Trumbull County Bar Association v. Roland ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Trumbull Cty. Bar Assn. v. Roland, Slip Opinion No. 2016-Ohio-5579.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-5579
TRUMBULL COUNTY BAR ASSOCIATION v. ROLAND.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Trumbull Cty. Bar Assn. v. Roland, Slip Opinion No.
2016-Ohio-5579.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Permanent disbarment.
(No. 2016-0257—Submitted April 5, 2016—Decided August 31, 2016.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2014-054.
_______________________
Per Curiam.
{¶ 1} Respondent, David Keith Roland, of Hubbard, Ohio, Attorney
Registration No. 0037125, was admitted to the practice of law in Ohio in 1986. In
a July 3, 2014 complaint, relator, Trumbull County Bar Association, charged
Roland with multiple violations of the Rules of Professional Conduct arising from
his participation in a scheme to conceal more than $850,000 of a client’s marital
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assets from the client’s husband before and during the client’s divorce proceeding.
Relator twice amended its complaint to add additional allegations of misconduct
arising from Roland’s failure to advise clients that he did not maintain professional
liability insurance, his failure to deposit retainers into his client trust account, his
failure to provide contracted legal services, and his failure to cooperate in the
ensuing disciplinary investigations. Roland answered the complaints, largely
denying the allegations against him, but did not otherwise participate in the
disciplinary proceedings.
{¶ 2} On September 8, 2015, the chairperson of the panel appointed to hear
this disciplinary matter granted relator’s motion to deem admitted the facts set forth
in its February 23, 2015 requests for admission. Approximately six weeks later, we
found Roland in contempt for his failure to comply with the panel chairperson’s
June 25, 2015 order to produce discovery responses. Trumbull Cty. Bar Assn.
Certified Grievance Commt. v. Roland, 143 Ohio St. 3d 1491, 2015-Ohio-4364, 39
N.E.3d 527. And on November 3, 2015, we suspended Roland’s license to practice
law for his failure to register for the 2015-2017 biennium. In re Attorney
Registration Suspension of Roland, 143 Ohio St. 3d 1509, 2015-Ohio-4567, 39
N.E.3d 1277. That suspension remains in effect.
{¶ 3} Roland did not attend the panel hearing. Based on the facts deemed
admitted, relator’s exhibits, and testimony from the former husband from whom
Roland helped his client conceal marital assets, the panel found that Roland
committed most but not all of the charged misconduct, and weighing the
aggravating and mitigating factors, recommended that he be permanently disbarred.
The board adopted the panel report in its entirety. We adopt the board’s findings
of fact, misconduct, and aggravating and mitigating factors and permanently disbar
Roland.
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Misconduct
Count One: The Carradine Matter
{¶ 4} Roland performed legal services for Denise Carradine before and after
her husband, Eric Martin, filed for divorce. Based on Roland’s failure to comply
with relator’s discovery requests—including requests for admissions—and his
subsequent failure to comply with the panel chairperson’s order directing him to
comply, the panel chairperson issued an order deeming certain facts admitted.
{¶ 5} The facts deemed admitted are summarized as follows. Carradine
paid Roland over $850,000 between 2006 and 2009. Those funds were not
payments for legal services or advancements but were instead funds that Roland
and Carradine had agreed to place in Roland’s client trust account for the purpose
of hiding marital assets from Martin. By April 9, 2009, Roland had transferred
$814,105.96 of those funds to an account at Maerki Baumann & Co. in Zurich,
Switzerland, in which Carradine had a beneficial interest.
