Warren Cty. Bar Assn. v. Vardiman (Slip Opinion)

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

Warren Cty. Bar Assn. v. Vardiman, Slip Opinion No. 2016-Ohio-352.]

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. 2016-OHIO-352

WARREN COUNTY BAR ASSOCIATION v. VARDIMAN.

CINCINNATI BAR ASSOCIATION v. VARDIMAN.

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

may be cited as Warren Cty. Bar Assn. v. Vardiman, Slip Opinion No.

2016-Ohio-352.]

Attorney misconduct—Violations of the Rules of Professional Conduct, including

knowingly making a false statement of fact or law to a tribunal, knowingly

offering evidence that the lawyer knows to be false, and engaging in conduct

that is prejudicial to the administration of justice—One-year suspension

with six months stayed on conditions.

(No. 2015-0589—Submitted June 10, 2015—Decided February 3, 2016.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the

Supreme Court, No. 2014-027.

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Per Curiam.

{¶ 1} Respondent, Edwin Lowe Vardiman Jr. of Cincinnati, Ohio, Attorney

Registration No. 0070574, was admitted to the practice of law in Ohio in 1999.1

On December 3, 2007, we suspended Vardiman for failing to register for the

2007/2009 biennium. In re Attorney Registration Suspension of Vardiman, 116

Ohio St.3d 1420, 2007-Ohio-6463, 877 N.E.2d 305. We reinstated his license to

practice law on December 28, 2007. In re Reinstatement of Vardiman, 2008-Ohio-

1397, 883 N.E.2d 464.

{¶ 2} On April 7, 2014, a probable-cause panel of the Board of

Commissioners on Grievances and Discipline2 certified to the board a complaint

filed against Vardiman by relator Warren County Bar Association, alleging that

Vardiman committed multiple ethical violations by improperly signing the name of

the opposing party in a custody matter, who was not represented by counsel, to four

separate documents and then filing those documents in the juvenile court.

{¶ 3} On October 8, 2014, relator Cincinnati Bar Association filed a

separate complaint in the existing case, alleging that Vardiman engaged in

additional misconduct in the execution of a will and power of attorney that he

prepared for a client by signing as a witness and then falsely signing the name of a

second witness to both documents.

{¶ 4} Before the hearing on these matters, Vardiman filed admissions of

fact to both complaints and admitted that his conduct in each matter constituted one

or more violations of the Ohio Rules of Professional Conduct. A panel of the board

conducted a hearing and issued a report finding that Vardiman committed all but

one of the alleged violations. But finding that his recently diagnosed and causally

1

Vardiman was also admitted to the Kentucky Bar by motion on June 3, 2005, but he has been

suspended in that jurisdiction since January 31, 2008, for his failure to comply with continuing-

legal-education requirements.

2

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.

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related attention-deficit/hyperactivity disorder (“ADHD”), his cooperation in the

disciplinary proceeding, and his positive character evidence qualified as mitigating

factors, the panel recommended that Vardiman be suspended from the practice of

law for one year with six months stayed on conditions.

{¶ 5} The board adopted the panel’s findings of fact and misconduct and

also found that Vardiman’s misconduct was sufficiently egregious to warrant

finding a separate violation of Prof.Cond.R. 8.4(h). No objections have been filed.

We adopt the board’s report in its entirety and suspend Vardiman from the practice

of law for one year with six months stayed on conditions.

Misconduct

Warren County Bar Association Complaint

{¶ 6} Vardiman represented a father who sought to reduce his child-support

obligation in a proceeding before the Warren County Court of Common Pleas,

Juvenile Division. Vardiman prepared the initial shared-parenting plan, and after

obtaining the signature of the mother, who was not represented by counsel, he

submitted the document to the court. After the court’s compliance officer returned

the shared-parenting plan for corrections, Vardiman prepared a revised shared-

parenting plan and sent it to the mother with other documents, including an agreed

entry, an application for child-support services, and a child-support-computation

worksheet. He later submitted the documents to the court, but the court rejected

them.

{¶ 7} Vardiman submitted a second revised shared-parenting plan and

related documents to the court on March 11, 2013. At a May 2013 pretrial hearing,

the magistrate asked the mother whether she had signed the shared-parenting plan,

and she replied that she had not. Vardiman then admitted that he had signed the

mother’s name to the second revised shared-parenting plan and submitted it to the

court. When asked why he had done so, he replied, “[P]urely timing[,] Your

Honor.”

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{¶ 8} During his cross-examination at the disciplinary hearing, Vardiman

admitted that he had also signed the mother’s name without authority on the agreed

entry, the application for child-support services, and the child-support-computation

worksheet that he had submitted to the court—though he did not disclose these

fraudulent signatures in his written admissions of fact. Vardiman also admitted that

his client had informed him at least one day before the May 2013 pretrial hearing

that the mother had discovered the forgeries—but he did not report his conduct to

the court before the pretrial hearing. When asked why he had forged the signatures,

Vardiman testified that his client had become anxious “because it was taking a long

time to get the documents prepared.”

