The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Zaffiro, Slip Opinion No. 2010-Ohio-4830.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. ZAFFIRO.
[Cite as Cleveland Metro. Bar Assn. v. Zaffiro,
127 Ohio St.3d 5, 2010-Ohio-4830.]
Attorneys at law — Misconduct — Failure to cooperate in disciplinary
investigation — Failure to inform client of lack of malpractice insurance
— Public reprimand.
(No. 2010-0769 — Submitted July 6, 2010 — Decided October 7, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-032.
__________________
Per Curiam.
{¶ 1} Respondent, William T. Zaffiro Jr. of Lyndhurst, Ohio, Attorney
Registration No. 0077479, was admitted to the practice of law in Ohio in 2004.
The Board of Commissioners on Grievances and Discipline now recommends that
we publicly reprimand respondent for failing to inform a client that he did not
carry malpractice insurance, failing to cooperate in a disciplinary investigation,
and making a false statement of material fact during a disciplinary investigation.
We agree that respondent engaged in this misconduct and that a public reprimand
is an appropriate sanction.
Facts and Misconduct
{¶ 2} On July 1, 2009, relator, Cleveland Metropolitan Bar Association,
filed an amended complaint charging respondent with violations of the Code of
Professional Responsibility and Rules of Professional Conduct arising from his
(1) representation of a client in a case in small-claims court that led to a default
judgment against his client, (2) failure to inform his client that he did not carry
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professional-liability insurance, and (3) conduct during the resulting disciplinary
investigation.
{¶ 3} A panel of the Board of Commissioners on Grievances and
Discipline rejected the parties’ consent-to-discipline agreement,1 expressing its
concern that although respondent claimed to have personally satisfied the default
judgment against his client, he had paid the judgment with a check drawn on his
client trust account. Therefore, the panel vacated the scheduled hearing to allow
relator time to investigate the source of the funds used to satisfy the default
judgment and instructed relator to either file a second amended complaint or seek
a new hearing date.
{¶ 4} Relator did not amend its complaint to address respondent’s
apparent use of trust funds to satisfy the default judgment against his client.
Instead, the parties submitted stipulated findings of fact and misconduct in which
relator agreed to dismiss Count One of its amended complaint and respondent
admitted the remaining charges. The parties agreed that a six-month suspension,
all stayed, was the appropriate sanction for respondent’s misconduct and jointly
moved the panel to waive a formal hearing.
{¶ 5} After reviewing the parties’ stipulations of fact and misconduct, as
well as the stipulated exhibits, the panel granted relator’s motion to dismiss Count
One of the complaint. The panel also dismissed Counts Two and Three, having
unanimously concluded that the record did not contain clear and convincing
evidence that respondent had violated Prof.Cond.R. 1.3 or 1.4(a)(3). See Gov.Bar
R. V(6)(H).
{¶ 6} Accepting the parties’ remaining stipulations of fact and
misconduct, the panel found that respondent had failed to produce his
1. See Section 11 of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline of the Supreme Court (“BCGD
Proc.Reg.”).
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January Term, 2010
professional-liability insurance policy as requested by relator during its
investigation and that this conduct violated Prof.Cond.R. 8.1(b) and Gov.Bar R.
V(4)(G) (both requiring a lawyer to cooperate with a disciplinary investigation).
It also found that respondent had agreed to provide information on his
professional-liability insurance policy to relator when no such policy existed,
thereby violating Prof.Cond.R. 8.1(a) (prohibiting a lawyer from knowingly
making a false statement of material fact in connection with a disciplinary
matter). Finally, the panel agreed that respondent had failed to inform his client
that he did not carry professional-liability insurance, in violation of DR 1-104(A)
(requiring a lawyer to disclose to the client that the lawyer lacks professional-
liability insurance). The board adopted these findings of fact and misconduct, and
we do also.
Sanction
{¶ 7} In recommending a sanction for this misconduct, the panel
considered the aggravating and mitigating features of respondent’s case and found
that the mitigating factors outweighed the aggravating factors. See Section 10 of
the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline (“BCGD
Proc.Reg.”).
{¶ 8} Consistent with the parties’ stipulations, the panel found that
respondent’s conduct in falsely leading relator to believe that he maintained
professional-liability insurance, when in fact he did not, was an aggravating
factor. See BCGD Proc.Reg. 10(B)(1)(f). In mitigation, the panel considered
respondent’s (1) lack of a prior disciplinary record, (2) lack of a dishonest or
selfish motive, (3) timely good faith effort to make restitution by satisfying the
default judgment against his client and refunding the client’s retainer, (4)
cooperative attitude toward the disciplinary proceedings once respondent obtained
counsel, and (5) good character and reputation. BCGD Proc.Reg. 10(B)(2)(a),
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(b), (c), (d), and (e). The board adopted these findings in aggravation and
mitigation.
{¶ 9} The parties agreed that a six-month stayed suspension was the
appropriate sanction for respondent’s misconduct, citing Lorain Cty. Bar Assn. v.
Paterson, 98 Ohio St.3d 446, 2003-Ohio-1638, 786 N.E.2d 874 (imposing a
public reprimand for an attorney’s admitted failure to cooperate in a disciplinary
investigation), and Columbus Bar Assn. v. Dicker, 102 Ohio St.3d 123, 2004-
Ohio-1803, 807 N.E.2d 326 (imposing a public reprimand for an attorney’s
misrepresentation to relator during a disciplinary investigation). The parties’
agreement, however, was premised upon violations alleged in counts related to
the default judgment against respondent’s client—counts that the panel dismissed.
{¶ 10} The panel noted that in Akron Bar Assn. v. Wittbrod, 122 Ohio
St.3d 394, 2009-Ohio-3549, 911 N.E.2d 901, we imposed a conditionally stayed
six-month suspension on an attorney who had failed to advise a client that he
lacked professional-liability insurance and who later proposed the dismissal of the
client’s grievance as a term of settlement of the related malpractice claim. But it
distinguished respondent’s misconduct from that of Wittbrod, observing that
respondent had acknowledged his misconduct, promptly assumed responsibility
for the consequences of his alleged malpractice, and rectified his initial failure to
cooperate with relator’s investigation. Citing Cuyahoga Cty. Bar Assn. v.
Johnson, 123 Ohio St.3d 65, 2009-Ohio-4178, 914 N.E.2d 180 (publicly
reprimanding an attorney who failed to respond to court filings, failed to appear in
court on a client’s behalf, and failed to advise the client that she lacked
professional-liability insurance), the panel concluded that the appropriate sanction
for respondent’s conduct was a public reprimand. The board adopted this
recommendation.
{¶ 11} Having considered respondent’s conduct, the aggravating and
mitigating factors, and the sanctions imposed for comparable conduct, we agree
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with the board’s conclusion that a public reprimand is an appropriate sanction for
respondent’s misconduct. Accordingly, William T. Zaffiro Jr. is hereby publicly
reprimanded. Costs are taxed to respondent.
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Heather M. Zirke, Assistant Bar Counsel, and Brian P. Riley, for relator.
Mary L. Cibella, for respondent.
______________________
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