Disciplinary Counsel v. Jarvis

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

Disciplinary Counsel v. Jarvis, Slip Opinion No. 2022-Ohio-3936.]

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. 2022-OHIO-3936

DISCIPLINARY COUNSEL v. JARVIS.

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

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

2022-Ohio-3936.]

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

including failing to act with reasonable diligence in representing a client,

failing to reasonably consult with a client about the means by which the

client’s objectives are to be accomplished, failing to maintain a normal

lawyer-client relationship with a client when the client’s capacity to make

considered decisions is diminished, and engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation—Eighteen-month

suspension stayed on conditions.

(No. 2022-0366—Submitted May 24, 2022—Decided November 8, 2022.)

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

Court, No. 2021-020.

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Per Curiam.

{¶ 1} Respondent, Timothy Paul Jarvis, of Lancaster, Ohio, Attorney

Registration No. 0076067, was admitted to the practice of law in Ohio in 2003. In

an August 2021 complaint, relator, disciplinary counsel, charged Jarvis with seven

ethical violations arising from the representation of a married couple and their

trustee in an estate-planning matter. Relator alleged that Jarvis had neglected his

clients’ legal matter, failed to communicate with his clients about their wishes, and

failed to assess one client’s testamentary capacity, falsely notarized various estate-

planning documents, instructed his employee to falsely indicate that she had

witnessed documents, and failed to promptly deliver their file upon the termination

of his representation.

{¶ 2} The parties entered into stipulations of fact, misconduct, and

aggravating and mitigating factors. After a hearing conducted by a three-member

panel of the Board of Professional Conduct, the board issued a report finding that

Jarvis committed six stipulated rule violations and unanimously dismissing a

seventh alleged violation. The board adopted the parties’ stipulated aggravating

and mitigating factors and recommended that Jarvis be suspended from the practice

of law for one year, stayed in its entirety on the conditions that he commit no further

misconduct and make restitution of $7,500 within 30 days of the date of our final

order. No objections have been filed.

{¶ 3} We adopt the board’s findings of misconduct, but for the reasons that

follow, we find that a greater sanction is warranted. We therefore suspend Jarvis

from the practice of law for 18 months with the entire suspension stayed on the

conditions recommended by the board.

Misconduct

{¶ 4} Frank A. and Lenor W. Balcar (jointly, “the Balcars”), were married

in 1941. They had five children—Bruce, Paul, Karen, Mark, and Barbara.

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{¶ 5} Frank suffered a massive and debilitating stroke in February 2010 and

subsequently lived in a nursing home. In May of that year, Lenor and Karen

contacted Jarvis’s law firm, Jarvis Law Office, about preserving and protecting the

Balcars’ assets from being depleted by the costs of Frank’s care. They met with

Melissa Evick, a nonattorney who, at that time, served as Jarvis’s office manager.

Lenor and Karen gave Evick basic information regarding the Balcars and their

assets. They also informed her that Frank was 94 years old and in poor health.

Evick conveyed the information to Jarvis by email later that day.

{¶ 6} On May 28, Jarvis met with Lenor and Karen. He told them that he

could create an irrevocable trust that would protect the Balcars’ assets and that he

would then apply for Medicaid on Frank’s behalf. Jarvis told Lenor and Karen that

he could save them between $95,000 and $110,000 if they retained him. Jarvis was

aware that even if Frank qualified for Medicaid, his family would still have to pay

for at least 16 months of his care due to a Medicaid “lookback” or “penalty” period.

But Jarvis has stipulated that if Karen were called to testify, she would state that he

did not advise them about the lookback period other than to tell them that it was

“very short.”

{¶ 7} After advising Jarvis about Frank’s health conditions—including a

diagnosis of Alzheimer’s disease—Lenor and Karen specifically asked if Frank was

competent to sign legal documents. Jarvis has stipulated that Karen would testify

that he advised her and Lenor that (1) Frank’s capacity would not be an issue and

(2) Frank only needed to be able to place an “X” on the appropriate lines of the

documents. Although Karen emailed additional questions to Jarvis, he refused to

respond, claiming, “I’ve learned the hard way that if I ‘give away’ all of my secrets

prior to being retained, I run the risk of someone thinking that they can do this

themselves.”

