent’s personal experience. Accordingly, relator’s

second objection is also overruled, and Count II is dismissed.

{¶11} In her objections to the panel’s findings as adopted by the board

relative to Count III, respondent asserts that while DR 7-106(C)(1) prohibits an

attorney’s reference to matters that will not be supported by admissible evidence

when appearing “before a tribunal,” it does not apply to the deposition respondent

conducted at the office of relator’s attorney. Respondent also contends that her

conduct during the deposition of the legal assistant did not constitute a violation

of DR 1-102(A)(4). We reject both arguments.

{¶12} “Tribunal” is defined in the Code of Professional Responsibility as

“all courts and all other adjudicatory bodies,” but we have not construed this term

as narrowly as respondent urges us to do today. In Disciplinary Counsel v. Levin

(1988), 35 Ohio St.3d 4, 517 N.E.2d 892, an attorney became verbally abusive

during a deposition. We found that in making his insulting and profane remarks,

the attorney had acted before a tribunal in violation of DR 7-106(C)(2) (asking

any question before a tribunal that the attorney has no reason to believe is relevant

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to the case and that is intended to degrade a witness or other person), 7-106(C)(5)

(failing to comply with known local customs of courtesy or practice while

appearing before a tribunal), 7-106(C)(6) (engaging in undignified or discourteous

conduct degrading to a tribunal), and 7-106(C)(7) (intentionally or habitually

violating an established rule of procedure or evidence). Id. at 7, 517 N.E.2d 892.

{¶13} We continue to adhere to this view. Although depositions are

conventionally conducted without direct judicial supervision, such proceedings

are nevertheless always subject to judicial intervention and oversight under Civ.R.

30(D) (court may terminate or limit the scope of a deposition upon a showing of

bad faith or harassment on the part of a deponent or party) and, thus, are within

the boundaries of the judicial setting. And because there is ordinarily no

presiding authority, “it is even more incumbent upon attorneys to conduct

themselves in a professional and civil manner during a deposition.” Matter of

Golden (1998), 329 S.C. 335, 343, 496 S.E.2d 619.

{¶14} Depositions may be used to investigate an adversary’s case or to

preserve testimony for impeachment or for the record. Civ.R. 32(A). Any

deposition that is to be used as evidence must generally be filed in court. Id. It

therefore follows that these proceedings are to be conducted as if before a

tribunal, including in accordance with DR 7-106(C)(1). In fact, depositions taken

in Gov.Bar R. V proceedings must be filed with the board pursuant to Civ.R. 32.

Section 3(B) of the Rules and Regulations Governing Procedure on Complaints

and Hearings Before the Board of Commissioners on Grievances and Discipline.

{¶15} Respondent, however, urges us to distinguish trial conduct from

“discovery depositions,” arguing that the latter require greater freedom of inquiry

into matters that may be relevant but inadmissible. See Civ.R. 26(B)(1)

(inadmissible evidence reasonably calculated to lead to the discovery of

admissible evidence is also discoverable). This was particularly the case,

respondent insists, in the deposition of the legal assistant. She argues that wide

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latitude was imperative during that proceeding to draw honest testimony from a

theretofore untrustworthy witness and that use of the audio cassette tapes was

merely a tactic intended to achieve this legitimate end.

{¶16} We recognize that the discovery process, particularly the pursuit of

information through deposition, cannot be overly restricted if it is to remain

effective. We must draw the line, however, when an attorney engages in

subterfuge that intimidates a witness. While respondent’s primary purpose during

the legal assistant’s deposition may have been to elicit the truth, her tactic also

tricked the legal assistant into thinking that the revelation of embarrassing

confidences was at stake.

{¶17} Throughout these proceedings, respondent has asserted that her

“bluff” worked. Regardless, the success of her tactic is not at issue, and

respondent can not, with any degree of certainty, assert that her witness would not

have testified truthfully in the absence of her subterfuge. Further, while such

deception may induce truthful testimony, it is just as likely to elicit lies if a

witness believes that lies will offer security from the false threat. Respondent’s

deceitful tactic intimidated her witness by creating the false impression that

respondent possessed compromising personal information that she could offer as

evidence. For these reasons, we agree that respondent violated DR 1-102(A)(4)

and 7-106(C)(1).

