Disciplinary Counsel v. Fuhry (Slip Opinion) , 2017 Ohio 8813 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Fuhry, Slip Opinion No. 2017-Ohio-8813.]
NOTICE
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SLIP OPINION NO. 2017-OHIO-8813DISCIPLINARY COUNSEL v. FUHRY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Fuhry, Slip Opinion No.
2017-Ohio-8813.]
Attorneys—Misconduct—Violations of professional-conduct rules, including
practicing law while under suspension and engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation—Two-year suspension, with
six months stayed on condition.
(No. 2017-0489—Submitted May 3, 2017—Decided December 6, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2016-060.
__________________
Per Curiam.
{¶ 1} Respondent, Gigi Hoang Fuhry, of Akron, Ohio, Attorney
Registration No. 0071630, was admitted to the practice of law in Ohio in 1999. On
November 1, 2013, we suspended her from the practice of law based on her failure
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to register as an attorney for the 2013/2015 biennium. In re Attorney Registration
Suspension of Fuhry, 136 Ohio St.3d 1544, 2013-Ohio-4827, 996 N.E.2d 973. We
imposed a second suspension on December 17, 2014, based on Fuhry’s failure to
comply with the continuing-legal-education (“CLE”) and reporting requirements of
Gov.Bar R. X. 141 Ohio St.3d 1407, 2014-Ohio-5542, 21 N.E.3d 1101. We
reinstated her license to practice on November 16, 2015. In re Reinstatement of
Fuhry, 144 Ohio St.3d 1432, 2015-Ohio-5363, 42 N.E.3d 766.
{¶ 2} On November 4, 2016, relator, Disciplinary Counsel, charged Fuhry
with professional misconduct for continuing to practice law while her license was
under suspension and making a false statement in an application to transfer her
securities-industry registration and to relator in the course of relator’s disciplinary
investigation.
{¶ 3} A panel of the Board of Professional Conduct considered the cause on
the parties’ consent-to-discipline agreement. See Gov.Bar R. V(16).
{¶ 4} In their agreement, the parties stipulate that Fuhry failed to complete
her required CLE and that, although she failed to open correspondence from this
court, she was aware of her suspension from the practice of law in Ohio.
{¶ 5} On November 3, 2014, she was hired as staff counsel and director of
institutional compliance by ValMark Securities in Akron, Ohio. As staff counsel,
Fuhry provided legal advice to the company and drafted and revised contracts and
agreements, including vendor and nondisclosure agreements. Her employer
required her to be a member in good standing of at least one state bar, but her Ohio
law license was under suspension when she accepted the job, and it does not appear
that she is licensed in any other state. On December 4, 2014, Fuhry completed a
Uniform Application for Securities Industry Registration or Transfer, falsely
attesting that her authorization to act as an attorney had never been revoked or
suspended. Her employer later filed the falsified application with the Financial
Industry Regulatory Authority.
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January Term, 2017
{¶ 6} On or about October 26, 2015, ValMark’s chief legal counsel, Shelly
Goering, noted that she had not received a request for reimbursement of Fuhry’s
attorney-registration fees. Goering checked this court’s website and learned that
Fuhry’s license to practice law had been suspended since 2013. When confronted
with that information, Fuhry said she would look into the matter. She later admitted
to Goering that she had known about her license suspension and that she had
delayed filling out the securities form because she knew that the form asked
whether the applicant had ever had his or her license to practice law suspended.
ValMark immediately terminated Fuhry’s employment. Thereafter, Fuhry
completed her CLE requirements, paid all fines associated with her suspensions,
and applied for reinstatement of her license. Although we reinstated her license on
November 16, 2015, she has not resumed the practice of law.
