The opinion
[Cite as Disciplinary Counsel v. Land, 138 Ohio St.3d 357, 2014-Ohio-1162.]
DISCIPLINARY COUNSEL v. LAND.
[Cite as Disciplinary Counsel v. Land, 138 Ohio St.3d 357, 2014-Ohio-1162.]
Attorney misconduct, including creating fraudulent documents and submitting
them to the IRS and being convicted of a felony for corruptly endeavoring
to obstruct the due administration of the IRS—Indefinite suspension.
(No. 2013-0940—Submitted August 21, 2013—Decided March 27, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 12-084.
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Per Curiam.
{¶ 1} Respondent, Suzanne Prieur Land of Hebron, Kentucky, Attorney
Registration No. 0046878, was admitted to practice law in Ohio in 1990. In
September 2012, we imposed an interim felony suspension on Land’s license
pursuant to Gov.Bar R. V(5)(A)(3) after receiving a certified copy of the
judgment entry of her conviction. In re Land, 132 Ohio St.3d 1519, 2012-Ohio-
4042, 974 N.E.2d 115.
{¶ 2} In a four-count complaint filed in November 2012, relator,
disciplinary counsel, alleged that Land had violated the Rules of Professional
Conduct by creating fraudulent documents in relation to estate-planning matters
for three clients and by being convicted of corruptly endeavoring to obstruct and
impede the due administration of the Internal Revenue Service (“IRS”). She was
sentenced by the federal court to five years of probation, including three years of
home detention, but the probationary period may be reduced or extended by the
federal government.
{¶ 3} In April 2013, the parties submitted stipulations of fact and
misconduct and of aggravating and mitigating factors. They also submitted many
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joint exhibits, including numerous character letters from supporters. A panel of
the Board of Commissioners on Grievances and Discipline conducted a hearing
on May 1, 2013, at which Land testified. The panel also heard testimony from
two character witnesses and a licensed social worker from the Ohio Lawyers
Assistance Program (“OLAP”) who had done an assessment of Land. The panel
also received a transcript of the testimony of Land’s treating therapist.
{¶ 4} At the conclusion of the hearing on the matter, the parties jointly
recommended that Land’s license to practice law be suspended indefinitely and
that Land not be able to petition for reinstatement to the practice of law until she
completes her federal sentence. Additionally, the parties jointly recommended
that Land be required to complete her contract with OLAP and continue treatment
with a therapist until the therapist determines that treatment is no longer needed.
The panel adopted the parties’ stipulated facts and conclusions regarding
violations of the Rules of Professional Conduct and agreed with the jointly
recommended sanction of the parties. The board agreed with the panel’s findings,
conclusions, and recommendation.
Misconduct
{¶ 5} For most of her career, Land worked for large law firms and
provided estate-planning advice to wealthy clients. As explained in detail below,
in two separate incidents in early 2010, Land created fraudulent documents and
submitted them to the IRS in an attempt to cover mistakes she had made in
drafting estate-planning documents. And in another case, also in early 2010, she
created a fraudulent e-mail to bolster her credibility with regard to advice she had
given the administrator of an estate. Land testified at the hearing that her conduct
was precipitated by her concern that her clients would lose tax benefits, that she
would suffer repercussions professionally if the clients lost those benefits, and
that she would be embarrassed if others knew of her drafting mistakes.
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{¶ 6} At the time of the misconduct, Land was abusing alcohol and self-
medicating with a prescription antianxiety drug she acquired over the Internet to
help her deal with anxiety, depression, and the stresses of work. A few months
prior to the misconduct, Land had an automobile accident and was arrested and
charged with driving under the influence. She contested that charge, but lost at
trial in January 2010.
Hassman Estate
{¶ 7} Land drafted some estate-planning documents for James Hassman,
who later died. At the time of his death, Hassman owned a condominium in
Florida with a mortgage of approximately $800,000. Hassman also had
personally guaranteed lines of credit for two businesses through First Financial
Bank. His estate was administered in Florida, and his daughter, Jill Yates, served
as his personal representative. Land served as the primary contact for Yates but
did not sign pleadings filed in court or appear in court. Another attorney in her
firm was the attorney of record. Land offered advice and prepared pleadings and
documents for the estate, including the IRS tax return.
