Disciplinary Counsel v. Stobbs

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

Disciplinary Counsel v. Stobbs, Slip Opinion No. 2023-Ohio-1719.]

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. 2023-OHIO-1719

DISCIPLINARY COUNSEL v. STOBBS.

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

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

2023-Ohio-1719.]

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

Suspension for 18 months with 12 months conditionally stayed.

(No. 2022-1511—Submitted February 7, 2023—Decided May 25, 2023.)

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

Court, No. 2022-012.

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Per Curiam.

{¶ 1} Respondent, Brent Clark Stobbs, of Reynoldsburg, Ohio, Attorney

Registration No. 0041262, was admitted to the practice of law in Ohio in 1989.

{¶ 2} In a two-count complaint, relator, disciplinary counsel, alleged that

Stobbs committed eight ethical violations arising from his representation of clients

in two related civil cases and a separate criminal case. The first count alleged that

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Stobbs engaged in an impermissible conflict of interest by representing both parties

to a civil action and made false statements to a tribunal and that his conduct was

dishonest and prejudicial to the administration of justice. Among other things, the

second count alleged that Stobbs intentionally and habitually made frivolous

motions and engaged in other conduct that was undignified, discourteous, and

degrading to the tribunal.

{¶ 3} A three-member panel of the Board of Professional Conduct heard

testimony from six witnesses, including Stobbs. After that hearing, the panel issued

a report finding that Stobbs committed seven of the alleged rule violations,

unanimously dismissing the eighth charge, and recommending that he be suspended

from the practice of law for 18 months with 12 months conditionally stayed. The

board adopted the panel’s findings of fact, conclusions of law, and recommended

sanction. No timely objections have been filed. However, on March 31, 2023,

Stobbs filed a motion to strike this court’s December 14, 2022 show-cause order

essentially raising untimely objections to the board’s report and recommendation.

That motion is hereby denied.

{¶ 4} After reviewing the record and our precedent, we adopt the board’s

findings of misconduct and the recommended sanction.

MISCONDUCT

Count One: The Lost Hollow Campground litigation

The Hocking County case

{¶ 5} Judy Davis owned a lot in the Lost Hollow Campground in Hocking

County. In December 2018, Stobbs filed a complaint for a declaratory judgment

on Davis’s behalf in the Hocking County Court of Common Pleas against the Lost

Hollow Property Owners Association, Inc., its board of directors, and two

individuals. Davis sought a judicial determination that R.C. Chapter 5312

(governing planned communities) does not apply to lots, tracts, or parcels of

property that are part of the campground. On February 15, 2019, the court granted

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the defendants’ motion to dismiss the case without prejudice for failure to join all

Lost Hollow property owners as necessary parties.

{¶ 6} In April 2019, Stobbs filed a motion to vacate the dismissal entry,

arguing that all 386 Lost Hollow property owners were parties to the action Davis

filed because the property-owners association had been named as a defendant. The

court overruled that motion in May 2019. In June 2019, Stobbs filed a Civ.R. 50(B)

motion for judgment notwithstanding the verdict or, in the alternative, a new trial,

in which he reiterated the claims set forth in his earlier motion to vacate the

dismissal entry. Later in June, the defendants’ counsel filed a motion for sanctions

for frivolous conduct pursuant to Civ.R. 11, alleging that Stobbs’s motions had

“regurgitated the exact same arguments” raised in his opposition to the defendants’

motion to dismiss and offered no legal support for those arguments.

{¶ 7} In August 2019, Stobbs filed a motion to remove the defendants’

counsel and to strike ab initio all of the defendants’ pleadings, including their

motion for sanctions. Stobbs later objected to the defendants’ response to that

motion. In November 2019, Stobbs filed a motion for summary judgment, once

again requesting that the court vacate its dismissal entry.

{¶ 8} In February 2020, the court overruled all of Stobbs’s pending

motions.

{¶ 9} In June 2020, the court found that with the exception of his motion to

vacate, Stobbs’s postdismissal filings were filed in bad faith and had no basis in

law or fact. The court ordered Stobbs to pay $5,812.50 in attorney fees that the

defendants had incurred to defend against those frivolous filings. Stobbs did not

appeal that judgment, and relator has asserted that the sanction remained unpaid at

the time of Stobbs’s disciplinary hearing.

