Petition — Lowe v. Ohio State Bar Ass'n

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Office - Supreme Court, Uy

FILED -

NOV 24 1981)

ALEXANDER LL STEVAS

CLERK

—

No. -§5—~976

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

HARRY DONOVAN LOWE, Petitioner,

OHIO STATE BAR ASSOCIATION, Respondent.

On Writ of Certiorari to the Supreme Court of Ohio

PETITION FOR WRIT OF CERTIORARI

Counsel of Record for Petitioner:

Stanley E. Preiser

Preiser & Wilson, Legal Corporation

Post Office Box 2506

Charleston, West Virginia 25329

304-344-9651

QUESTIONS PRESENTED

The Ohio State Bar Association initiated attorney

disciplinary proceedings against the petitioner in the state

of Ohio. The petitioner was subsequently publicly

reprimanded and indefinitely suspended from the prac-

tice of law by the Supreme Court of Ohio. The questions

thereby arising are:

1. Whether the Complaint filed against the peti-

tioner by the Ohio State Bar Association failed to give

the petitioner fair notice of the charges by not informing

him of the precise nature of the charges against him as re-

quired by the Due Process Clause of the Fifth and Four-

teenth Amendments.

2. Whether the decision to publicly reprimand

and indefinitely suspend the petitioner from the practice

of law was arbitrary in that there was insufficient

evidence to rationally support the decision, all in viola-

tion of the substantive due process requirements of the

Fifth and Fourteenth Amendments.

3. Whether the petitioner was given a full, fair,

and meaningful hearing on the merits and was given an

adequate written statement of the reasons for the deci-

sion and the evidence relied on in making the decision as

required by the Due Process Clause of the Fifth and

Fourteenth Amendments.

4. Whether the particular Disciplinary Rules the

petitioner was found to have violated are so vague as to

not provide fair warning of what conduct is prohibited

and so vague as to be susceptible to arbitrary and subjec-

tive application, all in violation of the due process re-

quirements of the Fifth and Fourteenth Amendments.

5. Whether the punishment accorded the peti-

tioner was grossly disproportionate to the offense he was

found to have committed, in contravention of the Eighth

Amendment ban on cruel and unusual punishment.

TABLE OF CONTENTS

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Constitutional Provisions Involved................. 2

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Reasons for Granting the Writ..................... 7

1. The Complaint failed to give fair

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2. The decision was arbitrary and not

supported by the evidence. ................. 8

3. The petitioner was denied a full and

meaningful hearing on the merits.......... 10

4. The petitioner was found to have violated

disciplinary rules that are void for

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5. The petitioner’s punishment was grossly

disproportionate to the offense............ 14

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Sia te ibieckcenes cetedéetsenseeeacesaee 16

Di si teh iced acapeeanevabentves¥ ens 17

2. Petitioner’s Reply Brief Before the Board

of Commissioners on Grievances and

as doi nmi tel iia teense’ 32

3. Findings of Fact and Recommendation

of the Board of Commissioners on

Grievances and Discipline................. 35

4. Petitioner’s Objections to the Findings

of Fact and Recommendation............. 53

5. Petitioner’s Brief in Support of his

Objections to the Findings of Fact and

Ns 6 nant ibd cdntneise be6se 56

6. Petitioner’s Reply Brief to Respondent’s

Brief in Opposition to Petitioner’s

EN ee ee 59

8. Opinion of the Supreme Court of Ohio. ....

9. Petitioner's Motion for Rehearing.........

10. Order of the

Supreme Court of Ohio

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Certificate of Service

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TABLE OF AUTHORITIES

Armstrong v. Manzo,

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Committee on Professional Ethics and Grievances

of the Virgin Islands Bar Association v.

Johnson,

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Estelle v. Gamble,

SE ccudludcceevedesdesesscedeeseess

Goldberg v. Kelly,

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Grayned v. City of Rockford,

Ph ¢Gicueesesehoeeedéeeuseeesceees

Hirschkop v. Snead,

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Hutto v. Finney,

Pn .. ccacecccceeetbsbobéiededseus

In Re Noell,

i Mi. sc iccleeeehetecesvoeseses

In Re Oliver,

CA ee ere

In the Matter of John Ruffalo, Jr.,

le eT ee mettecostinn’

Konigsberg v. State Bar of California,

PE EE cbc chevesesecceretuctacaséedsoos

Schware v. Board of Bar Examiners of the State

of New Mexico,

IL os veces cvvecbekedcuuenieeenenen

Wolff v. McDonnell,

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IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1981

HARRY DONOVAN LOWE,

Petitioner,

OHIO STATE BAR ASSOCIATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States.

Harry Donovan Lowe, the petitioner herein, prays that a

writ of certiorari issue to review the judgment of the

Supreme Court of Ohio entered in this case on July 22,

1981.

OPINION BELOW

The opinion of the decision rendered in the Supreme

Court of Ohio to which this Petition for Writ of Cer-

tiorari is sought is reported as Ohio State Bar Associa-

tion v. Lowe, 67 Ohio St. 2d 335, 423 N.E.2d 867 (1981),

and appears in the Appendix at p. 67.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1257(3) (1970). The judgment sought to be

reviewed by writ of certiorari was rendered by the

Supreme Court of Ohio, the highest Court of the State of

Ohio, on July 22, 1981, and was entered on July 22,

1981. An order denying a request for a rehearing was

entered by the Supreme Court of Ohio on August 26,

1981.

CONSTITUTIONAL PROVISIONS INVOLVED

The petitioner is claiming rights under, and this peti-

tion involves, the Fifth, Eighth, and Fourteenth Amend-

ments to the Constitution of the United States as set out

below:

Amendment V

No Person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the *itia, when in actual service

in time of War or public danyer; nor shall any person be

subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty or property, without due process of law, nor

shall private property be taken for public use, without

just compensation. UNITED STATES CONSTITU-

TION Amend. V.

Amendment VIII

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishment inflicted.

UNITED STATES CONSTITUTION Amend. VIII.

Amendment XIV, Section 1

All persons born or naturalized in the United States and

subject, to the jurisdiction thereof, are citizens of the

United States and of the State where they reside. No

State shall invoke or enforce any law which shall abridge

the privileges or immunites of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny any person within its jurisdiction the equal protec-

tion of the laws. UNITED STATES CONTITUTION

Amend. XIV, §I.

STATEMENT OF THE CASE

This petition for writ of certiorari arises out of at-

torney disciplinary proceedings in the State of Ohio. The

petitioner, Harry Donovan Lowe, was a licensed and

praticing attorney in Ohio. On October 19, 1978, the

Ohio State Bar Association filed a complaint against the

petitioner setting forth twelve counts of alleged viola-

tions of the Code of Professional Responsibility. (p. 17)!

A timely answer was filed ty the petitioner which con-

sisted primarily of a general denial of the allegations.

Petitioner has contended throughout the pro-

ceedings that the complaint filed against him did not set

out with sufficient specificity the charges against him and

the particular conduct constituting those charges. As a

result, the petitioner did not have adequate notice of the

charges against him and was thus not able to properly de-

fend himself against the charges. The petitioner relies

upon this denial of due process as one of his grounds for

seeking this writ of certiorari. A more detailed explana-

tion of the manner in which the petitioner raised this

question in the proceedings will be provided in proper

chronological sequence within this Statement of the

Case, with appropriate references.

On June 29, 1979, a pre-trial hearing was held

before a three member panel of the Soard of Commis-

sioners on Grievances and Discipline of the Supreme

Court of Ohio. Later a stipulation of documents and

1 References are to pages of this petition.

facts was entered into by the parties and made a part of

the record.

A private hearing on the charges before the Board of

Commissioners on Grievances and Discipline was com-

menced on April 14, 1980. Both parties were allowed to

call witnesses and present evidence in support of their

case. After four days of testimony the hearing was

recessed until June 16, 1980, at which time two addi-

tional days of testimony were taken. The testimony over

this period of time consisted of seven volumes of @

transcript with numerous exhibits offered by both par-

ties. At the conclusion of the taking of testimony, the

Board dismissed Counts I and III of the Complaint. In

lieu of oral argument both parties filed initial briefs and

the petitioner filed a reply brief to the respondent’s initial

brief.

Petitioner’s reply brief (p. 32) raised the question of

the sufficiency of the Complaint. Petitioner argued that

there was no specificity to the charges; therefore, the

Complaint and subsequent hearing did not comport with

the due process requirements of the Constitution of the

United States. Based upon this argument and others the

petitioner prayed for dismissal of the charges.

On January 16, 1981, the Board of Commissioners

on Grievances and Discipline filed with the Supreme

Court of Ohio its ‘‘Findings of Fact and Recommenda-

tion.’’ (p. 35). In this report the Board dismissed Counts

Il, Vl, X and XI of the Complaint. The Board did,

however, find violations of the disciplinary rules as alleg-

ed in Counts IV, V, and XII of the Complaint and

recommended a public reprimand for those violations. @

In addition the Board found violations of the

disciplinary rules as alleged in Counts VII, VIII, and IX

and recommended indefinite suspension frorn the prac-

~ tice of law for those violations. The Board, by finding

the petitioner guilty of six counts of the Complaint, in ef-

fect denied petitioner’s prayer for dismissal based on the

due process arguments raised in his reply brief.

Upon receiving the Board’s Findings of Fact and

Recommendation, the Supreme Court of Ohio issued an

Order to Show Cause as to why the recommendations of

the Board should not be adopted. On March 2, 1981, the

petitioner filed his Objections to the Findings and

Recommendation of the Board of Commissioners on

Grievances and Discipline (p. 53), along with his Brief in

Support of his Objections (p. 56), with the Supreme

Court of Ohio. In Paragraph 2. of the petitioner’s Objec-

tions (p. 53) and in Proposition of Law No. 2 of the peti-

tioner’s Brief in Support of his Objections (p. 56) the

petitioner raised the question of whether DR 1-102(A)

(6), which prohibits ‘‘any other conduct that adversely

reflects on his fitness to practice law,’’ is void for

vagueness. The petitioner argued that the rule was so

vague and indefinite as to not adequately and fully in-

form potential offenders of the conduct prescribed, thus

denying him due process of law.

The respondent filed an Answer Brief on March 17.

1981. The petitioner then filed a Reply Brief (p. 59) on

March 30, 1981. In his proposition of Law No. 2 (p. 59)

of the Reply Brief, the petitioner again asserted his argu-

ment that DR 1-102(A)(6) was void for vagueness.

The matter was then brought on for oral argument

before the Supreme Court of Ohio on May 27, 1981.

On July 22, 1981, the Supreme Court of Ohio issued

an order indefinitely suspending the petitioner’s license

to practice law in the State of Ohio. (p. 61). The Court

also issued a per curiam opinion on July 22, 1981, which

summarily adopted the Findings and Recommendation

of the Board of Commissioners on Grievances and

Discipline and ordered that the petitioner be indefinitely

suspended from the practice of law. (p. 67). These rul-

ings in effect denied petitioner’s prayer for dismissal bas-

ed on his argument that DR 1-102(A)(6) was void for

vagueness.

The petitioner then filed with the Supreme Court of

Ohio a timely Motion for Rehearing on August 3, 1981.

(p. 70). As grounds for his Motion for Rehearing, the

petitioner asserted that the Supreme Court of Ohio had

simply, without an adequate independent examination of

the facts and charges, adopted the findings and conclu-

sions of the Board of Commissioners on Grievances and

Discipline, thus dening petitioner both substantive and

procedural due process of law. As an additional ground,

the petitioner asserted that the particular rules of the

Code of Professional Responsibility of which he was

found to have violated were void for vagueness. Finally,

the petitioner asserted that the punishment he received,

denial of his right to practice law, was too harsh for the

violation he was found to have committed, in violation

of the Eighth Amendment of the Constitution of the

United States.

The Supreme Court of Ohio summarily denied the

petitioner’s Motion for Rehearing by Order dated

August 26, 1981. (p. 75).

The petitioner now brings this Petition for Writ of

Certiorari to the Supreme Court of Ohio.

