The opinion
[Cite as Cincinnati Bar Assn. v. Farrell, 129 Ohio St.3d 223, 2011-Ohio-2879.]
CINCINNATI BAR ASSOCIATION v. FARRELL.
[Cite as Cincinnati Bar Assn. v. Farrell, 129 Ohio St.3d 223, 2011-Ohio-2879.]
Attorney — Misconduct — Engaging in an illegal act that reflects adversely on
the lawyer’s honesty or trustworthiness — Conduct adversely reflecting on
fitness to practice law — Permanent disbarment.
(No. 2010-1951 — Submitted February 15, 2011 — Decided June 21, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-002.
__________________
Per Curiam.
{¶ 1} Respondent, William I. Farrell of Cincinnati, Ohio, Attorney
Registration No. 0043635, was admitted to the practice of law in Ohio in 1989.
{¶ 2} On March 26, 2008, we suspended respondent from the practice of
law for two years, with the second year stayed on conditions, based on findings
that he had fabricated documents, forged his wife’s signature to a power of
attorney, lied to secure the notarization of the power of attorney, and then used the
forged document to obtain credit. Cincinnati Bar Assn. v. Farrell, 119 Ohio St.3d
529, 2008-Ohio-4540, 895 N.E.2d 800, ¶ 6-10, 23.
{¶ 3} On January 9 and 16, 2008, respondent’s counsel informed relator,
Cincinnati Bar Association, that respondent had failed to timely file federal, state,
or local income tax returns or pay the corresponding tax liabilities for himself or
his former wife for the years 2001 through 2005. He also reported that
respondent had failed to file his individual tax returns or pay the corresponding
tax liability for 2006. The first of these revelations came less than three weeks
after the Board of Commissioners had certified its report to this court in
respondent’s first disciplinary matter.
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{¶ 4} On February 17, 2009, relator filed a complaint alleging that
respondent had (1) failed to file tax returns or pay the corresponding tax liabilities
for the tax years 2001 through 2005, (2) filed a false affidavit with the Hamilton
County Domestic Relations Court in December 2007 stating that he had timely
filed those returns and paid the corresponding taxes for himself and his wife, and
(3) failed to file his 2006 individual income tax returns or pay any corresponding
tax liability as required by the couple’s divorce decree.
{¶ 5} Although the panel recognized that “respondent acted with a
premeditated intent to deceive the Domestic Relations Court, with extraordinary
self interest, and in utter disregard for his ethical obligations as an attorney and
officer of the court,” two of the three members recommended that respondent be
indefinitely suspended from the practice of law. Citing respondent’s systematic
manipulation of the disciplinary process to avoid the consequences of his
misconduct, the third member of the panel recommended that he be permanently
disbarred. The board adopted the panel’s findings of fact and misconduct but
adopted the dissenting panel member’s recommendation that respondent be
permanently disbarred from the practice of law in Ohio.
{¶ 6} Respondent objects to the recommended sanction, arguing that our
precedent supports, at most, the indefinite suspension recommended by a majority
of the panel. For the reasons that follow, we overrule respondent’s objection,
adopt the board’s findings of fact and misconduct, and permanently disbar
respondent from the practice of law in Ohio.
Misconduct
{¶ 7} Respondent’s misconduct began in 2002 when he stopped filing
income tax returns and making regular estimated payments toward his income tax
liability. In mid-2004, two years after his tax violations began, respondent’s wife
wanted to reduce her work schedule and move to a more modest home so that she
could stay home with their daughter. Respondent testified that he felt that his
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position as a husband and father was threatened by his wife’s request and that he
believed the marriage was foundering, and he claimed that his panic led him into
a pattern of deception.
{¶ 8} Rather than address the issues in his marriage, respondent devised
a scheme to convince his wife that he had resigned his position with his firm to
accept more lucrative employment, thus buying time for his practice to become
more lucrative. In furtherance of this scheme, respondent fabricated letters from
two phantom employers, indicating that each had hired him for a higher salary, a
bigger bonus, and better benefits. In reliance on the second of these purported job
offers, respondent’s wife resigned her position as a senior associate with a
Cincinnati law firm.
{¶ 9} Unable to sustain the financial burdens arising from his deception,
respondent forged his wife’s signature to a power of attorney, convinced another
attorney to notarize the forged signature, and unbeknownst to his wife, used the
power of attorney to obtain a $50,000 extension of the couple’s line of credit.
When his wife discovered documents related to the increased line of credit,
respondent fabricated three letters from bank executives explaining that the bank
had erred. He also stopped delivery of mail to his home and fabricated a letter
from the United States Postal Service stating that no mail had been withheld from
delivery. Respondent eventually informed his wife about the fictitious offers of
employment, the forged power of attorney that he had used to extend the marital
line of credit, and his efforts to conceal these deceptions. The couple divorced in
December 2006.
