Columbus Bar Association v. Nyce.

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

Columbus Bar Assn. v. Nyce, Slip Opinion No. 2018-Ohio-9.]

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. 2018-OHIO-9

COLUMBUS BAR ASSOCIATION v. NYCE.

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

may be cited as Columbus Bar Assn. v. Nyce, Slip Opinion No. 2018-Ohio-9.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct,

including failing to advise clients in writing that attorney does not maintain

professional-liability insurance, failing to maintain required records

documenting funds held in client trust account, and making false statements

of material fact in connection with disciplinary investigation—Permanent

disbarment.

(No. 2017-1078—Submitted October 17, 2017—Decided January 3, 2018.)

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

Court, No. 2016-007.

_______________________

Per Curiam.

{¶ 1} Respondent, Kinsley Frampton Nyce, of Columbus, Ohio, Attorney

Registration No. 0003547, was admitted to the practice of law in Ohio in 1982.

SUPREME COURT OF OHIO

{¶ 2} In a May 18, 2016 amended complaint, relator, Columbus Bar

Association, alleged that Nyce had failed to notify his clients in writing that he does

not maintain professional-liability insurance, had failed to maintain his clients’

signed acknowledgements that they had received that notice, had not maintained

required records documenting the funds held in his client trust account, had

commingled personal and client funds, and had made false statements of material

fact in connection with the ensuing disciplinary investigation.

{¶ 3} Following a two-day hearing, a panel of the Board of Professional

Conduct found that Nyce had committed all but one of the alleged violations and

that he had actively sought to conceal evidence of his misconduct, repeatedly given

false and evasive testimony, and actively sought to subvert the disciplinary process.

Given the extent of Nyce’s efforts to frustrate and degrade the disciplinary system,

the panel and board recommended that he be permanently disbarred. Nyce objects

and argues that there is insufficient evidence to support the board’s findings of fact

and misconduct and, therefore, that no sanction is warranted. For the reasons that

follow, we overrule Nyce’s objections, adopt the board’s findings of fact and

misconduct, and permanently disbar Nyce from the practice of law in Ohio.

Board Findings of Fact and Misconduct

Count One: Professional-Liability-Insurance Violations, Failure to Withdraw

from Representation, Improper Communication with Person Represented by

Counsel, and Engaging in Conduct Involving Dishonesty

{¶ 4} Nyce represented NC Plaza, L.L.C., and Arthur Goldner &

Associates, Inc. (“AGA”), in an action brought by a tenant of a commercial rental

property owned by NC Plaza and managed by AGA. When Nyce’s clients did not

prevail, AGA retained attorney Stephen Jones to appeal the trial court’s decision.

Jones requested that Nyce withdraw from the case, but he did not formally do so as

required by Local Rule 18.01 of the Franklin County Court of Common Pleas.

2

January Term, 2018

{¶ 5} Jones soon discovered that AGA carried property-liability insurance

that would have covered AGA’s liability for several of the tenant’s claims. Nyce

had not advised AGA to submit a claim, and the insurer denied AGA’s later-filed

claim as untimely.

{¶ 6} Jones sent Nyce a letter informing him that his failure to advise AGA

to file an insurance claim could be a basis for a legal-malpractice claim and

requesting information about Nyce’s professional-liability insurance. When Nyce

failed to respond, Jones sent two additional letters. Jones’s second letter stated that

he presumed Nyce had malpractice insurance because AGA reported to him that

Nyce had never apprised them that he lacked insurance, as required by

Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the lawyer does not

maintain professional-liability insurance and obtain a signed acknowledgment of

that notice from the client). Nyce responded to Jones’s third letter by sending an

e-mail to Jones and Arthur Goldner, AGA’s president and chief executive officer,

decrying Jones’s “threats.”

{¶ 7} In subsequent communications, Jones repeated his earlier admonition

that Nyce should not contact Goldner directly, and he asked Nyce to let him know

“as soon as possible” whether he had insurance. Nyce again responded directly to

Goldner, threatening that if AGA sued him, he would no longer “stay silent” about

matters that his clients had allegedly communicated to him during the underlying

litigation. Nyce never told Jones whether he carried professional-liability

insurance.