{¶ 8} In June, Karen paid Jarvis $7,500 to represent them. Although Jarvis

did not enter into a written fee agreement detailing the scope of the representation,

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based on their communications, Karen believed that he would draft updated estate

documents for the Balcars, transfer the Balcars’ nonmonetary assets into an

irrevocable trust, and if necessary, probate the Balcars’ estates. Karen and Barbara

provided Evick with documentation regarding the Balcars’ assets to facilitate the

transfer of those assets into the irrevocable trust.

Drafting of Estate-Planning Documents

{¶ 9} Jarvis drafted the Balcar Family Irrevocable Trust and a certification

of trust. Consistent with an earlier revocable trust that had been created by Lenor

and the amendments to it, the irrevocable trust (1) designated Karen as the trustee,

(2) provided that upon the deaths of Frank and Lenor, 10 percent of the trust assets

would be distributed to a faith-based organization, and (3) provided that there

would be no distribution to Paul other than a watch that had belonged to Frank. In

contrast to the earlier revocable trust, which had provided that Barbara would

receive a larger percentage of the remaining trust assets, the irrevocable trust

provided that those assets would be split equally among Bruce, Karen, Mark, and

Barbara.

{¶ 10} In addition, Jarvis drafted other estate-planning documents,

including wills and durable powers of attorney.

False Signing and Notarization

{¶ 11} On June 25, Evick met with Frank at the nursing home where he

resided and had him sign the durable power of attorney. On June 28, Evick and

another employee of Jarvis’s firm met with Frank and had him sign a second copy

of that document.

{¶ 12} Although Jarvis met with Lenor, he never personally communicated

with Frank and therefore never (1) explained the purpose of the estate-planning

documents, (2) ascertained whether Frank wanted to execute the documents, or (3)

determined whether Frank had the testamentary or contractual capacity to sign

them. Nor was Jarvis present when Frank signed the durable powers of attorney.

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However, Jarvis signed the first durable power of attorney as a witness and falsely

notarized both versions under jurats stating that Frank had personally appeared

before him and voluntarily signed the instrument.

{¶ 13} On August 11, a doctor examined Frank and noted, “Frank does not

communicate when asked questions, he looks at you but is not able to answer

questions.” The following day, Lenor and Karen met with Jarvis to review and sign

the estate documents. Lenor signed the irrevocable-trust agreement and other

estate-planning documents in Jarvis’s presence. Karen signed the agreement as the

trustee. Evick signed Lenor’s will and durable power of attorney as a witness.

Jarvis stipulated, however, that if Evick were called to testify, she would state that

she was either called into the meeting after the documents were signed or that she

signed them as a witness sometime after Lenor and Karen left—a common practice

in Jarvis’s office at that time.

{¶ 14} Even though Jarvis knew that Evick was not an Ohio notary, he

directed her to meet with Frank at his nursing home on August 13 or 14 to have

him sign the irrevocable trust and four other estate-planning documents. Jarvis did

not discuss those documents with Frank or assess Frank’s testamentary or

contractual capacity before Frank signed them. Nor was he present when Frank

signed them. But several days after Evick obtained Frank’s signature on those five

documents, Jarvis backdated and notarized all of them under jurats that falsely

stated that Frank had personally appeared before him to acknowledge his signature.

He also falsely signed Frank’s will as a witness and attested on two of the

documents that Frank appeared to be of sound mind when he signed them.

Conduct after the Estate-Planning Documents Were Executed and after the

Balcars’ Deaths

{¶ 15} At the end of September, Evick applied for Medicaid on Frank’s

behalf. Although almost seven weeks had elapsed since Frank signed the trust

agreement and the other estate-planning documents, the only asset that had been

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transferred to the irrevocable trust was a checking account belonging to Lenor. By

the end of October, the Department of Job and Family Services had determined that

the application was incomplete and had requested additional information regarding

Frank’s assets.

{¶ 16} Frank died on November 6, 2010, without qualifying for or receiving

any Medicaid benefits. Because most of his assets had not been transferred into the

irrevocable trust, they were subject to probate costs and estate taxes.

