Disciplinary Counsel v. Phillabaum

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Phillabaum, Slip Opinion No. 2015-Ohio-4346.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2015-OHIO-4346

DISCIPLINARY COUNSEL v. PHILLABAUM.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Phillabaum, Slip Opinion No.

2015-Ohio-4346.]

Attorneys—Misconduct—Altering indictment to add gun specifications that were

never presented to grand jury—One-year suspension.

(No. 2015-0279—Submitted April 14, 2015—Decided October 27, 2015.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2014-021.

_______________________

Per Curiam.

{¶ 1} Respondent, Jason Richard Phillabaum of Cincinnati, Ohio, Attorney

Registration No. 0072219, was admitted to the practice of law in Ohio in 2000.

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{¶ 2} On March 3, 2014, a probable-cause panel of the Board of

Commissioners on Grievances and Discipline1 certified to the board a two-count

complaint filed against Phillabaum by relator, disciplinary counsel. In that

complaint, relator alleged that while employed as an assistant prosecuting attorney

in Butler County, Phillabaum had engaged in prosecutorial misconduct by failing

to disclose exculpatory evidence to a criminal defendant and by signing two

separate criminal indictments containing charges that he knew had not been

presented to the grand jury.

{¶ 3} The parties entered into stipulations of fact and mitigation and

submitted more than 20 stipulated exhibits. A panel of the board conducted a

hearing and issued a report finding that by causing gun specifications that were not

presented to the grand jury to be included in a criminal indictment, Phillabaum had

knowingly made a false statement of fact to a tribunal, engaged in dishonesty, fraud,

deceit, or misrepresentation, and prejudiced the administration of justice—all of

which adversely reflected on his fitness to practice law.2 Based on that misconduct,

the panel recommended that Phillabaum be suspended from the practice of law for

one year with six months stayed on the condition that he engage in no further

misconduct. The board adopted the panel’s report in its entirety, and neither party

has objected.

{¶ 4} We adopt the board’s findings of fact, misconduct, and aggravating

and mitigating factors. But we reject the recommended sanction. Instead, we

conclude that a one-year suspension, with no stay, is the appropriate sanction for

Phillabaum’s misconduct.

1

Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been

renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII.

2

The panel also unanimously dismissed the remaining allegations of misconduct, finding that

Phillabaum’s failure to disclose exculpatory evidence in one criminal matter resulted from a

misevaluation of the evidence rather than an egregious or willful attempt to thwart the

administration of justice and that relator had failed to prove alleged violations with respect to a

second criminal indictment.

2

January Term, 2015

Misconduct

{¶ 5} On December 13, 2010, assistant prosecutor Josh Muennich presented

the case against Tyree Johnson to a Butler County grand jury in Phillabaum’s

absence. He instructed the grand jury to vote on charges of aggravated robbery and

felonious assault, but did not present any evidence on any gun specifications related

to the crime and did not instruct the jury to vote on any such specifications.

Phillabaum reviewed the indictment on December 20, 2010, and instructed a legal

assistant in the prosecutor’s office to add gun specifications to the indictment. The

legal assistant told him that the gun specifications had not been included because

Muennich had not presented them to the grand jury, and for that reason she felt

uncomfortable adding them to the indictment. But when Phillabuam insisted, she

complied. Muennich refused to sign the indictment containing the gun

specifications, since he had not presented that evidence to the grand jury, but

Phillabaum signed it, knowing that it contained a false statement and would be filed

with the clerk of courts. After Phillabaum’s conduct came to light, the Butler

County Prosecutor presented the case to the grand jury a second time and obtained

a superseding indictment that included the firearm specification.

{¶ 6} On May 3, 2012, Phillabaum was indicted on two counts of forgery,

one count of dereliction of duty, two counts of tampering with records, one count

of interference with civil rights, and one count of using a sham legal process, all

arising out of his conduct in the Johnson case. He pleaded guilty to a single count

of dereliction of duty, a second-degree misdemeanor, and was sentenced to 90 days

in jail, all suspended on the conditions that he successfully complete one year of

community control and perform at least 75 hours of community service.

{¶ 7} The board found that the conduct summarized above violated

Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly making a false

statement of fact or law to a tribunal), 8.4(c) (prohibiting a lawyer from engaging

in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d)

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(prohibiting a lawyer from engaging in conduct that is prejudicial to the

administration of justice), and 8.4(h) (prohibiting a lawyer 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.