{¶ 8} The board found that at the time of the litigation, Goldner was AGA’s

principal representative and ultimate decision-maker. Goldner testified that he was

the only person who had authority to hire an attorney on behalf of AGA and that

Nyce never informed him that he did not carry professional-liability insurance. And

Nyce’s own hearing and deposition testimony confirmed that he has never

personally carried malpractice insurance, he did not advise Goldner of that fact, and

3

SUPREME COURT OF OHIO

he did not ask Goldner to sign a notice acknowledging that Nyce lacked malpractice

insurance.

{¶ 9} The board rejected Nyce’s argument that he had provided the required

notice to Rick Aronhalt, AGA’s on-site property manager. The board noted that

Nyce was required to “apprise Goldner of [his lack of malpractice insurance], rather

than rely on the off-chance that Goldner’s employee, Aronhalt, might remember

that during a prior representation of Aronhalt personally, Respondent had no such

coverage.” The board was skeptical of Nyce’s evidence of two forms purportedly

signed by Aronhalt by which he had supposedly provided the required notice to

Aronhalt. As the board noted, the forms were undated and referred to a rule that

had been superseded by Prof.Cond.R. 1.4(c) in 2007. The board was also

unconvinced that Aronhalt had actually signed either form.

{¶ 10} The board found that Nyce had violated Prof.Cond.R. 1.4(c),

1.4(c)(1) (requiring a lawyer to maintain, for five years after the termination of the

representation of the client, a copy of a client’s signed acknowledgment that the

attorney does not maintain professional-liability insurance), 1.16(c) (prohibiting a

lawyer from withdrawing from representation in a proceeding without leave of

court if the rules of the tribunal so require), and 4.2 (prohibiting a lawyer from

communicating about the subject of the representation with a person the lawyer

knows to be represented by another lawyer, unless the lawyer has the consent of

the other lawyer or is authorized by law or a court order). In addition, the board

found that Nyce had violated Prof.Cond R. 8.4(c) (prohibiting a lawyer from

engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) by

deliberately ignoring and evading his successor counsel’s repeated and legitimate

requests that he provide information about his professional-liability insurance and

cease direct contact with Goldner. It also found that Nyce’s conduct was

sufficiently egregious to find a violation of Prof.Cond.R. 8.4(h) (prohibiting a

lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to

4

January Term, 2018

practice law). See, e.g., Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-

Ohio-3998, 997 N.E.2d 500, ¶ 21.

Count Two: Professional-Liability-Insurance Violations and Failure to

Cooperate in the Ensuing Disciplinary Investigation

{¶ 11} In 2015, during the course of investigating Nyce’s representation of

AGA, relator requested and later subpoenaed Nyce’s client list and copies of his

client-signed acknowledgments under Prof.Cond.R. 1.4(c) dating back to January

2012. Relator also told Nyce to “direct[ly] answer” Jones’s questions regarding the

Prof.Cond.R. 1.4(c) notice in connection with his representation of NC Plaza and

AGA.

{¶ 12} During depositions, Nyce acknowledged that he represented at least

30 clients after January 2012 and that he has never personally carried malpractice

insurance. Based on this testimony, the board inferred that Nyce should have

retained possession of and been able to produce completed Prof.Cond.R. 1.4(c)

insurance notices for at least those 30 clients. But in June 2015, Nyce’s counsel

produced only the two notices that had purportedly been signed by Aronhalt. Nyce

later produced ten additional notices, but none of them fully complied with

Prof.Cond.R. 1.4(c).

{¶ 13} One of the clients for whom Nyce should have retained a signed

insurance notice was Ellen Shaffer, who retained him in June 2012. Shaffer

testified that Nyce never told her that he did not carry malpractice insurance and

had never given her written notice of that fact. Had he done so, she said, it would

have been significant to her: “It would have made me very uneasy about a legal

professional not looking after a client’s best interest.”

{¶ 14} At the hearing, Nyce did not challenge Shaffer’s contention that he

had failed to notify her that he lacked malpractice insurance. Instead, as described

by the board, Nyce responded by “embark[ing] on a rambling mix of cross-

examination and diatribe emblematic of his approach to the entire hearing, in the

5

SUPREME COURT OF OHIO

course of which he attempted to confuse and hoodwink Shaffer with a totally

different document that he had not previously disclosed to Relator * * *, feigned

acting with ‘integrity’ when Relator challenged his belated production, and accused

the panel chair of mischaracterizing what had happened during supervised

discovery.”

