Disciplinary Counsel v. McCord

[Cite as Disciplinary Counsel v. McCord, 121 Ohio St.3d 497, 2009-Ohio-1517.]

DISCIPLINARY COUNSEL v. MCCORD.

[Cite as Disciplinary Counsel v. McCord,

121 Ohio St.3d 497, 2009-Ohio-1517.]

Attorney misconduct, including engaging in conduct involving fraud, deceit,

dishonesty, or misrepresentation, engaging in conduct prejudicial to the

administration of justice, using a misleading law firm name, and

improperly sharing legal fees — Indefinite suspension.

(No. 2008-1785 — Submitted December 17, 2008 — Decided April 7, 2009.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 03-073.

__________________

Per Curiam.

{¶ 1} Respondent, Michael McCord, Attorney Registration No. 0020304,

was admitted to the practice of law in Ohio in 1977. The Board of

Commissioners on Grievances and Discipline recommends that we suspend

respondent for two years with one year stayed upon conditions for creating a

fictional law firm and for misconduct involving legal fees. We agree that

respondent committed these acts of misconduct, and we also find that respondent

acted improperly in failing to pay a disputed expert-witness deposition fee and

failing to pay child support while contesting that amount through the legal

process. In view of these serious ethical violations, we do not accept the board’s

recommended two-year suspension with one year stayed and instead indefinitely

suspend respondent from the practice of law.

I. Procedural History

{¶ 2} Relator, Disciplinary Counsel, filed a complaint against

respondent, alleging that he violated numerous Disciplinary Rules and Rules of

SUPREME COURT OF OHIO

Professional Conduct in (1) failing to pay a disputed expert-witness deposition

fee, (2) failing to pay contested child support, (3) using a misleading law firm

name, and (4) accepting legal fees while suspended and improperly sharing legal

fees.

{¶ 3} A panel of the board considered the case against respondent. The

panel determined that relator proved only that respondent had used a misleading

law firm name, accepted legal fees while he was suspended, and improperly

shared legal fees, and it recommended that the other two charges be dismissed.

After reviewing the aggravating and mitigating factors, the panel recommended

suspending respondent for six months, with conditions for reinstatement. The

board adopted the panel’s findings of misconduct but determined that respondent

should be suspended for two years with one year stayed on conditions.

{¶ 4} Both parties have filed objections to the board’s decision. We will

therefore review all four counts in the complaint.

II. Counts against Respondent

A. Count One – Failure to pay disputed expert fee

{¶ 5} This count arises from respondent’s actions in connection with a

deposition taken in McCord v. McCord, Franklin C.P. No. 96-DR-03-1234, a

child-support matter against his ex-wife, Iris Cooper. Respondent, representing

himself, requested the deposition of Theodore Johnson, an expert witness for

Cooper. Respondent stated that he would pay Johnson for his preparation and

deposition time.

{¶ 6} Immediately after the deposition ended, Johnson gave respondent a

bill. Respondent gave Johnson a check for the full amount and noted in the memo

that the payment was for “Ted’s deposition”; he did not note that he was making

the payment under protest or with any rights reserved.

{¶ 7} The next day, however, respondent stopped payment on the check,

and Johnson’s employer incurred bank charges for the returned item. Respondent

2

January Term, 2009

testified in his disciplinary hearing that he had stopped payment because he felt

that Johnson was unprepared and gave incomplete and evasive answers. After

payment was stopped, respondent refused to pay Johnson, leading Johnson to file

a complaint with relator.

{¶ 8} Relator claims that respondent’s conduct violated DR 1-102(A)(4)

(a lawyer shall not “[e]ngage in conduct involving dishonesty, fraud, deceit, or

misrepresentation”), 1-102(A)(5) (a lawyer shall not “[e]ngage in conduct that is

prejudicial to the administration of justice”), and 1-102(A)(6) (a lawyer shall not

engage in “conduct that adversely reflects on the lawyer’s fitness to practice

law”). Both the panel and the board determined that relator did not prove by clear

and convincing evidence that respondent violated these rules.

{¶ 9} We disagree. There is no dispute that respondent induced the

expert to attend the deposition with the promise of compensation and then broke

this promise once the deposition was completed. There is no foundation for the

notion that this was a good-faith dispute over service rendered; it was simply a

refusal to pay the fees promised.

