Disciplinary Counsel v. Oviatt.

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

Disciplinary Counsel v. Oviatt, Slip Opinion No. 2018-Ohio-5091.]

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-5091

DISCIPLINARY COUNSEL v. OVIATT.

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

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

2018-Ohio-5091.]

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

Rules for the Government of the Bar—Conditionally stayed six-month

suspension.

(No. 2018-0537—Submitted June 26, 2018—Decided December 20, 2018.)

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

Court, No. 2017-013.

_______________________

Per Curiam.

{¶ 1} Respondent, Richard Ahlman Oviatt, of Cleveland, Ohio, Attorney

Registration No. 0025563, was admitted to the practice of law in 1967.

{¶ 2} In June 2017, relator, disciplinary counsel, charged Oviatt with

making improper statements impugning the integrity of judicial officers, breaching

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the confidentiality of the disciplinary-grievance process, and other professional

misconduct. Oviatt denied the charges, and the matter proceeded to a hearing

before a three-member panel of the Board of Professional Conduct. Based on the

evidence presented at the hearing, the panel dismissed one alleged rule violation,

found that Oviatt had engaged in the remaining charged misconduct, and

recommended that we impose a one-year suspension, with six months conditionally

stayed. The board adopted the panel’s findings of misconduct and recommended

sanction, although it proposed different conditions on the stayed portion of the

sanction. Oviatt objects to the board’s findings of misconduct and the

recommended sanction.

{¶ 3} For the reasons explained below, we overrule Oviatt’s objections to

the board’s misconduct findings but sustain in part his objections to the

recommended sanction. We conclude that a conditionally stayed six-month

suspension is the appropriate sanction in this case.

Misconduct

{¶ 4} This attorney-discipline matter commenced after a court of appeals

determined that Oviatt had not timely sought to revive a client’s dormant judgment.

The Selwyn v. Grimes case and related proceedings

{¶ 5} In 1984, Oviatt represented John Selwyn in a civil case in which

Selwyn alleged that Jeff Grimes had assaulted him with a beer bottle. In 1985, the

trial court granted Selwyn a default judgment, and a few months later, Oviatt

unsuccessfully attempted to execute the judgment. In 1987, Grimes filed for

bankruptcy, and Oviatt, on behalf of Selwyn, initiated an adversary action that

resulted in the bankruptcy court declaring Selwyn’s judgment nondischargeable.

{¶ 6} According to Oviatt, Grimes was “uncollectible,” and Oviatt and

Selwyn thereafter decided to wait until Grimes had inherited money to make

another attempt to collect the judgment. Pursuant to Ohio law in effect when

Selwyn obtained his judgment—and as interpreted by the trial court presiding over

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Selwyn’s case—a judgment became dormant five years from the date of the

judgment or the issuance of the last execution on it. After a judgment became

dormant, a party could not enforce the judgment unless it was revived, and a party

had 21 years from the date of dormancy to seek revival of the judgment.

{¶ 7} In 2012, Grimes’s father died, and on June 4, 2012, Oviatt filed a

motion to revive Selwyn’s dormant judgment. In early 2014, the trial court

determined that Oviatt had not properly served his June 4, 2012 motion and gave

him the opportunity to refile it. On January 16, 2014, Oviatt refiled the motion, and

the court revived the judgment. In doing so, the court determined that Selwyn’s

1987 action in Grimes’s bankruptcy proceeding constituted the last execution on

the judgment. Therefore, the judgment became dormant in August 1992—five

years after the bankruptcy order—and Selwyn had 21 years from that date—that is,

until August 2013—to revive the judgment. Selwyn v. Grimes, Cuyahoga C.P. No.

CV-84-082351 (Mar. 24, 2014). Because Oviatt filed his initial motion to revive

on June 4, 2012, the trial court determined that Selwyn’s attempt to revive the

judgment fell within the 21-year statute of limitations and that Selwyn was entitled

to $383,430.11—the 1985 judgment plus interest. Id.

{¶ 8} Grimes appealed, and the Eighth District Court of Appeals reversed.