{¶ 8} Yates paid the balance of the condominium mortgage with estate
funds. To have sufficient funds in the estate to pay off the mortgage, Yates
transferred funds from a limited-liability company into the estate. After paying
off the mortgage, Yates did not have sufficient funds to satisfy the personally
guaranteed debts to First Financial Bank, prompting the bank to sue Hassman’s
estate. The estate then filed a third-party complaint against Land and the law firm
in which she was a partner, alleging that Land had committed malpractice either
by directly advising Yates to transfer money from the limited-liability company to
the estate and pay off the mortgage or by not advising against it.
{¶ 9} Land claimed in her testimony at the hearing before the panel that
she had advised Yates not to pay off the mortgage until all the estate’s debts were
known. She also testified that because her professional skills were being
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challenged and she was feeling pressure from her firm, she turned to greater
alcohol consumption and self-medicating with the antianxiety drug she acquired
over the Internet and went into a self-described downward spiral.
{¶ 10} Ultimately, thinking that her word against a client’s was not good
enough, Land fabricated an e-mail that contained the essence of the advice she
had given Yates and made it look as if it had been sent to the client almost two
years earlier. In the course of the malpractice litigation, the plaintiffs hired a
document examiner to review the e-mail, and he concluded that the document was
fraudulent. Land eventually admitted to the fraud.
{¶ 11} The parties stipulated, and the panel and board concluded, that this
conduct, which forms the basis of Count Four of the complaint, violated
Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (prohibiting a lawyer from
engaging in conduct that is prejudicial to the administration of justice), and 8.4(h)
(prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law).
{¶ 12} We adopt these findings and agree with these conclusions.
Lienhart Estate
{¶ 13} In 2003, as part of an estate plan for Frank Lienhart, Land created
a limited-liability company and drafted an operating agreement for the company.
The purpose of the operating agreement was to put restrictions on the transfer and
control of the company so that the valuation of the assets of the company would
be discounted, resulting in lower taxes owed by the estate. Lienhart later died,
and in representing his estate, Land filed a federal tax return, reflecting the lower
value of the assets.
{¶ 14} The tax break hinged on language in the operating agreement. The
IRS denied the tax benefit because it found that the language in the operating
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agreement was deficient. The drafting error cost the estate a tax benefit of
approximately $200,000.
{¶ 15} After the IRS denied the tax benefit, Land, in early 2010,
attempted to defraud the IRS by creating an “amendment” to the operating
agreement that cured the deficient language. She dated the document prior to
Lienhart’s death and copied his and his son’s signatures onto the document from
another document. Land also signed and submitted an affidavit to authenticate
the copy of the amendment she had provided. The IRS continued to deny the tax
break, and eventually, Land admitted that she had fabricated the amendment.
{¶ 16} The parties stipulated, and the panel and board concluded, that this
conduct, which forms the basis of Count Two of the complaint, violated
Prof.Cond.R. 8.4(c), 8.4(d), and 8.4(h).
{¶ 17} We adopt these findings and agree with these conclusions.
Schloss Estate
{¶ 18} Land created a limited-liability company as part of an estate plan
for Milton Schloss. She also drafted an operating agreement for the company to
achieve the same tax benefit attempted in the estate plan for Lienhart. The
operating agreement was executed by Schloss and his sons in 2003. Following
Schloss’s death in 2007, Land prepared and submitted the federal tax return to the
IRS. This return reflected a decreased value of the company’s assets due to
alleged restrictions on the assets pursuant to the operating agreement.
{¶ 19} Again, the IRS questioned the tax break, and again, in early 2010,
Land provided the IRS with a copy of an amendment to the operating agreement
that had purportedly been executed before Schloss’s death. To support the
authenticity of the fraudulent amendment, Land also provided the IRS with
several additional fraudulent documents, including a letter to the client and a
business appraiser. She also submitted an affidavit attesting to the amendment’s
authenticity. In 2011, Land admitted that she had fabricated the amendment and
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the documents that she had sent to the IRS to prove the amendment’s authenticity
and that her affidavit contained false and misleading information. The drafting
error cost the estate a tax benefit of $600,000 to $700,000.
{¶ 20} The parties stipulated, and the panel and board concluded, that this
conduct, which forms the basis of Count Three of the complaint, violated
Prof.Cond.R. 4.1(a) (prohibiting a lawyer from, in the course of representing a
client, knowingly making a false statement of material fact or law to a third
person), 8.4(c), 8.4(d), and 8.4(h).