Sanction

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

relevant factors, including the ethical duties 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. We also weigh evidence of the aggravating

and mitigating factors listed in Gov.Bar R. V(13).

{¶ 9} The parties stipulated that relevant mitigating factors in this case

include the absence of a prior disciplinary record, Phillabaum’s cooperative attitude

toward the disciplinary proceedings, and the criminal sanctions imposed for

Phillabaum’s conduct (with which he has fully complied). The board adopted these

stipulations and also found that Phillabaum presented several letters from judges,

attorneys, and clients attesting to his good reputation in the legal community. See

Gov.Bar R. V(13)(C)(1), (4), (5), and (6). Moreover, the board found that none of

the aggravating factors enumerated in Gov.Bar R. V(13)(B) are present.

{¶ 10} Relator recommended that Phillabaum be suspended from the

practice of law for one year, but Phillabaum argued that a public reprimand or a

fully stayed suspension was the appropriate sanction for his misconduct. The board

considered four cases involving comparable ethical violations and noted that

sanctions for violations of Prof.Cond.R. 3.3(a)(1), 8.4(c), 8.4(d), and 8.4(h) vary

widely depending on the nature of the conduct and the applicable aggravating and

mitigating factors.

{¶ 11} In Disciplinary Counsel v. Wilson, 142 Ohio St.3d 439, 2014-Ohio-

5487, 32 N.E.3d 426, ¶ 8, 20, we publicly reprimanded an attorney who violated

Prof.Cond.R. 3.3(a)(1), 8.4(c), and 8.4(d) by signing the name of her

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January Term, 2015

granddaughter’s mother to an affidavit, notarizing the document without any

notation that she had signed the document with the affiant’s authorization, and then

filed the document in a pending guardianship proceeding. In Dayton Bar Assn. v.

Swift, 142 Ohio St.3d 476, 2014-Ohio-4835, 33 N.E.3d 1, we also imposed a two-

year suspension with the second year stayed on conditions on an attorney who

violated Prof.Cond.R. 3.3(a)(1), 8.4(c), and 8.4(h). The attorney in Swift engaged

in a pattern of misconduct involving multiple offenses by failing to maintain

independent time records and overbilling four counties for court-appointed work

over a period of several years. And in a case involving violations of Prof.Cond.R.

8.4(c), (d), and (h), we imposed a two-year suspension with the second year

conditionally stayed on an attorney who failed to fully disclose his assets in his

personal bankruptcy filings, testified falsely about his assets in two depositions, and

blamed his attorneys for his conduct. See Disciplinary Counsel v. Harmon, 143

Ohio St.3d 1, 2014-Ohio-4598, 34 N.E.3d 55. Finally, the board noted that in

Disciplinary Counsel v. Cicero, 143 Ohio St.3d 6, 2014-Ohio-4639, 34 N.E.3d 60,

we indefinitely suspended an attorney who, in his third disciplinary matter, engaged

in a pattern of misconduct and acted with a selfish motive when he lied to a judge

and amended his own speeding charge to a lesser offense without authorization.

{¶ 12} The board determined that Phillabaum’s knowing alteration of the

Johnson indictment was more serious than Wilson’s failure to document the

authorized signing of an affiant’s name, but found that this case did not involve the

aggravating factors present in Swift, Harmon, or Cicero. Therefore, the board

reasoned that a one-year suspension with six months stayed on the condition that

Phillabaum engage in no further misconduct was the appropriate sanction in this

case.

{¶ 13} We reject the board’s recommendation and conclude that a one-year

suspension is the appropriate sanction in this case. Accordingly, Jason Richard

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Phillabaum is suspended from the practice of law in Ohio for one year. Costs are

taxed to Phillabaum.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and O’NEILL,

JJ., concur.

PFEIFER and FRENCH, JJ., dissent and would impose a suspension of one

year with six months stayed.

_________________

Scott J. Drexel, Disciplinary Counsel, and Catherine M. Russo, Assistant

Disciplinary Counsel, for relator.

Montgomery Rennie Jonson, L.P.A., George D. Jonson, and Lisa M.

Zaring, for respondent.

__________________

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