{¶ 17} In April 2011, Lenor signed a fiduciary deed to transfer her home

from the revocable trust to the irrevocable trust. Jarvis notarized the deed under a

jurat falsely stating that Lenor had personally appeared before him to acknowledge

the signature. The deed was recorded on May 4, 2011—Lenor died nine days later.

{¶ 18} Jarvis continued to represent Karen as trustee of the irrevocable trust

and executor of the Balcars’ estates. Karen and Barbara continued to correspond

with Evick and provide her with documents related to the estates and the trust.

Karen believed that Jarvis would send a letter to the trust’s beneficiaries informing

them of the trust’s existence and how it would affect them—but he never did.

{¶ 19} By July 2011, the Balcars’ son Bruce had learned that the irrevocable

trust existed. He engaged counsel, who wrote a letter to Karen requesting a copy

of the irrevocable trust and an inventory of the trust assets. Karen forwarded that

letter to Evick, who stated that Jarvis would respond to it. As a trustee, Karen had

a statutory obligation to keep the beneficiaries reasonably informed about the

administration of the trust and to promptly respond to a beneficiary’s request for

information. See R.C. 5808.13(A). Notwithstanding that obligation, Jarvis did not

respond to the request for information that Karen had received from Bruce’s

attorney or to a subsequent request that the attorney sent directly to him.

{¶ 20} Paul, another of the Balcars’ sons, met with Evick in early August

and requested a copy of the irrevocable trust. Evick declined to give him a copy of

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the trust agreement but read to him the portions of the trust related to his distribution

and Frank’s watch. Paul left the meeting upset.

{¶ 21} Evick notified Karen about her meeting with Paul and emailed Karen

a copy of the letter that Bruce’s counsel had sent to Jarvis. Karen responded to that

email and demanded a date that the information would be sent to Bruce’s counsel.

She also expressed displeasure that Jarvis had not responded to the attorney’s first

letter, stating, “Had the original letters been sent two weeks after my mother’s death

as I was expecting most of this would have been avoided.” Jarvis responded with

an email informing Karen that the letter to Bruce’s counsel would go out when he

completed it and threatening to terminate the representation if Karen did not abide

by his rules.

{¶ 22} By the end of August 2011, Paul’s counsel had also written to Jarvis

to request complete copies of any trust instruments, all beneficiary reports or

updates, the name of the trustee, and the trustee’s compensation rate. In an October

5 email, Jarvis informed Karen that he had received a second letter from Paul’s

counsel and—for the first time—told her that she was required to provide a copy

of the irrevocable trust to the trust beneficiaries. Although Jarvis stated that he

would provide a copy of the trust to Paul’s counsel, he never responded to either

attorney’s inquiries.

{¶ 23} Jarvis’s October 5 email to Karen also stated that because Bruce and

Paul had engaged counsel, “it seems fairly likely that [they would] end up in

litigation.” For that reason, Jarvis asserted that he could no longer represent the

estates of Frank and Lenor and withdrew from the representation. That day, Karen

instructed Jarvis to send information regarding the irrevocable trust to her new

attorney. Despite having received that email and a follow-up email from Karen,

Jarvis did not forward the requested information.

{¶ 24} Later that month, Paul filed a complaint against Karen in the

Belmont County Probate Court alleging that she had failed to notify him of the trust

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or keep him apprised of trust assets as required by law. He further alleged that she

had used undue influence, coercion, or other means to persuade Frank and Lenor to

revise their estate plan. Bruce sought and was granted leave to intervene in the

proceeding. In July 2012, Karen’s counsel asked Jarvis turn over the original file

to him by July 16. On August 10—ten months after he had withdrawn from the

representation—Jarvis finally produced a copy of the case file. Although the Balcar

siblings entered into a settlement agreement in August 2013, the probate litigation

continued for another five years.

Malpractice Litigation

{¶ 25} In October 2012, Karen filed a legal-malpractice action against

Jarvis in the Franklin County Court of Common Pleas. Following a ten-day trial in

March 2019, a jury found Jarvis liable for legal malpractice and awarded Karen

compensatory damages and punitive damages. In response to the parties’ posttrial

motions, the court reduced the punitive damages to zero and awarded Karen

approximately 40 percent of her claimed attorney fees.