{¶ 6} In addition to the facts deemed admitted, the board found that Roland
had been joined as a third-party defendant in the Martin-Carradine divorce
proceeding and that the following findings and conclusions of the court in that
proceeding are relevant here. See Martin v. Carradine, Trumbull C.P. No. 2009
DR 333 (Feb. 15, 2011). In particular, from August 2006 through April 9, 2009,
Carradine transferred $854,261.10 to Roland by engaging in a regular pattern and
practice of withdrawing cash from her business or personal accounts payable to
herself or “cash” and combining the funds from those checks to form a new check—
typically for less than $10,000—that she made payable to Roland. Carradine’s
practice of transferring the funds in small increments was evidence that she
purposefully structured the transactions to avoid detection under banking laws. The
funds were deposited into Roland’s two client trust accounts, and $814,105.96 was
then wire-transferred to an account in the name of Renaissance Investment
Services, Inc., at Maerki Baumann & Co. in Zurich, in which Carradine had a
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beneficial interest. Banking records demonstrated that a portion of those funds was
transferred to another account located in the Turks & Caicos Islands during the
pendency of the divorce proceedings.
{¶ 7} As of December 11, 2013, all of Carradine’s funds had been removed
from Roland’s client trust account at First National Bank in Pennsylvania and the
account was closed. And on June 30, 2015, Roland’s client trust account at
Huntington National Bank had a balance of just $709.57, which included a June 23,
2015 deposit of $643.44. Of the $854,261.10 transferred by Carradine to Roland
and deposited into his client trust accounts, $40,155.14 remains unaccounted for.
{¶ 8} On these facts, the board found that Roland violated Prof.Cond.R.
1.2(d) (prohibiting a lawyer from counseling a client to engage, or assist a client, in
conduct that the lawyer knows is illegal or fraudulent), and 1.15(a) (requiring a
lawyer to hold the property of clients in an interest-bearing client trust account,
separate from the lawyer’s own property) as charged in the complaint. At the
hearing, the board permitted relator to amend its complaint to conform it to the
evidence by adding allegations that Roland’s conduct violated Prof.Cond.R. 1.15(e)
(requiring a lawyer in possession of funds in which two or more persons claim an
interest to hold those funds in his client trust account until the dispute is resolved)
and 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation). The board also found that relator had proven
those violations by clear and convincing evidence.
Count Two: The Wolk Matter
{¶ 9} The facts deemed admitted as to Count Two are summarized as
follows. Roland performed legal services for Mark and Marcia Wolk. Roland did
not maintain professional liability insurance in the amounts of $100,000 per
occurrence and $300,000 in the aggregate, nor did he notify the Wolks that he did
not have that coverage. Therefore, the board found that Roland violated
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Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the lawyer does not
maintain professional liability insurance).
Counts Three and Four: The Donatelli and Villas at Heron’s Landing Matters
{¶ 10} On July 8, 2013, Richard J. Donatelli paid Roland a retainer of $750
to file a lawsuit on his behalf. And on October 15, 2013, Ernest C. Ramhoff, an
officer of the Villas at Heron’s Landing condominium association, paid Roland
$750 to file two civil complaints on behalf of the association. Relator appointed
Robert L. Root III to investigate grievances filed against Roland by Donatelli and
Ramhoff.1 Root reviewed court dockets for the court in which Roland could have
filed complaints on behalf of both Donatelli and Villas at Heron’s Landing but did
not find such complaints. Roland did not respond to Root’s letters inquiring about
the Donatelli or Ramhoff grievances, and when Root reached him by telephone and
identified himself, Roland stated that he was with clients and abruptly hung up.
{¶ 11} As stated above with respect to Count One, as of December 11, 2013,
all funds had been removed from Roland’s client trust account with First National
Bank and the account was closed.
{¶ 12} On these facts, the board found that in both the Donatelli and Villas
at Heron’s Landing matters, Roland violated Prof.Cond.R. 1.3 (requiring a lawyer
to act with reasonable diligence in representing a client), 1.15(c) (requiring a lawyer
to deposit advance legal fees and expenses into a client trust account, to be
withdrawn by the lawyer only as fees are earned or expenses incurred), 8.1(b)
(prohibiting a lawyer from knowingly failing to respond to a demand for
information by a disciplinary authority during an investigation), and 8.4(d)
(prohibiting a lawyer from knowingly failing to respond to a demand for
information by a disciplinary authority during an investigation). In the absence of
1
As noted below, relator did not offer testimony or any other evidence from either Donatelli or
Ramhoff. Therefore, the record does not reflect the nature of their grievances or what led to their
filing.