{¶ 15} During his December 2016 deposition, Nyce testified that Shaffer

had signed a Prof.Cond.R. 1.4(c) notice in relation to his representation of her

husband in an earlier case. Nyce stated that he could not provide a copy of the

notice because it had been lost in a flood at his office—ostensibly with his other

clients’ notices—but he could not recall when the flood had occurred and did not

offer any corroborating evidence of a flood. He also said that she had refused to

return the notice that he had provided to her in relation to her case.

{¶ 16} The panel did not find Nyce’s testimony regarding providing Shaffer

with notice, his testimony regarding the alleged flood, or his testimony regarding

the insurance notices allegedly signed by other clients to be credible. Accordingly,

it found that Nyce’s conduct violated Prof.Cond.R. 1.4(c), 1.4(c)(1), 8.1(a)

(prohibiting a lawyer from knowingly making a false statement of material fact in

connection with a disciplinary matter), and 8.1(b) (prohibiting a lawyer from failing

to disclose a material fact or knowingly failing to respond to a demand for

information by a disciplinary authority during an investigation) and Gov.Bar R.

V(9)(G) (requiring a lawyer to cooperate in disciplinary investigations). The panel

and board also found that Nyce made misrepresentations during discovery and at

the hearing and had otherwise acted deceitfully and dishonestly toward relator and

the panel in violation of Prof.Cond.R. 8.4(c). Furthermore, they determined that

Nyce’s extreme efforts to conceal evidence with respect to this count constitute

egregious misconduct adversely reflecting his fitness to practice law in violation of

Prof.Cond.R. 8.4(h). See Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d

500, at ¶ 21.

6

January Term, 2018

Count Three: Client-Trust-Account Records

{¶ 17} Nyce maintains a client trust account at Huntington National Bank.

On March 24, 2016, relator asked Nyce to provide records related to that account

by April 4, 2016. Among the requested documents were (for the time period of

January 1, 2012, through February 29, 2016) Nyce’s client fee agreements; client

ledgers—that is, a record for each client showing the date, amount, and source of

all funds deposited on behalf of the client; the date, amount, payee, and purpose of

all disbursements; each client’s running balance; monthly account reconciliations;

and (for the time period of September 1, 2015, through February 29, 2016) copies

of all bank statements, deposit slips, and canceled checks for the account. And to

the extent that between January 1, 2012, and February 29, 2016, Nyce “received

funds or other property in which a client or third party claimed a lawful interest,”

relator also requested copies of the notifications Nyce sent to those persons.

Although relator made repeated requests for all of these records, Nyce never

produced anything close to the full set of requested documents.

{¶ 18} As the board noted, Nyce’s nonresponsiveness was consistent with

his behavior throughout discovery and on the first day of the hearing. Because the

case had been contentious, the panel chairperson closely monitored discovery,

made himself available to resolve disputes, and conducted multiple teleconferences

with the parties. And after one attempt to take Nyce’s deposition quickly descended

into chaos, the chairperson telephonically monitored Nyce’s next deposition. The

board remarked that “[t]hroughout discovery and continuing into the first day of

the hearing, Respondent could hardly have been less forthcoming, open, and candid

in responding to discovery, particularly with respect to producing his [client-trust-

account] related records.”

{¶ 19} For example, in Nyce’s November 28, 2016 response to relator’s

request for production of documents, he asserted that he had already produced the

requested records and that they consisted of just “nine pages.” Yet Nyce did not

7

SUPREME COURT OF OHIO

mention this alleged production in his April 15, 2016 letter to relator, his May 18,

2016 motions to dismiss and quash, or his June 17, 2016 answer to the amended

complaint, which added Counts Three and Four. Nyce also remained silent when

relator asserted in its June 22, 2016 response to his motion to quash that it had not

received the requested records.