{¶ 10} Respondent’s reason for withholding payment — that he was

dissatisfied with the expert’s preparation and responses — is disingenuous at best.

Respondent’s proffered reasons for withholding payment are little more than

after-the-fact excuse-making, and respondent has not made serious efforts to show

that they are anything else.

{¶ 11} Moreover, respondent’s own conduct does not add credence to his

claim that he did not get a “discovery” deposition. Respondent completed the

deposition and presented the expert with a check at the end, only to stop payment

on that check the next day. Furthermore, the deposition was not without benefit

to respondent; indeed, he paid to have the deposition transcribed and used the

testimony in cross-examination of the expert. Despite respondent’s claimed

dissatisfaction with the deposition, there is no evidence that he asked the court to

3

SUPREME COURT OF OHIO

compel the witness to testify, that he sought other court remediation, or that he

asked the court to exclude the expert’s testimony.

{¶ 12} Respondent’s failure to pay the expert is consistent with his prior

discipline for failure to meet an obligation to a client, Disciplinary Counsel v.

McCord, 96 Ohio St.3d 21, 2002-Ohio-2587, 770 N.E.2d 571, and with Count

Two of the complaint in this case, for failure to comply with court-ordered child-

support obligations.

{¶ 13} Although the board distinguished this case from McCord’s prior

discipline on the grounds that in the previous case there was a court order

commanding respondent to pay, this distinction does not change our conclusion.

An attorney should pay his debts without a court order. As noted by relator, this

court has repeatedly refused to approve applications to sit for a bar examination

when the applicant has failed to “scrupulously honor all financial commitments.”

In re Application of Manayan, 102 Ohio St.3d 109, 2004-Ohio-1804, 807 N.E.2d

313, ¶ 14. We expect no less from those already admitted to the bar of Ohio.

{¶ 14} Thus, respondent’s order to stop payment and refusal to honor his

debt to the expert witness is conduct that reflects at least deceit and

misrepresentation and violates DR 1-102(A)(4), 1-102(A)(5), and 1-102(A)(6).

We therefore reject the recommendation of the panel and board and reinstate

Count One of the complaint.

B. Count Two – Failure to pay contested child support

{¶ 15} This count pertains to respondent’s failure to pay child support as

determined by the trial court in McCord v. McCord. Respondent and Cooper had

two children together, but the original divorce decree, entered in September 1999,

did not require either party to pay child support. However, as part of the divorce

settlement, respondent and Cooper split their jointly owned stock in a business

called Glory Foods, with respondent receiving 35 percent of their stock and

4

January Term, 2009

Cooper keeping the remainder. The stock was subject to a buy/sell agreement that

gave the business the option to buy back shares if they were sold.

{¶ 16} Although the record is unclear, it appears that the stock was held

solely in Cooper’s name. After the transfer was made from Cooper to respondent

pursuant to the divorce decree, the business determined that there had been a sale

of the stock and exercised its option to purchase respondent’s shares for $2

million.

{¶ 17} Shortly thereafter, in January 2000, Cooper filed a motion asking

the trial court to modify the divorce decree to require respondent to pay child

support, claiming that there had been a change in circumstances. Respondent

argued that the circumstances had not changed simply because he had sold some

of his assets, and he argued that Cooper’s stock was worth close to $4 million,

given the value of his shares.

{¶ 18} The trial court ordered respondent to pay child support retroactive

to 2000. The court also ordered respondent to pay $40,000 within 30 days while

the full amount of the arrearage was being determined. Respondent failed to pay

this amount and was held in contempt of court.

{¶ 19} The amount in arrears was originally determined to be

$113,803.46; respondent filed objections and requested a mistake-of-fact hearing.

After the mistake-of-fact hearing, the amount became $118,789.40. Respondent

requested another mistake-of-fact hearing, appealed the determination, and

appealed the underlying child-support order.

{¶ 20} Respondent continued to pursue his objections to the child-support

determination for the next three years, proceeding through the legal system: (1)

respondent’s original appeal was dismissed for lack of a final, appealable order in

March 2005, (2) the amount in arrears was upheld by the trial court on remand in

January 2006, and respondent appealed again, (3) the trial court granted attorney

fees against respondent in June 2006, and he appealed that decision, (4) the court

5

SUPREME COURT OF OHIO

of appeals consolidated respondent’s appeals and affirmed the trial court’s

decisions in both cases in January 2007, and (5) respondent filed an appeal in this

court seeking discretionary review in March 2007, and we declined to accept the

case for review on the merits.