The Franklin County case

{¶ 10} In summer 2020, Stobbs met with Davis and her friend Laura

Wurzburger, who also owned property at Lost Hollow, to discuss litigating the

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applicability of R.C. Chapter 5312 to their campground lots. They planned to have

Wurzburger file a complaint against Davis in Franklin County seeking the same

declaratory relief that Davis had sought in the Hocking County case. They also

agreed that Davis would be the sole defendant and that they would agree to resolve

the case. To that end, Davis conceded every allegation of the complaint.

{¶ 11} According to Davis’s testimony at the disciplinary hearing, Stobbs

informed her and Wurzburger that he had a conflict of interest and could not

represent both of them. Stobbs and Davis testified that he represented only Davis

and that Wurzburger proceeded pro se. Nevertheless, Stobbs acknowledged that he

drafted Wurzburger’s complaint and gave it to her for her review and approval. In

September 2020, that complaint was filed in the Franklin County Municipal Court,

bearing Stobbs’s signature as the plaintiff’s attorney. Accompanying that

complaint were a civil-case filing form signed by Stobbs as the filing party and a

military-service affidavit in which Stobbs averred that he was the plaintiff’s

attorney and that the defendant (Davis) was not in the military.

{¶ 12} At his disciplinary hearing, Stobbs offered conflicting testimony

about his signature on Wurzburger’s complaint. He attempted to blame

Wurzburger for filing a “rough draft” without correcting the signature block that

bore his signature. After acknowledging that the signature on the complaint was

his and that he had put it there “in another complaint,” he claimed that he had not

signed the complaint and that Wurzburger had signed his name, before stating, “I

didn’t realize my signature was on there.” Stobbs also testified, “Now, as far as

who took it to the courthouse, I happened to take it to the courthouse,” though he

later backtracked by stating that he “probably” had done so.

{¶ 13} The board found that the complaint bearing Stobbs’s signature

misrepresented material facts about the litigation. The complaint alleged that

Wurzburger and Davis were contemplating a contract concerning nonresidential

campground lots and that the court’s clarification regarding the applicability of R.C.

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Chapter 5312 to campground lots would “lead to resolution of the conflict between

the two parties, * * * without affecting others, such that all required affected

persons are before the Court.” The board determined that that statement was false

in that it directly contradicted several representations that Stobbs had made in the

Hocking County case. For example, in his motion to vacate the dismissal of the

Hocking County case, Stobbs had asserted that all defendants in that action—which

he claimed included all 386 Lost Hollow property owners—would be affected by a

declaratory judgment regarding the applicability of R.C. Chapter 5312 to

campground lots. And in his Civ.R. 50(B) motion, Stobbs stated, “Defendants’

ridiculous proposition (that only one of 386 Association members will be affected

by a declaratory judgment) is fundamentally dishonest, and its assertion that the

other 385 members will not be affected by res judicata is both dishonest and

contrary to law.” (Emphasis sic.)

{¶ 14} As the board noted, Stobbs not only had failed to name all affected

parties in the Franklin County case but also had substituted his “true client”—

Davis—for them. He then drafted Davis’s answer and filed it, though it falsely

represented that Davis represented herself pro se, when in fact Stobbs represented

her at all times in that case.

{¶ 15} At Stobbs’s disciplinary hearing, Franklin County Municipal Court

Judge Jodi Thomas testified that sometime after Davis’s answer to the complaint

was filed, Stobbs approached her while she was serving as the court’s duty judge.

He presented her with an unfiled joint motion for a declaratory judgment and a

proposed entry. Judge Thomas questioned Stobbs about whom he represented in

the case and found his answers to be evasive. After reviewing the documents and

case file, Judge Thomas declined to sign the entry and dismissed the case for lack

of subject-matter jurisdiction. Despite that dismissal, Stobbs later presented the

same motion and proposed entry to another judge in the duty-judge room who

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approved the entry; upon learning that the case had previously been dismissed, the

judge vacated that entry.