Selwyn v. Grimes, 8th Dist. Cuyahoga No. 101252, 2014-Ohio-5147. The court of

appeals found that “Selwyn’s adversarial action in the bankruptcy court was not an

attempt at execution” but was merely an attempt to prevent the discharge of

Selwyn’s judgment against Grimes. Id. at ¶ 19. Accordingly, Selwyn’s judgment

went dormant in August 1990—five years after Selwyn first attempted to execute

the judgment in 1985—and to be timely, Selwyn had to have sought revival of the

judgment prior to August 2011. Because Selwyn did not file his initial motion to

revive the judgment until June 4, 2012, the court of appeals determined that his

motion “was untimely and the trial court erred in reviving the judgment.” Id. at

¶ 21.

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{¶ 9} The court of appeals also noted that because Oviatt had not properly

served Grimes with his June 4, 2012 motion, Selwyn did not actually attempt to

revive the judgment until he refiled the motion on January 16, 2014. The court of

appeals concluded that when Selwyn refiled the motion in January 2014 to cure the

jurisdictional deficiency, the refiling was outside the 21-year statute of limitations.

Id. at ¶ 22-24. Oviatt sought review in this court, but we declined to accept

jurisdiction of the appeal. Selwyn v. Grimes, 142 Ohio St.3d 1477, 2015-Ohio-

2104, 31 N.E.3d 655.

{¶ 10} In 2015, Grimes filed a civil lawsuit against both Selwyn and Oviatt

asserting claims of malicious civil prosecution, third-party legal malpractice, and

other torts relating to their efforts to revive the 1985 judgment. Grimes v. Oviatt,

Cuyahoga C.P. No. CV-15-848472. In a joint answer, Oviatt made several

statements about the appellate judges who decided Grimes’s appeal. For example,

Oviatt stated that the issue whether his January 2014 refiled motion fell outside the

statute of limitations “was contrived by the appellate judges to justify a decision

favoring Grimes premised apparently upon outside influences and not premised

upon the facts or the law” and that the judges “brought this non-issue into these

appellate proceedings as a basis to rule in favor of Grimes for apparently

undisclosed and non-legal reasons.” Oviatt also asserted that the appellate judges

“refused to address the determinative issues in the appellate proceedings, namely,

* * * whether the Bankruptcy discharge proceeding August 17, 1987 was an

execution.” As noted above, however, the court of appeals clearly addressed that

issue and specifically determined that “we decline to construe the bankruptcy

court’s decision as an execution.” Selwyn v. Grimes, 2014-Ohio-5147, at ¶ 20.

{¶ 11} In his civil suit, Grimes also sought to disqualify Oviatt from serving

as Selwyn’s counsel, citing a conflict of interest. In response, Oviatt submitted a

brief in opposition and attached a sworn statement from Selwyn defending Oviatt’s

representation of him. Selwyn’s statement also referred to and attached portions of

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January Term, 2018

a “disciplinary complaint” that Oviatt had filed with relator against the three

appellate judges who decided Grimes’s appeal.

{¶ 12} In the disciplinary complaint, Oviatt criticized the judges for ruling

that his January 2014 refiled motion fell outside the statute of limitations.

According to Oviatt, that issue was never briefed by the parties and the judges relied

on that reasoning to “facilitate and substantiate a predetermined favorable ruling

for Grimes.” The judges’ conduct, Oviatt alleged, “clearly indicate[d] impropriety

and underscore[d] a non-legal reason for such a blatant perverse ruling.”

(Underlining sic.) Oviatt continued:

The connection between Grimes and the Appellate Judges is

clear; Grimes is a lifetime member, as was his father, of the iron

workers union; the iron workers’ union is embedded in Cuyahoga

County democratic politics; and the three Judge Appellate Panel

were all elected to the bench as democratic candidates. Recent

criminal convictions of Cuyahoga County Common Pleas Court

Judges Bridgett McCafferty and Steven Terry involved undue

influence and corruption by Democratic Party Officials. The within

situation is not something new, but merely an extension of past

practices. * * * [T]he only viable reason judges would render such

a Decision in this case is because judicial reasoning was replaced by

undue influence and corruption.

***

* * * There are reasons for everything and it is not because these

judges are intellectually deprived. A conspiracy to pervert justice is

confirmed when all three judges have put their names to this

Decision.

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Oviatt’s disciplinary complaint also alleged that “[i]t is impossible to believe that

this judicial decision is not the result of undue influence and corruption” and that

“[t]hese Appellate Judges are very much aware as to how to use their vast power

and the appellate process so that an opposing view is left without a forum to be

heard and is thereby silenced.”