REASONS FOR GRANTING THE WRIT

é. The decision by the Supreme Court of Ohio is

in direct conflict with the due process principles enun-

ciated in this Court’s Ruffalo ruling.

In In the Matter of John Ruffalo, Jr., 390

U.S. 544 (1968), this Court held that disbarment pro-

ceedings are adversary proceedings of a quasi-criminal

nature that can lead to punishment of a lawyer. As a

result, a lawyer is ‘*...entitled to procedural due process,

which includes fair notice of the charge.’’ 390 U.S. at

550. An attorney must be informed of the precise nature

of the charges against him at the very outset of the pro-

ceedings so that he can adequately prepare to meet the

charges and present his defense. These principles are

echoed by the Court of Appeals for the Third Circuit in

Committee on Professional Ethics and Grievances of the

Virgin Islands Bar Association v. Johnson, 447 F.2d 169

(3rd Cir. 1971).

The Complaint filed against the petitioner in

this case by the Ohio State Bar Association fails to meet

the procedural due process requirement of fair notice as

set out in Ruffalo. A cursory reading of each count of

the Complaint (p. 17) shows that the allegations are

nothing more than a general recitation of a set of facts

followed by a conclusory statement that the petitioner

has violated some specified rule of the Code of Profes-

sional Responsibility. In not one of the Counts does the

Complaint allege the necessary elements of the particular

Disciplinary Rule cited or the particular conduct of the

petitioner that supposedly contitutes each element. Thus

it was impossible for the petitioner to determine with any

degree of certainty exactly what conduct the Bar would

be attempting to prove to establish each element of each

alleged violation. As a result the petitioner was noi able

to adequately prepare his defense to meet the charges.

Due to the lack of specificity of the charges, the hearing

before the Board of Commissioners on Grievances and

Discipline of the Supreme Court of Ohio amounted to

nothing more than the Bar Association introducing an

overwhelmingly voluminous amount of evidence bearing

on endless facets of the petitioner’s business and profes-

sional life with the hope that out of this mountain of

evidence the Board could find support for the charges of

misconduct alleged. The record of this hearing will

evidence the futility with which the petitioner attempted

to defend himself against this scattergun approach used

by the Bar to prove its charges.

Consequently, the Board did find that the

petitioner was guilty on six of the twelve counts alleged in

the Compiaint (p. 35) over the petitioner’s objections,

which included an objection based on the lack of

specificity of the charges. The Supreme Court of Ohio

subsequently adopted the findings of the Board (p. 67).

The Supreme Court of Ohio’s decision in this matter is

therefore in direct conflict with this Court’s holding in

Ruffalo.

The Ohio Supreme Court’s summary treat-

ment of this question implies that future deprivations of

due process such as the one here will go uncorrected

unless this Court exercises its discretion to remedy the

situation. Therefore, it is essential that this Court hear

and rule on the important Constitutional question

presented in this petition.

2. The decision by the Supreme Court of Ohio is

in direct conflict with the substantive due process prin-

ciples established in this Court’s Konigsbere and

Schware rulings.

In the companion cases of Schware v. Board

of Bar Examiners of the State of New Mexico, 353 U.S.

232 (1957), and Konigsberg v. State Bar of California,

353 U.S. 252 (1957), this Court held that a state’s action

to exclude a person from the practice of law must meet

the substantive due process requiremenis of the Four-

teenth Amendment. These requirements are that the

decision to exclude one from the practice of law must not

be arbitrary or discriminatory. More particularly, due

process requires that there be sufficient evidence in the

record to rationally support the grounds upon which the

State denies a person the right to practice law. 353 U.S.

at 262 and 353 U.S. at 239. While these two cases dealt

specifically with a person being denied admission to the

Bar, the due process principles enunciated in the deci-

sions would apply with equal force to the situation where

a lawyer is facing disbarment. In the latter case, it is even

more important that due process be comported with

since a person is being deprived of a right that has

already been granted to him.

An examination of the record of the hearing

held before the Board of Commissioners on Grievances

and Discipline of the Supreme Court of Ohio and its Fin-

dings of Fact and Recommendation (p. 35) clearly shows

that there is no evidence which rationally supports the

finding that the petitioner violated the Disciplinary Rules

he was found to have violated. As was argued earlier,

the record shows that the Bar introduced evidence that

painted a broad and sweeping picture of the petitioner’s

professional dealings. The picture thus painted obvious-

ly created general suspicion of impropriety in the minds

of the Board members, such that they arbitrarily found

that the petitioner was guilty of six of the originial twelve

counts of misconduct filed against him. Nowhere in the

record, however, is there sufficient evidence to support a

rational finding of guilt on any one of those six counts

considered individually. This is a clear denial of substan-

tive due process of law.

By adopting and ratifying the Board’s Fin-

dings of Fact and Recommendation, the Supreme Court

of Ohio has deprived the petitioner of due process in con-

travention of the principles laid down in this Court’s

Schware and Koningsberg decisions. This Court should

therefore exercise its discretionary power to grant this

writ of certiorari to consider this important constitu-

ional question.

3. The decision by the Supreme Court of Ohio

does not comport with various rulings of this Court and

of two United States Courts of Appeals dealing with the

sufficiency of the hearing and the findings of fact and

law required by due process.

The Court has said, in Wolff v. McDonnell,

418 U.S. 539 (1974) and Goldberg v. Kelly, 397 U.S. 254

(1970), that since due process requires that a decision be

rationally based on the evidence adduced at the hearing,

it is necessary to demonstrate compliance with this re-

quirement for the decision maker to render a written

statement of the reasons for his determination and the

evidence he relied on. Otherwise, there would not be an

adequate record on which the decision could be challeng-

ed on review by a higher body. The United States Court

of Appeals for the Seventh Circuit has applied these prin-

ciples to attorney disciplinary proceedings. In Re Oliver,

470 F.2d 15 (7th Cir. 1972). There the Court said there

must be express findings on each element of the viola-

tions charged. ‘‘Disbarment of an attorney...is a serious

penaity and should not be imposed except upon express

factual findings of the elements necessary to support the

charges of violation of the Rules....”’ 470 F.2d at 17. It

cannot from a bare conclusion of violation be implied

that the decision maker found evidence to support each

element of the violation.

An examination of the Findings of Fact and

Recommendation made by the Board of Commissioners

on Grievances and Discipline of the Supreme Court of

Ohio (p. 35) reveals that this statement of findings does

not satisfy the requirements as set out above. These fin-

dings do nothing more that recite a brief summary of

facts followed by a conclusory declaration that the peti-

tioner violated some cited Disciplinary Rule. There was

no attempt made whatever to specify what conduct and

how that conduct constituted a violation of the particular

Rule cited, much less to set forth each element of the

violation and specify what conduct was proved to

establish each element. This left the petitioner at a com-

plete loss as to how to argue against the findings upon

review by the Supreme Court of Ohio. It is impossible to

argue that the Bar has not met its burden of proof on a

particular element of a violation, when it is not even

known on what evidence the Board relied to conclude

that that element was established. Essentially, there was

not a sufficient record of the findings of the Board to

allow the petitioner to effectively and adequately argue

the decision to the Supreme Court of Ohio. Therefore,

the petitioner was denied due process of law, and the

Ohio Court’s ruling is in direct conflict with the holdings

of this Court and of the Court of Appeals for the

Seventh Circuit.

Futhermore, this Court has said that the op-

portunity to be heard is a fundamental requirement of

due process which ‘‘...must be granted at a meaningful

time and in a meaningful manner.’’ Armstrong v. Man-

z0, 380 U.S. 545, 552 (1965). The hearing granted must

be one in which the merits of the cause have been fairly

and fully presented to the deciding body. See In Re

Noell, 93 F.2d 5 (8th Cir. 1937).

In the case at bar, the Supreme Court of

Ohio has sole and originial jurisdiction to impose

disciplinary sanctions against an attorney. Thus it is in-

cumbent upon that Court to fully and fairly review the

findings of the Board of Commissioners on Grievances

and Discipline before reaching a decision in a particular

case. Otherwise, the hearing and opportunity for review

that is granted to the attorney becomes nothing more

than a procedural formality. This is not the type of

meaningful hearing that due process comtemplates.

It is apparent from a reading of the Ohio

Supreme Court’s opinion in the instant case (p. 67) that

the Court merely, without any independent review or

weighing of the evidence; adopted the findings and con-

clusions of the Board of Commissioners in a summary

fashion. As a result the petitioner was denied a mean-

ingful opportunity to be heard before the Supreme Court

of Ohio, the only body in Ohio with authority to

discipline him. This is a clear denial of due process as

defined by this Court. Therefore, this Court should

grant petitioner’s request for writ of certiorari to review

the important question of constitutional law involved

here. :

—_ The decision by the Supreme Court of Ohio

directly conflicts with the due process principles enun-

ciated in this Court’s Grayned ruling.

This Court has long held that statutory pro-

hibitions must be drawn with a certain degree of

specificity to comply with due process principles.

It is a basic principle of due process that

an enactment is void for vagueness if its

prohibitions are not clearly defined. Vague

laws offend several important values.

First, because we assume that man is free

to steer between lawful and unlawful con-

duct, we insist that laws give the person of

ordinary intelligence a reasonable oppor-

tunity to know what is prohibited, so that

he may act accordingly. Vague laws may

trap the innocent by not providing fair

warning. Second, if arbitrary and

discriminatory enforcement is to be

prevented, laws must provide explicit

standards for those who apply them. A

vauge law impermissibly delegates basic

policy matters to policemen, judges, and

juries for resolution on an ad hoc and

subjective basic, with the attendent

dangers of arbitrary and discriminatory

application. Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972).

As discussed earlier, the petitioner was found

to have violated the Code of Professional Responsibility

in six of the twelve counts that were alleged. (p. 35) In

four of those six counts, the petitioner was found to have

violated DR 1-102(A)(6) of the Code of Professional

Responsibility which provides that ‘‘[a] lawyer shall not

[e]ngage in any other conduct that adversely reflects on

his fitness to practice law.’’ In all three of the counts on

which the Court based its decision to indefinitely suspend

the petitioner’s license to practice law, the petitioner was

found to have violated DR 1-102(A)(6). It is apparent

from the record and the Findings of Fact and Recom-

mendation of the Board of Commissioners that there was

insufficient evidence to find that the petitioner had

violated any other more specific Disciplinary Rule. The

Board of Commissioners, on a subjective and arbitrary

basis, found that certain of the petitioner’s conduct

amounted to conduct that adversely reflected on his

fitness to practice law. Based on this arbitrary finding,

the petitioner has been stripped of his license to practice

law.

This is precisely the type of situation the

holding in Grayned was attempting to prevent. As ap-

plied to the petitioner, DR 1-102(A)(6) was so vague that

it did not fairly warn him of exactly what conduct was

permissable and what was not. In such a situation, the

lawyer is forced to gamble on whether his conduct will be

found to adversely reflect on his fitness to practice law

after the fact. In addition, DR 1-102(A)(6) offers no

guidelines to those who enforce the rule. The

disciplinary body is free to deterimine if a lawyer’s con-

duct adversely reflects on his fitness te »ractice law on an

ad hoc and subjective basis. This is the situation found

in the instant case. The Board of Commissioners made a

subjective determination that the petitioner’s conduct

amounted to conduct that adversely reflected on is

fitness to practice law. There were no standards by

which either the peititioner or the Board could draw the

line between what was permissable and what was forbid-

den.

The United States Court of Appeals for the

Fourth Circuit has held that similarly broad language

found in DR 7-107(D) is unconstitutionally vague.

Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979). That

rule provides that a lawyer in a criminal trial may not

make any statement about ‘‘...other matters that are

reasonably likely to interfere with a fair trial.’’ The

Court of Appeals found that this language ran afoul of

the principles laid down in Grayned. The language

found in DR 1-102(A)(6) is far more nebulous and uncer-

tain than that found in DR 7-107(A). There is no ques-

tion, therefore that this Court of Appeals would find

that DR 1-102(A)(6) is void for vagueness based on the

Grayned decision.