{¶ 20} Even after relator filed a motion to compel discovery in December

2016, Nyce continued to insist that he had already produced the documents—which

he asserted consisted of nine pages—rather than to simply provide relator “another”

copy of the documents. Nyce did not bring a copy of the documents to his

deposition or the first day of the hearing. And when the panel chairperson ordered

him to give a copy to relator by the end of the day, Nyce produced just six pages of

records and claimed that the three missing pages were redundant. The board noted

that those six pages were not fully responsive to relator’s original discovery request

and that a seventh page later produced by Nyce at the panel chairperson’s

instruction did not remedy the deficiency. Nyce never produced the remaining two

pages of the nine that he claimed to have already given to relator.

{¶ 21} Ultimately, the board found that Nyce had failed to produce the

requested documents and that he had never maintained the records, in violation of

Prof.Cond.R. 1.15(a)(1) through (5) (requiring a lawyer to hold funds belonging to

a client or third party in a client trust account separate from his own property and

to maintain certain records including fee agreements, client ledgers, bank

statements, deposit slips, canceled checks, and monthly reconciliations of the

account). The board also found that Nyce had knowingly breached his duties to

disclose material information when requested and to cooperate and assist in

relator’s investigation in violation of Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G).

Count Four: The Barbara Nyce Funds

{¶ 22} Nyce’s mother, Barbara, became a patient at Burlington Health &

Rehabilitation Center, a nursing facility in Burlington, Vermont, in 2013. At the

8

January Term, 2018

time, she had assets in excess of $700,000, including sizable accounts in two

Vermont banks on which Nyce and his brother, Roger, were listed. But by the time

she was discharged from Burlington Health in early 2014, she owed the facility

more than $68,000.

{¶ 23} Beginning on March 18, 2014, Barbara resided at Kindred

Transitional Care and Rehabilitation-Birchwood Terrace (“Birchwood”), also in

Vermont. When she died on May 25, 2015, she allegedly owed Birchwood more

than $137,000. But by then, Barbara had no assets from which to pay those debts.

{¶ 24} The board found that Barbara had no liquid assets at the time of her

death because Nyce and his brother had systematically withdrawn the funds from

her bank accounts. On June 19, 2013, Nyce and his brother caused $584,619.23 to

be transferred from Barbara’s accounts and distributed in seven cashier’s checks

made payable to themselves. Two days later, Nyce deposited those checks into his

client trust account. Over the next two weeks, Nyce transferred most of those funds

out of his client trust account in three batches. He deposited $200,000 into the

account of a closed probate estate for which he was the executor, deposited

$200,000 into a certificate of deposit held in his name, and used $177,171.87 to pay

for a condominium held in the name of Nyce’s wife, both individually and as a co-

trustee with their son.1

{¶ 25} Nyce testified that he had later moved $200,000 from the certificate

of deposit “to investments” for nine “clients,” at his mother’s direction (though he

also said that she suffered from dementia and was “brain damaged”). According to

Nyce, the funds were now titled in the name of a trust for the nine clients, for which

his son (a nonattorney) serves as the trustee. He refused to identify the nine

individuals, but said that his mother had some connection to them. Although Nyce

said that it was “hard for [him] to really know” what her connection was to these

1

Nyce has provided no evidence—save for his own testimony—regarding the purported trust or its

intended beneficiaries.

9

SUPREME COURT OF OHIO

individuals, he described them as “desperate” and said, “My mother had them deal

with me over the years.” He also testified that there are three “third parties that the

nine clients have to embrace” who are “mutually symbiotic,” and who have a

potential interest in the investments. Although he denied that the third parties were

clients, he refused to identify them, stating “I can’t disclose the names of the third

parties, but the third parties only have a future interest if things happen at this point

in time. So when we negotiated and got everybody on board, they don’t have any

way to do anything to harm the nine until possibly a much later date and time.”

{¶ 26} None of the nine “clients” is identified in what Nyce claimed was

his “complete” client-trust-account ledger for 2013. And when relator’s counsel

inquired about the insurance-notification forms for the nine clients, Nyce replied,

“Those are with me.” Nyce admitted that he had not produced those forms in

response to relator’s requests for all insurance-notification forms and attempted to

explain why by stating:

Because they’re private clients, and I’m not doing legal

services for them. I’m running their accounts and running their

homes. So I did not see that they’re legal clients. None of them are

suing anybody or getting benefits. When I say they’re clients, they

start out that way because of my mother; but they don’t transition.