{¶ 9} The panel found that Vardiman violated Prof.Cond.R. 4.3 (prohibiting

a lawyer from giving legal advice to an unrepresented person, other than the advice

to secure counsel, if the lawyer knows or reasonably should know that the interests

of the unrepresented person are in conflict with the interests of the client), 3.3(a)(1)

(prohibiting a lawyer from knowingly making a false statement of fact or law to a

tribunal), 3.3(a)(3) (prohibiting a lawyer from knowingly offering evidence that the

lawyer knows to be false), 8.4(b) (prohibiting a lawyer from committing an illegal

act that reflects adversely on the lawyer’s honesty or trustworthiness), 8.4(c)

(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit,

or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct

that is prejudicial to the administration of justice). But the panel did not believe

that an alleged violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from

engaging in conduct that adversely reflects on the lawyer’s fitness to practice law)

had been proven by clear and convincing evidence.

{¶ 10} The board adopted the panel’s findings of fact and misconduct but

also found that Vardiman’s dishonesty and submission of documents containing

forged signatures to a tribunal were sufficiently egregious to warrant a finding that

he violated Prof.Cond.R. 8.4(h) as charged in the Warren County Bar Association’s

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complaint. We adopt the board’s findings of fact and misconduct with respect to

this count.

Cincinnati Bar Association Complaint

{¶ 11} Vardiman admits that Harold Williams retained him to prepare a will

and power of attorney, that Williams signed those documents on October 18, 2013,

and that Vardiman signed his own name to both documents as a witness. Vardiman

also admits that he signed the name Sandra J. Sink as a second witness and that he

had no authority to do so. Further, Vardiman admits that his conduct violated the

Ohio Rules of Professional Conduct and that it was harmful not only to his client

but also to the public. The panel and board found that Vardiman’s conduct in this

matter violated Prof.Cond.R. 8.4(b) and 8.4(c). We adopt the board’s findings of

fact and misconduct with regard to this count.

Sanction

{¶ 12} 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).

{¶ 13} In mitigation, the board found that, with the exception of a 25-day

attorney-registration suspension attributed to an oversight, Vardiman did not have

a prior disciplinary record, that he made full and free disclosure to the board, and

that he presented positive character evidence. See Gov.Bar R. V(13)(C)(1), (4),

and (5).

{¶ 14} In April 2014, Vardiman participated in an Ohio Lawyers Assistance

Program (“OLAP”) evaluation and entered into a three-year OLAP mental-health

contract that required him to see a licensed mental-health professional. At his

deposition, Todd Walker, Psy.D., a clinical psychologist, testified that he evaluated

Vardiman pursuant to the terms of his OLAP contract and diagnosed him with

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adjustment disorder with anxiety and depression as well as, subsequently, ADHD.

While he testified that Vardiman’s anxiety and depression had subsided, he

described Vardiman’s ADHD as an “inborn neurological problem” that caused him

to have trouble controlling behavior that had previously been masked by his high

intellectual functioning. Walker noted that Vardiman had a history of oversights,

distractibility, and impulsivity in terms of trying to take shortcuts and speed things

up and testified that his ADHD was the primary cause of these behaviors and his

ethical misconduct. He reported that Vardiman was a “very compliant” and “highly

motivated” patient and opined that as long as he continues to get proper medical

and mental-health treatment, Vardiman can practice law in a competent, ethical,

and professional manner. Based on Walker’s testimony, the board found that

Vardiman’s ADHD qualified as an additional mitigating factor pursuant to Gov.Bar

R. V(13)(C)(7).3

{¶ 15} As evidence in aggravation, the board cited Vardiman’s failure to

seek assistance for his mental-health conditions until after the first formal

disciplinary complaint was served upon him and his subsequent failure to disclose

to his treating psychologist the misconduct alleged in the second complaint. See

Gov.Bar R. V(13)(A) (“In determining the appropriate sanction, the Board shall

consider all relevant factors * * *”).

{¶ 16} Vardiman argued that in light of his causally related mental-health

condition, a fully stayed one-year suspension is the appropriate sanction for his

misconduct. The Cincinnati Bar Association, in contrast, recommended that at a

minimum, he serve an actual suspension of one year.

3

In order for a disorder to qualify as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7), there

must be (a) a diagnosis by a qualified health-care professional, (b) a causal relationship between the

disorder and the misconduct, (c) a sustained period of successful treatment, and (d) a prognosis from

a qualified health-care professional that the attorney will be able to return to the competent, ethical,

and professional practice of law.

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{¶ 17} The Warren County Bar Association did not recommend a specific

sanction but identified five cases in which we imposed sanctions ranging from a

six-month actual suspension to an indefinite suspension for misconduct involving

false or fraudulent signatures on legal documents. See Disciplinary Counsel v.