{¶18} As a sanction for respondent’s misconduct, relator advocates

respondent’s indefinite suspension from the practice of law based on arguments

that respondent committed misconduct in connection with Counts I and II, in

addition to Count III. Respondent, on the other hand, argues that the complaint

should be dismissed. In the alternative, she asserts that the panel and board

ignored mitigating evidence and, therefore, the sanction recommended by the

board—a one-year suspension with six months conditionally stayed—is too

severe. Respondent proposes that a public reprimand would be more appropriate.

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{¶19} We find that either proposed sanction, as well as the board’s

recommendation, would be incommensurate with respondent’s misconduct. An

indefinite suspension would be too harsh in light of our dismissal of Counts I and

II, while no more than a public reprimand would unduly minimize the severity of

respondent’s conduct.

{¶20} As to the board’s recommendation, we find that there are

mitigating factors for which the board did not account. Specifically, the panel and

board did not mention that there is no evidence of respondent’s having been

professionally disciplined before now, the grievances lodged against her

notwithstanding. Moreover, respondent has a professional history of dutiful

service to clients, including the client whose case file she supposedly has not

returned. In fact, another of respondent’s associates testified that respondent had

worked tirelessly on this client’s behalf for years while representing her in a

contentious divorce and related allegations of abuse. Finally, respondent

cooperated in these proceedings.

{¶21} On the basis of these mitigating factors, we temper our disposition

in accordance with the rule that a stayed suspension is sometimes warranted by

mitigating concerns, notwithstanding a violation of DR 1-102(A)(4). See

Disciplinary Counsel v. Markijohn, 99 Ohio St.3d 489, 2003-Ohio-4129, 794

N.E.2d 24 (attorney who falsely reported contributions to his law firm’s

retirement plan violated DR 1-102[A][4], but his good character, lack of any

disciplinary record, and personal difficulties were sufficiently mitigating to stay

the ordered six-month suspension), and Disciplinary Counsel v. Wrenn, 99 Ohio

St.3d 222, 2003-Ohio-3288, 790 N.E.2d 1195 (assistant prosecutor who did not

disclose potentially exculpatory DNA results violated DR 1-102[A][4] and three

other Disciplinary Rules, but his background and acknowledged poor judgment

were sufficiently mitigating to stay the ordered six-month suspension).

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{¶22} Consistent with this authority, we order that respondent be

suspended from the practice of law in Ohio for six months, and we stay this

sanction on the condition that she engage in no further misconduct. If respondent

violates this condition, the stay will be lifted, and respondent will serve the entire

period of actual suspension. Costs are taxed to respondent.

Judgment accordingly.

RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR and O’DONNELL,

JJ., concur.

MOYER, C.J., and F.E. SWEENEY, J., dissent.

__________________

MOYER, C.J., dissenting.

{¶23} I respectfully dissent from the sanction imposed on respondent by

the majority. For the reasons that follow, I would suspend respondent for one

year and stay six months of the suspension on condition that she engage in no

further misconduct.

I

Erroneous Dismissal of Count I

{¶24} The board dismissed Count I of relator’s complaint. Count I

alleged facts that, if true, warrant the conclusion that respondent lied to the bar

association in a written response to a disciplinary grievance filed against her in

2000 and that, to support that lie, she provided the bar association with evidence

she knew to be misleading at best, i.e., an affidavit that had been executed by her

legal assistant.

{¶25} In correspondence related to that grievance, respondent stated that

a former client had, in fact, been “given copies of all papers in her file” at her

request. To support that assertion, respondent provided the bar association with

an affidavit executed by her legal assistant representing that the assistant had

“prepared a complete photocopy of [the former client’s] domestic relations file,

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and left it at the front desk for [the former client] to pick up” in January 1999.

The legal assistant averred in her affidavit that she assumed that the file had been

“picked up by [the former client] as it is no longer at the front desk.”