{¶ 10} At the November 15, 2007 panel hearing addressing respondent’s
fraud, relator asked respondent, “At one time do you recall your wife questioning
you about some unpaid income taxes?” Respondent replied, “She advised me that
she received a letter from the IRS addressed to her that said that they did not have
copies of returns, but did not mention – I’m not aware of anything regarding
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unpaid taxes.” In light of respondent’s admission that he did not file tax returns
or pay taxes for the 2001 through 2006 tax years, this testimony was patently
false.
{¶ 11} Just one month after giving this false testimony at his disciplinary
hearing, respondent filed an affidavit in response to a postdecree contempt motion
filed in his domestic-relations case. The affidavit stated that he had prepared and
filed joint federal, state, and local income tax returns and had paid the
corresponding tax liabilities in full for the 1989 through 2005 tax years.
Respondent admitted that he knew these averments were false when he made
them but explained that he did not want to risk being jailed for contempt if he
failed to file an affidavit or risk the imposition of a harsher sanction in his
pending disciplinary matter if the truth came out.
{¶ 12} When respondent’s domestic-relations counsel discovered that the
affidavit was false, he advised respondent to report his conduct to relator. And in
an amended answer to relator’s complaint, respondent admitted each allegation
set forth in relator’s complaint and acknowledged that his conduct violated
Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that
reflects adversely on the lawyer’s honesty or trustworthiness), (c) (prohibiting a
lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), (d) (prohibiting a lawyer from engaging in conduct that is
prejudicial to the administration of justice), and (h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice
law).
{¶ 13} Based upon respondent’s admissions of fact and misconduct, and
upon the evidence presented at the hearing, the panel and board found that
respondent has violated Prof.Cond.R. 8.4(b), (c), (d), and (h). We adopt these
findings of fact and misconduct.
Sanction
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{¶ 14} 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 Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 15} As aggravating factors, the panel found that respondent has a prior
disciplinary record and that his current ethical violations occurred during that
earlier disciplinary process. See BCGD Proc.Reg. 10(B)(1)(a). The board also
found that he engaged in a pattern of misconduct, submitted false evidence and
made false statements about his outstanding tax liabilities in his prior disciplinary
case and in his domestic-relations proceeding, and failed to acknowledge the
wrongful nature of his conduct until confronted by his attorney. See BCGD
Proc.Reg. 10(B)(1)(c), (f), and (g). We find that respondent also acted with a
dishonest or selfish motive, disregarded his ethical obligations as an attorney and
officer of this court, and risked his wife’s reputation, credit, and career in an effort
to avoid the consequences of his own actions. See BCGD Proc.Reg. 10(B)(1)(b).
We also find that he engaged in multiple offenses over a period of years. See
BCGD Proc.Reg. 10(B)(1)(d).
{¶ 16} As mitigating factors, the panel found that respondent had
cooperated in the disciplinary proceedings and eventually admitted each of the
alleged rule violations. BCGD Proc.Reg. 10(B)(2)(c) and (d).
{¶ 17} The panel, however, discounted the testimony of three of
respondent’s law-school classmates who testified to his good character, two of
whom claimed that they would continue to refer clients to him despite his
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disciplinary record. The panel acknowledged respondent’s selfless efforts to
obtain workers’ compensation benefits for one of the witnesses, who had been in
an automobile accident that left him a quadriplegic. But it observed that he began
the pattern of tax-law violations that gave rise to this disciplinary proceeding
while he was providing free legal advice to his friend.
{¶ 18} In his prior disciplinary proceeding, respondent acknowledged that
he had suffered from a depressive disorder, but he conceded that his depression
did not contribute to his misconduct in that case. Cincinnati Bar Assn. v. Farrell,
119 Ohio St.3d 529, 2008-Ohio-4540, 895 N.E.2d 800, ¶ 18. Here, however, he
testified that his depression, though not a cause, was a contributing factor to all of
his misconduct, and he sought to have it considered as a mitigating factor.
{¶ 19} The social worker who began treating respondent in 2006 testified
that respondent suffered from major depression. He considered respondent’s
filing of the false tax affidavit as a continuation of the conduct at issue in the
earlier disciplinary proceeding and characterized the misconduct as occurring in
“a very encapsulated part” of respondent’s life involving his marriage and as
unrelated to his clients or his career. While the social worker believed that
respondent’s depression was causally related to the misconduct at issue, he stated
that respondent took responsibility for his problems and expressed tremendous
guilt and shame for his actions. He also expressed his belief that respondent
would be able to return to the ethical practice of law. The panel did not find the
social worker’s testimony persuasive.
{¶ 20} The board-certified psychiatrist who performed an independent
medical examination of respondent confirmed that respondent had suffered from a
major depressive disorder. But based upon respondent’s self-reported history and
the documentation in his clinical records, the psychiatrist found that his
depression had been in remission since early 2007. Therefore, the independent
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psychiatrist concluded that respondent’s depression was not causally related to the
misconduct that occurred in late 2007.