{¶ 16} The board found that Stobbs’s conduct in the Lost Hollow

Campground litigation violated Prof.Cond.R. 1.7(c)(2) (prohibiting a lawyer from

accepting or continuing a representation that would involve the assertion of a claim

by one client against another client represented by the lawyer in the same

proceeding), 3.3(a)(1) (prohibiting a lawyer from knowingly making a false

statement of fact or law to a tribunal), 8.4(c) (prohibiting a lawyer from engaging

in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d)

(prohibiting a lawyer from engaging in conduct that is prejudicial to the

administration of justice). We adopt those findings of misconduct.

Count Two: The Dugger case

{¶ 17} In 2019, Eliot Dugger was indicted in Franklin County on charges

of receiving stolen property, having weapons while under disability with a gun

specification, and aggravated possession of drugs. Stobbs entered a notice of

appearance as Dugger’s attorney on August 30, 2021. At that time, the court had

already denied a motion to suppress evidence filed by Dugger’s prior counsel.

{¶ 18} On October 15, 2021, just four days before the scheduled trial,

Stobbs filed a motion to dismiss the weapons charge and the related gun

specification for “insufficient evidence of elements of the charge and inability to

prove guilt beyond a reasonable doubt.” Instead of proceeding with the trial, Judge

Christopher Brown conducted a hearing on Stobbs’s motion to dismiss. Judge

Brown found that the motion was inappropriate because it essentially asked the

court to dismiss the case based on the evidence Stobbs believed that the state would

present at trial.1 After a lengthy discussion, Judge Brown denied the motion and

rescheduled the trial for December 6, 2021.

1. In this disciplinary case, relator contended that Stobbs’s motion to dismiss was essentially a

premature motion for a directed verdict or acquittal pursuant to Crim.R. 29(A), which allows a court

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{¶ 19} Stobbs filed a discovery motion on November 16. On December 3,

he filed three additional motions: (1) a motion to continue the trial, alleging that

discovery was incomplete, (2) a motion to vacate the court’s October 19 entry

denying his motion to dismiss, and (3) an amended pretrial motion to dismiss

Dugger’s weapons charge.

{¶ 20} In his motion to vacate, Stobbs referred to the case Ex Parte

Bushnell, but he did not provide any citation to the case. Ex Parte Bushnell, 8 Ohio

St. 599 (1858), is a 165-year-old case involving a habeas corpus petition that has

no relevance to Dugger’s pretrial motion to dismiss the criminal charges against

him or his motion to vacate the court’s denial of that motion. In his motion to

vacate, Stobbs claimed that “a new burden of proof shifted to [the prosecution]

upon Defendant’s challenge to the elements of the [weapons] charge,’ ” but he

offered no legal authority to support that argument.

{¶ 21} On December 6, the day of trial, Stobbs filed a second amended

motion to dismiss the weapons charge, arguing that the weapon had been seized in

violation of Dugger’s rights under the Fourth Amendment to the United States

Constitution, but he cited no legal authority to support that argument. Instead,

Stobbs presented his own version of the facts in an attempt to challenge the court’s

denial of Dugger’s earlier motions to suppress evidence and to dismiss the weapons

charge. During the hearing on his pretrial motions, Stobbs repeatedly interrupted

Judge Brown and at one point told him, “You don’t understand the argument.” The

judge announced his intention to proceed to trial, denying the motions on their

merits and/or as untimely. Stobbs then met with the assistant prosecuting attorney

assigned to Dugger’s case and negotiated a plea agreement, which was finalized

later that day.

to acquit a defendant “if the evidence is insufficient to sustain a conviction” but only after the close

of all the evidence.

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{¶ 22} During the December 6 hearing—and later in his testimony at the

disciplinary hearing—Judge Brown expressed his belief that Stobbs’s motion to

continue the trial had been filed for a dilatory purpose. Judge Brown also testified

that Stobbs’s tone, his demeanor, the way that he kept interrupting him while he

was making rulings, and his refusal to move on at the December 6 hearing were

disrespectful to the court.

{¶ 23} The board found that Stobbs’s conduct in Dugger’s case violated

Prof.Cond.R. 3.1 (prohibiting a lawyer from asserting an issue in a proceeding

unless there is a basis in law and fact for doing so that is not frivolous), 3.4(d)

(prohibiting a lawyer from intentionally or habitually making a frivolous pretrial

motion), and 3.5(a)(6) (prohibiting a lawyer from engaging in undignified or

discourteous conduct that is degrading to a tribunal). We adopt these findings of

misconduct.

