The opinion
[Cite as Cincinnati Bar Assn. v. Alsfelder, 138 Ohio St.3d 333, 2014-Ohio-870.]
CINCINNATI BAR ASSOCIATION v. ALSFELDER.
[Cite as Cincinnati Bar Assn. v. Alsfelder, 138 Ohio St.3d 333,
2014-Ohio-870.]
Attorney discipline—Failure to cooperate in disciplinary proceeding—Indefinite
suspension.
(No. 2013-0223—Submitted June 4, 2013—Decided March 13, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-076.
____________________
Per Curiam.
{¶ 1} Respondent, Robert F. Alsfelder Jr. of Cincinnati, Ohio, Attorney
Registration No. 0014829, was admitted to the practice of law in Ohio in 1981.1
In October 2004, we imposed a one-year suspension, fully stayed on conditions,
for Alsfelder’s conduct in accepting employment without disclosing that his
professional judgment could be affected by his own personal interests, charging a
clearly excessive fee, and failing to maintain complete records of client funds in
his possession. Cincinnati Bar Assn. v. Alsfelder, 103 Ohio St.3d 375, 2004-
Ohio-5216, 816 N.E.2d 218.
{¶ 2} In August 2010, a probable-cause panel of the Board of
Commissioners on Grievances and Discipline certified a two-count complaint
submitted by relator, Cincinnati Bar Association. The complaint alleged that
Alsfelder had failed to maintain records of client funds in his possession,
converted client funds to his own use, and failed to provide a full accounting to
his client, that he had engaged in dishonesty, fraud, deceit, or misrepresentation
1. Alsfelder testified that he is also licensed to practice law in Kentucky and Florida.
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by using information obtained in the course of his representation to the client’s
disadvantage, and that he had entered into a business relationship with the client
to the client’s detriment. In an amended complaint filed in July 2012, relator
added two additional counts, alleging that over a five-year period, Alsfelder had
failed to report certain income on his state and federal income tax returns and that
he had failed to cooperate in relator’s investigation of his alleged misconduct.
{¶ 3} We found Alsfelder in contempt of court on May 19, 2011, and
ordered him to comply with orders issued by the board, including a subpoena
duces tecum that required him to appear at a deposition and to produce certain
documents relevant to this disciplinary proceeding. Cincinnati Bar Assn. v.
Alsfelder, 128 Ohio St.3d 1495, 2011-Ohio-2384, 947 N.E.2d 177. On September
7, 2011, we suspended Alsfelder from the practice of law pending proof of his
compliance with the prior orders of this court and the board. Cincinnati Bar Assn.
v. Alsfelder, 130 Ohio St.3d 1201, 2011-Ohio-5514, 955 N.E.2d 1011. Because
Alsfelder has steadfastly refused to comply with those orders, that suspension
remains in effect.
{¶ 4} On November 2, 2012, the chair of the panel appointed to hear the
case issued an entry stating that the panel had unanimously found that the
evidence was insufficient to support the allegations contained in Count Two of the
complaint and dismissing that count in its entirety. Later, the panel issued a
report, in which it found that Alsfelder had failed to cooperate in relator’s
investigation as charged in Count Four of the complaint, but that there was
insufficient evidence to establish that he committed the misconduct charged in
Counts One and Three of the complaint. The panel recommended that Counts
One and Three be dismissed and that Alsfelder be indefinitely suspended for his
misconduct. The board adopted the findings of fact, conclusions of law, and
recommendation of the panel.
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{¶ 5} The parties object to the board’s findings and its recommended
sanction. Relator contends that it presented sufficient evidence to support one of
the violations alleged in Count One and both of the alleged violations in Count
Three of its complaint. Alsfelder argues that the board improperly found that
certain aggravating factors were present, failed to credit him with certain
mitigating factors, and recommended a sanction that is unduly harsh. For the
reasons that follow, we overrule their objections, adopt the board’s findings of
fact and conclusions of law, and indefinitely suspend Alsfelder from the practice
of law in Ohio.
Misconduct
Count One—Client Funds and Records
{¶ 6} In its amended complaint, relator charged Alsfelder with violations
of Prof.Cond.R. 1.15(a) (requiring a lawyer to hold funds belonging to a client or
third party in a client trust account separate from his own property and to maintain
certain records regarding the funds held in that account), 1.15(d) (requiring a
lawyer to promptly deliver funds or other property that the client is entitled to
receive), and 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation). These charges arose from
Alsfelder’s handling of business matters for Eastern Hills Dry Cleaners.