{¶ 26} The parties appealed the trial court’s judgment. In February 2021,

the court of appeals affirmed the trial court’s rulings in part, reversed them in part,

and remanded the case for further proceedings. See McGraw v. Jarvis, 2021-Ohio-

522, 168 N.E.3d 163 (10th Dist.). The parties have now settled, and that litigation

has been dismissed.

Findings of Misconduct

{¶ 27} The parties stipulated and the board found that Jarvis’s conduct

violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in

representing a client), 1.4(a)(2) (requiring a lawyer to reasonably consult with the

client about the means by which the client’s objectives are to be accomplished),

1.14(a) (requiring a lawyer, as far as reasonably possible, to maintain a normal

lawyer-client relationship with the client when the client’s capacity to make

adequately considered decisions in connection with a representation is diminished

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due to mental impairment), 1.16(d) (requiring a lawyer to promptly deliver client

papers and property as part of the termination of representation), 5.3 (requiring a

lawyer possessing managerial authority in a law firm to make reasonable efforts to

ensure that the conduct of nonattorneys working for the firm is compatible with the

professional obligations of the lawyer), and 8.4(c) (prohibiting a lawyer from

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

{¶ 28} We adopt these findings of misconduct.

Recommended 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.

{¶ 30} The parties stipulated and the board found that three aggravating

factors are present—Jarvis engaged in a pattern of misconduct, committed multiple

offenses, and caused harm to vulnerable victims. See Gov.Bar R. V(13)(B)(3), (4),

and (8).

{¶ 31} As for mitigating factors, the board found that Jarvis has no prior

discipline, made full and free disclosure to the board and exhibited a cooperative

attitude toward the disciplinary proceedings, and had other penalties or sanctions

imposed by virtue of the malpractice action and its anticipated damage award. See

Gov.Bar R. V(13)(C)(1), (4), and (6). The board noted that Jarvis had agreed to

refund the entire fee that Karen paid on behalf of the Balcars, even though he had

provided some legal services to them, but that he had not made that payment by the

time of his disciplinary hearing. Because no final order had issued regarding any

damages occasioned by Jarvis’s legal malpractice, the board declined to

recommend that Jarvis be required to make any restitution beyond the refund of the

Balcars’ legal fee. At his disciplinary hearing, Jarvis accepted full responsibility

for his misconduct. He freely acknowledged that he had “completely

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misunderstood” the rules governing the notarization of documents and stated that

he came to understand the correct procedures shortly after Karen filed the

malpractice action against him in October 2012. He explained that he now requires

the notary and witnesses to be present with the person signing documents. The

board found that Jarvis’s remorse was genuine and noted that the procedures he

instituted in response to the malpractice action filed against him have guarded

against further incidents of misconduct over the last decade.

{¶ 32} In considering the appropriate sanction for Jarvis’s misconduct, the

board was guided by the principle that the primary purpose of disciplinary sanctions

is to protect the public rather than punish the offender. See, e.g., Disciplinary

Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53.

{¶ 33} The parties suggested that a conditionally stayed two-year

suspension is the appropriate sanction for Jarvis’s misconduct, but the board

concluded that the parties had offered no credible precedent or other justification

for that sanction. After considering the sanctions we have imposed on other

attorneys who engaged in similar acts of misconduct—including the false

notarization of documents, the failure to properly supervise the conduct of

nonattorney employees, the neglect of client matters, and the failure to reasonably

communicate with clients—the board recommended that we suspend Jarvis for one

year and stay the entire suspension on the conditions that he commit no further

misconduct and make restitution of the Balcars’ entire $7,500 fee.

{¶ 34} This court has held that generally, attorney misconduct “involving

dishonesty, fraud, deceit, or misrepresentation warrants an actual suspension from

the practice of law.” Disciplinary Counsel v. Karris, 129 Ohio St.3d 499, 2011-

Ohio-4243, 954 N.E.2d 118, ¶ 16, citing Disciplinary Counsel v. Kraemer, 126

Ohio St.3d 163, 2010-Ohio-3300, 931 N.E.2d 571, ¶ 13, and Disciplinary Counsel

v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. However, we

have stated that an exception to this rule may be justified when “an abundance of

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mitigating evidence” is shown. Disciplinary Counsel v. Markijohn, 99 Ohio St.489,

2003-Ohio-4129, 794 N.E.2d 24, ¶ 8, citing Dayton Bar Assn. v. Kinney, 89 Ohio

St.3d 77, 728 N.E.2d 1052 (2000).