They’re people that eat, have a home, stay warm, survive because of

what my mother and I do. That’s not a legal client. It’s a client.

And when the panel chairperson asked, “If they’re not legal clients, then why can’t

we know who they are?” Nyce replied, “They don’t want to be known” and “It’s

not anybody in here’s business.”

{¶ 27} On this evidence, the board concluded that Nyce had used his client

trust account and the dormant probate estate’s bank account to try to launder the

10

January Term, 2018

money from his mother’s bank accounts.2 The board characterized his story about

the nine clients as “a complete sham concocted by Respondent in a vain effort to

sanitize and legitimize his improper use of his [client trust] account.” The board

found that it was sufficiently clear that when Nyce transferred the funds out of his

client trust account, he knew that at least one third party would claim an interest in

them. Thus, the board concluded that Nyce’s conduct with respect to the funds

transferred from his mother’s accounts violated Prof.Cond.R. 1.15(a) (a lawyer

shall hold property of clients or third persons that is in a lawyer’s possession in

connection with a representation separate from the lawyer’s own property), 1.15(b)

(permitting a lawyer to deposit the lawyer’s own funds in a client trust account for

the sole purpose of paying or obtaining a waiver of bank service charges on that

account, but only in an amount necessary for that purpose), and 1.15(d) (requiring

a lawyer to promptly notify a client or third person upon receiving funds or other

property in which the client or third person has a lawful interest).3

Nyce’s Objections to the Board Report

{¶ 28} Nyce has filed 50 pages of rambling, almost stream-of-

consciousness, objections to the board’s findings of fact and recommended

sanction, along with numerous exhibits. In doing so, Nyce presents facts and

exhibits—which were apparently not presented at his disciplinary hearing—in an

attempt to recharacterize the evidence and bolster his own credibility. For example,

Nyce makes repeated unsubstantiated claims that relator engaged in prosecutorial

misconduct throughout the disciplinary process by falsely accusing him of

committing conduct-rule violations, falsifying documents, and conspiring with the

2

The board acknowledged that there are ongoing federal proceedings in Vermont regarding the

transfer of Barbara’s assets and that the status of those proceedings and Nyce’s liability, if any, are

unclear from the record in this case.

3

The panel unanimously dismissed an alleged violation of Prof.Cond.R. 8.4(h) with respect to this

count. See Gov.Bar R. V(12)(G).

11

SUPREME COURT OF OHIO

attorneys who allegedly filed grievances against him to advance their positions in

related civil litigation.

{¶ 29} A primary focus of Nyce’s objections appears to be his belief that

this disciplinary proceeding should have been stayed until Vermont litigation

regarding his mother’s Medicaid eligibility and nursing-home bills is resolved.

Nyce claims, without citing any law in support, that Vermont law prevents him

from disclosing any information regarding those proceedings. He then argues that

the outcome of the Vermont litigation is relevant to the charges in this case. But

only the allegations in Count Four are in any way related to the Vermont litigation,

and those allegations arise solely from Nyce’s failure to comply with the rules

governing the use of his Ohio client trust account with regard to certain funds that

originated in Vermont. Thus, it does not appear that the Vermont proceedings have

any bearing on the charges alleged in relator’s complaint. Moreover, nothing in the

Rules for the Government of the Bar requires the board to issue a stay pending the

outcome of related civil litigation and no one suggests that the Vermont

proceedings are criminal in nature. See Gov.Bar R. V(18)(C) (prohibiting

proceedings in disciplinary matters arising from convictions for criminal offenses

to go forward until all direct appeals in the underlying criminal proceedings have

concluded).

{¶ 30} Nyce also claims that the evidence against him is insufficient to

support the board’s findings that he engaged in the charged misconduct because the

evidence consists entirely of hearsay and he was denied the opportunity to present

witnesses in violation of his constitutional right to procedural due process. These

claims are without merit. Relator presented testimony from multiple witnesses and

submitted numerous documents to prove much of the charged misconduct.