Adopting the panel’s recommendation, however, the board recommends that this
count be dismissed in its entirety based on the insufficiency of the evidence.
Relator objects, arguing that it has established, by clear and convincing evidence,
that Alsfelder violated Prof.Cond.R. 1.15(d).
{¶ 7} Alsfelder was a regular customer of Eastern Dry Cleaners. He
entered into an agreement with Joseph Witschger, the sole owner of the business,
for himself and his wife—an attorney and an accountant—to “take over the
business aspects of the cleaners,” billing their legal services at $225 per hour, and
their business-related services at $65 per hour. He testified that he would
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typically visit Witschger each day to discuss business issues and collect the mail.
He would take the mail to his wife, who would organize the documents and
prepare checks to pay Eastern’s bills. Alsfelder would return the documents to
Witschger as soon as his wife was through with them, and Witschger—the only
authorized signatory on the account—would sign the checks and prepare them for
mailing.
{¶ 8} It is undisputed that from 2005 to 2008, more than 300 checks,
totaling over $152,000, were issued to Alsfelder on Eastern’s account. Two
hundred seventy-two of those checks, totaling more than $141,000, contained no
notation on the memo line to describe the purpose of the check. Rather than
depositing the checks, Alsfelder cashed them at various Cincinnati banks.
{¶ 9} Alsfelder did not keep records of the time spent on Witschger’s
business matters or of bills to him for services rendered. He testified that he spent
a minimum of 6 or 7 hours a week and that his wife worked a minimum of 17 to
19 hours per week on Witschger’s business, that the payments they received were
made in arrears, and that their fee arrangement did not compensate them for all of
the hours they put into the business. Thus, the board found that Alsfelder had
never held funds belonging to Witschger.
{¶ 10} Although the board expressed concern about the large number of
checks written to Alsfelder and his complete failure to account for them, it noted
that Witschger admitted that he had never requested an accounting from
Alsfelder. The board also found that relator had not requested an accounting.
Therefore, the board determined that relator had failed to prove the alleged
violations of Prof.Cond.R. 1.15(a) or (d), which set forth a lawyer’s duties with
respect to the handling of funds belonging to clients or other third parties.
{¶ 11} Witschger claimed that he had no knowledge of the payees to
whom the checks were issued because Alsfelder concealed the payee line of the
checks that he presented for signature. But the board believed that Alsfelder’s
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testimony on the issue was more credible and noted that Witschger had access to
all of the information because he received all of the mail and had access to his
bank records. Therefore, the board also determined that there was insufficient
evidence to establish that Alsfelder had engaged in dishonesty, fraud, deceit, or
misrepresentation in violation of Prof.Cond.R. 8.4(c).
{¶ 12} Relator objects to the board’s findings of fact and recommendation
that Count One be dismissed, arguing that it has presented clear and convincing
evidence that it requested an accounting of Alsfelder’s work for, charges to, and
payments received from Eastern Hills Cleaners, and that Alsfelder failed to
comply with its request. Therefore, relator contends that it has proven by clear
and convincing evidence that Alsfelder violated Prof.Cond.R. 1.15(d).
{¶ 13} Relator misapprehends the scope and application of Prof.Cond.R.
1.15(d). The rule provides:
Upon receiving funds or other property in which a client or
third person has a lawful interest, a lawyer shall promptly notify
the client or third person. For purposes of this rule, the third
person’s interest shall be one of which the lawyer has actual
knowledge and shall be limited to a statutory lien, a final judgment
addressing disposition of the funds or property, or a written
agreement by the client or the lawyer on behalf of the client
guaranteeing payment from the specific funds or property. Except
as stated in this rule or otherwise permitted by law or by agreement
with the client or a third person, confirmed in writing, a lawyer
shall promptly deliver to the client or third person any funds or
other property that the client or third person is entitled to receive.
Upon request by the client or third person, the lawyer shall
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promptly render a full accounting regarding such funds or other
property.
(Emphasis added.)
{¶ 14} The third person discussed throughout Prof.Cond.R. 1.15(d) is not
any third person, but the third person who has a lawful interest in funds or other
property in the lawyer’s possession. To interpret the rule otherwise would permit
any third person to request—and be entitled to receive—an account of funds or
property held by a lawyer. Here, the facts that relator subpoenaed Alsfelder’s
account records and that Alsfelder failed to comply are simply not relevant in the
context of an alleged violation of Prof.Cond.R. 1.15(d). They are, however,
relevant to the alleged violation of Gov.Bar R. V(4)(G) in Count Four of relator’s
complaint.