{¶ 35} We have previously imposed six-month conditionally stayed

suspensions on attorneys who, like Jarvis, have engaged in dishonest conduct by

falsely notarizing multiple documents. See Disciplinary Counsel v. Roberts, 117

Ohio St.3d 99, 2008-Ohio-505, 881 N.E.2d 1236, ¶ 19 (in light of the respondent’s

“contrition, heretofore unblemished record, and good, albeit misguided, intentions,

we do not require an actual suspension”); Disciplinary Counsel v. Clark, 154 Ohio

St.3d 349, 2018-Ohio-4491, 114 N.E.3d 201 (implicitly finding that mitigating

evidence consisting of the respondent’s resignation from his law firm, his self-

reporting of his misconduct to the relator, and his expression of sincere remorse

justified the imposition of a fully stayed suspension).

{¶ 36} Similarly, in Columbus Bar Assn. v. Christensen and Kluesener, 159

Ohio St.3d 374, 2020-Ohio-167, 151 N.E.3d 552, we imposed a one-year

conditionally stayed suspension on an attorney who issued six invalid subpoenas

seeking information about personal-injury matters before filing suit and directed a

nonattorney assistant to engage in the same type of misconduct. Like Jarvis,

Kluesener failed to take reasonable efforts to ensure that his nonattorney

employee’s actions were compatible with his professional obligations when he

instructed the employee to follow up on one of the invalid subpoenas. Kluesener

also failed to take reasonable remedial action after receiving a complaint regarding

the paralegal’s conduct, but he was not charged with dishonest conduct.

{¶ 37} In Lorain Cty. Bar Assn. v. Nelson, 144 Ohio St.3d 414, 2015-Ohio-

4337, 44 N.E.3d 268, we publicly reprimanded an attorney who neglected a client’s

legal matter, failed to reasonably communicate with the client, and failed to deliver

the client’s file at the termination of the representation. And in Disciplinary

Counsel v. Farris, 157 Ohio St.3d 527, 2019-Ohio-4810, 138 N.E.3d 1134, we

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imposed a one-year conditionally stayed suspension on an attorney who missed two

statutory deadlines in his client’s property-tax matters and lied to his clients for

more than a year to conceal his neglect—though he ultimately consented to a

$95,000 judgment in the malpractice case filed by one of his clients.

{¶ 38} Like Jarvis, Nelson and Farris had no prior discipline, accepted

responsibility for their misconduct, and received no benefit for their misdeeds. But

neither Nelson nor Farris engaged in a pattern of misconduct—let alone one

comparable to Jarvis’s pattern of fraudulently notarizing documents. Nor is there

any suggestion that either of those attorneys failed to reasonably communicate with

a client of diminished capacity.

{¶ 39} Jarvis, on the other hand, made no effort to establish or maintain a

normal client-lawyer relationship with a client whose capacity was known to be

diminished. Jarvis never met with Frank to assess his capacity or ascertain his

wishes for his end-of-life care and the disposition of his estate before preparing the

necessary documents. Instead, he drafted the documents pursuant to the

instructions of Frank’s family members. Jarvis directed his employee to obtain the

client’s signature on those documents outside of his presence and then fraudulently

notarized them under jurats falsely stating that Frank had personally appeared

before him and voluntarily signed the instrument. Jarvis further attested that Frank

appeared to be of sound mind when he signed two of those documents—even

though he was not present when those documents were signed and had no personal

knowledge of Frank’s mental status. Jarvis’s multiple failures opened the door to

allegations that Frank and Lenor had been unduly influenced or coerced to modify

their estate plan, which led to another six years of estate litigation and more than

ten years of malpractice litigation.

{¶ 40} Based upon the foregoing, we find that the totality of Jarvis’s

misconduct warrants the imposition of a sanction more stringent than the fully

stayed one-year suspension recommended by the board. Nevertheless, we conclude

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that the mitigating factors present in this case are sufficient to rebut the presumption

that Jarvis’s dishonesty requires an actual suspension from the practice of law. We

believe that an 18-month suspension, stayed in its entirety on the conditions

recommended by the board, is the appropriate sanction in this case.

