Cincinnati Bar Assn. v. Hartke

[Cite as Cincinnati Bar Assn. v. Hartke, 132 Ohio St.3d 116, 2012-Ohio-2443.]

CINCINNATI BAR ASSOCIATION v. HARTKE.

[Cite as Cincinnati Bar Assn. v. Hartke, 132 Ohio St.3d 116, 2012-Ohio-2443.]

Attorneys—Misconduct—Threatening criminal action to gain advantage in civil

matter—Engaging in conduct adversely reflecting on fitness to practice law—

Six-month suspension.

(No. 2011-1774—Submitted December 7, 2011—Decided June 6, 2012.)

ON CERTIFIED REPORT of the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-003.

__________________

Per Curiam.

{¶ 1} Respondent, James R. Hartke, Attorney Registration No. 0011584,

was admitted to the practice of law in Ohio in 1973. On February 14, 2011,

relator, the Cincinnati Bar Association, filed a complaint charging Hartke with

violations of Prof.Cond.R. 1.2(e) and 8.4(h). The Board of Commissioners on

Grievances and Discipline (“board”) concluded that Hartke had violated the

aforementioned rules and recommended that Hartke be suspended from the

practice of law for a period of six months, with the entire suspension stayed.

Hartke filed no objections. After reviewing the record, we hold that Hartke’s

actions merit a six-month suspension.

I. Misconduct

{¶ 2} The relator and Hartke stipulated to certain facts. The parties then

filed a “consent to discipline” agreement in which they agreed that Hartke had

committed the alleged violations, that certain mitigating and aggravating factors

were present, and that a six-month stayed suspension and mandatory anger-

management counseling would be an appropriate sanction. A panel of the board

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rejected the proposed consent-to-discipline agreement, and the matter proceeded

to a hearing.

{¶ 3} The evidence from the parties’ stipulations establishes that in 2009,

Jacqueline Usher retained Hartke to represent her in her divorce. By October

2009, Usher owed Hartke over $5,000 in legal fees. In February 2010, Usher and

Hartke agreed that Hartke would accept one half of the distribution that Usher

received from her ex-husband’s 401(k) plan as complete satisfaction of the legal

fees that Usher owed Hartke. They agreed that the check issued from the pension

account would be made out jointly to Usher and Hartke.

{¶ 4} Later that February, Usher met with another attorney to discuss the

possibility of filing for bankruptcy. That attorney told Usher that the fees she

owed Hartke were dischargeable in bankruptcy. However, Usher never told

Hartke that she was considering filing for bankruptcy, because she was afraid of

him and how he might react.

{¶ 5} In April 2010, the qualified domestic-relations order dividing

Usher’s ex-husband’s 401(k) plan was approved, and she requested that the check

for the proceeds be made out to her alone. In April 2010, Usher received the

proceeds but did not pay Hartke.

{¶ 6} Hartke began calling Usher to determine the status of the

distribution, but Usher refused to answer his calls. She eventually disconnected

her home phone and changed her cell-phone number.

{¶ 7} However, this did not deter Hartke; in June 2010, he called Usher

at work. When Hartke was told that Usher was sick, he went to her apartment.

There he confronted Usher, who was with her six-year-old daughter. Hartke

admitted that he was angry at this time. A heated discussion ensued when Hartke

demanded that Usher pay his fees. When it became clear that Usher would not

pay, Hartke threatened her with criminal action. Hartke insisted that Usher go to

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the bank and withdraw funds to pay his fee. Usher went to the bank, but was so

upset that tellers escorted her to the back of the bank and called police. The

responding officer suggested that Usher pay Hartke what she owed. When Usher

indicated that she did not have enough funds in her account to pay Hartke, he

agreed to accept $3,000 to satisfy Usher’s bill.

{¶ 8} The board concluded that Hartke’s conduct had violated

Prof.Cond.R. 1.2(e) (“Unless otherwise required by law, a lawyer shall not

present, participate in presenting, or threaten to present criminal charges or

professional misconduct allegations solely to obtain an advantage in a civil

matter”) and 8.4(h) (a lawyer is prohibited from engaging in conduct that

adversely reflects on the lawyer's fitness to practice law). We adopt the board’s

findings of fact and misconduct.

II. Sanction

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

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. Because each disciplinary

case is unique, we are not limited to the factors specified in the rule but may take

into account “all relevant factors” in determining what sanction to impose.

BCGD Proc.Reg. 10(B).

{¶ 10} The board found several mitigating factors, including the fact that

Hartke made full disclosure to the panel, that his misconduct in this matter was a

one-time incident, and that his misconduct in this case is inconsistent with his

general character.

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{¶ 11} However, the board also found several aggravating factors,

including Hartke’s previous suspension from the practice of law for one year.

Cincinnati Bar Assn. v. Hartke, 67 Ohio St.3d 65, 616 N.E.2d 186 (1993). Also

considered to be aggravating factors were Hartke’s selfish motive, the

vulnerability of his client and the emotional harm she suffered, and his failure to

fully acknowledge the wrongful nature of his conduct, characterizing it instead as

a mere technical violation of his ethical obligations.

