Disciplinary Counsel v. Shaw

[Cite as Disciplinary Counsel v. Shaw, 138 Ohio St.3d 522, 2014-Ohio-1025.]

DISCIPLINARY COUNSEL v. SHAW.

[Cite as Disciplinary Counsel v. Shaw, 138 Ohio St.3d 522, 2014-Ohio-1025.]

Attorney misconduct, including representing clients while under suspension for

earlier serious misconduct—Permanent disbarment.

(No. 2013-0923—Submitted August 21, 2013—Decided March 25, 2014.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 12-096.

____________________

Per Curiam.

{¶ 1} Respondent, Kenneth Norman Shaw of Warren, Ohio, Attorney

Registration No. 0005525, was admitted to the practice of law in Ohio in 1980.

We suspended Shaw for two years on September 23, 2010, after finding that he

had named his five children as beneficiaries in a trust he prepared for a client,

borrowed $13,000 from the same client without advising her of the inherent

conflict of interest, and failed to repay the loan as agreed and that, with regard to a

different client, he had accepted attorney fees for a guardianship without

obtaining prior approval from the probate court. Disciplinary Counsel v. Shaw,

126 Ohio St.3d 494, 2010-Ohio-4412, 935 N.E.2d 405. On December 10, 2010,

we found Shaw in contempt for failing to file his affidavit of compliance on or

before October 25, 2010, as required by the September 23, 2010 order.

Disciplinary Counsel v. Shaw, 127 Ohio St.3d 1455, 2010-Ohio-6038, 938 N.E.2d

42. Shaw has not applied for reinstatement, nor has he been reinstated to the

practice of law.

{¶ 2} In the present matter, on December 10, 2012, relator, disciplinary

counsel, filed a two-count complaint against Shaw with each count charging him

with multiple disciplinary-rule violations. The violations in Count I relate to his

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representing clients while he was under suspension, and the violations in Count II

relate to his paying himself fees in probate actions without first receiving court

approval.

{¶ 3} The parties submitted stipulations and joint exhibits and waived a

formal hearing on this matter. Shaw stipulated to numerous facts and to having

committed multiple violations of both the Rules of Professional Conduct and the

Code of Professional Responsibility.1 He also stipulated that a sanction of

indefinite suspension was appropriate. A panel of the Board of Commissioners

on Grievances and Discipline accepted the parties’ stipulations of fact and

misconduct but found two additional aggravating factors. The panel

recommended that Shaw be suspended from the practice of law indefinitely. The

board adopted the panel’s findings of fact and misconduct and its recommended

sanction of an indefinite suspension from the practice of law. After reviewing the

record, we adopt the board’s findings of fact and misconduct, but we reject the

recommended sanction. The circumstances here require Shaw’s permanent

disbarment.

Misconduct

Count I—Practicing law while under suspension

Mildred Patterson

{¶ 4} In March 2011, Mildred Patterson and her son met with her

financial advisor, David Gollner, and Shaw at Gollner’s office. The purpose of

the meeting was to introduce Patterson to Shaw so that Shaw could provide her

with legal services. Shaw’s license to practice law was under suspension at that

time, yet he failed to advise either Gollner or Patterson of that suspension at that

meeting or any time thereafter. Shaw drafted a quitclaim deed for Patterson and

notarized her signature. Shaw’s notary stamp identified him as an attorney,

1. The Rules of Professional Conduct became effective February 1, 2007, superseding the Code of

Professional Responsibility, and some of the violations in Count II occurred prior to that time.

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January Term, 2014

indicated that his notary commission had no expiration, and referred to R.C.

147.03, which requires that an attorney be in good standing in order to maintain a

valid notary commission.

Myra and Joseph Stanley

{¶ 5} Financial advisor Sherri Marini referred Myra and Joseph Stanley

to Shaw in July 2010 because they needed assistance in transferring land to their

son. At that meeting, Shaw, who at this time was not under suspension,

convinced the Stanleys to hire him to provide estate-planning services. In July

2010, Shaw drafted a number of estate-planning documents for the Stanleys, for

which he was paid $2,500. In October or November 2010, Shaw met with the

Stanleys at their request to deliver copies of the powers of attorney and living

wills that he had prepared for them. He did not advise them at that meeting that

his law license had been suspended in September. At that meeting, Shaw gave the

Stanleys advice about a traffic ticket they had received, and he notarized Mrs.

Stanley’s signature on a form used to contest the ticket.

Eva Rosian

{¶ 6} In December 2010, Gollner, who still did not know that Shaw’s

license had been suspended, referred Eva Rosian to Shaw for legal services.

Gollner introduced Shaw as an attorney, and Shaw did not correct this inaccurate

statement, nor did he advise Rosian of his suspension at any subsequent time.

Rosian paid Shaw $2,950 for his services.