{¶ 7} Fuhry admits that her conduct violated Prof.Cond.R. 5.5(a)
(prohibiting a lawyer from practicing law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction) and Gov.Bar R. VI(10)(C)(1)
(prohibiting a lawyer from practicing law while under an attorney-registration
suspension), Prof.Cond.R. 5.5(b)(2) (prohibiting a lawyer who is not admitted to
practice in this jurisdiction from holding out to the public or otherwise representing
that the lawyer is admitted to practice in this jurisdiction), 8.1(a) (prohibiting a
lawyer from knowingly making a false statement of material fact in connection with
a disciplinary matter), and 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation).
{¶ 8} The parties stipulate that four aggravating factors are present in this
case: prior discipline, acting with a dishonest or selfish motive, multiple offenses,
and the submission of false statements or other deceptive practices during the
disciplinary investigation. See Gov.Bar R. V(13)(B)(1), (2), (4), and (6). They also
stipulate that the relevant mitigating factors are Fuhry’s eventual full and free
disclosure of her actions to the board and cooperative attitude toward the
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disciplinary proceedings and the imposition of other penalties or sanctions
(presumably her loss of employment). See Gov.Bar R. V(13)(C)(4) and (6).
{¶ 9} The parties stipulate that a two-year suspension with the final six
months stayed is the appropriate sanction for Fuhry’s misconduct. Of the cases
they cite in support of that sanction, Disciplinary Counsel v. Troller, 138 Ohio St.3d
307, 2014-Ohio-60, 6 N.E.3d 1138, is most instructive.
{¶ 10} Troller continued to serve as in-house counsel for a corporation for
more than six years after we suspended his license for registration and CLE
violations. Id. at ¶ 5-8. We found that his conduct violated Prof.Cond.R. 5.5(a)
and 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects
on the lawyer’s fitness to practice law) and the corresponding Disciplinary Rules
of the Code of Professional Responsibility (the predecessor of the Rules of
Professional Conduct), as well as former Gov.Bar R. VI(5)(C) (prohibiting an
attorney from practicing law while under an attorney-registration suspension).
Troller at ¶ 9.
{¶ 11} We found that aggravating factors included Troller’s prior attorney-
registration suspension and his pattern of misconduct involving multiple offenses.
Id. at ¶ 11. And as mitigating factors, we noted Troller’s history of community
involvement, his good-faith effort to rectify his conduct once relator initiated his
investigation, and his full cooperation in the disciplinary process. Id. Although we
recognized that Troller had signed a contract with the Ohio Lawyers Assistance
Program and received treatment for anxiety, we found that there was insufficient
evidence for us to consider his disorder as a mitigating factor. Id. Weighing
Troller’s conduct, the limited nature of his practice during his suspension, and his
cooperation throughout the disciplinary process, we found that a two-year
suspension with six months stayed on conditions was the appropriate sanction. Id.
at ¶ 16.
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January Term, 2017
{¶ 12} Here, Fuhry engaged in the practice of law while under suspension
for just a fraction of the time that Troller did. And while Troller kept his job, Fuhry
was fired as a result of her misconduct. But Fuhry also misrepresented her
disciplinary history on her securities form and made a false statement to relator in
the initial stages of the disciplinary investigation.
{¶ 13} Based on the foregoing, we agree that Fuhry’s conduct violated
Prof.Cond.R. 5.5(a), 5.5(b)(2), 8.1(a), and 8.4(c) and Gov.Bar R. VI(10)(C)(1) and
agree that a two-year suspension with the final six months stayed is the appropriate
sanction for that misconduct. Therefore, we adopt the parties’ consent-to-discipline
agreement.
{¶ 14} Accordingly, Gigi Hoang Fuhry is suspended from the practice of
law in Ohio for two years with six months stayed on the condition that she engage
in no further misconduct. If Fuhry fails to comply with the condition of the stay,
the stay will be lifted and she will serve the full two-year suspension. Costs are
taxed to Fuhry.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
_________________
Scott J. Drexel, Disciplinary Counsel, and Catherine M. Russo, Assistant
Disciplinary Counsel, for relator.
Gigi Hoang Fuhry, pro se.
_________________
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