Disciplinary Counsel v. Lehmkuhl

[Cite as Disciplinary Counsel v. Lehmkuhl, 137 Ohio St.3d 71, 2013-Ohio-4539.]

DISCIPLINARY COUNSEL v. LEHMKUHL.

[Cite as Disciplinary Counsel v. Lehmkuhl, 137 Ohio St.3d 71,

2013-Ohio-4539.]

Attorneys—Misconduct—Violating the Rules of Professional Conduct by bringing

a proceeding unsupported by law—Neglecting to assist in a disciplinary

investigation—Public reprimand.

(No. 2012-1719—Submitted July 9, 2013—Decided October 16, 2013.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-110.

____________________

Per Curiam.

{¶ 1} Respondent, Phillip Douglas Lehmkuhl of Mount Vernon, Ohio,

Attorney Registration No. 0021246, was admitted to the practice of law in Ohio in

1978.

{¶ 2} In a December 5, 2011 complaint, relator, disciplinary counsel,

charged Lehmkuhl with professional misconduct based on (1) his failure to

conduct an investigation to identify the proper party-defendants before filing a

defamation action, (2) his failure to timely amend his complaint when he learned

that he had erroneously filed suit against the daughter of the intended defendants,

and (3) his failure to respond to the ensuing disciplinary investigation.

{¶ 3} The parties stipulated, and the panel found, that Lehmkuhl’s

conduct with regard to the defamation action violated Prof.Cond.R. 3.1

(prohibiting a lawyer from bringing or defending a proceeding that is unsupported

by law or lacks a good-faith argument for an extension, modification, or reversal

of existing law) and 8.4(d) (prohibiting a lawyer from engaging in conduct that is

prejudicial to the administration of justice) and that his failure to cooperate with

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relator’s investigation violated Prof.Cond.R. 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(4)(G) (prohibiting a lawyer from neglecting or refusing to

assist in a disciplinary investigation). Relator withdrew several other alleged

violations, and the parties agreed that Lehmkuhl should be publicly reprimanded

for his misconduct.

{¶ 4} The Board of Commissioners on Grievances and Discipline

recommends that we dismiss the allegations that Lehmkuhl violated Prof.Cond.R.

8.4(d) and (h). It adopted the parties’ remaining stipulations and recommends that

we publicly reprimand Lehmkuhl for his misconduct. For the reasons that follow,

we adopt the board’s findings of fact and agree that a public reprimand is the

appropriate sanction in this case.

Misconduct

{¶ 5} The parties stipulated that in December 2009, Lehmkuhl filed a

civil action in the Morrow County Court of Common Pleas on behalf of himself,

his wife, and Arlene and Timothy J. McAfee. In his complaint, he alleged that the

named defendants, Joseph and Amanda Erb, were a married couple residing on

Township Road 197 in Marengo, Ohio, and that on December 13, 2009, they had

been interviewed by a local television news crew about the purported treatment of

horses owned by the Lehmkuhls and pastured by the McAfees. Lehmkuhl further

alleged that Joseph and Amanda Erb made numerous false accusations against the

plaintiffs with careless disregard as to whether the statements were true, with the

intent to defame the plaintiffs.

{¶ 6} In their January 20, 2010 answer and counterclaim, Joseph and

Amanda Erb admitted that Joseph had spoken with the news crew and expressed

his opinions regarding the treatment of the Lehmkuhls’ horses. The Erbs stated,

however, that Amanda was Joseph’s daughter, not his wife, and denied that

Amanda had any involvement in the incident. In their March 8, 2010 motions for

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summary judgment and for sanctions pursuant to Civ.R. 11, they alleged that

Amanda was not a proper party to the action. Despite having been advised as

early as January 2010 that he had erroneously named Erb’s daughter as a

defendant in the defamation action, Lehmkuhl waited until May 4, 2010, to

dismiss the claims against her and did not seek leave to amend his complaint until

May 6, 2010.

{¶ 7} On March 23, 2010, Joseph and Amanda Erb filed a grievance

against Lehmkuhl, but relator dismissed it in May 2010 and advised Erb that he

could refile it at the conclusion of the underlying litigation. During settlement

negotiations in the defamation case, Lehmkuhl attempted to condition the

dismissal of his civil case on the Erbs’ agreement to abandon their grievance

against him. After he was advised that such a condition would violate ethical

rules, however, he settled the case without any limitations on the Erbs’ right to

pursue their disciplinary grievance. Mr. Erb refiled his grievance in April 2011.