{¶ 21} During this process, respondent was held in contempt of court at

least two times, and the courts labeled his actions “dilatory,” noting that he had

“dragged this litigation far beyond what it should have been.” Respondent also

failed to pay the amount in arrears while these proceedings were ongoing. As a

result, the trial court determined that he was in default of a child-support order. In

view of this default, this court suspended respondent in September 2004 pursuant

to Gov.Bar R. V(5)(A)(1). 103 Ohio St.3d 1439, 2004-Ohio-4620, 814 N.E.2d

500.

{¶ 22} After respondent filed his jurisdictional memorandum in this court,

he and Cooper entered into a settlement agreement, whereby respondent agreed to

pay Cooper $100,000 in child support to resolve all outstanding claims. Shortly

thereafter, this court terminated respondent’s interim suspension, approximately

31 months after it was imposed.

{¶ 23} Although neither the panel nor the board determined that

respondent’s conduct violated a Disciplinary Rule, relator claims that

respondent’s conduct violated DR 1-102(A)(5) and 1-102(A)(6). To support this

argument, relator cites several cases in which we determined that attorneys had

violated Disciplinary Rules for failure to pay outstanding child-support awards.

See Disciplinary Counsel v. Redfield, 116 Ohio St.3d 262, 2007-Ohio-6039, 878

N.E.2d 10, ¶ 13; Disciplinary Counsel v. Curry, 112 Ohio St.3d 130, 2006-Ohio-

6517, 858 N.E.2d 392, ¶ 20–23 (suspending respondent without credit for his

interim suspension for being in default of a child-support order); Disciplinary

Counsel v. Geer, 112 Ohio St.3d 124, 2006-Ohio-6516, 858 N.E.2d 388, ¶ 14–15

(same).

6

January Term, 2009

{¶ 24} We agree with relator. The above cases show that we have

suspended attorneys for nonpayment of child support under DR 1-102(A)(5) and

(6). While respondent was entitled to challenge the child-support determination

through the appeals process, the contempt orders and the findings of the trial court

demonstrate that respondent needlessly prolonged the child-support litigation and

made a concerted effort to avoid paying court-ordered support while the process

was ongoing (including creating a deceptively named law firm). These events,

taken together, support finding violations of DR 1-102(A)(5) and (6), despite

respondent’s settlement of his child-support obligations prior to the exhaustion of

all appeals.

{¶ 25} We therefore reject the recommendation of the panel and board

and reinstate Count Two of the complaint.

C. Count Three – Misleading law firm name

{¶ 26} Under this count, relator claims that respondent improperly held

himself out as a member of entities named “McCord, Pryor & Associates,”

“McCord, Pryor & Associates Co., L.P.A.,” and “McCord & Associates.”

Respondent’s actions related to these purported entities raise three questions: (1)

Was respondent ever a law partner with David E. Pryor? (2) Did respondent act

inappropriately in forming an entity named “McCord, Pryor & Associates Co.,

L.P.A.”? and (3) Did respondent have any associates that would justify using the

term “and associates” in firm names?

{¶ 27} Pryor was admitted to the practice of law in 1982. In 2002, Pryor

and his wife were killed in a plane crash. At the time of Pryor’s death, he and

respondent co-owned a building in Columbus where the two men maintained their

law practices.

{¶ 28} Although respondent claims that he and Pryor held themselves out

as a firm under the name “McCord, Pryor & Associates” for numerous years, they

did not operate under any recognizable legal structure. They had separate clients,

7

SUPREME COURT OF OHIO

separate IOLTA accounts, separate fee income, and separate law-related business

expenses during Pryor’s life. Moreover, they did not have an agreement to share

profits and losses; respondent readily admits that they shared attorney fees only

on cases they worked on together, never on their separate cases. Given these

facts, it was improper for respondent to hold himself out as “McCord, Pryor &

Associates.”

{¶ 29} In 2005, respondent filed articles of incorporation with the Ohio

secretary of state to form a professional corporation named “McCord, Pryor &

Associates Co., L.P.A.” At the time he formed this organization, respondent’s

license was suspended under the interim child-support suspension discussed in

Count Two, and Pryor had been dead for approximately two and a half years.