Conclusion

{¶ 41} Accordingly, Timothy Paul Jarvis is suspended from the practice of

law in Ohio for 18 months with the suspension stayed in its entirety on the

conditions that he commit no further misconduct and make restitution of $7,500 to

Karen Balcar McGraw, as trustee of the Lenor W. Balcar Revocable Living Trust,

within 30 days of the date of our final order. If Jarvis fails to comply with any

condition of the stay, the stay will be lifted and he will serve the full 18-month

suspension. Costs are taxed to Jarvis.

Judgment accordingly.

O’CONNOR, C.J., and FISCHER, DONNELLY, and BRUNNER, JJ., concur.

DEWINE and STEWART, JJ., concur in judgment only.

KENNEDY, J., dissents, with an opinion.

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KENNEDY, J., dissenting.

{¶ 42} As the majority recognizes, generally, attorney misconduct

“involving dishonesty, fraud, deceit, or misrepresentation warrants an actual

suspension from the practice of law.” Disciplinary Counsel v. Karris, 129 Ohio

St.3d 499, 2011-Ohio-4243, 954 N.E.2d 118, ¶ 16, citing Disciplinary Counsel v.

Kraemer, 126 Ohio St.3d 163, 2010-Ohio-3300, 931 N.E.2d 571, ¶ 13, and

Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995),

syllabus. Respondent, Timothy Paul Jarvis, committed numerous acts of

dishonesty during his representation of Frank A. and Lenor W. Balcar. However,

the majority finds that the mitigating factors in favor of Jarvis warrant deviation

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from the general rule. Because I do not believe that the mitigating factors are

significant enough to warrant deviation from the general rule, I dissent.

{¶ 43} On three occasions, Jarvis’s office manager, Melissa Evick, obtained

signatures from Frank on numerous estate-planning documents. However, Jarvis

was not present at any of the times Frank signed the documents and had not assessed

Frank’s testamentary or contractual capacity. Jarvis falsely notarized seven

documents despite the jurats stating that Frank had personally appeared before him.

He backdated five of the documents. Jarvis also signed two documents, one of

which was Frank’s will, as a witness. And Jarvis attested on two of the documents

that Frank appeared to be of sound mind when he signed them, despite having never

assessed Frank’s testamentary or contractual capacity.

{¶ 44} Jarvis also directed Evick to sign Lenor’s will and durable power of

attorney as a witness after Lenor had already signed the documents outside of

Evick’s presence. He later notarized a fiduciary deed to transfer Lenor’s home

under a jurat falsely stating that Lenor had personally appeared before him to

acknowledge the signature.

{¶ 45} Prof.Cond.R. 8.4(c) prohibits a lawyer from engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation. Here, Jarvis violated this

rule by committing multiple acts of dishonesty during his representation of Frank

and Lenor.

{¶ 46} We have held that an attorney who engages in conduct involving

dishonesty, fraud, deceit, or misrepresentation generally will serve an actual

suspension from the practice of law. Karris, 129 Ohio St.3d 499, 2011-Ohio-4243,

954 N.E.2d 118, at ¶ 16, citing Kraemer, 126 Ohio St.3d 163, 2010-Ohio-3300, 931

N.E.2d 571, at ¶ 13, and Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237, at

syllabus. We have explained:

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A lawyer who engages in a material misrepresentation to a court or

a pattern of dishonesty with a client violates, at a minimum, the

lawyer’s oath of office that he or she will not “knowingly * * *

employ or countenance any * * * deception, falsehood, or fraud.”

Gov.Bar R. I(8)(A). Such conduct strikes at the very core of a

lawyer’s relationship with the court and with the client. Respect for

our profession is diminished with every deceitful act of a lawyer.

(Ellipsis sic.) Fowerbaugh at 190.

{¶ 47} In accordance with our caselaw, Jarvis’s dishonest conduct merits an

actual suspension. However, we have stated that an exception to this rule may be

justified when “an abundance of mitigating evidence” is shown. Disciplinary

Counsel v. Markijohn, 99 Ohio St.3d 489, 2003-Ohio-4129, 794 N.E.2d 24, ¶ 8,

citing Dayton Bar Assn. v. Kinney, 89 Ohio St.3d 77, 728 N.E.2d 1052 (2000).

