Stark County Bar Association v. Buttacavoli. ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Stark Cty. Bar Assn. v. Buttacavoli, Slip Opinion No. 2017-Ohio-8857.]
NOTICE
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SLIP OPINION NO. 2017-OHIO-8857
STARK COUNTY BAR ASSOCIATION v. BUTTACAVOLI.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Stark Cty. Bar Assn. v. Buttacavoli, Slip Opinion No.
2017-Ohio-8857.]
Attorneys—Misconduct—Violations of the professional-conduct rules, including
knowingly making a false statement of fact or law to a tribunal and
committing an illegal act that reflects adversely on the lawyer’s honesty or
trustworthiness—Two year suspension, with 18 months stayed on
conditions.
(No. 2017-0227—Submitted April 5, 2017—Decided December 7, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-013.
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Per Curiam.
{¶ 1} Respondent, Glen F. Buttacavoli, of Massillon, Ohio, Attorney
Registration No. 0024132, was admitted to the practice of law in Ohio in 1984. In
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2002, we found that he had failed to fully disclose to his clients his financial interest
in investment recommendations that he made while acting as both their lawyer and
their financial planner and we sanctioned him with a conditionally stayed six-month
suspension. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St. 3d 424, 2002-Ohio-
4743, 775 N.E.2d 818.
{¶ 2} In 2016, relator, Stark County Bar Association, charged him with
making false statements relating to his clients’ financial information while
representing them in the Medicaid application process. Buttacavoli stipulated to
some of the charges against him. After a hearing, the Board of Professional
Conduct issued a report finding that he had engaged in some of the charged
misconduct and recommending that we impose a two-year suspension with 18
months conditionally stayed and require him to make restitution to two of his
former clients before seeking reinstatement. Neither party has objected to the
board’s report and recommendation.
{¶ 3} Based on our review of the record, we adopt the board’s findings of
misconduct and its recommended sanction.
Misconduct
Misrepresentations during the Medicaid application process
{¶ 4} According to the parties’ stipulations, a significant portion of
Buttacavoli’s practice is providing financial-planning advice to elderly clients, with
the purpose of ensuring their eligibility to receive long-term-care benefits under
Medicaid. The board found that he had engaged in professional misconduct with
regard to two such client matters.
{¶ 5} First, in 2013 and 2014, Buttacavoli assisted Marquerite A. Marchant
in transferring assets to family members, including gifting her life-estate interest in
real property to her children, gifting the ownership of life-insurance policies to her
daughter, and transferring stock ownership to her daughter effective upon
Marchant’s death. In May 2014, Buttacavoli applied for Medicaid assistance on
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Marchant’s behalf, and the following month, the Stark County Department of Job
and Family Services interviewed him as her representative. During that interview,
he falsely stated that Marchant had not transferred, sold, or given away any
resources within the previous five years. He also signed a statement attesting that
the representations he made during the interview were truthful. During his
disciplinary proceedings, Buttacavoli admitted that his representations to the
agency were false, that he was required by law to disclose all prior transfers, and
that he had made the misrepresentations for the purpose of inducing the agency to
find that his client qualified for Medicaid benefits.
{¶ 6} Upon investigation, the Stark County Department of Job and Family
Services discovered the life-estate interest that Marchant had gifted to her children
and determined that the transfer should have been disclosed. In April 2015, the
department notified Buttacavoli that because of this error, Marchant received
$8,640 more in Medicaid benefits than she was eligible to receive and that he, as
her authorized representative, was responsible for repaying the amount overpaid.
Buttacavoli issued a check for the repayment about four months later—after relator
notified him that a grievance had been filed against him and that relator had
reported his conduct to the county prosecuting attorney’s office.
{¶ 7} In September 2015, Buttacavoli pled guilty to a first-degree
misdemeanor charge of falsification under R.C. 2921.13(A)(4), which prohibits a
person from knowingly making a false statement with the purpose of securing a
benefit administered by a governmental agency. The Stark County Court of
Common Pleas ordered him to serve a 180-day suspended sentence and pay a $500
fine and court costs.
{¶ 8} The second client matter involved Sally Daywalt, whom Buttacavoli
represented around the same time that he represented Marchant. Similar to what
he had done in the Marchant matter, Buttacavoli assisted Daywalt with gifting her
life-estate interest in real property to her children and then later failed to disclose
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that transfer when seeking Medicaid benefits on Daywalt’s behalf. The Stark
County Department of Job and Family Services later discovered the life-estate-
interest transfer and restricted Daywalt’s coverage.