; It is clear that the Ohio Supreme Court’s

decision to disbar or reprimand the petitioner based on a

violation of DR 1-102(A)(6) is in direct conflict with this

Court’s decision in Grayned and the decision of the

Court of Appeals for the Fourth Circuit in Hirschkop.

Since practically every state in the country has a

Disciplinary Rule similar or identical to DR 1-102(A)(6),

the question of whether this rule is unconstitutionally

vague is of substantial importance and should be decided

by this Court.

5. The decision by the Supreme Court of Ohio is

in direct conflict with the Eight Amendment prohibition

against cruel and unusual punishment as espoused in this

Court’s Hutto and Estelle decisions.

This Court has recognized that an enlightened

view of the Eight Amendment ban on cruel and unusual

punishment proscribes more than physically barbarous

punishments. It prohibits penalties that are grossly

disproportionate to the offense. Hutto v. Finney, 437

U.S. 678 (1978); Estelle v. Gamble, 429 U.S. 97 (1976).

As discussed previously, the petitioner was

indefinitely suspended from the practice of law upon be-

ing found guilty of the misconduct alleged in three

counts of the original Complaint. (p. 35). In each of

those three counts, the petitioner was found to have

violated DR 1-102(A)(6) by having engaged in conduct

that adversely reflected on his fitness to practice law. It

being the petitioner’s contention that there is no evidence

to support a finding of violation of any other more

specific disciplinary rule, it is obvious tha: the Board of

Commissioners recommended disbarment based upon a

finding of generalized misconduct that the Board subjec-

tively determined reflected on the petitioner’s fitness to

practice law. This being the offense that the petitioner

committed, a penalty as harsh as disbarment is clearly

not appropriate. Disbarment is the most severe penalty

that can be exacted of an attorney. Imposing the most

severe penalty possible on an attorney for such a

generalized finding of misconduct is clearly grossly

disproportionate. The most severe penalty sould be

reserved for the cases involving the most severe miscon-

duct. that is not the case here.

Due to the gross disproportionality of the

penalty imposed on the petitioner, he has been cruelly

and unusually punished as defined by this Court in Hutto

and Estelle. This Court should thus grant this petition

for writ of certiorari to remedy the unconstitutionally

harsh punishment inflicted on the petitioner.

CONCLUSION

For the foregoing reasons this petition for writ

of certiorari should be granted. Respectfully submitted,

Counsel for Petitioner

Stanley E. Preiser

Preiser & Wilson, Legal Corporation

Post Office Box 2506

Charleston, West Virginia 25329

304-344-9651

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APPENDIX

B BOARD

COMMISSIONE N GRIEVAN CES

ND DISCIPLINE

THE SUPREME COURT OF OHIO

( Filed October 16, 1978)

In re:

@ Complaint against

Harry Donovan Lowe a.k.a. Donovan Lowe No. 312

59 North Seventh Street

McConnelsville, Ohio 43756

RESPONDENT

Ohio State Bar Association

33 West Eleventh Avenue

Columbus, Ohio 43201

RELATOR

Now comes the Realtor and alleges that Harry Donovan Lowe

a.k.a. Donovan Lowe, an Attorney at Law, duly admitted to the

practice of law in this State of Ohio is guilty of the following

misconduct:

Count 1

Pickaway County, Ohio, in Case No. 77-CR-56, Respondent

entered a plea of no contest to the criminal charge of unauthoriz-

ed use of property, under Section 2913.04 [A] of the Ohio Revised

Code, by permitting his secretary to use a stenotype machine

without the consent of the owner, the Respondent having been the

prosecuting attorney of Morgan County at the time, and the

stenotype machine being owned by the County of Morgan, and

also entered a plea of no contest for failure to file a 1975 Inven-

tory of all materials, machinery, tools, and other county supplies

under his jurisdiction as prosecuting attorney as required by Sec-

tion 305.18 of the Ohio Revised Code, and being contrary to Sec-

tion 2921.44 [E] of the Ohio Revised Code. Respondent was

found guilty by the Court of the crimes as charged, was sentenced

to the Pickaway County Jail for thirty (30) days and fined two

hundred dollars ($200.00) on the first count, and sentenced to the

Pickaway County jail for ninety (90) days and fined seven hun-

dred dollars ($700.00) on the second count, and execution of the

sentences was suspended.

2. Respondent has violated Canon 1, and DR 1-101[A]

[4jand[6] of the Code of Professional Responsibility.

COUNT II

1. On May 4, 1977, in the Court of Common Pleas for

Pickaway County, Ohio, in Case No. 77-CR-58, Respondent

entered a plea of no contest in the criminal charge of failure to

report a crime, under Section 2921.22[A] of the Ohio Revised

Code. Respondent was found guilty by the Court of the crime as

charged, sentenced to the Pickaway County Jail for thirty (30)

days and fined one hundred dollars ($100.00), and execution of

the sentence was suspended.

2. Respondent has violated Canon 1, and DR 1-102[A] [3]

[4jand[6] of the Code of Professional Responsibility.

COUNT III

1. In his capacity of prosecuting attorney of Morgan

County, Ohio Respondent received pursuant to Ohio Revised

Code 325.12 a Statutory Allowance Fund for the use of the pro

secutor’s office. Respondent did not set up a separate account

with a bank for such funds and placed all ,unus received for the

R.C. 325.12 account in his private attorney trustee account.

2. On or about August 21, 1973, Respondent received the

sum of $1,728.33 for such statutory allowance fund and deposited

the same in his private attorney trustee account.

3. During a period from August 21, 1973, to February 28,

1974, when no less than $966.33 of said Statutory allowance funds

should have been in said account, the account was Overdrawn at

the bank on twenty-nine separate occasions with a negative

balance.

4. On or about March 1, 1974, Respondent received the

sum of $3,050.00 for such statutory allowance fund and deposited

the same in his private attorney trustee account.

5. During a period from March 1, 1974 to February 18,

1975, no less than $721.45 should have been in the account, the

account was overdrawn at the bank on eighteen [18] separate oc-

casions with a negative balance.

6. On or about February 28, 1975, Respondent received the

sum of $3,050.00 for such statutory allowance and deposited the

same in his private attorney trustee account.

7. Respondent’s trustee account during a period from

February 28, 1975, to February 18, 1976, when no less than

$744.15 should have been in the account, the account was over-

drawn at the bank on seventeen [17] separate occasions with a

negative balance.

8. Relator says Respondent misappropriated said funds in

violation of DR 1-102{A][3][4][5]and[6] and DR 9-102[A)}[{1}[2] of

the Code of Professional Responsibility.

COUNT IV

1. From prior to June 1, 1970, to and including September

17, 1974, Respondent was the Prosecuting Attorney for Morgan

County, Ohio. During said period Respondent was also engaged

in the private practice of law.

2. As Prosecuting Attorney, Respondent was the legal ad-

viser for all other county officers and boards [Section 309.09,

Ohio Revised Code] and had a duty to protect the claims, funds,

and other property of the county and state against loss or

diminishment or misapplication [Section 309.12, Ohio Revised

Code].

3. In June, 1970, there existed in favor of the Department

of Public Welfare, State of Ohio, a lien in the amount of

$9,416.99 on a 49-acre farm in the estate of Blanche Norris,

deceased (Case No. 1843, Court of Common Pleas, Probate Divi-

sion, Morgan County, Ohio). Respondent was the attorney for

the administrator of said estate. Said farm had an appraised

value in said estate of $6,000.00.

4. Commencing in June, 1970, and culminating on

September 17, 1974, Respondent engaged in a course of conduct

for the personal benefit of his friend, James C. Davis (who was

then the Director of Public Welfare for Morgan County), and

contrary to the interests of Morgan County and the State of Ohio,

whereby said 49-acre farm by instruments prepared by the

Respondent was conveyed, from said estate through a ‘straw

man’, whose role as such was not disclosed to the Probate Court

or the Department of Public Welfare, to the said James C. Davis,

free and clear of said lien. Said lien was purportedly transferred to

another property having a value of $4,700.00.

5. Relator says Respondent has violated Cannons 6, 15, 29

and 32 of the Cannons of Professional Ethics which were in effect

until October 5, 1970, and DR 1-102(A)(3)(7)and(8) of the Code

of Professional Responsibility.

COUNT V

1. On or about Nevember 20, 1973, Respondent purchas-

ed a 1974 Plymouth Station Wagon for the sum of $5,200.00 and

was issued a Certificate of Title therefor, and obtained a loan of

$5,200.00 from the Malta National Bank at Malta, Ohio and sign-

ed a Security Agreement in favor of such bank imposing a lien

against the automobile for the unpaid balance of the loan. The

Certificate of Title to such motor vehicle was returned to

Respondent without a lien having been noted thereon by the

bank.

2. On or about December 6, 1973, Respondent applied for

and was granted a $4,000.00 loan from the First National Bank of

McConnelsville, Ohio which bank retained the Certificate of Title

to the same motor vehicle but did not record its lien thereon until

April 12, 1974.

3. On or about March 12, 1974, a duplicate Certificate of

Title to the same automobile was obtained from the Clerk of

Courts of Morgan County which Certificate was thereupon given

to the Malta National Bank as security for the original loan

described above in paragraph 1, and a lien in favor of Malta Na-

tional Bank was recorded thereon on April 4, 1974.

4. Respondent did not inform the First National Bank of

McConnelsville of the loan he obtained from the Malta National

Bank, Malta Ohio nor of the Security Agreement he signed in

favor of Malta National Bank.

5. Respondent has violated DR 1-102(A)(3)(4)and(6) of

the Code of Professional Responsibility.

COUNT VI ,

1. The Respondent as the Secretary-Treasurer and legal

counsel for the Morgan County Wood Chips, Inc. wrongfully ob-

tained $7,459.25 from said corporation by writing checks on the

corporation’s checking account with the Malta National Bank of

Malta, Ohio to himself as follows: #1063 dated July 19, 1974 in

the amount of $2,573.00; #1087B dated September 10, 1974, in

the amount of $2,527.25; and #1100 dated October 17, 1974 in the

amount of $2,359.00.

2. Reiator says Respondent converted the funds to his own

use in violation of DR 1-102(A)(3)(4)and(6), and DR 9-102(B)(3)

of the Code of Professional Responsibility.

COUNT VII

1. On or about July 3, 1974, Respondent was serving in @

the capacity of Secretury-Treasurer of a corportation known as

Morgan County Wood Chips, Inc. In such capacity he directed

his personal secretary, one Julia Kincy, to prepare and sign his

name to a check in the sum of $4,000.00 payable to one Marjorie

Osborne, such check was prepared and Respondent’s name signed

thereto by Julia Kincy, and such check was deposited in the First

National Bank of McConnelsville, Ohio in the account of Mar-

jorie Osborne. Respondent entered on the books of Morgan

County Wood Chips, Inc. that such $4,000.00 was for the pur-

chase of 40 shares of First National Bank stock from Marjorie

Osborne on behalf of Morgan County Wood Chips, Inc.; on

November 15, 1975, said shares of stock transferred on the books

of the First National Bank from the account of Marjorie Osborne

to the account of Respondent’s parents R.D. and Mildred Lowe

20 shares to each.

2. Respondent has violated DR 1-102(A)(1)(3)(4)and{6) of

the Code of Professional Responsibility.

COUNT VIII

1. On or about January 6, 1975, Respondent was serving

in the capacity of Secretary-Treasurer of a corporation know as

Morgan County Wood Chips, Inc. In such capacity Respondent

issued a bank counter check in the sum of $7,000.00 drawn on the

account of Morgan County Wood Chips, Inc. to purchase seven

(7) shares of Malta National Bank stock. Respondent did not ob-

tain the seven (7) shares of Malta National Bank stock from

Morgan County Wood Chips, Inc. Such seven (7) shares were

transferred as follows: four (4) shares to Donovan Lowe, two (2)

shares to Marjorie Osborne, and one (1) share to David B.

Osborne.

2. Respondent converted funds of Morgan County Wood

Chips, Inc. to his own use and to the use of others in violation, of

DR 1-102(A)(3)(4)and(6) of the Code of Professional Respon-

sibility.