{¶ 13} The board found that by making these statements about the appellate

judges, Oviatt violated Prof.Cond.R. 8.2(a) (prohibiting a lawyer from making a

statement that the lawyer knows to be false or with reckless disregard as to its truth

or falsity concerning the qualifications or integrity of a judicial officer). Citing

Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d

425—in which we adopted an objective standard to determine whether a lawyer’s

statements about a judicial officer were made with knowledge or reckless disregard

of their falsity—the board concluded that Oviatt had no reasonable factual basis for

his allegations. The board pointed to Oviatt’s testimony admitting that he did not

conduct any investigation before making the allegations, that he made the

statements based solely on his reading of the court of appeals’ opinion, and that he

did not actually know why the judges ruled as they did. The board further noted

that Oviatt did not appear to understand the appellate decision and that because the

decision was his only basis for his accusations, he had no factual basis to make

them—let alone a reasonable one.

{¶ 14} In addition, the board concluded that by filing a copy of his

disciplinary complaint in the common pleas court—and thereby making it a public

document—Oviatt violated Gov.Bar R. V(8)(A)(1) (requiring that all proceedings,

documents, and deliberations relating to review, investigation, and consideration of

a grievance shall be confidential prior to a determination of probable cause by the

board, with limited exceptions not applicable here).

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January Term, 2018

Refusing to cooperate in the disciplinary process

{¶ 15} Relator later commenced an investigation into Oviatt’s conduct.

Oviatt, however, refused to answer relator’s inquiries about whether he carried

malpractice insurance, claiming that relator lacked jurisdiction to inquire into that

subject. Ultimately, Oviatt’s refusal to respond to discovery requests about

malpractice insurance resulted in this court holding him in contempt. Disciplinary

Counsel v. Oviatt, 151 Ohio St.3d 1463, 2017-Ohio-9004, 87 N.E.3d 1263. Based

on this conduct, the board found that Oviatt violated Prof.Cond.R. 8.1(b) and

Gov.Bar R. V(9)(G) (both requiring a lawyer to cooperate with a disciplinary

investigations).

Oviatt’s objections

{¶ 16} Oviatt sets forth eight objections to the board’s findings of

misconduct.

{¶ 17} He first claims that the board failed to include “all relevant, material

and determinative facts” in its report. Many of Oviatt’s alleged “facts,” however,

are either his personal opinion or not supported by the record. For example, he

asserts that the board “selectively neglect[ed] to acknowledge” that Grimes’s

“malicious lawsuit” against Selwyn and him “was filed for an improper purpose

and was frivolous pursuant to [Civ.R. 11 and R.C. 2323.51].” But Oviatt failed to

cite any portion of the record establishing that a court found Grimes’s lawsuit to be

frivolous. And even if the lawsuit was frivolous, Oviatt failed to establish why

Grimes’s frivolous conduct absolved Oviatt of any responsibility for his own

behavior. Indeed, Oviatt’s first objection fails to sufficiently explain why the

board’s omission of alleged “facts” had any impact on the ultimate outcome of this

case or the board’s specific findings of misconduct against Oviatt.

{¶ 18} In his second objection, Oviatt disputes a finding that the board never

made. Specifically, Oviatt objects to the board’s conclusion that he violated

Prof.Cond.R. 8.1(a), which prohibits attorneys from making a false statement in

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connection with a disciplinary matter. The board concluded that Oviatt violated

Prof.Cond.R. 8.1(b) for knowingly failing to respond to a demand for information

from a disciplinary authority—not Prof.Cond.R. 8.1(a).

{¶ 19} Oviatt’s third and fourth objections challenge the board’s findings

that he violated Prof.Cond.R. 8.2(a) for making statements about appellate judges

with knowledge or reckless disregard of their falsity and Gov.Bar R. V(8)(A)(1) for

breaching the confidentiality of the disciplinary-grievance process. Oviatt

primarily argues that he was merely complying with his client’s instructions and

therefore cannot be in violation of any ethical rules. Specifically, Oviatt claims that

Selwyn believed that the appellate decision was the basis for Grimes’s lawsuit and

therefore Selwyn directed him to show that the decision was wrong and to include

portions of the disciplinary complaint in the record. According to Oviatt, his

“primary and paramount obligation” was to his client and his duty to Selwyn

“supersede[d] all other rules.” Oviatt also asserts that because Selwyn is not

governed by the Rules of Professional Conduct, Selwyn had the right to make the

disciplinary complaint public “without the consequence of discipline to himself or

his attorney.”