{¶ 21} We adopt these findings and agree with these conclusions.
Felony Conviction
{¶ 22} In March 2012, based on the facts as noted above, Land pled guilty
to a federal information charging her with corruptly endeavoring to obstruct and
impede the due administration of the Internal Revenue Code, in violation of 26
U.S.C. 7212(a). In August 2012, she was sentenced to five years of probation,
including three years of home detention, and was ordered to abstain from alcohol
use, to continue to receive mental-health treatment as deemed necessary by her
probation officer, and to pay criminal monetary penalties of $75,000 and an
assessment of $100.
{¶ 23} The parties stipulated, and the panel and board concluded, that by
being convicted of a felony, which forms the basis of Count One of the complaint,
Land violated Prof.Cond.R. 8.4(b) and 8.4(h).
{¶ 24} We adopt these findings and agree with these conclusions.
Sanction
{¶ 25} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties violated, the actual injury
caused, the existence of any aggravating and mitigating factors listed in BCGD
Proc.Reg. 10(B), and the sanctions imposed in similar cases. Stark Cty. Bar Assn.
v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16;
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Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.
Aggravating and Mitigating Factors
{¶ 26} The parties stipulated, and the panel and board found, that several
aggravating factors are present: Land acted with a dishonest or selfish motive,
engaged in a pattern of misconduct, and committed multiple offenses. BCGD
Proc.Reg. 10(B)(1)(b) through (d). The panel and board found the following
mitigating factors: absence of a prior disciplinary record, full and free disclosure
and a cooperative attitude toward the proceedings, imposition of other penalties or
sanctions, chemical dependency or mental disability—as established through the
testimony of a qualified health-care professional—that contributed to her
misconduct, and evidence of good character and reputation. BCGD Proc.Reg.
10(B)(2)(a), (d), (e), (f), and (g). We adopt these findings.
Sanction Recommended by Parties and Board
{¶ 27} The parties stipulated at the hearing, and both the panel and the
board agree, that the appropriate sanction for Land’s misconduct is that her
license to practice law be indefinitely suspended, that she not be permitted to
petition for reinstatement until she completes her federal probation, that she
complete the conditions of her OLAP contract, and that she continue to receive
treatment from a therapist until the therapist determines that it is no longer
necessary.
Similar Cases
{¶ 28} The panel and board cite Disciplinary Counsel v. Smith, 128 Ohio
St.3d 390, 2011-Ohio-957, 944 N.E.2d 1166, as supporting a sanction of
indefinite suspension here. We agree. In Smith, we imposed an indefinite
suspension with credit for time served under an interim felony suspension on an
attorney who had attempted to conceal his compensation by having his employer
transfer money into two businesses he owned. He was convicted of conspiracy to
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defraud the IRS, four counts of making false tax returns, and one count of
corruptly endeavoring to obstruct and impede an IRS investigation.
Reinstatement was conditioned on the completion of his federal supervised
release and execution of a final agreement to pay restitution. The aggravating and
mitigating factors were similar to those here.
{¶ 29} We also hold that Disciplinary Counsel v. Bennett, 124 Ohio St.3d
314, 2010-Ohio-313, 921 N.E.2d 1064, supports a sanction of an indefinite
suspension in this case. In Bennett, the attorney was convicted of a felony for
structuring financial transactions to avoid federal reporting requirements for
transfers in excess of $10,000. The aggravating and mitigating factors in that case
were similar to those here, and we indefinitely suspended the attorney but granted
him credit for the time he had served under the interim suspension order.
Conclusion
{¶ 30} Accordingly, Suzanne Prieur Land is indefinitely suspended from
the practice of law in Ohio. Land may not petition for reinstatement until she has
completed her federal probation. In addition, upon petitioning for reinstatement,
Land must present proof that she either satisfactorily completed her OLAP
contract or is in compliance with the conditions of her current OLAP contract and
that she either continues to receive treatment from a therapist or that the therapist
determined that treatment is no longer necessary. We credit Land for the time she
has served under the September 6, 2012 interim suspension. Costs are taxed to
Land.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
O’DONNELL, J., concurs in the judgment and the sanction but would not
credit respondent with any time served under the interim suspension.
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Joseph M. Caligiuri, Chief Assistant Disciplinary Counsel, for relator.
Montgomery, Rennie & Jonson, L.P.A., George D. Jonson, and Lisa M.
Zaring, for respondent.
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