{¶ 9} Based on this conduct, the board found that in both client matters,
Buttacavoli violated Prof.Cond.R. 3.3(a) (prohibiting a lawyer from knowingly
making a false statement of fact or law to a tribunal), 8.4(b) (prohibiting a lawyer
from committing an illegal act that reflects adversely on the lawyer’s honesty or
trustworthiness), 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a lawyer
from engaging in conduct that is prejudicial to the administration of justice).
{¶ 10} We adopt these findings of misconduct.
Failure to advise clients about the possibility of a refund
{¶ 11} Buttacavoli stipulated that in the Marchant matter, the Daywalt
matter, and a third client matter, he charged a fixed, nonrefundable fee but did not
also advise his clients that they would be entitled to a refund of all or a portion of
that fee if he failed to complete the representation. The board found that he
therefore committed three violations of Prof.Cond.R. 1.5(d)(3) (prohibiting a
lawyer from charging a fee denominated as “nonrefundable” without
simultaneously advising the client in writing that the client may be entitled to a
refund of all or part of the fee if the lawyer does not complete the representation).
{¶ 12} We adopt these findings of misconduct. We also dismiss any
remaining charges against Buttacavoli that were not expressly dismissed during the
board proceedings.
Sanction
{¶ 13} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
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Aggravating and mitigating factors
{¶ 14} The board found the following aggravating factors: prior
disciplinary offenses, a pattern of misconduct, multiple offenses, and failure to
make restitution. See Gov.Bar R. V(13)(B)(1), (3), (4), and (9). Indeed,
Buttacavoli admitted that he had charged Marchant $6,800 and Daywalt $5,500 to
represent them in the Medicaid application process and that he had failed to
complete the representations or to refund their money.
{¶ 15} In mitigation, the board found that Buttacavoli had made full and
free disclosures to the board and had had a cooperative attitude toward the
disciplinary proceedings, he had presented evidence of good character and
reputation, and he had been subjected to other penalties or sanctions—namely, the
misdemeanor conviction and the penalties associated with the conviction. See
Gov.Bar R. V(13)(C)(4), (5), and (6).
Applicable precedent
{¶ 16} To support its recommended sanction, the board relied on Toledo
Bar Assn. v. DeMarco, 144 Ohio St. 3d 248, 2015-Ohio-4549, 41 N.E.3d 1237, and
Cincinnati Bar Assn. v. Farrell, 119 Ohio St. 3d 529, 2008-Ohio-4540, 895 N.E.2d
800. Both cases recognize our precedent that an attorney’s course of conduct
involving dishonesty usually warrants an actual suspension from the practice of
law. DeMarco at ¶ 12; Farrell at ¶ 19-21.
{¶ 17} In DeMarco, an attorney made a series of false statements directly
to a court about his possession of discovery materials. Specifically, he repeatedly
represented to the court that he had never had the materials when, in fact, he had
had them at one time. During one court proceeding, a witness truthfully testified
that he had given the materials to the attorney and the attorney responded by
threatening to take the witness “outside.” Id. at ¶ 6, 14. Despite the egregious facts,
we found that the attorney’s misconduct was an aberration in an otherwise
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unblemished 45-year legal career and imposed a one-year suspension with six
months conditionally stayed. Id. at ¶ 14-16.
{¶ 18} In Farrell, an attorney had forged his wife’s signature on a power of
attorney, lied to another attorney to secure notarization of the power of attorney,
used the forged document to obtain a line of credit, and fabricated numerous other
documents—including letters purportedly from a bank and the United States Postal
Service—to cover up his deceit. Given the attorney’s “web of deception,” we
suspended him for two years but stayed the second year on conditions. Id. at ¶ 17,
23.
{¶ 19} Buttacavoli’s misconduct here is more similar to the misconduct in
DeMarco than in Farrell. However, unlike the attorney in DeMarco, Buttacavoli
has been disciplined before. We therefore agree with the board that the appropriate
sanction here lies between the sanctions that we imposed in DeMarco and Farrell.
Conclusion
{¶ 20} Having considered Buttacavoli’s misconduct, the applicable
mitigating and aggravating factors, and the sanctions imposed for similar
misconduct, we adopt the board’s recommended sanction. Glen F. Buttacavoli is
suspended from the practice of law in Ohio for two years with 18 months stayed on
the conditions that he engage in no further misconduct and pay the costs of these
proceedings. If Buttacavoli fails to comply with the conditions of the stay, the stay
will be lifted and he will serve the full two-year suspension. Buttacavoli’s
reinstatement is conditioned upon his providing proof that he made restitution to
Marchant in the amount of $6,800 and to Daywalt, by issuing payment to her son,
Robert Venables, in the amount of $5,500.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
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Richard S. Milligan, Bar Counsel, and James M. Conley, for relator.
Robert H. Cyperski, for respondent.
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