{¶26} If the majority views the first count of the complaint as

constituting a charge that respondent solicited the execution of a false affidavit,

then the board’s dismissal of Count I arguably is justified. The respondent

testified that she did not ask the legal assistant to prepare the affidavit (although

she did declare that she felt justified in supplying the bar association with the

affidavit because its contents reflected “what Jennifer told [her] to be true”). The

legal assistant testified that the respondent had asked her to prepare the false

affidavit. In view of the board’s conclusion that the legal assistant lacked

credibility, the relator did not provide clear and convincing evidence to rebut

respondent’s testimony that she did not ask the legal assistant to execute a false

affidavit.

{¶27} When the first count of the complaint is appropriately viewed more

broadly, it is clear that the relator did establish, by clear and convincing evidence,

that respondent had engaged in conduct involving dishonesty, fraud, deceit, or

misrepresentation, even if the testimony of the legal assistant is disregarded for

lack of credibility. The legal assistant’s affidavit, offered by the respondent,

constitutes a representation by the respondent that the former client was presented

with a complete copy of her file in January 1999.

{¶28} The record contains clear and convincing evidence that the

respondent was well aware that the client had not received a copy of her file in

January 1999. In December 1998, respondent wrote her client, indicating that she

would provide a copy of the file only upon receipt of a check for $15,000. On

February 23, 1999, subsequent to the time period referenced in the legal

assistant’s affidavit, respondent wrote to the client’s new attorney, “If I receive a

check of $3,000.00, I will, immediately within 24 hours, turn over her file to

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you.” She added, “If I do not receive that token payment, you will not be

receiving any files from my office.” In November 1999, respondent filed answers

to interrogatories served upon her by her former client, whom she had sued for the

payment of legal fees. In those answers, respondent asserted that she would not

produce her former client’s file because it “is too voluminous to copy, and also

there is an attorney’s lien on this information.” She further answered, “The file is

available for inspection at any time in my office. I will also make it available for

the court hearing. However, I will not release it because of the lien.”

{¶29} Her representation to the bar that the former client had in fact

received the file was clearly and convincingly proven to be “conduct involving

dishonesty, fraud, deceit, or misrepresentation” in violation of DR 1-102(A)(4).

Therefore, I do not believe the board should have dismissed Count I of the

complaint.

II

Sanction

{¶30} Respondent acknowledges that she engaged in a deceptive practice

while deposing her former legal assistant during the course of the bar

association’s disciplinary investigation of her. Yet she shows no remorse for that

conduct. She continues to assert that her intentional use of deceit was justified

and implies that it is perfectly appropriate to deceive a witness in the course of a

deposition in order to “encourage” the witness to testify truthfully. She thus

apparently believes that the ends (obtaining truthful testimony from a witness)

justify the means (intentionally deceiving a witness).

{¶31} Respondent affirmatively argues that it was appropriate to

intentionally create a false impression in the mind of the deposition witness, her

former legal assistant, because the witness herself had been untruthful in the past.

She asserts that attorneys frequently engage in competitive endeavors “no

different” from other activities in which “two opposing sides vie for victory” and

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characterizes her actions as meeting “fire with fire.” She analogizes litigation to a

game of poker, in which “bluffs” are commonly employed.

{¶32} In my view, however, attorneys must be held to ethical standards

higher than those expected of poker players. Attorneys are not justified in

employing deception even when they believe that the person with whom they are

dealing is untruthful. Were we to condone such conduct, the practice of law

would likely quickly slide to the lowest levels of ethical behavior. The maxim

taught us as children remains valid: two wrongs do not make a right.

{¶33} The board recommended that respondent be suspended for a period

of one year, with six months of the suspension to be stayed on condition that she

engage in no further misconduct. I agree with that recommendation. I believe

that the mitigation cited by the majority is counterbalanced by the respondent’s

failure to appreciate the wrongfulness of her conduct. The sanction imposed by

the majority sends the wrong message to the bar and to the public. I would adopt

the recommendation of the board.

F.E. SWEENEY, J., concurs in the foregoing dissenting opinion.

__________________

Clements, Mahin & Cohen, L.L.P., and William E. Clements; Rendigs,

Fry, Kiely & Dennis, L.L.P., and Carolyn A. Taggart, for relator.

Timothy A. Smith and Lester S. Potash, for respondent.

__________________

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