COUNT IX

1. On or about May 6, 1975, Respondent was serving in

the capacity of Secretury-Treasurer of Morgan County Wood

Chips, Inc. In such capacity Respondent received a Check No.

1330 on the account of Merrill, Lynch, Pierce, Fenner, and Smith

in the amount of $3,500.00 payable to the order of Morgan Coun-

ty Wood Chips, Inc. @

2. Respondent endorsed or caused to be endorsed the

name of ‘Morgan County Wood Chips, Inc., D. Lowe’ to said

check.

3. Such check was then deposited into the Donovan Lowe

Trustree Account, 7th Street, McConnelsville, Ohio, at the Malta

National Bank, thereby depriving the Morgan County Wood

Chips, Inc. of said $3,500.00

4. Respondent then paid said $3,500.00 and other funds to

himself by check in the amount of $3,800.00 drawn on the

Donovan Lowe Trustee Account resulting in an overdraft in such

account as of May 13, 1975.

5. Relator says Respondent converted said funds to his

own use in violation of DR i-102(A)(3)(4)(6) and DR 9-102(B)(1)

and (3) of the Code of Professional Responsibility.

COUNT X

1. The Respondent had a checking account with the Malta

National Bank of Maita, Ohio titled ‘Donovan'Lowe, Office, 7th

_ Strret, McConnelsville, Ohio’ and made or caused to be made

deposits in and withdrawals from said account is such manner as

to cause four hundred and sixty-two (462) overdrafts in the period

from February 10, 1969, through December 31, 1975.

2. Respondent has violated Cannons 29 and 32 of the

Canons of Professional Ethics and Canon 9 and DR

1-102(A)(3)(4) and (6) of the Code of Professional Responsibility.

COUNT XI

1. On or about September 27, 1968, Respondent was ap-

pointed Guardian of one Glen B. Woodard, incompentent, Case

No. 1681 of the Probate Court of Morgan County, Ohio, and

Respondent filed his First and Final Account on September 12,

1977, and was discharged as the Guardian.

2. During the time that he was Guardian of one Glen B.

Woodard, Respondent received funds in various amounts totaling

the sum of $2,651.83, which funds were placed in his privite at-

torney trustee account, and not in a seperate guardianship ac-

count.

3. Prior to the time distribution and payment of said funds

was made by Respondent, the trustee account into which said

funds were deposited was overdrawn twenty-five (25) times in the

period from November 8, 1968, through July 1971.

4. Respondent made final distribution of such Guardian-

ship in April 1972, but did not file an accounting in the Probate

Court until September 12, 1977.

5. Respondent has violated Canon 11 of the Cannons of

Professional Ethics and DR 1-102(A)(1)(3)(4)(5)(6), DR 6-101

(A) (3), DR 9-102(A) (1) and (2) and DR 9-102(B) (3) of the Code

of Professional Responsibility.

COUNT XIl

1. Respondent was employed to serve as attorney in the

following listed 18 Probate Court proceedings, and has failed and

neglected to complete the legal work involved in those matters.

a. Case No. 1280, Estate of Terry K. Heller,

deceased.

Died July 16, 1966.

Lois Haller, RFD 1, Crooksville, Ohio, Ad-

ministratix.

Donovan Lowe, Attorney of Record.

December 6, 1966, final Account filed, ap-

proved and Administratrix released. Court

costs of $48.50 not paid. (Respondent has

had an Administratrix check for court costs

in his possession since December of 1967

and has neglected to pay the same to the

Probate Court.)

b. Case No. 2024, Estate of Earl Phillips,

deceased.

Died December 23, 1958.

December 2, 1970, Will filed. January 23,

1971, Will admitted to Probate and Record.

No fiduciary appointed. Respondent is At-

torney of Record.

c. Case No. 2106, Estate of Gladys H. Wilkin-

son, deceased.

Died February 25, 1970.

Administrator, Urshel P. Wilkinson, Rt. 1,

Reinersville, Ohio.

Respondent is Attorney of Record.

Last entry shown on Probate Court docket

April 11, 1972, Determination of Estate

Tax.

. Case No. 2148, Estate of Harry A. Triplett,

deceased.

Died August 3, 1971.

Administratrix Glossie Triplett of

Chesterhill, Ohio.

Respondent is Attorney of Record.

Last entry of the docket August 4, 1978

-Proof of publication filed.

. Case No. 72-66, Estate of hazel Silvus,

deceased.

Died January 6, 1972.

Will filed January 6, 1972.

Will admitted to Probate February 26, 1972.

Respondent is Attorney of Record - no fur-

ther entries on docket.

. Case No. 73-180, Estate of Sherman Lett,

deceased.

Died February 1, 1973.

February 27, 1973, Will filed.

March 8, 1973, Will admitted to Probate.

Respondent is Attorney of Record - no fur-

ther entries on docket.

. Case No. 74-12, Estate of James H. Mills,

deceased.

Died January 27, 1974.

Respondent is Attorney of Record.

February 1, 1974, Will filed.

May 9, 1975, Final Determination of Estate

Tax filed -last entry on docket.

. Case No. 74-160, Estate of Hazel B.

Demster, deceased.

Died November 25, 1974.

December 16, 1974, Will admitted to Pro-

bate and Record.

Respondent is Attorney of Record - no fur-

ther entries on docket.

Case No. 75-10, Estate of Erma Bernice

McMannes, deceased.

Died December 15, 1974.

May 27, 1976, Final Determination of Ohio

Estate Tax filed - last entry on docket.

Respondent is Attorney of Record.

Case No. 75-48, Esta’ of David Osborne,

deceased.

Died April 29, 1975.

Executrix, Marjorie Osborne.

Respondent is Attorney of Record.

May 9, 1975, Will filed.

November 3, 1975, Inventory approved - no

further entries on docket.

. Case No. 76-27, Estate of Delma L. Curby,

deceased.

Died January 28, 1976.

March 9, 1976, Application for letters of

authorities.

April 2, '976, Proof of Publication of Ap-

piontment filed - no further entry on docket.

Respondent is Attorney of Record.

. Case No. 76-53, Estate of Freda Kirk,

deceased

Died August 17, 1973

April 21, 1976, Application for

letters of Administration filed.

May 25, 1976, Affidavit in Lieu of Schedule

of Claims filed and approved - no further

entries on docket.

Respondent is Attorney of Record.

.Case No. 76-56, Estate of John Adrian,

deceased.

Died January 25, 1912

June 1, 1976, Inventory and Appraisal ap-

proved - no further entries on docket.

Respondent is Attorney of Record.

. Case No. 76-113, Estate of Charles W.

Wagner, deceased.

Died September 10, 1976.

Respondent is Attorney of Record.

October 12, 1976, Will filed.

December 15, 1976, Fiduciary Acceptance

filed - no further entries on docket.

. Case No. 77-05, Estate of Lynne Conley,

deceased.

Died December 27, 1976.

Respondent is Attorney of Record.

January 13, 1977, Will filed.

April 28, 1977, Preliminary notice of non-

taxable estate filed no further entry on

docket.

. Case No. 77-15, Estate of Harry F. Davis,

deceased.

Died November 30, 1975.

Respondent is Attorney of Record.

February 9, 1977, Will filed.-

February 24, 1978, Ohio Estate Tax charge

filed - no further entry on docket.

. Case: No 77-31, Estate of Edna Simcox,

deceased.

Died March 2, 1977.

Respondent is Attorney of Record.

March 8, 1977, Will filed.

March 10, 1977, Proof of Publication of

Appiontment filed - no further entries on

docket.

r. Case No. 513, Guardianship of Robert

Lee McLaughlin,

Minor age 15 years.

May 1, 1962, Application filed by Lura M.

Salyers. @

May 3, 1962, Notice of hearing - no further

entries on docket.

Respondent is Attorney of Record.

2. Respondent has violated DR 6-101 (A) (3) and 7-101 (A)

(2) of the Code of Professional Responsibility.

Albert L. Bell William L. Clark

Ohio State Bar Association 180 East Broad Street

33 West Eleventh Avenue Columbus, Ohio 43215

Columbus, Ohio 43201 Telephone: 614-221-3155

Telephone: 614-421-2121

John R. Welch Emerson Cheek III

Ohio State Bar Association 17 South High Street

33 West Eleventh Avenue Suite 920

Columbus, Ohio 43201 Columbus, Ohio 43215

Telephone: 614-421-2121 Telephone: 614-228-1717

Counsel for Relator

(Name and Address of Counsel to be Typed)

BEFORE THE BOARD OF COMMISSIONERS ON

GREIVANCES

AND DISCIPLINE

OF @

THE SUPREME COURT OF OHIO

In re; Complaint against

Harry Donovan Lowe, aka

Donovan Lowe

Respondent No. 312

Ohio State Bar Association

Relator

REPLY BRIEF OF THE RESPONDENT, H.

DONOVAN LOWE

Staniey E. Preiser

Frederick D. Fahrenz

PRESIER & WILSON, LEGAL CORPORATION @

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

REPLY BRIEF OF THE RESPONDENT, H.

DONOVAN LOWE

Respondent H. Donovan Lowe, by counsel, respect-

fully submits this reply brief in the above-captioned case

as a supplement to his original brief, in lieu of oral arg-

gument. The respondent will not follow the structural

form of his first brief, but rather will reply to the Bar’s

brief which argued the issues count by count. However,

the initial section of this brief will contain an introduc-

tory statement applicable to each count.

INTRODUCTION

(A) Total Lack of Specificity of Charges

Counsel for the respondent respectfully submits that

the charges against Donovan Lowe are woefully lacking

the requiste specificity which would satisfy the due pro-

cess requirments of the Constitution of the State of Ohio

and the Constitution of the United States. The respon-

dent was unable to argue specifics in his initial brief due

to the scattergun approch taken by the Bar in its allega-

tions of impropriety. Even at the hearing held in this

matter, the charges were so imprecise and nebulous that

it was difficult for counsel to argue responsively. A cur-

sory reading of the transcript of the hearing amply

demonstrates the total lack of specificity of the charges.

The most blatant example of this slipshod pleading

and proof is the fact that, in almost every count of the

complaint, the Bar alleged that Donovan’s actions con-

stituted illegal conduct. Incredibly, the Bar cited no

statues, either federal or state, of which the alleged con-

duct was violative. The reason for this is very simple:

Donovan Lowe did not violate any law of the United

States or of the State of Ohio. The only possible explana-

tion for the Bar’s approach is that it hoped by firing its

scattergun blindly in all directions, one or two pellets

might strike home. This may be proper procedure on a

hunting trip; but when a man’s very liveihood is at stake,

such procedure is constitutionally defective.

(Note: The remainder of this Brief is deleted as not rele-

vant to this petition.)

BEFORE THE BOARD OF COMMISSIONERS ON

GREIVANCES

AND DISCIPLINE

THE SUPREME COURT OF OHIO

In re:

Complaint against:

Harry Donovan Lowe,

Respondent,

Ohio State Bar Association,

Relator.

CASE NO. 312

FILED: Jan. 16, 1981

Findings of Fact and Recommendation

of the Board of Commissioners on

Grievances and Discipline of

The Supreme Court of Ohio

The Ohio State Bar Association filed a complaint

against the Respondent, Harry Donovan Lowe, setting

forth twelve counts of alleged violations of the Code of

Professional Responsibility. A pre-trial hearing was held

by the panel at the office of the Columbus Bar Associa-

tion June 29, 1979, as a result of which extensive stipula-

tions were later entered into.

By agreement, a hearing was held at the Legal

Center of the Ohio State Bar Association in Columbus,

Ohio, beginning April 14, 1980, and lasting four days.

Further testimony was heard June 16 and 17, 1980. The

Bar Association was represented by John R. Welch,

Albert L. Bell, William L. Clark and Emerson Cheek,

Ill, all of Columbus. The Respondent was represented

by Stanley EE. Preiser and Frederick D. Fahrenz of

Charleston, West Virginia. Seven volumes of testimony

were taken, eighty some exhibits considered, and exten-

sive briefs and reply briefs filed. The hearing was held in

private at respondents’s request.