Respondent admits that he formed this organization solely to thwart his ex-wife’s

attempts to garnish his bank accounts to pay for his outstanding child-support

order. Respondent’s actions in this regard were plainly improper.

{¶ 30} Finally, respondent claimed that the “firms” employed two

individuals, Trent Turner and Jackie Lewis-Greer, as associates. However, the

evidence does not support this assertion. Turner was paid a salary from a bank

account containing funds related to the building respondent owned and his W-2

bore only respondent’s name, not any of the purported firm names, as his

employer. At respondent’s request, Lewis-Greer assumed the workers’

compensation matters that Pryor was managing before his death, but she

considered herself an independent contractor, received a 1099 tax form for her

taxable income arising from this work (which is indicative of an independent-

contractor relationship) instead of a W-2, and received only contingent fees,

which were paid from respondent’s IOLTA account, not from a payroll account.

Thus, it is clear that neither Turner nor Lewis-Greer was an associate of

respondent. Respondent acknowledges as much in his briefing before this court.

8

January Term, 2009

{¶ 31} The panel and the board determined that respondent violated

numerous Disciplinary Rules and Rules of Professional Conduct:1 DR 1-

102(A)(4), 2-102(B) (a lawyer in private practice shall not practice under a

misleading firm name), and 2-102(C) (“A lawyer shall not hold himself or herself

out as having a partnership with one or more other lawyers or professional

corporations unless they are in fact partners”), and Prof.Cond.R. 7.5(a) (a lawyer

in private practice shall not use a misleading firm name), 7.5(d) (“Lawyers may

state or imply that they practice in a partnership or other organization only when

that is the fact”), 8.4(b) (a lawyer shall not “commit an illegal act that reflects

adversely on the lawyer’s honesty or trustworthiness”), 8.4(c) (a lawyer shall not

“engage in conduct involving dishonesty, fraud, deceit, or misrepresentation”),

8.4(d) (a lawyer shall not “engage in conduct that is prejudicial to the

administration of justice”), and 8.4(h) (a lawyer shall not “engage in any other

conduct that adversely reflects on the lawyer’s fitness to practice law”).

{¶ 32} Respondent argues that he never intended to deceive or mislead the

public. However, the only relevant consideration is whether respondent

performed the unethical acts; his subjective intent in doing so does not change the

analysis. See Disciplinary Counsel v. Bell (1984), 15 Ohio St.3d 118, 120, 15

OBR 269, 472 N.E.2d 1069. Thus, even if we believed that respondent did not

intend to deceive the public, it is clear that he performed deceptive acts that

violated the aforementioned Disciplinary Rules and Rules of Professional

Conduct. We therefore adopt the board’s findings of misconduct under this count.

D. Count Four – Misconduct involving legal fees

{¶ 33} In the final count of the complaint, relator alleges that respondent

engaged in misconduct in three distinct ways: (1) he paid himself attorney fees

1. Respondent’s actions under this count occurred both before and after the effective date of the

Ohio Rules of Professional Conduct, February 1, 2007, and thus both the former (the Disciplinary

Rules of the Code of Professional Responsibility) and current set of ethical standards apply.

9

SUPREME COURT OF OHIO

while he was suspended from the practice of law, (2) he shared fees with Lewis-

Greer without an appropriate fee-sharing agreement, and (3) he made

misrepresentations in discussing these matters with relator.

{¶ 34} Respondent maintained an IOLTA account under the name

“McCord & Associates” over the course of the interim child-support suspension

imposed by this court. Over that 31-month period, respondent received and

deposited client funds into this IOLTA account approximately 90 times. Most of

those deposits were payments to claimants from the Ohio Bureau of Workers’

Compensation or workers’ compensation payments to persons from self-insured

employers. Respondent generally received these funds because the claimants had

listed “McCord Pryor & Associates” as their designated representative on the

relevant workers’ compensation forms.

{¶ 35} Respondent would deposit these payments in the IOLTA account

and then write three checks from the account: one to the relevant client for two-

thirds of the amount deposited, one to Lewis-Greer (who worked on the workers’

compensation cases) for one-sixth of the amount deposited, and one to himself for

the remaining one-sixth of the amount deposited. The record reveals that, through

this process, respondent paid himself $69,350.76 in 2005, $47,564.56 in 2006,

and $2,587.95 in 2007, all while he was suspended from the practice of law.

