Cincinnati Bar Assn. v. Mahin (Slip Opinion)

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

Cincinnati Bar Assn. v. Mahin, Slip Opinion No. 2020-Ohio-4098.]

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. 2020-OHIO-4098

CINCINNATI BAR ASSOCIATION v. MAHIN.

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

may be cited as Cincinnati Bar Assn. v. Mahin, Slip Opinion No.

2020-Ohio-4098.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-

year suspension with second year conditionally stayed.

(No. 2020-0469—Submitted May 13, 2020—Decided August 19, 2020.)

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

Court, No. 2019-004.

_______________________

Per Curiam.

{¶ 1} Respondent, John Edward Mahin, of Cincinnati, Ohio, Attorney

Registration No. 0011253, was admitted to the practice of law in Ohio in 1977. In

June 2016, we suspended his license for two years, with the second year stayed on

conditions, for misconduct that included converting over $15,000 of law-firm funds

for his personal use, a crime for which he had been convicted of a fifth-degree

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felony, and fraudulently indorsing a client’s name on a settlement check.

Disciplinary Counsel v. Mahin, 146 Ohio St.3d 312, 2016-Ohio-3336, 55 N.E.3d

1108. Because we granted him credit for the time he had served under his interim

felony suspension, Mahin was reinstated to the practice of law in November 2016.

At that time, he began serving a two-year period of monitored probation, which was

a condition of the stay on the second year of his suspension. 147 Ohio St.3d 1266,

2016-Ohio-7717, 66 N.E.3d 758. His probation period has ended, but Mahin has

not yet applied for termination of probation.

{¶ 2} In an August 2019 amended complaint, relator, Cincinnati Bar

Association, charged Mahin with violating the Rules of Professional Conduct in

two separate client matters. Although Mahin stipulated to two rule violations, he

denied most of the charges against him, and the matter proceeded to a hearing

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

unanimously dismissed half of the alleged rule violations, found that Mahin had

engaged in the remaining charged misconduct, and recommended that he be

required to serve another two-year suspension, with one year conditionally stayed.

The board issued a report adopting the panel’s findings of misconduct and

recommended sanction. Neither party has objected to the board’s report.

{¶ 3} Based on our review of the record, we agree with the board’s

misconduct findings and recommended sanction.

Misconduct

Taiesha Molden’s grievance

{¶ 4} In May 2017, Taiesha Molden retained Mahin to represent her and her

minor daughter in a personal-injury lawsuit. In November 2017, Mahin conveyed

a settlement offer to Molden, but they agreed that the offer was too low and that

Mahin should start preparing a complaint. Molden thereafter gave Mahin $325 for

the filing fee.

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{¶ 5} According to Molden, Mahin told her in January 2018 that he had

filed the complaint. Mahin, however, denied telling Molden at that time that he had

filed the complaint. The hearing panel found Molden’s testimony more credible

and to support its finding, cited a subsequent e-mail that Molden sent to Mahin

inquiring whether he had heard from the opposing side in response to their “filing

a suit.”

{¶ 6} Mahin did not file Molden’s complaint until June 4, 2018. The

following day, Molden sent him an e-mail accusing him of lying to her in January

about filing the complaint, alleging that he had filed her complaint only after

learning that she was seeking new counsel, and terminating him as her counsel. She

also requested a refund of her $325. Mahin insisted that he had filed the complaint

before Molden terminated him, and the board ultimately found no affirmative

evidence proving otherwise.

{¶ 7} Mahin later sent a letter to the defendant’s insurer placing a “lien” on

Molden’s claims to ensure that he received a fee for his work in the case. Molden

filed a grievance against Mahin. Mahin thereafter met with Molden’s new counsel

to discuss the case and the grievance, and after that meeting, Mahin sent the

attorney an e-mail proposing a deal in which he would refund Molden’s $325 and

withdraw his lien in exchange for her withdrawing her grievance. Although Mahin

refunded Molden’s money and withdrew the lien and Molden attempted to

withdraw her grievance, relator continued its investigation.

{¶ 8} The board found that by misrepresenting to Molden that he had filed

her complaint—when it had not yet been filed—Mahin violated Prof.Cond.R.

8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation). The board also found that by attempting to obtain

dismissal of Molden’s grievance in exchange for refunding her money and dropping

his attorney-fee claim, he violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from

engaging in conduct that is prejudicial to the administration of justice).