Clara DeVito

{¶ 7} In May 2010, Marini referred Clara DeVito to Shaw for legal

services, and Shaw was introduced as an attorney. Although at this time Shaw’s

license was not suspended, after September 23, 2010, he failed to advise either

Clara DeVito or Marini that his law license had been suspended. In November

2010, Gollner, who works with Marini, sent Shaw an e-mail regarding changes

that needed to be made to the DeVito asset-protection plan. Shaw responded by

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e-mail, and his signature block identified him as “Kenneth N. Shaw, Esq.”; thus,

he was holding himself out as an attorney while his license was under suspension.

Count II—Accepting payment from estate without

first obtaining court approval

Garner Estate

{¶ 8} Shaw served as legal counsel for the executor of the estate of

Warren Garner in Trumbull County. Pursuant to the local probate rules, court

approval is required prior to the payment of any attorney fees. On October 30,

2008, Shaw filed the final account and a motion for approval of attorney fees.

The accounting showed that Shaw had previously paid himself $1,100, although

he had not obtained prior court approval for payment of this fee. In November,

the court ultimately approved only $930 in attorney fees. At the time that the

stipulations were filed in this matter in May 2013, Shaw had not yet reimbursed

the estate for the $170 difference.

Mazarik Estate

{¶ 9} Shaw was legal counsel for Marcia Needham, who served as the

initial executor of the estate of John Mazarik in Trumbull County. Needham

terminated Shaw’s representation in February 2008 and notified the probate court

accordingly. In October 2008, the probate court appointed Marty Nosich as

successor executor. Pursuant to court order, Nosich subsequently sought

information from Shaw about attorney fees that had been paid without court

approval. Nosich received a letter from Shaw admitting that he had been paid

attorney fees but stating that all the fees had been earned. Because Shaw had

taken the fees without the court approval required by the probate court’s local

rules, the court instructed him to return the funds immediately to the fiduciary.

Shaw did not have the money, so the court accepted Shaw’s proposed payment

plan. Although the July 2011 plan called for Shaw to repay the $2,050 at the rate

of $200 per month, as of May 2013, Shaw had made only one payment of $100.

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{¶ 10} Regarding Count I, the parties stipulated and the board found that

Shaw violated Prof.Cond.R. 5.5(a) (prohibiting a lawyer from practicing law in a

jurisdiction in violation of the regulation of the legal profession in that

jurisdiction) and 8.4(h) (prohibiting a lawyer from engaging in conduct that

adversely reflects on the lawyer’s fitness to practice law) and Gov.Bar R. V(8)(E)

(requiring a suspended lawyer to notify all clients being represented in pending

matters of his suspension and consequent disqualification to act as an attorney

after the effective date of the order). Regarding Count II, the parties stipulated

and the board found that Shaw had violated Prof.Cond.R. 3.4(c) (prohibiting a

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

8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the

administration of justice), and 8.4(h) and, for those acts that occurred prior to

February 1, 2007, DR 1-102(A)(5) (prohibiting a lawyer from engaging in

conduct that is prejudicial to the administration of justice), 1-102(A)(6)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the

lawyer’s fitness to practice law), and 7-106(A) (prohibiting a lawyer from

disregarding a standing rule of a tribunal or a ruling of a tribunal made in the

course of a proceeding).

Sanction

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

relevant factors, including the ethical duties that the lawyer violated 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. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

{¶ 12} Aggravating factors stipulated by the parties and found by the

board are Shaw’s prior disciplinary offenses and a pattern of misconduct. See

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BCGD Proc.Reg. 10(B)(1)(a) and (c). Based on the stipulated facts, the panel and

board found the additional aggravating factors that Shaw’s actions caused harm to

vulnerable clients and that, although relator withdrew the charge of a violation of

Prof.Cond.R. 8.4(c) (prohibiting an attorney from committing an illegal act that

reflects adversely on the attorney’s honesty or trustworthiness), Shaw acted with a

dishonest and selfish motive. See BCGD Proc.Reg. 10(B)(1)(h) and (b). We

adopt the board’s findings regarding aggravating factors but also add the factors

that Shaw committed multiple offenses and failed to make restitution. See BCGD

Proc.Reg. 10(B)(1)(d) and (i). In mitigation, the parties stipulated, the board

found, and we agree that Shaw cooperated with relator’s investigation and the

subsequent disciplinary proceedings against him. See BCGD Proc.Reg.

10(B)(2)(d).

{¶ 13} We have stated that “[t]he normal penalty for continuing to

practice law while under suspension is disbarment.” Disciplinary Counsel v.

Mbakpuo, 98 Ohio St.3d 177, 2002-Ohio-7087, 781 N.E.2d 208, ¶ 13, and

Disciplinary Counsel v. Allison, 98 Ohio St.3d 322, 2003-Ohio-776, 784 N.E.2d

695, ¶ 12. Given Shaw’s misconduct and the aggravating factors in this case,

which include that he was previously disciplined for serious misconduct, Shaw’s

lone mitigating factor does not justify a departure from the presumption in favor

of disbarment. Accordingly, Kenneth Norman Shaw is permanently disbarred

from the practice of law in the state of Ohio. Costs are taxed to Shaw.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

____________________

Stacy Solochek Beckman, Assistant Disciplinary Counsel, for relator.

Kenneth Norman Shaw, pro se.

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