Harry Donovan Lowe was engaged in the private

practice of law in McConnelsville, Ohio, with an exten-

sive civil and probate practice. He was a director and at-

torney for the Malta National Bank. Many of its loans

cleared through his office, the funds going through his

books. From October 30, 1958, to January 6, 1969, and

from July 31, 1973, to January 2, 1977, he was also Pro-

secuting Attorney of Morgan County.

As prosecutor, he received a ‘furtherance of justice

fund’ equal to half his salary. Respondent used this fund

to purchase a stenotype machine and to pay for training

his secretary to use it. He did not include the stenotype

machine in his inventory of county property held by him.

Arthur Dille and five of his sons operated a saw mill

as a partnership. They had an exclusive contract with

Stone Container Co. to sell them all their wood chips.

These were made by cutting slabs into one-half inch

chips, which they delivered to the container company 120

miles away. For this they received $3.50 per ton.

In 1968, Arthur Dille recived an offer from In-

terlake Iron, Inc., to buy one and one-half inch chips for

$9.25 per ton, and Dille would only have to haul them

thirteen miles. Dille came to respondent to see if there

was some way they could get out of their exclusive con-

tract with Stone Container. Lowe suggested that they

form a corporation, and that the partnership sell the

slabs to the corporation, which would then cut them into

chips which the partnership would then deliver to In-

terlake. Respondent then incorporated Morgan County

Wood Chips, Inc. The directors and shareholders were

to be Arthur Dille, his wife and five sons, respondent,

and David Osborne, vice-president of the Malta National

Bank. Each was to own three shares at $1.00 per share.

Osborne paid in $300, and Respondent credited the cor

poration account for legal fees of $300. The profits from

the corporation were to be paid out as directors’ fees. At

the first meeting of directors on November 7, 1968, Ar-

thur Dille was elected president, Carlos Dille vice presi-

dent, and respondent secretary-treasurer.

To make the new size chips, it was necessary to pur-

chase a new chipper. At the November 7th meeting, pur-

chase of the chipper for $8,504.52 was authorized. The

money for this was borrowed from the Malta National

Bank. Respondent said that he co-signed the note. The

partnership was to be paid $3.50 per ton for labor and

$2.50 per ton for the slabs, including the delivery of the

chips to Interlake. Respondent’s office was to ‘bill, in-

voice and maintain records of transactions of chips.

Compensation will be at the rate of 25 cents per ton.’

On July 3, 1974, respondent caused a check for

$4,000 on the corporation bank account to be issued to

Marjorie Osborne for forty shares of stock of The First

Nationa! Bank of McConnelsvilie.

On January 6, 1975, respondent bought seven shares

of stock in the Malta National Bank for $7,000, paying

for the same out of corporate funds. In May 1975, he

purchased three more shares at $1,000 per share.

Although respondent had the stock certificates, they

were never transfered to Morgan County Wood Chips,

Inc. on either bank’s records.

Respondent paid himself legal fees from the cor-

orate account of $2,573.00 on July 19, 1974, $2,527.25

on September 10, 1974 and $2,359.00 on October 17,

1974. Many of the items on the corporate account were

for personal services rendered the various members of

the Dille family, including personal tax returns, settling

accident claims, divorces, mortages, deeds, etc.

David Osborne died on April 29, 1975.

In July 1975, the Dilles contacted Attorney Gerald

Mollica, of Athens, Ohio, regarding the corporate and

partnership affairs. Mr. Mollica secured the corporate

records from respondent and had them audited by Mr.

Armstrong.

In August 1975, Attorney Mollica had a call issued

for a meeting of the Directors of Morgan County Wood

Chips, Inc. Respondent and Mrs. Osborne, now the

owner of the late David Osborne’s three shares, appeared

and informed the Dilles that they didn’t own the com-

pany, they having never paid for their shares, and that

only he and Mrs. Osborne were stockholders.

The directors passed a resolution discharging

respondent as legal counsel and cancelling his 25* per ton

agreement for keeping the books and signing checks.

A civil action followed which was eventually settled.

The Dilles complained to the bar association and the

judge and requested that criminal action be taken against

respondent. Since respondent was the prosecuting at-

torney, the court appointed Richard E. Bidwell, Pro-

secuting Attorney of Muskingum County, as special pro-

secutor. Indictments totalling 18 counts were returned in

the Case Nos. 77 CR 56, 57, 58, 59 and 60.

The cases came to trial in Pickaway County before

Judge William Ammer, sitting by assignment. During

the second day of the trial, the judge told counsel to enter

-— of guilty to three misdemeanors to be selected by

After hours of plea bargaining negotiations, on the

next day, May 4, 1977, respondent entered pleas of no

contest to three charges, and the court found him guilty

and sentenced him as follows, dismissing the other

charges with prejudice:

(1) In Case No. 77 CR 56 on the first count, to the

lesser included offense of unauthorized use of property

under R.C. 2913.04(A) by permitting his secretary to use

the stenotype machine without consent of the owner, for

which he was sentenced to thirty days in the Pickaway

County jail, and fined $200.

(2) In Case No. 77 CR 56 on the second count, to

failure to file his 1975 Inventory on time, which con-

stitutes the crime of dereliction of duty, under R.C.

2921.44(E), for which he was sentenced to ninety days in

the Pickaway County jail, and fined $700.

(3) As to Case 77 CR 58, the respondent waived in

writing in open court the prosecution of the offense by

indictment and presentment to a grand jury and entered

his plea to an information charging him with the offense

of failure to report a crime under R.C. 2921.22(A), for

which he was found gulty and sentenced to thirty days in

the Pickaway County jail and fined $100.

The sentences were to be served concurrently, and

respondent was to pay all costs over and above the

deposits previously made for witness fees, not to exceed

$1,000 over the amounts previously deposited.

Execution of the sentences was suspended upon the

condition that the respondent not violate any laws of the

United States, or any other state, or any municipality

within this state within the next year.

No information was ever filed on the third offense.

. The relator contends that it related to the felony Count V

in the indictment which charged respondent with having

misrepresented to the insurance company that Morgan

County Wood Chips, Inc., had ten or more full time

employees who worked thirty or more hours a week, hav-

ing included himself, his secretary and David Osborne as

employees in order to have the required ten employees,

and as a result of which the insurance company paid out

$10,000 upon David Osborne’s death; that this offense

was agreed upon by counsel, they having initialed a

yellow sheet during plea bargaining. Respondent’s at-

torney claims that the prosecuting attorney couldn’t be

guilty of failing to report to himself on himself, and that

if respondent was asked by the judge what the offense

was that he failed to report, he was to say the offense of

Arthur Dille depositing in the partnership account of the

Merrill Lynch check for $10,000 payable to the corpora-

tion (which he had apparently done on the advice of his

attorney, Gerald Mollica, while the corporate affairs

were in litigation.) The judge didn’t ask and there is

nothing in the court record to show what the offense was

the respondent failed to report.

Respondent’s conduct was referred to the Ohio

State Bar Association which brought these charges. Mr.

Lowe is no longer prosecuting attorney. He is no longer

a director of the bank, although the bank’s refusal to

submit his slate of director’s, including himself, to the

shareholders was litigated in federal court. And respon-

dent has had a divorce.

Count I: The office of prosecuting attorney in many

counties is a part-time occupation, and prosecutors are

expected to have a private law practice at the same time

as performing their official duties. Prosecutors are given

a fund equal to half their salary, the money to be used

for the furtherance of justice and accounted for each

year.

Although the respondent pled no contest to the

charges of permitting his secretary to use the stenotype

machine, which he had purchased from his furtherance

of justice fund, with the consent of the owner, and of

failing to f:.e his 1975 Inventory on time, the Board does

not find that these offenses constituted a violation of the

sections of the Code of Professional Responsibility with

which he was charged, and dismisses the charges in

Count I.

Count II: For a prosecuting attorney to plead no

contest and be found guilty to a criminal charge of

failure to report a crime should render him guilty of con-

duct violating the Code of Professional Responsibility.

However, the plea bargaining resulted in the dismissal

with prejudice of all other counts in the indictments,

than the two set forth in Count I above.

The failure of the special prosecutor to reduce to

writing the information on which the plea was based

renders it impossible for the offense to be evaluted. It

could not have been the one in the indictment referred to

as V, because that was a felony and was dismissed and

could not have included a lesser offense which would be

a misdemeanor. Count II is dismissed for lack of proof.

Count III: Respondent is charged with depositing

his prosecuting attorney’s furtherance of justice funds in

his private attorney trustee account which was repeatedly

overdrawn. The prosecutor is required to file an annual

report as to how he used his allowance. There was no

evidence that he failed to acount for all his funds. Count

III is dismissed.

Count IV: Respondent was attorney for the Estate

of Blance Norris who had a 49-acre farm appraised at

$6,000 on which there was a lien of $9,416.99 in favor of

the Welfare Department of the State of Ohio. Mr. Nor-

ris wanted tc sell the farm and move in town. Respon-

dent brough: an action to sell the farm to pay debts. He

sold the farin to his friend, James C. Davis, Director of

Public Welfare for Morgan County, for $6,000, transfer-

ring the lien to the in-town property worth $4,825 with

the consent of the Attorney General’s office. The

transfer was not to Davis, who was said to be having

marital troubles, but to Mr. Shaw, who was used as a

**straw man.’’ Mr. Shaw and Mrs. Shaw conveyed to

Davis. Respondent represented to the probate court that

he was selling the property to Shaw for $6,000 cash,

which was not true. Although on its face the transaction

appears suspect, and although respondent

misrepresented to the probate court the true buyer, there

is no evidence that the respondent did anything illegal or

that the estate was harmed.

The relator claimed that respondent as prosecuting

attorney had a duty to protect the state. Respondent’s

duty was to the estate, and apparently he satisfied the

beneficiary’s wishes in making the sale. He secured

$6,000 and purchased the property in town for Norris for

$4,825, and the lien was transferred to that property.

It should be pointed out that respondent was not the

prosecuting attorney form January 6, 1969, to July 31,

1973. The journal entry authorizing the sale was dated

August 6, 1970, the Report of Private Sale to William

Shaw for $6,000 cash, August 12, 1970. The Executors

Deed of Glen Norr?: to Shaw was dated August 6, 1970,

but was not filed until June 5, 1972. It is interesting to

note that James C. Davis, as Director of Morgan County

Welfare, certified on July 28, 1970, the transfer of the

April 30, 1962, lien from the farm to the property in the

Village of McConnelsville purchased by Glen Norris.

The respondent was guilty of misrepresentation to

the court as set forth in DR 1-102 (A) (4) and DR 7-102

(A) (3).

Count V: The respondent is charged with borrow-

ing against duplicate certificates of title to the same car.

On November 20, 1973, respondent purchased a

1974 Plymouth station wagon for $5,200 and obtained a

loan from the Malta National Bank for $5,200, signing a

security agreement and giving them the certificate of ti-

tle. The lien was not recorded, and the bank returned the

certificate to respondent.

On December 6, 1973, respondent secured a $4,000

loan from the First National Bank of McConnelsville

and gave them the certificate of title to the same vehicle.

The note had the notation, ‘‘C.M. 1974 Plymouth.”’

The lien was not recorded.

The bank examiners appeared, and on March 13,

1974, respondent caused a duplicate certificate of title to

be secured and delivered to the Malta National Bank,

which recorded its lien on the duplicate April 4, 1974.

On April 12, 1974, the First National Bank of McCon-

nelsville recorded its lien on the original certificate of ti-

tle.

The clerk of courts called the respondent and told

him that he had liens on two titles to the same car.

Respondent then paid off his loan at First National on

April 16, 1974.

Respondent claims that it never was intended that

either bank have a lien, that the papers were only to be

used in case the bank examiners came, and what was

wrong with that? The Board believes such conduct

violates DR 1-102 (A) (4) and (6) of the Code of Profes-

sional Responsibility.

Count VI: Respondent as secretary-treasurer of

Morgan County Wood chips, Inc. issued checks to

himself for attorney fees: July 19, 1974, $2,573.00; —

September 10, 1974, $2,527.25; and October 17, 1974,

$2,359.00, for a total of $7,459.25. He did this without

informing the Dilles or seeking directors’ approval.