{¶ 20} As an initial matter, Oviatt has not established why it was necessary

to impugn the integrity of appellate judges to defend against Grimes’s lawsuit—

especially if, as Oviatt claims, the lawsuit was frivolous. More importantly,

lawyers may not engage in unethical conduct merely because their clients direct

them to do so. Prof.Cond.R. 1.4(a)(5) requires a lawyer to “consult with the client

about any relevant limitation on the lawyer’s conduct when the lawyer knows that

the client expects assistance not permitted by the Ohio Rules of Professional

Conduct,” and pursuant to Prof.Cond.R. 1.16, Comment 2, a lawyer must ordinarily

“withdraw from representation if the client demands that the lawyer engage in

conduct that is illegal or violates the Ohio Rules of Professional Conduct or other

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January Term, 2018

law.” The fact that Oviatt may have been acting at Selwyn’s direction is not a

defense to the misconduct charges against him.

{¶ 21} In his fifth objection, Oviatt challenges the board’s finding that he

failed to cooperate in the disciplinary investigation. Oviatt argues that relator had

“no jurisdiction to investigate” issues that were not first raised in a written

complaint and that a complaint about his malpractice insurance “never came to

Disciplinary Counsel in writing.”

{¶ 22} Oviatt misconstrues the scope of relator’s investigative authority.

Gov.Bar R. V(9)(C)(1) provides that the “Office of Disciplinary Counsel and a

certified grievance committee shall review and may investigate any matter filed

with it or that comes to its attention and may file a complaint pursuant to this rule

in cases where it finds probable cause to believe that misconduct has occurred.”

Here, relator asserts that Oviatt failed to properly serve Selwyn’s initial motion to

revive the judgment against Grimes and admitted to not keeping up with changes

to the Civil Rules. Relator therefore inquired into whether Oviatt carried

malpractice insurance and, if not, whether he had properly notified clients about his

lack of malpractice insurance. Given the plain language of Gov.Bar R.

V(9)(C)(1)—and relator’s explanation for seeking information about Oviatt’s

malpractice insurance—Oviatt has not established that relator lacked investigative

authority over this issue merely because it was not first raised in a written grievance.

See, e.g., Akron Bar Assn. v. Tucker, ___ Ohio St.3d ___, 2018-Ohio-2631, ___

N.E.3d ___, ¶ 4 (while investigating an unrelated grievance, the relator discovered

that an attorney had misused funds in his client trust account and the relator

commenced a separate investigation into the trust-account violations).

{¶ 23} Oviatt’s sixth and eighth objections involve challenges to the board’s

evidentiary rulings. Oviatt argues that the board erred by refusing to allow him to

introduce additional evidence and to cross-examine relator’s attorney about the

background of the Selwyn v. Grimes case and the meaning of the appellate decision.

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{¶ 24} We review a panel’s evidentiary rulings under an abuse-of-

discretion standard. See Disciplinary Counsel v. Gaul, 127 Ohio St.3d 16, 2010-

Ohio-4831, 936 N.E.2d 28, ¶ 49. The panel permitted Oviatt to introduce some

evidence about the background of the Selwyn v. Grimes case, but the panel also

cautioned Oviatt about extensively rehashing the facts of that matter. Oviatt has

failed to establish why it was necessary to introduce more evidence or to cross-

examine relator’s counsel to understand the appellate decision or the issues in this

case. And to the extent that Oviatt wanted to introduce this evidence to prove that

the appellate decision was wrong, he cannot collaterally attack that court’s legal

reasoning in this attorney-discipline matter. See Cincinnati Bar Assn. v. Hauck,

148 Ohio St.3d 203, 2016-Ohio-7826, 69 N.E.3d 719, ¶ 28-29. Oviatt had the

opportunity to raise his complaints about the appellate decision in his appeal to this

court.

{¶ 25} Finally, in Oviatt’s seventh objection, he disputes the finding that he

did not understand the appellate court’s decision. As noted above, the board

concluded that Oviatt did not understand the decision and that because that decision

was the sole basis for his allegations against the appellate judges, he lacked a

reasonable factual basis for making the allegations. Oviatt now argues that the

board is “misguided” and that “it is the Board which does not understand this

decision.”

