Opinion

Bar Ass'n v. Zaffiro

  • 61 Ohio St. 2d 69
  • 15 Ohio Op. 3d 113
  • 399 N.E.2d 549
  • 1980 Ohio LEXIS 613
Court
Ohio Supreme Court
Filed
Jan 23, 1980
Status
Published
Author
Locher
On the bench
Brown, Celebrezze, First, Herbert, Holmes, Locher, Shannon, Sweeney
Cited by
1 cases
Authority
More cited than 15.1%

The opinion

Locher, J.,

dissenting. In my opinion, the punishment meted out to the respondent should be a public reprimand. This case differs in considerable measure from Bar Assn. v. Cassaro (1980), 61 Ohio St. 2d 62 , which involves a similar setting and heard one day prior to the cause at bar.

I have joined with my colleagues in calling for a suspension in Cassaro , but yet feel that the respondent, at bar, does not merit suspension.

In the instant cause, upon learning that his clients were not bona fide claimants, the respondent immediately tried to withdraw his name from the workers’ compensation files. Only the manner in which he tried to remove his name was improper. The respondent’s sole involvement in the fraud perpetrated by Mr. Berman was that he unknowingly filed an improper claim.

In Cassaro , the respondent actually destroyed his files and further removed the “name tags” which were attached to the workers’ compensation files. Furthermore, the respondent, in Cassaro , was also involved in fraudulent personal injury actions with Mr. and Mrs. Berman, the same individuals who initiated the workers’ compensation fraud.

Additionally, the two cases also differ as to the findings of a violation. In the instant cause, the respondent was found to be in violation of DR 1-102(A)(5) only. Whereas, in Cassaro , the respondent was found to be in violation of DR 1402(A)(3), (4), (5) and (6) and 7402(B)(1) and (2). *

*74 I understand that all disciplinary actions must be viewed on a case by case basis, but there are other instances in which the respondents, in my opinion, committed graver acts and yet received only a public reprimand. See Bar Assn. of Greater Cleveland v. Sandler (1977), 51 Ohio St. 2d 132 .

The present case does not demonstrate a series of continuing consciousness of improper acts and deeds; rather it was one isolated momentary lapse which should not result in an indefinite suspension. It is submitted that such acts as presented at bar merit at most only a public reprimand.

Note the nature and extent of the sections violated by Cassaro as compared to the respondent in the instant cause.

DR 1-102 (A)(3), (4), (5) and (6) reads:

“(A) A lawyer shall not:

(I * * *

“(3) Engage in illegal conduct involving moral turpitude.

“(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

“(5) Engage in conduct that is prejudicial to the administration of justice.

“(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”

DR 7-102 (B)(1) and (2) reads as follows:

“(B) A lawyer who receives information clearly establishing that:

*74 “(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal.

“(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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