{¶ 21} The panel found the testimony of the independent psychiatrist to be
more persuasive than that of respondent’s treating social worker. Indeed,
observing that respondent attempts to attribute his misconduct to his panic – over
his wife’s discovery of his deception in the first case and over the potential loss of
a lenient sanction in the second – the panel found “his mental state to be nothing
less than a carefully crafted effort to deceive” and accorded it no mitigating effect.
See BCGD Proc.Reg. 10(B)(2)(g).
{¶ 22} The panel likewise rejected respondent’s claims that he had
reported his conduct, observing that in each instance, he made his report only
after his misdeeds had been discovered. Finding that respondent had engaged in a
six-year pattern of pathological lying and deceptive conduct, acted with a
premeditated intent to deceive the domestic-relations court, and submitted false
testimony to another panel of the Board of Commissioners on Grievances and
Discipline, which serves as an arm of this court, the panel rejected respondent’s
claims that his conduct had no bearing on his ethical obligations as an attorney.
{¶ 23} Finding that this court has imposed sanctions ranging from a six-
month suspension to an indefinite suspension for what they perceived as
comparable conduct, two of the panel members were reluctant to permanently
disbar respondent as relator requested. But they acknowledged that they could
not confidently establish a time frame in which respondent could return to the
ethical practice of law and, therefore, recommended that he be indefinitely
suspended after serving the full suspension imposed by this court in 2008. The
majority of the panel also conditioned any future reinstatement on the submission
of evidence that respondent has repaid the $50,000 loan that he fraudulently
obtained, is current on all tax and child-support obligations, and has committed no
further misconduct.
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{¶ 24} Citing his six-year pattern of deception and systematic
manipulation of the disciplinary process to avoid the consequences of his
misconduct, the third panel member dissented, arguing that respondent’s conduct
warranted permanent disbarment. The board adopted the findings of fact and
misconduct of the panel but recommends that we permanently disbar respondent.
{¶ 25} Respondent objects to the recommended sanction of permanent
disbarment and argues that at most, our precedent supports the imposition of an
indefinite suspension. In support of this argument, he cites a number of cases
imposing far more lenient sanctions on attorneys who failed to file their personal
income tax returns.
{¶ 26} In Toledo Bar Assn. v. Abood, 104 Ohio St.3d 655, 2004-Ohio-
7015, 821 N.E.2d 560, ¶ 3, an attorney failed to either timely file his federal
income tax returns or pay the tax owed for multiple years over a 13-year period
due to financial difficulties. And on one occasion, he placed personal funds into
his client trust account to avoid seizure by the Internal Revenue Service (“IRS”).
He pleaded guilty to two misdemeanor counts of failure to pay income taxes and
was sentenced to consecutive eight-month prison terms for the offenses. Id. at ¶
5.
{¶ 27} In Abood, we noted the presence of many mitigating factors,
including the respondent’s lack of a prior disciplinary record, his full cooperation
with the IRS and disciplinary investigations, his reputation for honesty, integrity
and a good work ethic, his demonstration of remorse, the imposition of a
substantial federal prison term, and the fact that his misconduct was of a financial
nature that did not involve his practice or his capacity as an attorney. Id. at ¶ 9-
11. Considering the duration of the respondent’s conduct as an aggravating
circumstance, however, we imposed a one-year suspension and stayed the final
six months on conditions. Id. at ¶ 19-20.
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{¶ 28} In Cleveland Bar Assn. v. Smith, 102 Ohio St.3d 10, 2004-Ohio-
1582, 806 N.E.2d 495, ¶ 12, we imposed a six-month conditionally stayed
suspension on an attorney who had settled a claim for her own malpractice
without advising the client to seek independent counsel, failed to promptly return
unearned fees to a client, and failed to file income tax returns for nine years.
There were no aggravating factors present, but mitigating factors included
respondent’s lack of prior discipline, her devotion of her practice to low- and
moderate-income clients, her genuine efforts to make restitution to her clients, her
acceptance of responsibility for her actions and demonstration of remorse, and her
evidence of her good character and integrity. Id. at ¶ 10.
{¶ 29} In Cuyahoga Cty. Bar Assn. v. Freedman, 107 Ohio St.3d 25,
2005-Ohio-5831, 836 N.E.2d 559, ¶ 10, 19, we imposed a one-year suspension on
an attorney who had not filed tax returns for at least ten years and owed
approximately $200,000 in back taxes. He had also harmed two clients by
neglecting their legal matters and counseled one of them to hide her car from her
creditors. Id. at ¶ 4-9. Mitigating factors included the absence of any prior
disciplinary record, the absence of a dishonest or selfish motive, full and free
disclosure to the panel and a cooperative attitude during the proceedings, and
respondent’s good character and reputation among magistrates, attorneys, clients,
and friends. Id. at ¶ 13. Freedman also successfully demonstrated that his
diagnosed depression was causally related to his misconduct and that he had
completed a sustained period of successful treatment, and his counselor testified
that he was capable of providing ethical and professional service to his clients. Id.
at ¶ 14.