{¶ 8} In response to relator’s first letter of inquiry, Lehmkuhl requested

an extension of time to reply, but he never provided a response. Two days after

Lehmkuhl’s father-in-law died, relator sent a second letter of inquiry by certified

mail. Though he received the letter, he did not respond due to the family turmoil

surrounding his father-in-law’s death. He also failed to appear for a deposition in

relator’s office after being personally served with a subpoena duces tecum

because the date did not get placed on his calendar.

{¶ 9} The parties stipulated and the panel initially found that by naming

Amanda Erb as a defendant in his defamation action and then failing to timely

amend his complaint once he discovered that she was not a proper party,

Lehmkuhl violated Prof.Cond.R. 3.1 and 8.4(d). In addition, the parties stipulated

and the panel found that Lehmkuhl’s failure to respond to relator’s letters and his

failure to appear for the deposition after having been served with a subpoena

violated Prof.Cond.R. 8.4(h) and Gov.Bar R. V(4)(G). The board found that

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Lehmkuhl’s conduct violated Prof.Cond.R. 3.1 and Gov.Bar R. V(4)(G) and

indicated that the panel had dismissed the remaining violations.

{¶ 10} We remanded the case to the board with instructions to clarify the

apparent discrepancy between the findings as stated in the panel report and the

board’s recitation of those findings in its own report. The board submitted a

supplemental report, stating that after a discussion at its October 5, 2012 meeting,

the board (with the consent of the hearing panel) adopted a motion to amend the

panel report to delete the findings that Lehmkuhl had violated Prof.Cond.R. 8.4(d)

and (h). Thus, the board unanimously found that Lehmkuhl’s conduct violated

only Prof.Cond.R. 3.1 and Gov.Bar R. V(4)(G).

{¶ 11} We adopt the board’s findings of fact and misconduct.

Sanction

{¶ 12} 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.

{¶ 13} The board found that there are no aggravating factors present in

this case and that just one mitigating factor—the absence of a prior disciplinary

record—is present. See BCGD Proc.Reg. 10(B)(1) and 10(B)(2)(a). Citing Akron

Bar Assn. v. Fink, 131 Ohio St.3d 34, 2011-Ohio-6342, 959 N.E.2d 1045, in

which we publicly reprimanded an attorney who had failed to cooperate in the

disciplinary process in violation of Prof.Cond.R. 8.4(d) and Gov.Bar R. V(4)(G),

the board adopted the parties’ stipulated sanction of a public reprimand.

{¶ 14} In Disciplinary Counsel v. Gallo, 131 Ohio St.3d 309, 2012-Ohio-

758, 964 N.E.2d 1024, ¶ 5-6, 20-21, we publicly reprimanded an attorney who

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failed to take reasonable steps to verify the identity of a person who he thought

was staring at his domestic-relations client outside a judge’s office suite before

accusing the judge, who was in a relationship with the client’s spouse, of

engaging in a pattern of harassing and threatening conduct. Gallo relied on the

identification of a client he barely knew, a telephonic identification by his

employer, and his own determination that the man he had seen in the courthouse

matched an online photograph of the judge he accused of professional

misconduct. Id. at ¶ 20.

{¶ 15} Similarly, Lehmkuhl relied on information obtained by his wife

and on Mrs. McAfee’s indication that the name Amanda sounded correct. In

retrospect, he acknowledged that he should have attempted to independently

verify Mrs. Erb’s first name before filing his complaint and that he should not

have waited for additional discovery before amending his complaint to name the

proper defendant. He stated that once he realized that it would be an ethical

violation to require the Erbs to drop their grievance as part of a settlement of the

defamation action, he settled the case without any restrictions on their ability to

pursue a grievance against him.

{¶ 16} Although Lehmkuhl explained that his father-in-law’s death and its

impact on his family prevented him from timely responding to relator’s

investigation, he openly acknowledged his mistakes and accepted full

responsibility for his misconduct. He also stated that he has made changes to his

office procedures to ensure that depositions, court appearances, and deadlines are

properly logged on his calendar.

{¶ 17} Having considered the misconduct, the absence of aggravating

factors, the absence of any prior disciplinary record, Lehmkuhl’s willingness to

accept responsibility for his actions, and the sanctions we have imposed for

comparable misconduct, we find that a public reprimand is the appropriate

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sanction in this case. Therefore, we adopt the board’s findings of fact and

conclusions of law and adopt its recommended sanction.

{¶ 18} Accordingly, we publicly reprimand Phillip Douglas Lehmkuhl for

initiating a defamation action without adequately investigating the identity of the

proper defendants, failing to timely amend his complaint when he learned that he

had misidentified one of the defendants, and failing to cooperate in the ensuing

disciplinary investigation. Costs are taxed to Lehmkuhl.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Stacey Solochek

Beckman, Assistant Disciplinary Counsel, for relator.

Phillip Douglas Lehmkuhl, pro se.

_________________________

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