Bogdanski, 135 Ohio St.3d 235, 2013-Ohio-398, 985 N.E.2d 1251 (imposing an

indefinite suspension on an attorney who abandoned two clients, forged a client’s

signature on an affidavit, notarized that signature, submitted the forged document

to the court, and failed to cooperate in the resulting disciplinary investigation);

Cincinnati Bar Assn. v. Farrell, 119 Ohio St.3d 529, 2008-Ohio-4540, 895 N.E.2d

800 (imposing a two-year suspension, with the second year stayed on conditions,

on an attorney who forged his wife’s signature on a power of attorney, used the

power of attorney to obtain a line of credit, and then engaged in additional

fraudulent conduct in an effort to conceal his wrongdoing); Disciplinary Counsel

v. Shaffer, 98 Ohio St.3d 342, 2003-Ohio-1008, 785 N.E.2d 429 (imposing a one-

year suspension, with six months stayed on conditions, on an attorney who advised

his client to forge his incapacitated grandmother’s signature on a backdated power

of attorney, notarized the forged signature, and instructed his secretary to sign the

document as a witness); Disciplinary Counsel v. Herman, 99 Ohio St.3d 362, 2003-

Ohio-3932, 792 N.E.2d 1078 (imposing a one-year suspension, with six months

stayed, on an attorney who entered a no-contest plea to a charge of attempted

tampering with evidence for altering two qualified domestic-relations orders after

the opposing party and his counsel had signed them); and Lake Cty. Bar Assn. v.

Speros, 73 Ohio St.3d 101, 652 N.E.2d 681 (1995) (imposing a six-month

suspension on an attorney who filed an affidavit in court bearing the forged

signature of a notary and containing a false statement claiming that his failure to

timely file an appellate brief was the result of a clerical error).

{¶ 18} Having considered Vardiman’s misconduct, the applicable

aggravating and mitigating factors, and the sanctions imposed in Bogdanski,

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Farrell, Shaffer, Herman, and Speros, the board recommends that we suspend

Vardiman for one year with six months stayed on the conditions that he comply

with the terms of his OLAP contract, maintain appropriate medical and

psychological treatment, submit quarterly reports documenting his compliance with

the foregoing obligations to a monitoring attorney selected by relators, and engage

in no further misconduct.

{¶ 19} After a thorough review of the record and the cases cited by the

board, we find that the facts of Shaffer, 98 Ohio St.3d 342, 2003-Ohio-1008, 785

N.E.2d 429, are most analogous to the facts now before us. Shaffer discovered that

the power of attorney a client’s grandmother had executed in favor of his client

prior to her incapacity expressly prohibited the client from transferring her real

property. Id. at ¶ 3, 5. Rather than seek a legal declaration of incompetence and

the appointment of a guardian, Shaffer (1) prepared a new power of attorney that

authorized the transfer of real estate, (2) backdated it to before the time of the

grandmother’s incapacity, (3) advised his client to forge his grandmother’s

signature, (4) notarized that forgery, (5) instructed his secretary to sign the

document as a witness, (6) helped his client close on the sale of the property,

representing that the title was marketable, and (7) filed the deed and the fraudulent

power of attorney in the county recorder’s office. Id. at ¶ 5-6.

{¶ 20} We found that Shaffer engaged in a multistep process to defraud the

court system and the public, sidestepping safeguards intended to protect sellers and

buyers of real estate, and that his conduct warranted an actual suspension from the

practice of law. Id. at ¶ 13-14. And we determined that a one-year suspension,

with the final six months stayed on conditions, was commensurate with his offense.

Id. at ¶ 9.

{¶ 21} While Vardiman’s misconduct consisted of filing one or more

fraudulent documents in two different courts rather than a multistep scheme to

defraud, we agree that it is comparable in nature and severity to Shaffer’s

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misconduct. And while Shaffer was ostensibly motivated by his desire to assist his

client, who was caring for his incapacitated grandmother, Vardiman’s conduct was

at least partially driven by his recently diagnosed ADHD, which his treating

psychologist described as an “inborn neurological problem.” Given Vardiman’s

acceptance of responsibility for his actions; his active participation in OLAP and

effective treatment of this disorder; and numerous letters attesting to his good

character, reputation, and professional competence, we agree that a one-year

suspension, with the final six months stayed on conditions, is the appropriate

sanction for his misconduct.

{¶ 22} Accordingly, Edwin Lowe Vardiman Jr. is suspended from the

practice of law in Ohio for one year, with the final six months stayed on the

conditions that he comply with the terms of his OLAP contract, maintain

appropriate medical and psychological treatment, submit quarterly reports

documenting his compliance with the foregoing obligations to a monitoring

attorney selected by relators, and engage in no further misconduct. If Vardiman

fails to comply with these conditions, the stay will be lifted, and he will serve the

full one-year suspension. Costs are taxed to Vardiman.

Judgment accordingly.

PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ., concur.

O’CONNOR, C.J., and O’DONNELL and O’NEILL, JJ., dissent and would not

stay any portion of the suspension.

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Bruce A. McGary and John S. Mengle, Bar Counsel, for relator Warren

County Bar Association.

Rendigs, Fry, Kiely & Dennis, L.L.P., and Michael P. Foley; and Edwin W.

Patterson III, General Counsel, for relator Cincinnati Bar Association.

Cline, Mann & Co., L.P.A., William Mann, and Richard A. Cline, for

respondent.

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