Count Three—Alleged Tax Improprieties
{¶ 15} Count Three of the amended complaint alleges that Alsfelder
received and cashed checks from Witschger and/or Eastern Hills Dry Cleaners
from 2004 through 2009 but failed to report those funds as gross income on his
corresponding state and federal tax returns. Relator alleges that this conduct
violates Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act
that reflects adversely on the lawyer’s honesty or trustworthiness) and 8.4(c). But
the only evidence that relator adduced in support of these allegations was a set of
requests for admission that the panel deemed admitted after Alsfelder failed to
answer them.
{¶ 16} Those facts deemed admitted, as stated in the panel’s order and the
request for admissions, are as follows:
1. Respondent filed Federal and State of Ohio Income Tax
Returns in 2004.
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2. Respondent filed Federal and State of Ohio Income Tax
Returns in 2005.
3. Respondent filed Federal and State of Ohio Income Tax
Returns in 2006.
4. Respondent filed Federal and State of Ohio Income Tax
Returns in 2007.
5. Respondent filed Federal and State of Ohio Income Tax
Returns in 2008.
6. Respondent received checks from Joseph Witschger
and/or Eastern Hills Dry Cleaners made payable to Robert F.
Alsfelder and/or Robert Alsfelder for legal and business services.
7. Checks were made payable to Robert Alsfelder from
Eastern Hills Dry Cleaners and/or Joseph Witschger which were
cashed but the money was not reported as gross income either on
Respondent’s Ohio and/or Federal Income Tax Returns from the
years 2004 through 2009.
{¶ 17} The board recommended that this count be dismissed because these
admissions were insufficient to prove that Alsfelder had engaged in tax evasion as
alleged in the complaint. They did not establish that the checks he received for
legal and business services and subsequently cashed were the same checks that he
failed to report as gross income. Indeed, the board found that at least one of the
checks Alsfelder had received from Eastern was a $447.30 reimbursement for
slacks that Eastern had damaged in the cleaning process—funds that would not be
considered as income for tax purposes.
{¶ 18} Relator objects to the board’s recommendation that Count Three of
its complaint be dismissed, arguing that that the facts deemed admitted by the
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board clearly and convincingly prove that Alsfelder violated Prof.Cond.R. 8.4(b)
and (c). We disagree.
{¶ 19} The facts deemed admitted do not establish that the checks
Alsfelder received as payment for services rendered are also the checks that he
failed to report on his tax returns. Not only did Alsfelder testify about the check
he received for clothing damaged during the cleaning process, relator also
submitted copies of at least 40 other checks that Alsfelder identified as
reimbursements for various expenses that he had advanced on behalf of Eastern
Dry Cleaners. While Alsfelder testified that those amounts might qualify as
business expenses to be deducted from Eastern’s gross income, relator has offered
no evidence that those reimbursements would constitute taxable income to
Alsfelder. Therefore, we overrule realtor’s objection, adopt the board’s findings
of fact, and dismiss Count Three of relator’s complaint.
Count Four—Failure to Cooperate
{¶ 20} The board’s sole finding of misconduct against Alsfelder is that he
failed to cooperate in relator’s investigation and the resulting disciplinary
proceeding in violation of Gov.Bar R. V(4)(G).
{¶ 21} The board found that Alsfelder failed to comply with a November
2010 subpoena to appear for a deposition and produce certain documents,
including a copy of his account-balance document showing a running account of
charges for services rendered to and money received from Witschger and copies
of his federal tax returns for the years 2004 through 2009.
{¶ 22} In response to relator’s motion to compel discovery, on January 19,
2011, the panel chair ordered Alsfelder to produce the documents in accordance
with the subpoena, but he failed to do so. We found Alsfelder in contempt on
May 19, 2011, and ordered him to comply with board orders, including the
November 2010 subpoena. Cincinnati Bar Assn. v. Alsfelder, 128 Ohio St.3d
1495, 2011-Ohio-2384, 947 N.E.2d 177.
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{¶ 23} On July 8, 2011, the panel recommended that we once again find
Alsfelder in contempt—this time based on his failure to comply with an order to
sign a standard Internal Revenue Service waiver that would allow relator to obtain
copies of his tax returns.
{¶ 24} On September 22, 2011, we granted relator’s motion to impose
sanctions and suspended Alsfelder from the practice of law in Ohio pending a
filing of proof that he has obeyed this court’s May 19, 2011 order and complied
with the subpoena duces tecum previously served on him by the board.