There is no claim that the fees were not reasonable.

The payment of legal fees in such a manner was

poor public relations, but was not without authority, ex-

cept to the extent that the corporation was charged for

services rendered to the Dilles personally for matters not

related to the corporation. However, the payments were

made by respondent as an officer of the corporation, not

as its attorney. The Board does not find that the respon-

dent as an attorney converted funds to his own use in

violation of the sections charged.

Count VII: On July 3, 1974, respondent purchased

forty shares of stock of the First National Bank of Mc-

Connelsville from Marjorie Osborne for $4,000, the

stock being paid for with a check on the Morgan County

Wood Chips, Inc., account. Mrs. Osborne signed the

stock certificate in blank and put it in the shoe box of

Morgan County Wood Chip’s papers kept by her hus-

band. The stock was never transferred to the corpora-

tion on the bank’s records. The December 1974 dividend

of $60 was paid to Mrs. Osborne, and her husband

deposited it in the corporation bank account.

A year later, when the break-up was taking place,

respondent’s parents gave a check for $4,000 payable to

Marjorie Osborne. Respondent, with her consent, en-

dorsed the check and deposited it in the corporation’s

bank account. Mrs. Osborne testified that, on August 8,

1975, she came to respondent’s office and acknowledged

her signature which was on the certificate and which had

now been filled in, transferring twenty shares each to

R.D. Lowe and Mildred Lowe. Mrs. Osborne thinks she

gave the June dividend check to respondent. On

November 15, 1975, the stock was transferred on the

books of First National Bank to Mr. and Mrs. Lowe.

Respondent is guilty of violating DR 1-102 (A) (4)

and (6) of the Code of Professional Responsibility.

Count VIII: On January 6, 1975, respondent issued

a bank counter check in the sum of $7,000 drawn on the

account of Morgan County Wood Chips, Inc.; payable

to the Malta National Bank. This was for the purchase

of seven shares of stock in the Malta bank being sold by

retiring President Walter Giles. However, the stock cer-

tificates were issued as follows: respondent, Donovan

Lowe, four shares; Marjorie Osborne, two shares; David

Osborne, one share.

On July 24, 1975, attorney Gerald Mollica requested

the corporation records.

On July 28, 1975, three days before the respondent

delivered the Morgan County Wood Chips, Inc., records

to Mollica, respondent made a deposit in the company’s

bank account, including an item marked on the deposit

slip as sale of stock for $7,040.

Respondent claims that when the original purchase

was made, he had separate assignments made to the com-

pany and attached them to the stock certificates, and

that, in July, he made new assignments transferring the

stock to respondent, Donovan Lowe.

The seven shares of Maita National Bank stock were

never transferred on the books of the bank to Morgan

County Wood Chips, Inc.

Even if it were true that separate stock assignments

were signed and attached to the certificates and kept

under his secretary’s typewriter, as respondent and his

secretary both claimed, and even if it were true that the

bank directors had an oral agreement that only directors

or their families could buy the Giles stock, which both

Dr. Henry Blackman and Judge Carlos Riecher, direc-

tors of the bank, denied they knew anything about, the

fact remains that corporation funds were used to buy the

stock, but the stock was never put in the corporation’s

name on the books of the bank. No separate

assignments were ever presented in evidence.

Respondent was guilty of violating DR 1-102 (A) (4)

and (6) of the Code of Professional Responsibility.

Count IX: On May 6, 1975, respondent received

from Merrill Lynch a check for $3,500 payable to

Morgan County Wood Chips, Inc., which he endorsed as

secretary-treasurer and deposited, not in the corporation

bank account, but in his own trustee account.

Respondent then transferred $3,800 from his trustee

account to his office account. Respondent claims that he

used $3,000 of the corporate funds to purchase three

shares of Malta National Bank stock from his wife,

Debra, and credited the remaining $500 on the corporate

bill owed him for attorney fees. Debra Lowe testified

that she signed the stock certificate assignment to

Morgan Wood Chips, Inc., and that although she did not

actually receive the $3,000, it was deposited in

respondent’s office account which they both used.

Respondent says that these three shares in the Malta

Bank were purchased to go with the seven already owned

so that they would have the ten shares necessary for Ar-

thur Dille to qualify if he were elected a director of the

bank.

The Malta National Bank stock was never placed in

the name of Morgan County Wood Chips, Inc., on the

bank stock register.

In July 1975, about the time of the split-up, respon-

dent, attorney and secretary-treasure of Morgan County

Wood Chips, Inc., sold the shares to himself and

deposited $3,000 plus a $30 divident in the corporation

bank account.

Respondent is guilty of violating DR !-102(A)(3)(4)

(6) and DR 9-102 (B) (1) and (3) of the Code of Profes-

sional Responsibility.

Count X: Respondent is charged with having 462

overdrafts in his office account at the Malta National

Bank between February 10, 1969, and December 31,

1975. Respondent was a stockholder, director and legal

counsel for the bank. None of his checks were returned

for insufficient funds, although Mr. Wilson, vice-

president of the bank, thought that one check may have

been returned during a shareholders fight which caused a

split in the Board of Directors, with respondent on the

minority side.

Respondent’s secretary testified that when the

checks were issued, there was always a balance on her

books, but that she may have been a day or two late in

making her deposits.

The relator failed to prove that the respondent

violated the Code of Professional Responsibility, and

Count X was dismissed.

Count XI: On September 27, 1968, respondent was

appointed guardian of Glen B. Woodward, an incompe-

tent. Between then and September 12, 1977, when he fil-

ed his first and final account, he received and disbursed

$2,561.83 which he placed in his trustee account along

with other trustee funds, and not in a separate guardian-

ship account. Final distribution was in April 1972. The

account was not filed until September 12, 1977.

Between November 8, 1968, and July, 1971, the

trustee account was overdrawn 25 times, many of which

could have been due to ‘“‘late deposits’’ or funds in tran-

sit.

There was no evidence that Glen Woodward ever

failed to receive any funds to which he was entitled.

Although this guardianship was not handled in an

idea! manner, particularly respondent’s waiting five

years after the final distribution to file the first and final

account, nevertheless the charges in this count are

Count XII: This count involved 17 Probate Court

matters in which respondent served as attorney and is

charged with failing and neglecting to complete the legal

work involved:

(a) Estate of Terry N. Heller. Died July 16, 1966.

Final account dated March, 1968, but not filed until

August, 1972. Court costs not paid.

(b) Estate of Earl Phillips. Died December 23, 1958.

Will filed December 2, 1970. Admitted to probate

January 23, 1971. No fiduciary ever appointed.

Another attorney eventually completed the estate.

Respondent syas he did all he was hired to do.

25, 1970. Administrator appointed. Determination of

Estate Tax April 11, 1972. After these charges filed,

respondent transferred the real estate to her husband, fil-

ed a statement in lieu of account, paid the court costs,

and closed the estate December 27, 1979.

(d) Estate of Harry A. Triplett. Died August 3,

1971. His wife Glossie appointed administratrix. After

she died, her son brought the papers to respondent April

10, 1980. Accounting completed May 20, 1980, after the

first hearing of this case.

(e) Estate of Hazel Silvus. Died January 6, 1972.

Will filed June 6, 1972, and admitted to probate

February 26, 1973. No assets. M. Silvus paid the $12

court costs April 11, 1980.

(f) Estate of Sherman Lett. Died February 1, 1973.

Will filed February 27, 1973, and admitted to probate

March 8, 1974. No assets. Respondent paid costs April

11, 1980.

(g) Estate of James H. Mills. Died January 27,

1974, age 96. Will filed February 1, 1974. Executrix his

wife Ella, ill and incompetent, and sole beneficiary.

Final account filed November 22, 1978. Signature on the

account notarized May 9, 1975.

(h) Estate of Hazel B. Demster. Died November 25,

1974. Will admitted to probate December 16, 1974. No

assets. Respondent only requested to file will. Costs not

paid.

(i) Estate of Erma McMannes. Died December 15,

1974. Determination of Estate Tax May 27, 1976. Ex-

ecutor died. Records lost. Respondent had copies of

checks made from bank records and closed the estate

May 27, 1980.

(j) Estate of David Osborne. Died April 29, 1975.

Will filed May 9, 1975. Marjorie Osborne appointed Ex-

ecutrix. Inventory filed November 3, 1975. Final ac-

count filed April 2, 1980, just prior to commencement of

these proceedings. Respondent says delay due to con-

troversy with the Dilles, the criminal investigations and

civil suits.

(k) Estate of Delma L. Curby. Died January 23,

1976. Application for letters March 9, 1976. She had

been injured in an automobile accident, and respondent

instituted suit. Subsequently she died. Civil suit settled.

Quaere, did she die of stroke or prior injuries? (Her hus-

band was elderly and crippled.) Only assets were pro-

ceeds of civil suit. Final account filed March 11, 1980.

(1) Estate of Freda Kirk. Died August 17, 1973. Ap-

plication for letters filed april 21, 1976. Affidavit in lieu

of schedule of claims filed May 25, 1976. Sole asset, real

estate. Sole heir, husband. Transfer of real estate May

1976. Statement in lieu of and for an account signed in

May 1976. Not filed until November 1978.

(m) Estate of John Adrian. Died January 25, 1912.

June 1, 1976, inventory and appraisal approved. State-

ment in lieu of account dated October 14, 1977, but not

filed until November 8, 1978. Respondent says he was

retained April 16, 1976, to help remove a cloud on title to

certain real estate in name of decedent who died in 1912.

Difficulties incurred in constructing family tree and nam-

ing all proper defendants in quiet title action.

(n) Estate of Charles W. Wagner. Died September

10, 1976. Will filed October 12, 1976. Fiduciary accep-

tance filed December 16, 1976. In June, 1979, the

fiduciary, decedent’s son, was cited for failure to file an

inventory and appraisal. It was filed July 10, 1979. Ac-

cording to the respondent, the sole asset of the estate was

400 acres of land which decedent left to his four

daughters with the exception of the oil and gas rights,

which he left to the four daughters and his son, the ex-

ecutor. Several oil wells were drilled. There was dissen-

sion among the heirs as to the division of the assets, two

of the daughters retaining their own counsel. The Ex-

ecutor finally told the sister to have their attorney con-

clude the matter, and in April or May 1980 respondent

was discharged as counsel.

(0) Estate of Lynne Conley. Died December 27,

1976. Will filed January 13, 1977. Preliminary tax

notice filed April 28, 1977. According to respondent, the

estate was relieved of administration January 24, 1977,

and nothing more needed to be done. In December 1978,

the administrator, decedent’s husband, paid the court

costs. However, Exhibit 12-10, a petition for authority

to transfer a motor vehicle, was signed in December 1978

and filed the same month. The motor vehicle had been

ordered transferred in early 1977. The Ohio tax return

was filed April 28, 1978, having been signed the day

previous.

(p) Estate of Harry F. Davis. Died November 30,

1975. Will filed February 9, 1977, and according to

respondent, relieved of administration. Decedent’s

brother paid the money out of the checking account to a

funeral home for funeral expenses February 24, 1978.

Respondent secured a tax release December 27, 1979.

Respondent paid the court costs out of his own pocket.

(q) Guardianship of Robert Lee McLaughlin, a

minor, age 15. May 1, 1962, Robert’s mother, Lura M.

Salyers, was appointed his guardian in order to get social

security benefits for him. According to respondent, they

moved to Florida, and he hasn’t seen or heard from them

since. He was hired only to secure the appointment.

It is clear that respondent was not attentive to many

of his probate court responsibilities. He admitted that he

had previously been investigated by the bar association in

1972 on some 50 probate matters, that after appearing

before the committee he concluded most of the matters,

and that no charges were filed. Now he finds himself in a

similar situation. And again he has concluded many of

the estates. None of the parties involved have appeared

to testify against respondent. Nevertheless, he has

violated DR 6-101 (A) (3) of the Code of Professionai

Responsibility.

As stated by the Supreme Court of Ohio, one of the

fundamental tenets of the professional responsibility of a

lawyer is that he should maintain a degree of personal

and professional integrity that meets the highest stan-

dard. The integrity of the profession can be maintained

only if the conduct of the individual attorney is above

reproach.