Although Nyce refused to directly authenticate many of relator’s exhibits pertaining

to Count Four, in some instances—particularly with respect to the bank statements

for Nyce’s client trust account—his own testimony ultimately confirmed the

12

January Term, 2018

accuracy of the exhibits and helped establish his misconduct. And despite Nyce’s

claims to the contrary, the record demonstrates that he was not deprived of the

opportunity to present witnesses in his defense but that he chose to rest his case

without doing so.

{¶ 31} Nyce’s remaining objections and his pending motions—which

among other things seek to supplement the record with documents purportedly

related to the Vermont litigation, to stay the disciplinary proceedings pending the

outcome of the Vermont litigation, to raise additional arguments in the nature of

objections, to strike relator’s oral argument from the record, and to urge this court

not to impose sanctions against him—are likewise without merit. Accordingly, we

overrule each of Nyce’s objections as well as his October 12 and 30, 2017 motions

and we adopt the board’s findings of fact and misconduct.

Sanction

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

several relevant factors, including the ethical duties that the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), any other relevant

factors, and the sanctions imposed in similar cases.

{¶ 33} Here, the board found that just one mitigating factor is present—

Nyce does not have a prior disciplinary record. See Gov.Bar R. V(13)(C)(1). In

contrast, it found that six aggravating factors are present. Specifically, Nyce (1)

acted with a dishonest and selfish motive, (2) engaged in a pattern of misconduct,

(3) committed multiple offenses, (4) failed to cooperate in the disciplinary process,

(5) submitted false evidence, made false statements, and used deceptive practices

during the disciplinary process, and (6) refused to acknowledge the wrongful nature

of his misconduct. See Gov.Bar R. V(13)(B)(2), (3), (4), (5), (6), and (7).

{¶ 34} The board also detailed Nyce’s numerous failures to cooperate in the

disciplinary process, setting forth a litany of his obstructive and deceptive practices.

Significantly, the board stated:

13

SUPREME COURT OF OHIO

From the beginning, Respondent displayed open and

undisguised hostility toward the disciplinary system, the attorneys

representing Relator, and the panel. It would be difficult to imagine

an accused attorney demonstrating less respect for the disciplinary

process or less remorse for his misconduct. Throughout the

proceedings, from the initial complaint through the end of the

hearing, Respondent actively sought to conceal evidence of his

misconduct, gave false and evasive testimony, and used a multitude

of means in a dishonest effort to subvert, derail, and undermine the

disciplinary process. In his answer to the amended complaint, for

example, he denied the allegation, “Respondent is not licensed to

practice law in Vermont” due to “lack of specificity.” Relator’s Ex.

35 at p. 2. He asserted “counterclaims” against Relator and its

individual lawyers for a variety of constitutional violations and for

violations of federal and state racketeering laws. Relator’s Ex. 34

at 3-5. During discovery, he had subpoenas issued to take

depositions of particular witnesses, often requiring the panel chair

to issue special entries, then he failed to show up for the depositions,

inconveniencing the witnesses, Relator’s counsel, and Board staff.

At his own aborted deposition in early December 2016, Respondent

objected to the court reporting service employed by Relator as

biased.

{¶ 35} Nyce also quibbled endlessly over trivial matters at his disciplinary

hearing. For example, he spent five minutes debating whether he had said he had

30 clients, at least 30 clients, or approximately 30 clients during a certain period of

time. And he was evasive when asked to identify documents that should have been

14

January Term, 2018

familiar to him, including relator’s amended complaint, to which he stated, “I

recognize that this is what it says on the front page. I don’t know even upon looking

I will be able to identify for certain, but that is what it says here.” When shown an

exhibit and asked whether he agreed that it was a letter addressed to him, he said,

“Well, it is certainly not addressed to me in any way that is who I am, but I

understand it is my last name and first name, but it is not me, but I got the letter, I

received this letter.”

{¶ 36} At Nyce’s December 22, 2016 deposition, he invoked his Fifth

Amendment privilege and refused to identify Roger Nyce as his brother. In

February 2017, he reversed course and filed a memorandum in which he repeatedly

identified Roger as his brother, but in his testimony at the hearing the following

month, he took several minutes to ponder whether Roger was his brother before

refusing to answer the question. Later during that hearing, Nyce routinely called

Roger his brother as though he had never cast any doubt on the matter.