{¶ 36} We agree with the panel and the board that this evidence

demonstrates that respondent accepted legal fees while he was suspended from

the practice of law. Further, we agree that respondent improperly shared legal

fees with Lewis-Greer, given the fact that they did not have a fee-sharing

agreement for these matters and Lewis-Greer was not respondent’s associate or

employee.

{¶ 37} In response to a letter from relator regarding these transactions,

respondent sent a letter with the following explanation of his actions:

10

January Term, 2009

{¶ 38} “I still maintain an IOLTA in my name because I have a law firm.

The firm has a lot of workers compensation clients. The clients are represented

[by] an associate counsel in the firm. She has been representing these workers

compensation clients since the death of my law partner in December 2002. The

client’s workers compensation checks come in the name of the client and the firm.

Those checks are deposited into the IOLTA account and checks are written to the

clients out of that account. At this point, no one [else] has access to that account.

{¶ 39} “My only involvement with that account is purely CLERICAL. I

do not counsel, advise, or prepare legal instruments for any client. In fact,

because I mail the check or the client picks up the check when I am not in the

office, I hardly ever see the client.” (Capitalization sic.)

{¶ 40} We agree with the panel and board that these statements were false

and misleading. Respondent never properly formed a law firm, and Lewis-Greer

never operated as his associate. In addition, respondent did much more than

perform a simple clerical function; he was paying himself legal fees and was the

only person managing the trust account.

{¶ 41} In objecting to the board’s decision, respondent offers only that he

was unsure of what rights he had to use his IOLTA account under this court’s

interim suspension order. However, ignorance of the rules is not an excuse for

misconduct. Respondent could have easily sought clarification if he was

confused; because he did not, he must accept the consequences of his actions.

{¶ 42} Although relator alleged that respondent violated numerous ethical

rules under this count, the panel and the board determined that respondent

violated only DR 1-102(A)(6), 2-102(B), 2-106(A) (“A lawyer shall not enter into

an agreement for, charge, or collect an illegal or clearly excessive fee”), and 2-

107(A) (lawyers that are not in the same firm may divide fees only in certain

specific circumstances), and Prof.Cond.R. 1.5(e) (same), 7.5(a) and (d), and

8.4(h). We adopt these findings.

11

SUPREME COURT OF OHIO

III. Sanction

{¶ 43} To determine an appropriate sanction for respondent’s misconduct,

“we consider the duties violated, respondent's mental state, the injury caused, the

existence of aggravating or mitigating circumstances, and applicable precedent.”

Disciplinary Counsel v. Evans (2000), 89 Ohio St.3d 497, 501, 733 N.E.2d 609.

We address each factor in turn.

A. Duties violated and injury caused

{¶ 44} As set forth above, respondent violated numerous Disciplinary

Rules and Rules of Professional Conduct relating to honesty and trustworthiness,

performed actions that reflect adversely on his fitness to practice law, failed to

pay a valid debt related to a deposition, abused the legal process in the course of

his child-support proceedings, failed to pay child support as required by court

orders, acted deceptively to the public, committed improprieties in dealing with

attorney fees at a time when he was suspended from the practice of law, and

hindered the disciplinary process by providing relator with false information.

These actions harmed the public, respondent’s ex-wife and children, and the

expert witness that respondent refused to pay, and hindered the administration of

justice.

B. Mental state

{¶ 45} There has been no evidence presented regarding respondent’s

mental state, and thus we presume that he was healthy and unhindered in that

regard.

C. Aggravating and mitigating circumstances

{¶ 46} We adopt the findings of numerous aggravating circumstances that

the board made: (1) respondent has been disciplined previously, see Disciplinary

Counsel v. McCord, 96 Ohio St.3d 21, 2002-Ohio-2587, 770 N.E.2d 571 (six-

month stayed suspension for failure to pay a fee arbitration award), (2) respondent

acted selfishly and dishonestly when he formed McCord, Pryor & Associates Co.,

12

January Term, 2009

L.P.A., in 2005 to evade his ex-wife’s attempts to garnish his assets pursuant to

the outstanding child-support order, (3) respondent acted selfishly, deceptively,

and dishonestly in paying himself attorney fees from his IOLTA account while he

was suspended from the practice of law, (4) respondent engaged in a pattern of

misconduct that took place over years, (5) respondent was not completely honest

during the disciplinary process and at one point provided materially false

information to relator, and (6) respondent failed to acknowledge the wrongful

nature of his conduct. BCGD Proc.Reg. 10(B)(1)(a) through (g).