Cincinnati Bar Assn. v. Alsfelder, 130 Ohio St.3d 1201, 2011-Ohio-5514, 955
N.E.2d 1011.
{¶ 25} We found Alsfelder in contempt a second time on March 30, 2012,
and ordered him to pay a fine of $500. 131 Ohio St.3d 1492, 2012-Ohio-1368,
964 N.E.2d 434. While our order does not state what conduct resulted in this
finding of contempt, it grants relator’s motion for contempt, which alleged that
Alsfelder continued to disobey previous orders of the board and this court and that
he filed a false affidavit of compliance following his suspension.
{¶ 26} In light of this conduct, the board concluded that Alsfelder violated
Gov.Bar R. V(4)(G). We adopt the board’s findings of fact and misconduct with
respect to Count Four of the complaint.
Sanction
{¶ 27} 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.
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Aggravating and Mitigating Factors
{¶ 28} The board found that four of the nine aggravating factors set forth
in BCGD Proc.Reg. 10(B)(1) are present. Alsfelder has served a one-year stayed
suspension and made restitution of $30,000 for misconduct that occurred from
1998 to 2001. See BCGD Proc.Reg. 10(B)(1)(a); Cincinnati Bar Assn. v.
Alsfelder, 103 Ohio St.3d 375, 2004-Ohio-5216, 816 N.E.2d 218. The board also
found that he engaged in a pattern of misconduct and failed to cooperate in the
disciplinary process by failing to comply with orders of the board and this court
and that he submitted false evidence, made false statements, or engaged in other
deceptive practices during the disciplinary process by being “very guarded in his
testimony.” See BCGD Proc.Reg. 10(B)(1)(c), (e), and (f). However, the board
found that none of the mitigating factors enumerated in BCGD Proc.Reg.
10(B)(2) are present.
{¶ 29} Alsfelder disputes the board’s findings with respect to the
applicable aggravating factors and also contends that the board failed to recognize
that a number of mitigating factors are present.
{¶ 30} Alsfelder challenges the board’s finding that he engaged in a
pattern of misconduct, arguing that his conduct consists of one act—failing to
provide the requested tax records or a waiver so that relator could obtain them
directly from the IRS. Even if Alsfelder’s misconduct arose only from his failure
to produce his tax returns as he suggests, it is his continued failure to provide
those documents in defiance of no less than five board orders and three orders of
this court over a period of more than three years that demonstrates the pattern of
misconduct in this case.
{¶ 31} Alsfelder also challenges the board’s finding that he submitted
false evidence or false statements or engaged in other deceptive practices during
the disciplinary proceeding and that, pursuant to BCGD Proc.Reg. 10(B)(1)(f),
this factor weighs in favor of a more severe sanction. He notes that in support of
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its finding, the board states only, “At the hearing, Respondent was very guarded
in his testimony. Respondent has not been forthcoming.” But the very act of
withholding the requested tax records under the guise of preserving the
confidentiality of his wife’s information and claims of their irrelevance—despite
having been ordered numerous time to produce them or execute a waiver for their
release—is, itself, a deceptive practice. Furthermore, we find that Alsfelder’s
continued recalcitrance in the face of multiple orders to turn over the requested
documents demonstrates that he has refused to acknowledge the wrongful nature
of his conduct—an aggravating factor pursuant to BCGD Proc.Reg. 10(B)(1)(g).
{¶ 32} In addition to challenging the aggravating factors found by the
board, Alsfelder contends that it should have found a number of mitigating
factors, including the absence of a dishonest or selfish motive, the absence of any
violations of the disciplinary rules relative to the underlying grievance, the
absence of harm to the grievant, his pro bono work, and the imposition of other
penalties or sanctions for his contempt of this court’s orders. See BCGD
Proc.Reg. 10(B)(2)(a), (b), (e), and (f). These claims are without merit.
{¶ 33} We find that relator’s failure to prove the underlying misconduct
has no mitigating effect on the misconduct that has been established by clear and
convincing evidence—namely, Alsfelder’s failure to cooperate in the disciplinary
investigation and proceedings before this court. And on the record before us, we
cannot find that there has been no harm to the grievant or that Alsfelder acted
without a selfish or dishonest motive because the evidence plainly shows that
Alsfelder received more than $141,000 over a period of four years for little more
than the payment of routine bills and the negotiation of payment plans with
creditors. Neither relator’s failure to carry its burden of proof with regard to the
underlying allegations of misconduct, nor the client’s admitted failure to request
an accounting is sufficient to establish that Alsfelder’s motives were pure or that
the grievant suffered no harm at his hand.