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{¶ 9} We agree with the board’s findings of misconduct. “Unless the record

weighs heavily against a hearing panel’s findings, we defer to the panel’s credibility

determinations, inasmuch as the panel members saw and heard the witnesses

firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550,

842 N.E.2d 35, ¶ 24. Further, we have previously found that an attorney violates

Prof.Cond.R. 8.4(d) by attempting to condition a client’s refund on the withdrawal

of a disciplinary grievance. See, e.g., Cincinnati Bar Assn. v. Dearfield, 130 Ohio

St.3d 363, 2011-Ohio-5295, 958 N.E.2d 910, ¶ 6-9.

Judge Bunning’s grievance

{¶ 10} In March 2017, Mahin filed a personal-injury complaint on behalf of

two clients in the United States District Court for the Eastern District of Kentucky.

Under that court’s local rules, an attorney could apply for admission to the bar of

that court if he or she had been admitted to practice before the Supreme Court of

Kentucky. If the attorney had not been admitted in Kentucky, the attorney could

apply to appear in a particular case, provided that the attorney complied with the

procedure for obtaining pro hac vice admission.

{¶ 11} Mahin was not admitted to practice in Kentucky and failed to request

pro hac vice admission when he filed the complaint. And although the federal court

required attorneys to use the court’s electronic case-filing system when filing

pleadings, Mahin filed a paper complaint in person at the federal courthouse.

{¶ 12} The clerk thereafter sent Mahin a notice to the address listed on his

complaint. The notice indicated that Mahin was not admitted to practice in the

Eastern District of Kentucky and provided him with an application for admission

and copies of the local rule regarding attorney admissions. Although the clerk

requested that Mahin complete the application within 30 days, he failed to do so.

The clerk also notified Mahin that his check for filing fees had been returned for

insufficient funds.

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{¶ 13} In August 2017, United States District Judge David L. Bunning

ordered Mahin to file a status report regarding service of the complaint—which

Mahin had not yet initiated—and to show cause why the complaint should not be

dismissed for his failure to comply with the federal service-of-process rule. After

Mahin failed to file a response, Judge Bunning dismissed the complaint without

prejudice.

{¶ 14} At his disciplinary hearing, Mahin testified that he had not received

the notices and orders from the court and had learned of the complaint’s dismissal

two months after the judge’s order. He also testified that after filing the complaint,

he had relocated his office and failed to update his address with the court, failed

register for the court’s electronic case-filing system, and failed to otherwise check

the online docket to determine the status of the case.

{¶ 15} In September 2018, Mahin refiled the complaint, which listed his

new office address. Judge Bunning issued an order requiring the plaintiffs to show

cause why their case should not be dismissed as untimely under the applicable

Kentucky statute of limitations. The court’s order, however, was returned as

undeliverable because the clerk had sent it to Mahin’s prior office address. Judge

Bunning then issued an order requiring Mahin to show cause for his failure to apply

for pro hac vice admission and provide a valid mailing address. After Mahin failed

to respond, the judge held a show-cause hearing—for which Mahin failed to

appear—and later dismissed the refiled complaint as untimely. The judge also

prohibited Mahin from practicing law in the Eastern District of Kentucky for two

years and forwarded the decision to disciplinary counsel.

{¶ 16} According to Mahin, he did not receive the court’s notices and orders

after he refiled the complaint—although again, he also acknowledged that he had

failed to file a change-of-address form as required by the court’s local rules, failed

to register for the court’s electronic case-filing system, and failed to check the

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online docket. He also testified that his misconduct was unintentional and that he

had had little experience practicing in federal court.

{¶ 17} The board concluded that Mahin’s lack of federal-court experience

was not an excuse and that by filing and refiling the complaint in federal court

without admission to that court or knowledge of the court’s procedures and by

knowingly disobeying that court’s local rules, he violated Prof.Cond.R. 1.1

(requiring a lawyer to provide competent representation to a client), 3.4(c)

(prohibiting a lawyer from knowingly disobeying an obligation under the rules of

a tribunal), and 5.5 (prohibiting a person from practicing law in a jurisdiction in

violation of the regulation of the legal profession in that jurisdiction).

{¶ 18} We agree with the board’s findings of misconduct.

Sanction

{¶ 19} 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.

{¶ 20} As for aggravating factors, the board found that Mahin has prior

disciplinary offenses, had engaged in a pattern of misconduct, and had committed

multiple offenses. See Gov.Bar R. V(13)(B)(1), (3), and (4). The board found only

one mitigating factor—that Mahin had a cooperative attitude toward the

disciplinary proceedings. See Gov.Bar R. V(13)(C)(4).