The contentions that a violation amounts to only a

minor offense not involving moral turpitude does not ex-

cuse an attorney from living up to the Code of Profes-

sional Responsibility.

Although the respondent pled guilty to three misde-

meanors, had repeated overdrafts, paid himself fees

without consulting his real client, and did not maintain a

spearate guardianship bank account, the Board recom-

mends that Counts I, II, III, VI, X and XI be dismissed.

The Board finds that respondent violated the Code

of Professional Responsibility as set forth in Counts IV,

V and XII and that he should be given a public repri-

mand on those accounts.

The Board of Commissioners on Grievances and

Discipline finds that Respondent, Harry Donovan Lowe,

violated the Code of Professional Responsibility as alleg-

ed in Counts VII, VIII and IX, DR 1-102 (A) (4) and (6),

and in Count IX he also violated DR 9-102 (B) (1) and

(3), and that for each of these counts he should be given

an indefinite suspension from the practice of law.

Chairman, Board of Commissioners on

Grievances and Discipline of

The Supreme Court of Ohio

Secretary, Board of Commissioners on

Grievances and Discipline of

The Supreme Court of Ohio

IN THE SUPREME COURT OF OHIO

OHIO STATE BAR ASSOCIATION,

Relator,

v. No. DD-0081-1

HARRY DONOVAN LOWE,

Respondent.

OBJECTIONS OF THE RESPONDENT, HARRY

DONOVAN LOWE,. TO THE FINDINGS AND

RECOMMENDATIONS OF THE BOARD OF COM-

MISSIONERS ON GRIEVANCES AND DISCIPLINE

John R. Welch

Albert L. Bell

Ohio State Bar Association

33 West 11th Avenue

Columbus, Ohio 43201

William L. Clark

180 E. Broad Street

Columbus, Ohio 43215

Emerson Cheek, III

17 South High Street

Columbus, Ohio 43215

Counsel for Relator

Stanley E. Preiser

Frederick D. Fahrenz

PREISER & WILSON, Legal Corporation

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

Counsel for Respondent

RESPONDENT’S, HARRY DONOVAN LOWE,

OBJECTIONS TO THE FINDINGS AND

RECOMMENDATIONS OF THE BOARD

OF COMMISSIONERS ON GRIEVANCES AND

DISCIPLINE

Comes now the respondent, Harry Donovan Lowe,

by counsel, and respectfully submits that the Board of

Commissioners on Grievances and Discipline of the

Supreme Court of Ohio in their ‘‘findings and Recom-

mendations”’ filed with Court on January 16, 198 (sic)

were in error for the following reasons:

1. Concerning Counts VII, VIII and IX, the Board

of Commissioners erred in applying the definition of

‘*dishonesty’’, ‘‘fraud’’, ‘‘deceit’’, and/or

**misrepresentation’’ proscribed in DR 1-102 (A)(4) to

the facts adduced at the hearing on this matter and their

finding of misconduct was clearly not supported by the

facts;

2. That DR 1-102 (A)(6) which prohibits ‘‘and other

conduct that adversely reflects on his fitness to practice

law’’ is void on its face for vagueness;

3. That it was plain error, even assuming arguendo

the DR 1-102 (A)(6) is constitutional, to find that

respondent’s conduct was in fact a violation of said

disciplinary rule;

4. That it was plain error for the Board of Commis-

sioners, wholly supported by the facts adduced at the

hearing, to find respondent’s conduct in Count IX was

violative of DR 1-102 (A)(3);

5. That the application of Canon IX of Code of

Professional Responsibility was improperly applied by

the Board of Commissioners to the facts set out in Count

IX of the complaint;

6. That it was plain error for the Board of Commis-

sioners to find any ‘‘misrepresentation: in violation of

either DR 1-102 (A)(4) or DR 1-102 (A)(3) under the facts

adduced at the hearing concerning Count IV of the Com-

plaint;

7. That the Board of Commissioners failed to apply

the definitions of ‘‘dishonesty’’, ‘‘fraud’’, ‘‘deceit’’,

and/or ‘‘misrepresentation’’ to the facts contained in

Count V of the Complaint and therefore their finding of

misconduct is contrary to the law of the State of Ohio

and not supported by the facts adduced at the hearing.

8. The finding of neglect on the part of the respon-

dent in County XII of the Indictment is clearly not sup-

ported by the evidence adduced at the hearing and the

finding of misconduct thereunder was plain error.

WHEREFORE, respondent respectfully submits

that this Complaint, and all Counts thereof, should pro-

perly have been dismissed by the board of Commis-

sioners and he objects to the findings of misconduct and

the punishment recommended by the Board of Commis

sioners and asks that said Complairt be dismissed by this

Honorable Court.

Stanley E. Preiser

Fredrick D. Fahrenz

Counsel for Respondent

PREISER & WILSON, Legal Corporation

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

(304) 344-9651

Of Counsel

IN THE SUPREME COURT OF OHIO

OHIO STATE BAR ASSOCIATON

Relator,

v. No. DD-0081-1

HARRY DONOVAN LOWE,

Respondent

RESPONDENT’S BRIEF IN SUPPORT OF HIS-

OBJECTIONS TO THE FINDINGS AND-

RECOMMENDATIONS OF THE BOARD OF COM-

MISSIONERS ON GRIEVANCES AND DISCILINE

John R. Welch

Albert L. Bell

Ohio State Bar Association

33 West lith Avenue

Columbus, Ohio 43201

William R. Clark

180 E. Broad Street

Columbus, Ohio 43215

Emerson Cheek, III

17 South High Street

Columbus, Ohio 43215

Stanley E. Preiser Counsel for Relator

Frederick D. Fahrenz

PREISER & WILSON, Legal Corporation

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

Counsel for Respondent

PROPOSITION OF LAW NO. 2

The respondent respectfully submits that DR

1-102(A)(6) on its face is constitutionally infirm as it

violates the Fourteenth Amendment to the Constitution

of the United States in that it is so vague and indefinite as

to not adequately and fully inform potential offenders of

the conduct proscribed. The potential for abuse of this

section of the disciplinary rules is obvious on its face. In-

stead of defining the conduct it proscribes, it leaves to

the whim and unfettered discretion of Bar authorities the

conduct to be proscribed. To a profession that prides

itself on advancing the rights of all Americans it would

be indeed sad to allow such a vague and indefinite rule to

pass the muster of constitutional scrutiny.

It is basic black letter law that: ‘“The constitution re-

quires that a statute must not be too vague to allow the

citizen to ascertain what course of conduct he must

follow to put himself safely within the bounds of the

law.’’ United States v. Five Gambling Devices, 346 U.S.

441, 458, 98 L.Ed. 179, 192 74 S.Ct. 190 (1953). That

same year the Supreme Court, in a case involving the

disciplinary proceedings of a physician, held that a state

Statute authorizing disciplinary action was constitu-

tionally permissible and was not ‘‘unconstitutionally

vague, since the discretion left to enforcing officers is not

one of defining the offense, but merely that of determin-

ing the appropriate penalty.’’ Barsky v. Board of

Regents of N.Y., 347 U.S. 442, 98 L.Ed. 829, 830, 74

S.Ct. 650 (1953).

The respondent respecfully submits that the pro-

scription of engaging ‘‘in any other conduct that adverse-

ly reflects on his fitness to practice law’’ is blatently leav-

ing the discretion to the Ohio Bar Association of ‘‘defin-

ing the offense’’ and therefore is violative of the due pro-

cess clause of the United States Constitution and void for

vagueness.

(The remainder of this Brief is deleted as not being

reletave to this petition.)

IN THE SUPREME COURT OF OHIO

OHIO STATE BAR ASSOCIATION,

Relator,

v. No. DD-0081-1

HARRY DONOVAN LOWE,

@ Respondent.

BRIEF

RESPONDENT

John R. Welch

Albert L. Bell

Ohio State Bar Association

33 West 11th Avenue

Columbus, Ohio 43201

William R. Clark

180 E. Broad Street

Columbus, Ohio 43215

Emerson Check, III

17 South High Street

Columbus, Ohio 43215

@ Counsel for Relator

Stanley E. Preiser

Frederick D. Fahrenz

PREISER & WILSON, Legal Corporation

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

Counsel for Respondent

PROPOSITION OF LAW NO. 2

If the relator’s position con-

cerning the court being the final

arbitrator and determinatant of

what conduct violated DR-

102(A)(6) were correct, then no )

stature, rele or regulation could

be held void for vagueness in that

a judicial tribunal always presides

over the enforcement of the law,

regulation or rule and any void

for vagueness would be cured by

that fact alone.

The respondent respectfully

stands by its law cited in its initial

brief and submits that DR-

102(a)(6) is void for vagueness.

(The remainder of this Brief is deleted as not being

relevant to this petition.)

STATE OF OHIO,

CITY OF COLUMBUS.

Ohio State Bar Association,

Relator

Vv.

Harry Donovan Lowe,

Respondent.

The Supreme Court of the State of Ohio

Of the Term of January, 1981

To-wit: July 22, 1981

ON CERTIFIED REPORT BY THE BOARD OF-

COMMISSIONERS ON GRIEVANCES AND

DISCIPLINE

DD No. 81-1

ORDER

It appearing to the Court that the Board of Commis-

sioners on Grievances and Discipline filed its Final

Report in this Court on January 16, 1981, recommending

that the respondent, Harry Donovan Lowe, be in-

definitely suspended from the practice of law pursuant to

Rule V, Section 6b of the Supreme Court Rules for the

Government of the Bar of Ohio, and it further appearing

that respondent filed objections to the Final Report of

the Board of Commissioners on Grievances and

Discipline, this cause was argued by counsel. On con-

sideration thereof, it is ordered and adjudged by this

Court that the respondent, Harry Donovan Lowe, be in-

definitely suspended from the practice of law pursuant to

Rule V, Section 6b of the Supreme Court Rules for the

Government of the Bar of Ohio.

The respondent, Harry D. Lowe, is hereby ordered

to cease and desist from the practice of law in any form

and is forbidden to appear on behalf of another before

any court, judge, commission, board, administrative

agency or other public authority. It is further ordered

that he be forbidden to counsel or advise, or prepare

legal instruments for others or in any manner perform

services of any kind for others which would constitute

the practice of law. He is also forbidden to hold himself

out to another or to the public as being authorized to per-

form legal services, and he is hereby divested of each,

any and all of the rights, privileges and prerogatives

customarily accorded to a member in good standing of

the legal profession of Ohio.

It is further ordered that the respondent, Harry D.

Lowe, surrender his certificate of admission to practice

to the Clerk of this Court forthwith and that his name be

stricken from the roll of attorneys maintained by this

Court.

It is further ordered that the respondent, Harry D.

Lowe, pay the costs of these proceedings taxed in the

amount of Seven Thousand One Hundred Nineteen

Doliars and sixty-six cents. ($7,119.66).

It is further ordered that , on or befoe August 21,

1981 respondent shall:

1. Notify all clients being represented in pending

matters and any co-counsel of his suspension and his

consequent disqualification to act as an attorney after

the effective date of this order, and, in the absence of CO-

counsel, also notify the clients to seek legal service

elsewhere, calling attention to any urgency in seeking the

substitution of another attorney in his place;

2. Regardless of any fees or expenses due respon-

dent, deliver to all clients beirg represented in pending

matters any papers or other property pertaining to the

client, or notify the clients or co-counsel, if any, of a

suitable time and place where the papers or other proper-

ty may be obtained, calling attention to any urgency for

obtaining such papers or other property;

3. Refund any part of any fees or expenses paid in

advance that are unearned or not paid, and account for

any trust money or property in possession or control of

respondent;

4. Notify opposing counsel in pending litigation

or, in the absence of counsel, the adverse parties, of his

disqualification to act as an attorney after the effective

date of this order, and file a notice of disqualification of

respondent with the court or agency before which the

litigation is pending for inclusion in the respective file or

files;

5. All notices required by this order shall be by cer-

tified mail and shall contain a return address where com-

munications may thereafter be directed to respondent.