{¶ 26} Whether Oviatt truly “understands” the appellate decision is beyond

the scope of our review. He has, however, clearly misinterpreted it. Oviatt appears

to believe that the court of appeals held only that Oviatt’s January 2014 refiled

motion to revive the judgment fell outside the 21-year statute of limitations. And

Oviatt believes that this holding was wrong because the parties never raised that

issue in their briefs. But the court of appeals also found that Oviatt’s June 4, 2012

motion to revive was outside the statute of limitations. Indeed, the court expressly

held: “To be timely, Selwyn’s motion to revive had to be filed prior to August 19,

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January Term, 2018

2011. Because it was purportedly filed in June 2012, it was untimely, and the trial

court erred in reviving the judgment.” Selwyn v. Grimes, 2014-Ohio-5147, at ¶ 21.

Thus, even if the court of appeals had never addressed the January 2014 refiled

motion, Selwyn would have lost the appeal.

{¶ 27} Oviatt’s refusal to recognize the court of appeals’ alternative

holdings is additional evidence that he had no reasonable factual basis for accusing

the appellate judges of political corruption, bias, and improper third-party

influence. And given that he made no inquiry into the judges’ integrity before

making those accusations, no reasonable attorney would accept his allegations as

true. See Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 31

(“an attorney may be sanctioned for making accusations of judicial impropriety that

a reasonable attorney would believe are false”).

{¶ 28} Based on the foregoing, we overrule Oviatt’s objections and adopt

the board’s findings of misconduct.

Sanction

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

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

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

Aggravating and mitigating factors

{¶ 30} As aggravating factors, the board concluded that Oviatt was

“completely and utterly uncooperative throughout the entire process” and was

“disrespectful of the disciplinary process.” See Gov.Bar R. V(13)(B)(5). The board

also concluded that he had a selfish motive. See Gov.Bar R. V(13)(B)(2). The only

mitigating factor, according to the board, was Oviatt’s clean disciplinary record.

See Gov.Bar R. V(13)(C)(1).

{¶ 31} Oviatt objects to the board’s aggravating factors. He argues that he

had a good-faith basis for initially refusing to respond to relator’s inquiries about

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malpractice insurance but after this court held him in contempt, he promptly

responded. He further notes that he answered all of relator’s other questions and

timely appeared for his disciplinary hearing. Oviatt also denies that he had a selfish

motive because he was merely following his client’s directions.

{¶ 32} We sustain these objections. The record does not sufficiently

support the board’s conclusion that Oviatt “was completely and utterly

uncooperative” or that he “disrespected” the process. Oviatt refused to respond to

a few of relator’s inquiries based on his erroneous belief regarding relator’s

investigative authority, but he otherwise fully participated in the disciplinary

proceedings. The fact that he contested the charges does not mean that he was also

uncooperative “throughout the entire process,” as the board found. Similarly, we

find no support for concluding that Oviatt acted with a selfish motive. Selwyn

testified in support of Oviatt, and the board did not specify what, if anything, Oviatt

would have personally gained from his misconduct.

Recommended sanction and Oviatt’s objection

{¶ 33} The panel recommended that Oviatt serve a one-year suspension,

with six months stayed on conditions, including that he undergo a medical and

psychological evaluation by the Ohio Lawyers Assistance Program (“OLAP”) and

pass the Multistate Professional Responsibility Examination (“MPRE”). The board

agreed that Oviatt should be suspended for one year, with six months of the

suspension conditionally stayed, but removed the requirement that he undergo an

OLAP evaluation. Oviatt objects to the recommended sanction as “extreme and

unjustified.”

{¶ 34} To support the recommended sanction, the panel and board relied on

two cases in which we disciplined attorneys for making similar accusations about

judges. In Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, we

suspended an attorney for six months for improperly accusing appellate judges of

prosecutorial bias and corrupting the law after the attorney received an adverse

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decision. In Disciplinary Counsel v. Shimko, 134 Ohio St.3d 544, 2012-Ohio-5694,

983 N.E.2d 1300, we imposed a fully stayed one-year suspension on an attorney

who accused a trial judge of dishonesty and improper motives in his rulings.