{¶ 47} The only mitigating circumstance that the board recognized was

the fact that respondent was suspended from the practice of law for 31 months

under the interim child-support suspension. The board considered this suspension

to be a quasi-mitigating factor under BCGD Proc.Reg. 10(B)(2)(f), which allows

the board to consider the imposition of other penalties or sanctions in mitigation.

The board noted that it did not afford this previous suspension much weight in

view of the fact that respondent continued to receive fees from the practice of law

while suspended.

{¶ 48} We do not afford this factor any weight. Respondent does not

appear to have learned from his previous sanction; in fact, he essentially ignored it

by continuing to collect attorney fees on a regular basis during the suspension.

Whatever mitigating weight this suspension may have offered is far outweighed

by his willful disregard of this court’s orders during that time.

{¶ 49} Respondent has not offered any evidence to support other

mitigating factors beyond his own self-serving statements that he did not intend to

violate the Disciplinary Rules or deceive the public. These statements are not

supported by his actions, and we afford them no weight.

D. Applicable precedent

13

SUPREME COURT OF OHIO

{¶ 50} Because respondent violated DR 1-102(A)(4), he will be subject to

an actual suspension from the practice of law. Disciplinary Counsel v. Stollings,

111 Ohio St.3d 155, 2006-Ohio-5345, 855 N.E.2d 479, ¶ 13.

{¶ 51} Although there are no cases that present violations identical to

those respondent committed, we recognize a few cases that present similar

violations. In Disciplinary Counsel v. Watson, 98 Ohio St.3d 181, 2002-Ohio-

7088, 781 N.E.2d 212, Watson violated several of the same Disciplinary Rules as

the respondent here, including DR 1-102(A)(4), 2-102(B), and 2-102(C), by using

a false firm name when he was actually a solo practitioner and by committing

misconduct in the disciplinary process. Id. at ¶ 5, 9. We imposed a two-year

suspension with one year stayed on conditions for his misconduct. Id. at ¶ 15.

{¶ 52} In Dayton Bar Assn. v. Rogers, 116 Ohio St.3d 99, 2007-Ohio-

5544, 876 N.E.2d 923, we suspended Rogers for two years for billing clients for

work that he did not do and for stretching the truth in his billing practices. Id. at ¶

18–19. These actions are similar to respondent’s misconduct, in that respondent

continued to pay himself legal fees while he was suspended from the practice of

law based on workers’ compensation work that he did not perform.

{¶ 53} In Columbus Bar Assn. v. Finneran (1997), 80 Ohio St.3d 428, 687

N.E.2d 405, we indefinitely suspended Finneran for, among other things, various

dilatory practices in legal matters and the failure to cooperate with the legal

process, as was the case with respondent. Id. at 432.

{¶ 54} Finally, in Disciplinary Counsel v. Zingarelli (2000), 89 Ohio

St.3d 210, 729 N.E.2d 1167, we indefinitely suspended Zingarelli for, among

other things, failing to properly comply with the requirements for fee-sharing

under DR 2-107(A) and violating DR 2-106(A), as respondent did here. Id. at

219–220, 222.

E. Determination

14

January Term, 2009

{¶ 55} Respondent committed a series of acts of misconduct, and he

cannot demonstrate a single mitigating factor to counterbalance the extensive

aggravating evidence against him. In view of all these factors, we do not adopt

the board’s recommended sanction and instead indefinitely suspend respondent

from the practice of law. Before he may be readmitted, respondent must first

fulfill all the requirements in Gov.Bar R. V(10), including demonstrating that he

“possesses all the mental, educational, and moral qualifications that were required

of an applicant for admission to the practice of law in Ohio at the time of his * * *

original admission and that he * * * is now a proper person to be readmitted to the

practice of law in Ohio, notwithstanding the previous disciplinary action.”

Gov.Bar R. V(10)(C)(5). Costs are taxed to respondent.

Judgment accordingly.

MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and

LANZINGER, JJ., concur.

CUPP, J., concurs in part but would not reinstate Count One.

PFEIFER, J., dissents and would suspend the respondent from the practice

of law in Ohio for two years, with one year stayed.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First

Assistant Disciplinary Counsel, for relator.

Bricker & Eckler, L.L.P., and Alvin E. Mathews Jr., for respondent.

______________________

15