RECOMMENDED SANCTION

{¶ 24} 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.

{¶ 25} Four aggravating factors are present in this case—Stobbs engaged in

a pattern of misconduct, failed to cooperate in the disciplinary process, refused to

acknowledge the wrongful nature of his conduct, and failed to timely pay the

monetary sanctions imposed on him in the Hocking County case. See Gov.Bar R.

V(13)(B)(3), (5), (7), and (9). The board also noted that Stobbs had failed to

comply with an order to disclose his witnesses, failed to attend a scheduled pretrial

conference, failed to respond to relator’s proposed stipulations, and waited until

one day before the disciplinary hearing to file a motion for a continuance based on

complications of COVID-19. Furthermore, he made inappropriate comments to

two of relator’s witnesses as they left the stand during his disciplinary hearing,

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telling Judge Brown, “And someday you owe me an apology” and calling another

witness a “liar.” The only mitigating factor is Stobbs’s clean disciplinary record.

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

{¶ 26} In determining the appropriate sanction for Stobbs’s misconduct, the

board noted that in Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 190,

658 N.E.2d 237 (1995), we expressed concern regarding the growing number of

cases in which members of the bar had deceived a court or their clients. In that

case, we recognized that conduct involving material misrepresentation to a court or

a pattern of dishonesty with a client “strikes at the very core of a lawyer’s

relationship with the court and with the client” and that “[r]espect for our profession

is diminished with every deceitful act of a lawyer.” Id. Upon finding that the

sanctions we had previously imposed for such misconduct had not had the desired

deterrent effect, we announced, “When an attorney engages in a course of conduct

resulting in a finding that the attorney has violated [former] DR 1-102(A)(4) [now

Prof.Cond.R. 8.4(c)], the attorney will be actually suspended from the practice of

law for an appropriate period of time.” Fowerbaugh at 190.

{¶ 27} With that precept in mind, the board considered three cases in which

we imposed term suspensions (two of which were partially stayed on conditions)

on attorneys who had engaged in conduct prejudicial to the administration of justice

by making false statements of fact or law to a court or engaging in discourteous or

disruptive conduct that was degrading to a tribunal.

{¶ 28} In Erie-Huron Cty. Bar Assn. v. Bailey and Bailey, 161 Ohio St.3d

146, 2020-Ohio-3701, 161 N.E.3d 590, Kenneth Ronald Bailey refused to

participate in his client’s criminal trial after the court denied several motions

seeking appointment of a defense expert and continuance of the trial, and his client

was convicted of all charges. Bailey was found to be in direct contempt of court

and was sentenced to the statutory maximum sentence of 30 days in jail for his

conduct. Over Bailey’s objections, we found that his conduct violated

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Prof.Cond.R. 3.5(a)(5) (requiring a lawyer to refrain from conduct intended to

disrupt a tribunal), 3.5(a)(6), and 8.4(d). Id. at ¶ 20, 31. Although Bailey’s trial

conduct was more egregious than that of Stobbs, he did not make false statements

to the court as Stobbs did. See id. at ¶ 43.

{¶ 29} Like Stobbs, Bailey committed multiple offenses and refused to

acknowledge the wrongful nature of his misconduct. See id. at ¶ 33. Although

Bailey’s refusal to participate in the trial caused significant harm to his client, he

had no prior disciplinary record, did not act with a selfish or dishonest motive,

submitted multiple letters attesting to his good character and reputation, and had

other sanctions imposed for his misconduct. Id. at ¶ 33, 42. Citing the highly

unusual circumstances of the case and Bailey’s completion of his 30-day jail

sentence, we rejected the board’s recommendation that Bailey be suspended from

the practice of law for two years with one year conditionally stayed. Instead, we

adopted the panel’s recommended sanction of a one-year suspension with six

months stayed on the condition that Bailey engage in no further misconduct. Id. at

¶ 45-46.