{¶ 48} In mitigation, the majority finds that “Jarvis ha[d] no prior

discipline, made full and free disclosure to the board and exhibited a cooperative

attitude toward the disciplinary proceedings, and had other penalties or sanctions

imposed by virtue of the malpractice action and its anticipated damage award.”

Majority opinion, ¶ 31. The majority concludes that these mitigating factors “are

sufficient to rebut the presumption that Jarvis’s dishonest requires an actual

suspension from the practice of law.” Id. at ¶ 40. I disagree.

{¶ 49} While these mitigating factors are worthy of consideration, they are

not enough to overcome the numerous instances of dishonesty that Jarvis

committed during his representation of Frank and Lenor. Our caselaw supports this

conclusion.

{¶ 50} In Disciplinary Counsel v. Shaffer, 98 Ohio St.3d 342, 2003-Ohio-

1008, 785 N.E.2d 429, a client retained John S. Shaffer to handle the sale of the

client’s grandmother’s real estate. The grandmother had been incapacitated by a

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stroke for over a year. Shaffer instructed his client to forge his grandmother’s name

on a backdated power of attorney. Shaffer then “fraudulently authenticate[d] the

signature by signing as a witness, notarizing it, and backdating the jurat.” Id. at

¶ 6. Shaffer also instructed his secretary to witness the forged signature. Finally,

Shaffer assisted with the closing on the property, including representing that the

title was marketable.

{¶ 51} The court found it mitigating that Shaffer had no prior disciplinary

record, did not profit from his actions, accepted responsibility for his misconduct,

had a cooperative attitude toward the disciplinary process, and made efforts to

rectify the consequences of the misconduct.

{¶ 52} The court concluded that these mitigating factors were not sufficient

to justify a fully stayed suspension. It reasoned:

Respondent’s misconduct manifests a course of conduct

because he planned and administered a multistep process to defraud.

Respondent may have genuinely hoped to serve his client by helping

him avoid the expense of establishing a guardianship; however, he

nevertheless perpetrated fraud on the court system and public by

sidestepping safeguards in place to protect sellers and buyers of real

estate.

Id. at ¶ 13. Therefore, in accordance with the general rule calling for an actual

suspension, the court suspended Shaffer from the practice of law for one year with

six months stayed on conditions.

{¶ 53} In Karris, 129 Ohio St.3d 499, 2011-Ohio-4243, 954 N.E.2d 118,

Tom John Karris improperly notarized a woman’s signature on four financial and

real-estate documents when the woman’s husband had actually signed the woman’s

name.

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{¶ 54} In determining the appropriate sanction, the court found as

aggravating factors that Karris had engaged in a pattern of misconduct involving

multiple offenses, failed to make complete restitution, and refused to acknowledge

the wrongful nature of his conduct. The court found as mitigating factors that

Karris did not have a prior disciplinary record and had submitted evidence of his

good character.

{¶ 55} On that record, the court “decline[d] to depart from the general rule

that offenses involving dishonesty, fraud, deceit, or misrepresentation require an

actual suspension from the practice of law.” Id. at ¶ 19. Karris was suspended from

the practice of law for six months, with none of the time stayed.

{¶ 56} Also instructive are cases in which the court disciplined attorneys

for dishonest and deceitful conduct in their relationships with their clients. In

Disciplinary Counsel v. Keller, 110 Ohio St.3d 240, 2006-Ohio-4354, 852 N.E.2d

1195, ¶ 3, Larry Wendall Keller was retained to pursue a personal-injury claim.

Keller falsely informed the client that a complaint had been filed and that he was

negotiating with the tortfeasor’s insurance carrier. During the representation, he

also falsely informed the client that he had received an offer to settle from the

tortfeasor’s insurer.

{¶ 57} The client eventually retained new counsel, who discovered that no

lawsuit had been filed and that the two-year statute of limitations had run. The

client sued Keller for malpractice and obtained a default judgment against him in

the amount of $102,800, which Keller had not satisfied by the time that the decision

issued.