{¶ 30} We have also imposed a one-year conditionally stayed suspension
on an attorney who had accepted cocaine as a legal fee from a client and had
failed to file personal income tax returns for five years. Cuyahoga Cty. Bar Assn.
v. Lazzaro, 98 Ohio St.3d 509, 2003-Ohio-2150, 787 N.E.2d 1182, ¶ 2, 7.
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Notably, in that case, the attorney had no prior discipline, and his diagnosed
depressive disorder and cocaine dependence qualified as a mitigating
circumstance pursuant to BCGD Proc.Reg. 10(B)(2)(g). Id. at ¶ 3.
{¶ 31} And in Columbus Bar Assn. v. Patterson, 95 Ohio St.3d 502, 2002-
Ohio-2487, 769 N.E.2d 826, ¶ 4-7, we imposed a one-year suspension with credit
for time served on an attorney who had pleaded guilty to two misdemeanor
charges of failing to file federal income tax returns and one charge of driving
while intoxicated, and who owed more than $45,000 in child support. As
mitigating factors, the parties stipulated and we found that the attorney’s
violations did not directly relate to the practice of law and did not adversely affect
his clients or the judicial system and that the attorney had been criminally
punished for his conduct.
{¶ 32} These cases, however, are distinguishable from the facts of
respondent’s case. In four of the five cases, the attorneys did not have a prior
disciplinary record, while respondent’s pattern of misconduct continued
throughout his prior disciplinary proceeding. Abood served a prison term for his
offenses, and Patterson was placed on probation by the federal court, while
respondent has not faced any criminal charges for his conduct. Freedman and
Lazzaro successfully demonstrated that their mental conditions contributed to
their misconduct and satisfied the other requirements of BCGD Proc.Reg.
10(B)(2)(g) for those conditions to be considered in mitigation, while
respondent’s depression appears to be the result, rather than the cause, of his
misconduct.
{¶ 33} Respondent’s submission of a false affidavit in his domestic
proceeding and his false testimony in his prior disciplinary proceeding were
prejudicial to the administration of justice and adversely reflected upon his fitness
to practice law. His actions impaired this court’s ability to determine the full
scope of his misconduct and craft an appropriate sanction to protect the public.
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And while Abood and Smith expressed genuine remorse for their actions,
respondent continued to spin his web of lies even as he professed his remorse in
his first disciplinary action and as he continues to seek credit for reporting his
misconduct.
{¶ 34} We have permanently disbarred attorneys who have demonstrated
a proclivity for lying and deceit. In Cincinnati Bar Assn. v. Deaton, 102 Ohio
St.3d 19, 2004-Ohio-1587, 806 N.E.2d 503, ¶ 3-22, an attorney had repeatedly
lied and deceived his clients and his firm to cover up his neglect of client matters.
Observing that the attorney had deliberately concealed his neglect to protect his
personal interests, and adopting a master commissioner’s finding that the attorney
was predisposed to dishonesty and was lacking in integrity, we concluded that an
indefinite suspension was too lenient. Id. at ¶ 27, 30. Therefore, we permanently
disbarred the attorney. Id. at ¶ 32.
{¶ 35} Similarly, in Disciplinary Counsel v. Manogg (1996), 74 Ohio
St.3d 213, 214-216, 658 N.E.2d 257, we permanently disbarred an attorney who
had been convicted of two felony counts of using false Social Security numbers,
had created several aliases, and had made up fake property deeds and appraisals to
obtain fraudulent mortgage loans. In doing so, we stated that we were “most
troubled * * * by respondent’s propensity to scheme and deceive without any
moral appreciation for the lies he tells or the fraud he perpetrates.” Id. at 217.
And in Trumbull Cty. Bar Assn. v. Kafantaris, 121 Ohio St.3d 387, 2009-Ohio-
1389, 904 N.E.2d 875, ¶ 6-7, 15, we found that permanent disbarment was the
only appropriate sanction for an attorney who, among other things, submitted an
affidavit to this court falsely stating that he had complied with the terms of a
previous suspension order. Likewise, we agree that respondent’s pattern of lying
and deceit strongly suggests that he lacks the ability to conform his behavior to
the ethical standards incumbent upon attorneys in this state.
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{¶ 36} Accordingly, respondent is permanently disbarred from the
practice of law in Ohio. Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Kevin P. Roberts and Ernest F. McAdams Jr., for relator.
William I. Farrell, pro se.
______________________
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