6. File with the Clerk of this Court and the

Disciplinary Counsel of the Supreme Court an affidavit

showing compliance with this order, and proof of service

of notices required herein. Such affidavit shall also set

forth the address where the affiant may receive com-

munications and the Clerk and Disciplinary Counsel

shall be kept advised of any change of address;

7. Retain and maintain a record of the various

steps taken by respondent pursuant to this order.

It is further ordered that the Clerk of the Court issue

certified copies of this order as provided for in Section 20

of Rule V of the Supreme Court Rules for the Govern-

ment of the Bar of Ohio.

APPROVED: CHIEF JUSTICE

I, THOMAS L. STARTZMAN, Clerk of the

Supreme Court of Ohio do hereby certify that the

foregoing order was correctly copied from the records of

said Court, to wit, from Journal 57.

IN WITNESS WHEREOF, I have hereunto subscribed

my name and affixed the seal of said Supreme Court, the

22nd day of July, 1981.

THOMAS L. STARTZMAN CLERK

DEPUTY

THE STATE OF OHIO,

City of Columbus,

The Ohio State Bar Association

Relator,

Vv.

Harry Donovan Lowe,

Respondent.

The Supreme Court of the State of Ohio

Of the Term of January, 1981

To-wit: July 22, 1981

DD No. 81-1

NUNC PRO TUNC ORDER

The Court coming now to consider its opinion

issued on July 22, 1981, and reported at 67 Ohio St. 2d

335 and in order to correct certain typographical errors

contained therin, hereby orders, nun pro tunc, that the

seventh paragraph on P. 335 be corrected to read:

**Fifth, as secretary-treasurer of Morgan County Wood

Chips, Inc., respondent endorsed a $3,500 company

check and placed it in his own trustee account, and later

used the funds to purchase three shares of Malta Na-

tional Bank stock, causing the board to determine that

respondent violated DR-1-102(A)(3), (4) and (6) and DR-

9-102(B)(1) and (3).”’

and that the first paragraph of the per curian. dpinion on

P. 336 be corrected to read:

**Upon examination of the record and the findings of the

board of commissioners, we conclude that there are am-

ple facts to justify the board’s finding that respondent

violated DR-1-102(A)(4) and (6), DR-1-102(A)(3), (4)

and (6), DR-6-101(A)(3), DR-7-102(A) (3), and DR-9-

102(B)(1) and (3) of the Code of Professional Respon-

sibility.”

I, THOMAS L. STARTZMAN, Clerk of the

Supreme Court of the State of Ohio, do hereby certify

that the foregoing order was correctly copied from the

records of said Court, to wit, from Journal 55.

IN WITNESS WHEREOF, I have hereunto

subscribed my name and affixed the seal

of said Supreme Court, this Ist day of

September, 1981.

THOMAS L. STARTZMAN CLERK

DEPUTY

OHIO STATE BAR ASSOCIATION v. LOWE

[Cite as Bar Assn. v. Lowe (1981), 67 Ohio St. 2d]

Attorneys at law--Misconduct--Indefinite suspersion--

Acts warranting.

(D.D. No. 81-1--Decided July 22, 1981.)

ON CERTIFIED REPORT by the Board of Com-

missioners on Grievances and Discipline.

The Ohio State Bar Association, relator herein, filed

a complaint with the Board of Commissioners on

Grievances and Discipline pursuant to Gov. R. V, charg-

ing Harry Donovan Lowe, respondent herein, with 12

violations of the Code of Professional Responsibility.

After a full hearing comprising seven days of

testimony with respondent and his counsel present, the

board dismissed six charges, but determined respondent

had committed six violations of the Code or Professional

Responsibility as enumerated below.

First, respondent was found by the board to ve

made misrepresenations to the Probate Court concerning

land sale proceedings in that court, a violation of

DR-1-102 (A)(4) and DR-7-102 (A)(3).

Second, the board found respondent had borrowed

money against duplicate certificates of title to the same

car, a violation of DR-1-102 (A)(4) and (6).

Third, irregularities pertaining to the purchase and

transfer to respondent of common stock in the First Na-

tional Bank of McConnellsville with funds of Morgan

Wood Chips, Inc., a client of respondent, resulted in a

determination respondent violated DR-1-102 (A)(4) and

(6).

Fourth, respondent’s use of $7,000 in funds of his

client Morgan Wood Chips, Inc., to purchase seven

shares of Malta National Bank issued to respondent,

resulted in a determinaton that this violated DR-1-102

(A)(4) and (6).

Fifth, as secretary-treasurer of Morgan County

wood Chips, Inc., respondent endorsed a $3,500 com-

pany check and placed it in his own trustee account, and

later used the funds to purchase three shares of Malta

National Bank stock, causing the board to determine

that respondent violated DR-1-102(B)(3), (4) and (6) and

DR-9-102(B)(1) and (3).

Sixth, the complaint listed 17 estates which respon-

dent failed to handle and complete properly as attorney

for the fiduciaries. Most of these estates have been con-

cluded by respondent after charges were filed. For these

cumulative delinquencies the board determined respon-

dent violated DR-6-101(A)(3).

The board recommended that counts, I, II, III, VI,

X, and XI be dismissed. The board specifically found

that respondent violated the Code of Professional

Responsibility as set forth in count IV, a violation of

DR-1-102(A)(4) and (6) and count XII, a violation of

DR-6-101(A)(3), and should be given a pubic reprimand

on these counts.

The board found respondent violated DR-1-

102(A)(4) and (6) as alleged in counts VII and VIII, and

violated DR-1-102(A)(3),(4) and (6), and DR-9-102(B)(1)

and (3) as alleged in count [X and unanimously recom-

mended for these violations that respondent be given an

indefinite suspension from, the practice of law.

Mr. John R. Welch, Mr. Albert L. Bell, Mr.

William L. Clark and Mr. Emerson Cheek, III, for

relator.

Preiser & Wilson Co., L.P.A., Mr. Stanley E.

Preiser, Mr. Frederick D. Fahrenz, for respondent.

Per Curiam. Upon examination of the record and

the findings of the board of commissioners, we conclude

that there are ample facts to justify the board’s finding

that respondent violated DR-1-102(A)(4) and (6), DR-1-

102(B)(3),(4) and (6), DR-6-101(A)(3), DR-7-102(A)(3),

and DR-9-102(B)(1) and (3) of the Code of Professional

Responsibility.

Accordingly, respondent is hereby indefinitely

suspended from the practice of law.

Judgment accordingly.

CELEBREZZE, C.J., W. BROWN, P. BROWN,

SWEENEY, LOCHER, HOLMES AND C. BROWN,

JJ., concur.

IN THE SUPREME COURT OF OHIO

OHIO STATE BAR ASSOCIATON

Relator,

v. No. DD-0081-1

HARRY DONOVAN LOWE,

Respondent

MOTION OF THE RESPONDENT,

HARRY DONOVAN LOWE,

FOR REHEARING

Stanley E. Preiser

Frederick D. Fahrenz

PREISER & WILSON, Legal Corporation

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

Counsel for Respondent

John R. Welch

Albert L. Bell

Ohio State Bar Association

33 West 11th Avenue

Columbus, Ohio 43201

William R. Clark

180 E. Broad Street

Columbus, Ohio 43215

Emerson Cheek, III

17 South High Street

Columbus, Ohio 43215

Counsel for Relator

Filed August 3, 1981

SUPREME COURT OF OHIO

Thomas L. Startzman, Clerk

IN THE SUPREME COURT OF OHIO

Comes now the respondent, Harry Donovan Lowe,

by counsel, and moves pursuant to the Rules of Practice

of the Supreme Court of Ohio, Rule [X Section 1, for a

rehearing in the above-captioned matter. As grounds for

said motion, the respondent states as follows:

1. The respondent respectfully submits that this

Court was in error in its conclusion on page two of its

Opinion where they stated ‘‘there are ample facts to

justify the board’s finding that respondent vioiated’’

nine different subsections of the Code of Professional

Responsibility.

2. That the short two page Opinion of the Court

fails to make a sufficient presentation to allow the

respondent to ascertain what facts the Court found to be

violative of which provision of the Code of Professional

Responsibility.

3. It is readily apparent from the Opinion of the

Court that this Court simply, without independent study,

adopted the findings and conclusions of the Board of

Commissioners on Grievances and Discipline and

thereby denied Petitioner due process of law, both pro-

cedural and substantive, as provided in the Constitution

of the United States and Constitution of the State of

Ohio.

4. That the punishment received by this respon-

dent, that is, the denial of this respondent’s right to prac-

tice his chosen profession, is violative of the Eighth

Amendment Cruel and Unusual Punishment Provision

and the Fourteenth Amendment as the conduct alleged in

the Bar Association Complaint, which the Bar Associa-

tion failed to prove at the hearing, does not justify the

serious punishment imposed by this Court.

5. That the failure of the Court to carefully study

the recommendations of the Board of Commissioners on

Grievances and Discipline and independently give this

respondent his day in Court is vividly illustrated by the

fact the Court set forth in its Opinion and Order the

wrong disciplinary rule that they found the respondent to

be in violation and this is illustrated by Bar Counsel’s let-

ter of July 27, 1981 to Thomas L. Startzman, Clerk of

the Ohio Supreme Court, said letter attached hereto as

respondent’s Exhibit A. As previously stated, this lack

of any independent evaluation is viclative of

respondent’s due process rights as guaranteed by the

Fifth and Fourteenth Amendments to the United States

Constitution. The respondent respectfully submits that

this Court’s procedure in disciplinary matters is and has

been simply to adopt the findings of the Board of Com-

missioners without any variance or discussion and

therefore this Court has improperly delegated to the

Board its duties and responsibilities and has exercised no

independent decision making which is violative of this

respondent’s procedural due process rights under the

aforesaid Constitutional Amendments.

6. That the record is totally devoid of any support

and/or justification to substantiate the findings of fact

by the Board of Commissioners which was adopted by

this Court in its Opinion.

7. That the sections that this Court found the

respondent to have violated, or the sections which Bar

Counsel points out to the Court that they should have

found the respondent to have violated, are on their face

void for vagueness.

8. That the sections that this Court found the

respondent to have violated, or the sections which Bar

Counsel points out to the Court that they should have

found the respondent to have violated, are void as ap-

plied to the respondent for vagueness.

WHEREFORE, respondent, by counsel, respectful-

ly moves that the Court reconsider its Opinion that was

noted as filed on July 22, 1981.

Harry Donovan Lowe

By Counsel

Stanley E. Preiser

Frederick D. Fahrenz

PREISER & WILSON, Legal Corporation

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

Of Counsel

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, 1981 TERM

City of Columbus.

Ohio State Bar Association,

@ Relator,

TO WIT: AUGUST 26, 1981

vs.

No. DD81-1

REHEARING

Harry Donovan Lowe,

Respondent.

It is ordered by the court that rehearing in this case is

denied.

I, THOMAS L. STARTZMAN, of Clerk the

Supreme Court of the State of Ohio, do hereby certify

records of said Court, to wit, from Journal

No. Page

IN WITNESS WHEREOF, I have hereunto subscribed

my name and affixed the seal of the Supreme Court this

26th day of August 1981.

THOMAS L. STARTZMAN Clerk

By Deputy

CERTIFICATE OF SERVICE

I, Stanley E. Preiser, attorney for Harry Donovan

Lowe, petitioner herein, and a member of the Bar of the

Supreme Court of the United States, hereby certify that,

on November 24, 1981, I served three (3) copies of the

foregoing Petition for Writ of Certiorari on the Ohio

State Bar Association, respondent herein, by mailing

three (3) copies in a duly addressed envelope, with first

class postage prepaid to each of the following: John R.

Welch, Esquire, 33 West Eleventh Avenue, Columbus,

Ohio 43201; Albert L. Bell, Esquire, 33 West Eleventh

Avenue, Columbus, Ohio 43201; William L. Clark, Es-

quire, 180 East Broad Street, Columbus, Ohio 43215;

and Emerson Cheek III, Esquire, Suite 920, 17 South

High Street, Columbus, Ohio 43215, Attorneys of record

for respondent.

Stanley E. Preiser

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.