{¶ 58} The court found in mitigation that Keller had no prior disciplinary

record and that there was evidence of good character, chemical dependency,

genuine remorse, and personal hardships, including the murder of the respondent’s

adopted daughter, the subsequent trial of her killer, and a difficult divorce, at the

time of the misconduct.

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{¶ 59} The court acknowledged Keller’s mitigating evidence but found that

his “attempts to conceal his neglect and his failure to remedy the harm that was

caused warrant an actual suspension.” Id. at ¶ 13. Keller was suspended from the

practice of law for 2 years with 18 months stayed on conditions.

{¶ 60} In Disciplinary Counsel v. Rooney, 110 Ohio St.3d 349, 2006-Ohio-

4576, 853 N.E.2d 663, John James Rooney misled a client about the status of a

probate matter for two years. When the client learned of Rooney’s deception, the

client terminated the representation. Rooney promptly sent the client’s file to the

new attorney but did not refund the client’s retainer until a year later.

{¶ 61} The court found the following mitigating factors: no prior

disciplinary record, the absence of a dishonest or selfish motive, a timely and good-

faith effort to rectify the consequences of the misconduct, full and free disclosure

to the board and a cooperative attitude toward the disciplinary process, and

evidence of good character. In rejecting a stayed suspension, however, the court

stated that the mitigating factors “do not warrant a departure from the ordinary rule

that an actual suspension should be imposed for dishonest conduct, particularly

when that conduct is designed to ‘mislead a court or client.’ ” Id. at ¶ 13, quoting

Akron Bar Assn. v. Holder, 102 Ohio St.3d 307, 2004-Ohio-2835, 810 N.E.2d 426,

¶ 43. The court imposed a six-month actual suspension.

{¶ 62} In Columbus Bar Assn. v. Roseman, 147 Ohio St.3d 317, 2016-Ohio-

5085, 65 N.E.3d 713, Darwin Richard Roseman neglected a client’s personal-injury

case, which resulted in the client being barred from litigating his claim in court.

During the representation, Roseman was untruthful and deceitful in his

communications with his client regarding why the client’s case, which Roseman

had dismissed without informing his client that he had done so, had not been refiled.

The client later sued Roseman for malpractice and obtained a judgment for

$135,000.

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{¶ 63} The court found as mitigating factors that Roseman had no prior

discipline and had cooperated in the disciplinary proceedings. The court concluded

that a one-year suspension from the practice of law, with six months stayed on

conditions, was appropriate for Roseman’s dishonest behavior toward his client.

{¶ 64} The foregoing cases reveal that Jarvis’s mitigating evidence, while

favorable, does not overcome his repeated acts of dishonest conduct. Here, we are

not faced with a single act of misconduct by improperly notarizing one or two

documents. Rather, like in Karris, 129 Ohio St.3d 499, 2011-Ohio-4243, 954

N.E.2d 118, and Shaffer, 98 Ohio St.3d 342, 2003-Ohio-1008, 785 N.E.2d 429,

Jarvis committed multiple acts of misconduct, including three separate occasions

involving eight documents. And while Jarvis did not counsel his client to forge a

signature, as Shaffer did, it is equally troubling that Jarvis falsely notarized and

witnessed Frank’s signature when he did not see Frank sign the documents and

failed to ensure that Frank had the testamentary or contractual capacity to sign

them. Jarvis’s actions “perpetrated fraud on the * * * public by sidestepping

safeguards in place to protect” the estate-planning process. Shaffer at ¶ 13.

{¶ 65} I recognize the favorable mitigating factors that are present here, but

I cannot conclude that they are significant enough to warrant an exception to our

general rule that dishonest conduct on the part of an attorney warrants an actual

suspension from the practice of law. See Karris at ¶ 16. Therefore, I would suspend

Jarvis from the practice of law for 18 months with one year stayed on the conditions

that he commit no further misconduct and that he make restitution of $7,500 to

Karen Balcar McGraw, as trustee of the Lenor W. Balcar Revocable Living Trust,

within 30 days of the date of this court’s order.

{¶ 66} Because the majority does not impose an actual suspension, I

dissent.

_________________

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SUPREME COURT OF OHIO

Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond and

Adam P. Bessler, Assistant Disciplinary Counsel, for relator.

Charles J. Kettlewell, L.L.C., and Charles J. Kettlewell, for respondent.

_________________

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