{¶ 37} In a similar fashion, Nyce invoked his Fifth Amendment privilege

during his deposition and refused to answer questions related to his actions with

regard to the money withdrawn from bank accounts in Vermont, but then at the

hearing, he opened his case with a long discussion of those very matters. He also

repeatedly refused to answer proper “yes” or “no” questions posed by relator’s

counsel—even when instructed to answer.

{¶ 38} Moreover, the board found that Nyce had provided false testimony

and fabricated elaborate stories in an attempt to explain his failure to cooperate in

the disciplinary investigation, including the following: (1) he claimed that a flood

had destroyed most of his Prof.Cond.R. 1.4(c) insurance notices (despite never

mentioning the flood in his first deposition or his motions attacking relator’s

complaint), (2) he claimed that he had satisfied relator’s document request by

turning over “nine pages” of client-trust-account records (which turned out to be

just six pages that were produced for the first time at the hearing), and (3) he

15

SUPREME COURT OF OHIO

claimed that there are nine unidentified “private clients” who are rightfully entitled

to the funds that were withdrawn from his mother’s bank accounts and passed

through his client trust account. The board found these explanations to be

incredible and concluded that Nyce is “dangerously unable to distinguish right from

wrong.”

{¶ 39} The self-governing nature of the legal profession requires each

lawyer to cooperate in disciplinary proceedings—even when it is the lawyer’s own

conduct that is being scrutinized. “So when an attorney disregards or fails to

cooperate in the disciplinary process, not only does he disserve the public and this

court’s mission to protect it, he also compromises the profession and himself as a

member of it.” Disciplinary Counsel v. Watson, 98 Ohio St.3d 181, 2002-Ohio-

7088, 781 N.E.2d 212, ¶ 14. Thus, when a lawyer testifies falsely during the

disciplinary process, attempts to impede, obstruct or protract the disciplinary

process, or persistently refuses to accept responsibility for his or her misconduct—

all of which Nyce has done here—he or she may no longer be worthy of the trust

and confidence of the public and the courts. And in such cases, the appropriate

sanction may tip from a term of indefinite suspension to permanent disbarment.

See, e.g., Disciplinary Counsel v. Hoskins, 150 Ohio St.3d 41, 2017-Ohio-2924, 78

N.E.3d 845 (permanently disbarring an attorney who continued to practice law

while his license was suspended, falsely represented to opposing counsel during a

deposition that his license had been reinstated, submitted false statements during

the disciplinary process, and failed to acknowledge the wrongful nature of his

conduct); Toledo Bar Assn. v. Harvey, 150 Ohio St.3d 74, 2017-Ohio-4022, 78

N.E.3d 875, ¶ 23 (permanently disbarring an attorney who neglected client matters,

abandoned clients, and had “a history of not complying with the orders of the

Supreme Court of Ohio and ignoring the requirements associated with the

disciplinary process”); Trumbull Cty. Bar Assn. v. Roland, 147 Ohio St.3d 274,

2016-Ohio-5579, 63 N.E.3d 1200 (permanently disbarring an attorney who

16

January Term, 2018

engaged in fraudulent and dishonest conduct, neglected clients’ legal matters, and

failed to participate in the disciplinary process after filing answers largely denying

the allegations against him).

{¶ 40} Based on the foregoing, the board determined that Nyce “no longer

is fit to practice a profession grounded on trust, integrity, and candor” and that the

only way to ensure the protection of the public is to permanently disbar him.

Having reviewed the record, the board’s report, the arguments presented in Nyce’s

objections and motions, and our precedent, we agree.

{¶ 41} Accordingly, we overrule Nyce’s objections and pending motions

and permanently disbar him from the practice of law in Ohio. Costs are taxed to

Nyce.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEWINE, JJ., concur.

KENNEDY, FRENCH, and O’NEILL, JJ., dissent, and would indefinitely

suspend respondent from the practice of law.

_________________

Scott & Nolder Co., L.P.A., and Steven S. Nolder; Terry K. Sherman; and

Lori J. Brown, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel, for

relator.

Kinsley Frampton Nyce, pro se.

_________________

17