{¶ 21} After reviewing relevant case law, the board noted that it had found

no cases involving all the same rule violations as this case but that it had found

several cases with some of the same violations. For example, the board cited

Disciplinary Counsel v. Rohrer, 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d

180, in which an attorney violated Prof.Cond.R. 3.4(c), 8.4(c), and 8.4(d) by

deliberately disobeying a court order and then lying to the court and misleading an

administrative agency about his actions. Because an actual suspension is generally

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appropriate for an attorney who engages in a course of dishonest conduct toward a

court or a client—and because we found no significant mitigating factors

warranting a departure from that principle—we suspended the attorney in Rohrer

for six months. Id. at ¶ 54; see also Disciplinary Counsel v. Stollings, 111 Ohio

St.3d 155, 2006-Ohio-5345, 855 N.E.2d 479, ¶ 13 (“an actual suspension is

particularly appropriate when an attorney’s dishonesty has been directed toward a

client”).

{¶ 22} Here, Mahin engaged in an isolated incident of misrepresentation.

Although we have “occasionally imposed fully stayed suspensions in cases when

an attorney’s misconduct involved isolated incidents of dishonesty and the attorney

presented significant mitigating evidence,” Disciplinary Counsel v. Adelstein, ___

Ohio St.3d ___, 2020-Ohio-3000, ___ N.E.3d ___, ¶ 26, the board correctly noted

that the sole mitigating factor here does not justify departing from the typical

sanction for misleading a client.

{¶ 23} The board also reviewed Toledo Bar Assn. v. Hickman, 119 Ohio

St.3d 102, 2008-Ohio-3837, 892 N.E.2d 437, in which an attorney continued

practicing law after we had suspended him, lied to multiple clients, neglected their

cases, charged an excessive fee, failed to return unearned fees, and committed other

misconduct. Because we had twice disciplined the attorney for similar misconduct,

we permanently disbarred him. Id. at ¶ 19. The board concluded that the same

sanction is not warranted here, and we agree. Although Mahin engaged in some of

the same misconduct as that in Hickman—such as practicing law in a jurisdiction

in violation of the regulation of a profession in that jurisdiction and lying to a

client—overall, Mahin’s misconduct was much less egregious.

{¶ 24} Finally, the board reviewed cases involving attorneys who

improperly attempted to “settle” grievances filed against them, noting that many of

those cases resulted in fully stayed suspensions despite additional misconduct. See,

e.g., Dearfield, 130 Ohio St.3d 363, 2011-Ohio-5295, 958 N.E.2d 910;

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Disciplinary Counsel v. Chambers, 125 Ohio St.3d 414, 2010-Ohio-1809, 928

N.E.2d 1061; Disciplinary Counsel v. Bruce, 158 Ohio St.3d 382, 2020-Ohio-85,

143 N.E.3d 501.

{¶ 25} Based on this precedent—and considering that relator failed to prove

many of the charges against Mahin and that Mahin ultimately stipulated to the

violations of Prof.Cond.R. 3.4(c) and 5.5 and cooperated in the disciplinary

process—the board recommends that we suspend Mahin for two years, with one

year stayed on the condition that he engage in no further misconduct. We agree

with the board’s conclusion that the facts here do not fit neatly into our established

precedent regarding attorney-discipline sanctions, but we are nonetheless guided

by the principle that the “the goal of disciplinary proceedings is not to punish the

errant lawyer, but to protect the public,” Toledo Bar Assn. v. Hales, 120 Ohio St.3d

340, 2008-Ohio-6201, 899 N.E.2d 130, ¶ 21. With that purpose in mind, we adopt

the board’s recommendation.

Conclusion

{¶ 26} John Edward Mahin is hereby suspended from the practice of law in

Ohio for two years, with the second year of the suspension stayed on the condition

that he refrain from further misconduct. If Mahin fails to comply with the condition

of the stay, the stay will be lifted and he will serve the entire two-year suspension.

Costs are taxed to Mahin.

Judgment accordingly.

O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and

STEWART, JJ., concur.

KENNEDY, J., concurs in judgment only.

_________________

Edwin W. Patterson III, Bar Counsel; Taft, Stettinius & Hollister, L.L.P.,

and Julia B. Meister; and Garvey, Shearer, Nordstrom, P.S.C., and Jennifer K.

Nordstrom, for relator.

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January Term, 2020

Montgomery Jonson, L.L.P., George D. Jonson, and Lisa M. Zaring, for

respondent.

_________________

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