{¶ 30} In Disciplinary Counsel v. Phillabaum, 144 Ohio St.3d 417, 2015-

Ohio-4346, 44 N.E.3d 271, an assistant prosecutor insisted that a legal assistant add

to an indictment gun specifications that had not been presented to a grand jury, then

signed the indictment knowing that it contained a false statement. After

Phillabaum’s misconduct came to light, the prosecutor’s office presented the case

to the grand jury a second time and obtained a superseding indictment that included

a gun specification. Phillabaum pleaded guilty to a single count of dereliction of

duty, a second-degree misdemeanor. In addition to finding that Phillabaum’s

conduct violated Prof.Cond.R. 3.3(a)(1), 8.4(c), and 8.4(d), all of which are at issue

in this case, we also found that it violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer

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

law). See id. at ¶ 7. In the presence of four mitigating factors and no aggravating

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factors, we suspended Phillabaum from the practice of law for one year with no

stay. Although Stobbs made false statements of fact in several court filings and in

his interactions with two judges, none of those misrepresentations rose to the level

of Phillabaum’s misrepresentation of fact in a criminal indictment. But Stobbs also

committed additional acts of misconduct by representing both parties in a civil

action, intentionally and habitually making frivolous motions, and repeatedly

interrupting and arguing with a judge.

{¶ 31} And in Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229, 2005-

Ohio-4630, 833 N.E.2d 1235, an attorney engaged in repeated acts of defiance

during several criminal proceedings. During a murder trial, LoDico made

inappropriate, loud, and rude statements that wrongly impugned the integrity of a

prospective juror during voir dire, he spoke loudly during sidebars in an apparent

effort to ensure that the jury heard his statements, he made dramatic and

inappropriate facial expressions in front of the jury as witnesses testified, and he

repeatedly ignored the court’s admonishments about his behavior. LoDico also

repeatedly ignored the court’s rulings, argued with the judge, and made

inappropriate and disrespectful comments during trial and at sidebars.

{¶ 32} We found that LoDico’s conduct violated rules prohibiting conduct

that is prejudicial to the administration of justice, undignified or discourteous

conduct that degrades a tribunal, and conduct that adversely reflects on a lawyer’s

fitness to practice law. Id. at ¶ 15. We also found that his conduct violated a rule

prohibiting the intentional or habitual violation of an established rule of procedure

or evidence. Id. at ¶ 16 and 23. However, LoDico’s misconduct appeared to be

“part of a much grander pattern” in that he admitted that he had paid “thousands of

dollars” in contempt fines. Id. at ¶ 27. As additional aggravating factors, we found

that he had made false statements about his past and failed to acknowledge any

wrongdoing. Id. at ¶ 18, 27. In mitigation, LoDico, lacked a dishonest or selfish

motive, and presented evidence of his good reputation. Id. at ¶ 18, 29.

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{¶ 33} In contrast with the facts of this case, the evidence suggested that

LoDico suffered from one or more mental-health disorders that may have

contributed to his misconduct—though we did not attribute any mitigating effect to

them. See id. at ¶ 14, 29. Finding that LoDico’s misconduct warranted a substantial

sanction, we suspended him from the practice of law for 18 months with six months

stayed on conditions designed to ensure that he would be capable of resuming the

competent, ethical, and professional practice of law. Id. at ¶ 33-37.

{¶ 34} After reviewing the record and the precedent cited by the board, we

conclude that Stobbs’s pattern of dishonest conduct—which extended to his

testimony in this disciplinary proceeding—warrants an actual suspension from the

practice of law and that the scope of his additional misconduct warrants a

substantial, albeit stayed, suspension. We adopt the board’s recommendation that

he be suspended from the practice of law for 18 months with 12 months

conditionally stayed.

CONCLUSION

{¶ 35} Accordingly, we deny the motion to strike our December 14, 2022

show-cause order and we hereby suspend Brent Clark Stobbs from the practice of

law in Ohio for 18 months, with 12 months stayed on the conditions that he submit

proof to relator within 90 days that he has paid the $5,812.50 in monetary sanctions

ordered in Davis v. Lost Hollow Property Owners Assoc., Inc., Hocking C.P. No.

18-CV0227, and commit no further misconduct. If Stobbs fails to comply with a

condition of the stay, the stay will be revoked and he will be required to serve the

full 18-month suspension. Costs are taxed to Stobbs.

Judgment accordingly.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,

and DETERS, JJ., concur.

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Joseph M. Caligiuri, Disciplinary Counsel, and Matthew A. Kanai and

Donald M. Scheetz, Assistant Disciplinary Counsel, for relator.

Brent C. Stobbs, pro se.

_________________

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