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{¶ 34} Alsfelder’s unsubstantiated claim that he has provided pro bono
services that warrant mitigating effect is likewise without merit. See, e.g.,
Cleveland Metro. Bar Assn. v. Berk, 132 Ohio St.3d 82, 2012-Ohio-2167, 969
N.E.2d 256, ¶ 25-28 (evidence that attorney had accepted well over 200 referrals
from the Cleveland Legal Aid Society and provided additional pro bono
assistance to numerous other clients referred by the Consumer Protection
Association since the early 1970s recognized as a mitigating factor); Cleveland
Metro. Bar Assn. v. Kealy, 125 Ohio St.3d 238, 2010-Ohio-1554, 927 N.E.2d 591,
¶ 13, 19 (finding that 25 years of involvement with the legal aid society, a
“staggering amount” of pro bono work, and a long history of volunteerism qualify
as a mitigating factor); Cincinnati Bar Assn. v. Lawson, 119 Ohio St.3d 58, 2008-
Ohio-3340, 891 N.E.2d 749, ¶ 67 (evidence that attorney routinely took criminal
cases pro bono to defend basic rights of the accused considered as a mitigating
factor).
{¶ 35} We also reject Alsfelder’s claim that the suspension he is currently
serving for his failure to purge his contempt of our previous orders is another
penalty or sanction for the same conduct that should be considered as a mitigating
factor pursuant to BCGD Proc.Reg. 10(B)(2)(f). That suspension was not
intended to punish Alsfelder for violating the Rules of Professional Conduct; it
was intended as a remedial or coercive sanction to compel his compliance with
the lawful orders of the board and this court. See, e.g., Liming v. Damos, 133
Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 12. Alsfelder could have
avoided the sanction entirely and has held the keys to his reinstatement during the
duration of that suspension—all he had to do was comply with our previous order.
Id. at ¶ 17. Therefore, we accord no mitigating effect to this sanction.
Proposed Sanction
{¶ 36} Relator recommended that Alsfelder be permanently disbarred for
his misconduct, but that recommendation is based in part on alleged misconduct
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that has not been proven by clear and convincing evidence. Alsfelder urged the
board to dismiss the entire complaint, arguing that his failure to cooperate had
already been dealt with by this court in the contempt proceeding. The board
concluded, however, that Alsfelder’s ongoing failure to cooperate in this
disciplinary proceeding warrants an indefinite suspension from the practice of
law.
{¶ 37} “ ‘One of the fundamental tenets of the professional responsibility
of a lawyer is that he should maintain a degree of personal and professional
integrity that meets the highest standard. The integrity of the profession can be
maintained only if the conduct of the individual attorney is above reproach. He
should refrain from any illegal conduct. Anything short of this lessens public
confidence in the legal profession—because obedience to the law exemplifies
respect for the law.’ ” Cincinnati Bar Assn. v. Hennekes, 110 Ohio St.3d 108,
2006-Ohio-3669, 850 N.E.2d 1201, ¶ 13, quoting Cleveland Bar Assn. v. Stein, 29
Ohio St.2d 77, 81, 278 N.E.2d 670 (1972).
{¶ 38} Here, Alsfelder’s misconduct goes far beyond the typical failure to
cooperate in a disciplinary investigation. It encompasses a complete and
contumacious disregard of this court’s orders over a period of years. Alsfelder’s
recalcitrance flies in the face of his oath of office, his duties to this court, and his
duties to the legal profession as a whole. If he is unable or unwilling to conduct
himself with dignity, civility, and respect in the conduct of his own legal affairs,
we cannot expect him to competently, ethically, or professionally represent the
clients who entrust him with their most important affairs. Therefore, we adopt the
board’s recommendation that he be indefinitely suspended from the practice of
law. However, that suspension shall not commence until Alsfelder has purged his
contempt of the prior orders of this court.
{¶ 39} Accordingly, Robert F. Alsfelder Jr. is indefinitely suspended from
the practice of law in Ohio; however, that indefinite suspension will not go into
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effect until Alsfelder purges his contempt of this court’s prior orders in case No.
2011-0625. Costs are taxed to Alsfelder.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Michael P. Foley, Stephen M. Nechemias, and Edwin W. Patterson III, for
relator.
Richard C. Alkire, for respondent.
_________________________
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