{¶ 12} The board recommended that Hartke be suspended for a period of

six months, all stayed on the conditions that he commit no further violations

during the suspension and that he pay the costs of prosecuting this matter. Under

the particular circumstances in this case, however, we hold that the aggravating

factors outweigh the mitigating circumstances and justify an actual suspension.

{¶ 13} In its discussion of the appropriate sanction in this case, the board

cited Cincinnati Bar Assn. v. Cohen, 86 Ohio St.3d 100, 712 N.E.2d 118 (1999),

and Butler Cty. Bar Assn. v. Cunningham, 118 Ohio St.3d 188, 2008-Ohio-1979,

887 N.E.2d 343. In both cases, the attorney made a single threat of criminal

action against a client to gain an advantage in a civil case, and we imposed a

public reprimand for both attorneys.

{¶ 14} In support of a stayed suspension, the board cited Akron Bar Assn.

v. Miller, 130 Ohio St.3d 1, 2011-Ohio-4412, 955 N.E.2d 359, and Disciplinary

Counsel v. Landis, 124 Ohio St.3d 508, 2010-Ohio-927, 924 N.E.2d 361. In

Miller, without making any physical contact, the attorney made inappropriate

sexual comments to his client, including that she perform a sexual act on him. Id.

at ¶ 6-7. In Landis, the attorney pleaded guilty to operating a vehicle while under

the influence of alcohol or a drug of abuse. Id. at ¶ 4. In both cases, we held that

the attorneys had engaged in conduct adversely reflecting on their fitness to

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practice law and we imposed a stayed suspension as a sanction. Miller at ¶ 20;

Landis at ¶ 8.

{¶ 15} We find that all the aforementioned cases are distinguishable from

the instant case. In Cohen, Cunningham, and Landis, there were no aggravating

factors. Cohen, 86 Ohio St.3d 100, 712 N.E.2d 118; Cunningham, 118 Ohio

St.3d 188, 2008-Ohio-1979, 887 N.E.2d 343, ¶ 9; Landis at ¶ 7. In the instant

case, Hartke acted with a selfish motive, caused emotional harm when he took

advantage of a vulnerable client, and failed to fully acknowledge the wrongful

nature of his conduct.

{¶ 16} In Miller, the attorney made inappropriate sexual comments to a

client during a phone call. We held that the client’s vulnerability and the

attorney’s selfish motive were aggravating factors. Id., 130 Ohio St.3d 1, 2011-

Ohio-4412, 955 N.E.2d 359, ¶ 16. However, the attorney in Miller clearly

admitted the wrongful nature of his conduct, calling it “ ‘absolutely sickening,’ an

‘abomination,’ and ‘reprehensible.’ ” Id. at ¶ 12. We also found that a mental

illness contributed to the attorney’s conduct in Miller, which was an additional

mitigating factor. Id. at ¶ 13.

{¶ 17} In the instant case, Hartke also acted with a selfish motive and took

advantage of a vulnerable client. Furthermore, unlike the attorney in Miller,

Hartke was aware that his client had been involved with a difficult divorce case.

Hartke threatened his client with criminal action and testified that he told her,

“You could be arrested. You can go to jail. You could lose your kids.” And

Hartke made these threats in person and in the presence of the client’s six-year-

old child. Under these circumstances, we believe that the client in this case was

in a more vulnerable position than the client in Miller and suffered more

emotional damage. We have repeatedly held that “ ‘[t]he more vulnerable the

client, the heavier is the obligation upon the attorney not to exploit the situation

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for his own advantage.’ ” Disciplinary Counsel v. Freeman, 106 Ohio St.3d 334,

2005-Ohio-5142, 835 N.E.2d 26, ¶ 13, quoting Disciplinary Counsel v. Booher,

75 Ohio St.3d 509, 510, 664 N.E.2d 522 (1996); Disciplinary Counsel v. Moore,

101 Ohio St.3d 261, 2004-Ohio-734, 804 N.E.2d 423, ¶ 17.

{¶ 18} Further, unlike the attorney in Miller, Hartke has not

wholeheartedly admitted that his conduct was wrongful, but instead has claimed

that it was only a technical violation of his ethical obligations. Failing to admit

wrongdoing only “compound[s] [an attorney’s] misdeeds.” Disciplinary Counsel

v. Heiland, 116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 45.

{¶ 19} Finally, Hartke was not suffering from any mental illness, which

was a mitigating factor in Miller.

{¶ 20} Consequently, we hold that the particular aggravating

circumstances distinguish this case from the case law relied upon by the board in

support of recommending a stayed suspension. Accordingly, we suspend Hartke

from the practice law for a period of six months. Costs are to be paid by Hartke.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,

and MCGEE BROWN, JJ., concur.

LANZINGER, J., dissents and would impose a six-month stayed suspension.

__________________

Waite, Schneider, Bayless & Chesley and Jean M. McCoy, for relator.

John H. Burlew, for respondent.

______________________

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