Cincinnati Bar Assn. v. Newman

[Cite as Cincinnati Bar Assn. v. Newman, 124 Ohio St.3d 505, 2010-Ohio-928.]

CINCINNATI BAR ASSOCIATION v. NEWMAN.

[Cite as Cincinnati Bar Assn. v. Newman,

124 Ohio St.3d 505, 2010-Ohio-928.]

Attorneys at law — Misconduct — Disciplinary procedure — Sworn or certified

documentary evidence required upon default — Gov.Bar R. V(6)(F)(1).

(No. 2009-1917 — Submitted December 16, 2009 — Decided March 17, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-041.

__________________

Per Curiam.

{¶ 1} Respondent, George W. Newman III of Cincinnati, Ohio, Attorney

Registration No. 0050769, was admitted to the practice of law in Ohio in October

1964. In June 2009, relator, Cincinnati Bar Association, filed a complaint

charging respondent with violations of the Ohio Rules of Professional Conduct.

Relator served respondent with the complaint, but he did not answer. Therefore,

in August 2009, relator moved for default. See Gov.Bar R. V(6)(F). The Board

of Commissioners on Grievances and Discipline referred the default motion to a

master commissioner, who made findings of fact, conclusions of law, and a

recommendation that the board indefinitely suspend respondent from the practice

of law, all of which the board adopted. However, because we find that the record

lacks sufficient sworn or certified evidence to support the allegations of

misconduct, we return this cause to the board for further proceedings consistent

with this decision.

{¶ 2} In its complaint, relator alleged that in September 2007, respondent

had entered a guilty plea and was convicted of three counts of theft in violation of

R.C. 2913.02, fifth-degree felonies. Specifically, relator stated that respondent

SUPREME COURT OF OHIO

had engaged in a scheme by which he deposited checks drawn on closed accounts

or accounts with insufficient funds into other bank accounts and then withdrew

cash from those artificially inflated accounts, causing losses of $5,809.67 to Fifth

Third Bank, $11,804 to U.S. Bank, and $4,459.99 to Huntington Bank. Relator

noted that based upon the conduct alleged, this court had imposed an interim

felony suspension from the practice of law against respondent on February 2,

2009. In re Newman, 120 Ohio St.3d 1500, 2009-Ohio-381, 900 N.E.2d 618.

Additionally, relator alleged that despite having received notice of the disciplinary

investigation pending against him, respondent failed to respond or otherwise

participate in the disciplinary process.

{¶ 3} Based upon the foregoing conduct, relator alleged that respondent

violated his oath of office and Prof.Cond. R. 8.1(b) (forbidding failure to respond

to a demand for information from a disciplinary authority), 8.3(a) (requiring a

lawyer to self-report violations of the Ohio Rules of Professional Conduct that

raise questions about the lawyer’s honesty, trustworthiness, and fitness), and

8.4(b) (prohibiting illegal acts that reflect adversely on the lawyer’s honesty or

trustworthiness).

{¶ 4} Relator supported its motion for default judgment with copies of

documents purporting to be the indictment, bill of particulars, guilty plea,

judgment entry, our interim-suspension order, three letters addressed to

respondent, and two certified-mail return receipts that appear to have been signed

by respondent. Additionally, relator submitted the affidavit of its attorney

investigator.1

1. {¶ a} The affidavit states:

{¶ b} “1. I am an attorney licensed to practice law in the State of Ohio.

{¶ c} “2. I am and have been for many years a member of the Certified Grievance Committee

of the Cincinnati Bar Association.

{¶ d} “3. I was asked to investigate a complaint against George W. Newman III arising out of

his felony theft conviction.

2

January Term, 2010

{¶ 5} Gov.Bar R. V(6)(F)(1) provides: “A motion for default shall

contain all of the following: * * * (b) Sworn or certified documentary prima

facie evidence in support of the allegations made.” Additionally, Gov.Bar R.

V(6)(J) specifies that findings of misconduct must be supported by clear and

convincing evidence.

{¶ 6} The Supreme Court Rules for the Government of the Bar of Ohio

do not define the terms “sworn or certified documentary * * * evidence.”

Therefore, we use the common, ordinary, and accepted meaning. Black’s Law

Dictionary (9th Ed.2009) 385 defines “certified copy” as “[a] duplicate of an

original (usu. official) document, certified as an exact reproduction usu. by the

officer responsible for issuing or keeping the original.”

{¶ 7} Additionally, in the context of documents submitted in support of a

motion for summary judgment, we have stated, “The requirement of Civ.R. 56(E)

that sworn or certified copies of all papers referred to in the affidavit be attached

is satisfied by attaching the papers to the affidavit, coupled with a statement

therein that such copies are true copies and reproductions.” State ex rel. Corrigan

v. Seminatore (1981), 66 Ohio St.2d 459, 467, 20 O.O.3d 388, 423 N.E.2d 105.

Likewise, we conclude that a party may satisfy the Gov.Bar R. V(6)(F)(1)

requirement by submitting copies of documents attached to an affidavit containing

a statement that they are true copies and reproductions.

{¶ 8} Here, however, the documents submitted by relator in support of

its motion for default judgment were neither certified nor sworn. None of the

documents bears any certification by the officer responsible for issuing or keeping

the original that the copy is a true or exact reproduction. And although relator

{¶ e} “4. I attempted to contact Mr. Newman by telephone (his listed number was not

functional) and by certified and regular mail. He received the certified mail but did not respond in

any way.

{¶ f} “5. Following the filing of the complaint herein, I contacted Mr. Newman by certified

letter of July 9, 2009. He received the certified mail but did not respond in any way.”

3

SUPREME COURT OF OHIO

submitted an affidavit from its investigative attorney, that affidavit refers only to

the letters addressed to respondent and the two certified-mail return receipts that

appear to have been signed by respondent. It contains no statement that the

copies referred to in the affidavit are true copies or reproductions of the originals.

Nor does it mention the submitted copies of the indictment, bill of particulars,

guilty plea, judgment entry, or our interim-suspension order, let alone contain a

sworn statement that they are true copies.

{¶ 9} Based upon the foregoing, we reject the findings of fact,

conclusions of law, and recommendation of the board because the record before

us lacks sufficient sworn or certified documentary prima facie evidence in support

of relator’s allegations. Accordingly, we return this case to the board for further

proceedings consistent with this decision, including the submission and

consideration of sworn or certified evidence establishing the charges of

respondent’s misconduct. See Dayton Bar Assn. v. Sebree, 104 Ohio St.3d 448,

2004-Ohio-6560, 820 N.E.2d 318, ¶ 16.

Judgment accordingly.

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

CUPP, JJ., concur.

LUNDBERG STRATTON, J., dissents and would permanently disbar the

respondent.

__________________

Naomi C. Dallob and Edwin W. Patterson III, for relator.

______________________

4