{¶ 35} The board concluded that Oviatt’s accusations were more serious

than those in Gardner and Shimko and that considering Oviatt’s additional

misconduct and the presence of additional aggravating factors, a more severe

sanction was warranted. We disagree. Oviatt’s accusations against the appellate

judges are comparable to those in Gardner and Shimko. And as we concluded

above, no aggravating factors exist. But a significant mitigating factor is present:

Oviatt has an otherwise unblemished 51-year legal career. In contrast, the attorney

in Shimko had a prior disciplinary record and the attorney in Gardner had been

practicing for only eight years before the disciplinary complaint had been filed

against him. And in light of Oviatt’s testimony that his law practice has been “very

minimal” since he started experiencing health problems in 2010—with this case

taking up most of his time—we are not convinced that an actual suspension from

the practice of law is necessary in this case. Compare Disciplinary Counsel v.

Miller, 149 Ohio St.3d 731, 2017-Ohio-2821, 77 N.E.3d 979, ¶ 11 (noting that we

have publicly reprimanded or imposed fully stayed suspensions on attorneys who

committed isolated incidents of forgery or falsification in otherwise unblemished

legal careers).

{¶ 36} Accordingly, we conclude that a fully stayed six-month suspension

is the appropriate sanction in this case. And as recommended by the panel, we

condition Oviatt’s stayed suspension on his undergoing an OLAP evaluation.

However, we reject the panel’s and the board’s recommended requirement that he

take the MPRE.

Conclusion

{¶ 37} For the reasons explained above, Richard Ahlman Oviatt is

suspended from the practice of law for six months, with the entire suspension stayed

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on the conditions that he (1) submit to an evaluation conducted by OLAP, (2)

comply with any and all treatment recommendations resulting from the evaluation,

and (3) engage in no further misconduct. If Oviatt fails to comply with any

condition of the stay, the stay will be lifted and he will serve the full six-month

suspension. Costs are taxed to Oviatt.

Judgment accordingly.

O’DONNELL and FISCHER, JJ., concur.

KENNEDY, FRENCH, and DEWINE, JJ., concur in judgment in part and

dissent in part and would not require respondent to submit to an evaluation by the

Ohio Lawyers Assistance Program.

O’CONNOR, C.J., dissents, with an opinion joined by DEGENARO, J., and

would impose a suspension of one year with six months stayed on conditions.

_________________

O’CONNOR, C.J., dissenting.

{¶ 38} Because I disagree with the majority’s conclusion that a fully stayed

six-month suspension is the appropriate sanction in this case, I dissent.

{¶ 39} “Unfounded attacks against the integrity of the judiciary require an

actual suspension from the practice of law.” Disciplinary Counsel v. Gardner, 99

Ohio St.3d 416, 2003-Ohio-4048, 793 N.E.2d 425, ¶ 36, citing Disciplinary

Counsel v. West, 85 Ohio St.3d 5, 706 N.E.2d 760 (1999), and Columbus Bar Assn.

v. Hartwell, 35 Ohio St.3d 258, 520 N.E.2d 226 (1988). Furthermore, as the Board

of Professional Conduct acknowledged, the misconduct engaged in here by

respondent, Richard Ahlman Oviatt, is greater than the misconduct that was at issue

in Gardner. Oviatt and Gardner both made improper statements about appellate

judges who had ruled against their clients, but Oviatt’s misconduct went further.

Oviatt made public the materials from a disciplinary grievance that he had filed

against the appellate judges, which led to a finding that he violated Gov.Bar

R. V(8)(A)(1) (requiring confidentiality in grievance proceedings). When relator,

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disciplinary counsel, began an investigation into Oviatt’s conduct, Oviatt also

refused to respond to discovery requests, which led to a finding that he violated

Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) (both requiring a lawyer to cooperate

with a disciplinary investigation). Although Oviatt’s attacks on the integrity of the

judiciary are sufficient to support an actual suspension, these additional violations

compound the need to impose an actual suspension from the practice of law.

{¶ 40} For these reasons, I disagree that a fully stayed six-month suspension

is the appropriate sanction in this case. I would impose the board’s recommended

sanction, a one-year suspension, with six months stayed on the condition that Oviatt

engage in no further misconduct. I would reject the panel’s and the board’s

requirement that he pass the Multistate Professional Responsibility Examination,

but I would add the condition as recommended by the panel that he submit to an

evaluation by the Ohio Lawyers Assistance Program and comply with any and all

treatment recommendations resulting therefrom.

DEGENARO, J., concurs in the foregoing opinion.

_________________

Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant

Disciplinary Counsel, for relator.

Richard Ahlman Oviatt, pro se.

_________________

15