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any testimony regarding Roland’s communication with these clients or the
reasonableness of his fees, however, we accept the board’s recommendation that
we dismiss alleged violations of Prof.Cond.R. 1.4(a)(3) (requiring a lawyer to keep
the client reasonably informed about the status of a matter) and 1.5(a) (prohibiting
a lawyer from making an agreement for, charging, or collecting an illegal or clearly
excessive fee).
Sanction
{¶ 13} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated,
relevant aggravating and mitigating factors, and the sanctions imposed in similar
cases. See Gov.Bar R. V(13)(A).
{¶ 14} As aggravating factors, the board found that Roland acted with a
dishonest or selfish motive, engaged in a pattern of misconduct over a period of
years, committed multiple offenses, failed to cooperate in the disciplinary process,
failed to acknowledge the wrongful nature of his misconduct, caused harm to
vulnerable persons—particularly Martin—and made no effort to make restitution.
See Gov.Bar R. V(13)(B)(2), (3), (4), (5), (7), (8), and (9). The only arguably
mitigating factors noted by the board were the absence of a prior disciplinary record
and the absence of a dishonest or selfish motive with respect to Count Two. See
Gov.Bar R. V(13)(C)(1) and (2). The board accorded those factors little weight,
however, given the dishonest or selfish motive behind Roland’s misconduct that
was charged in the three remaining counts and the attorney-registration suspension
we imposed on him during the pendency of this proceeding.
{¶ 15} The board cited numerous cases imposing sanctions for misconduct
comparable to discrete aspects of Roland’s misconduct. The least severe sanction
was a one-year suspension, fully stayed on conditions. We imposed that sanction
on an attorney who engaged in conduct that was prejudicial to the administration
of justice and that adversely reflected on the lawyer’s fitness to practice law by
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neglecting the legal matters of two clients, failing to keep one client reasonably
informed about the status of the client’s case, failing to deposit prepaid expenses
and legal fees into a client trust account, failing to promptly comply with a client’s
reasonable requests for information, and initially failing to cooperate in the ensuing
disciplinary investigation. Disciplinary Counsel v. Oberholtzer, 136 Ohio St. 3d
314, 2013-Ohio-3706, 995 N.E.2d 217. But Oberholtzer’s misconduct affected just
two client matters and did not involve the misappropriation of more than $40,000,
as Roland’s did. Moreover, Oberholtzer presented evidence of personal illness and
life events that affected his representation of his clients, and he ultimately
cooperated in the disciplinary proceedings by entering into comprehensive
stipulations with the relator. Id. at ¶ 31-32.
{¶ 16} At the opposite end of the spectrum, the board cited several cases in
which we permanently disbarred attorneys who engaged in misconduct comparable
to that of Roland. In Disciplinary Counsel v. Crosby, 132 Ohio St. 3d 387, 2012-
Ohio-2872, 972 N.E.2d 574, the attorney had pleaded guilty to federal charges of
attempted income-tax evasion, having failed to file federal income-tax returns for
six years, and was ordered to make restitution of more than $300,000 to the Internal
Revenue Service. In addition, he had settled a case without seeking authorization
from his clients and had distributed the settlement proceeds, which had been
identified as an asset in one client’s bankruptcy proceeding, without the knowledge
or consent of the bankruptcy court. He also had failed to advise his clients that he
did not maintain malpractice insurance, failed to maintain complete records of all
client funds in his possession, and misappropriated $80,000 in client funds.
{¶ 17} And in Disciplinary Counsel v. Tomson, 136 Ohio St. 3d 71, 2013-
Ohio-2154, 990 N.E.2d 579, we disbarred an attorney who agreed to pursue
postconviction relief on behalf of two clients and collected thousands of dollars in
fees over more than five years, while falsely claiming that he was working to secure
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reductions in their criminal sentences. He also failed to cooperate in the ensuing
disciplinary investigation.
{¶ 18} We have consistently recognized that when an attorney’s neglect of
legal matters is coupled with a failure to cooperate in the ensuing disciplinary
investigation, an indefinite suspension is warranted. See, e.g., Disciplinary Counsel
v. Hoff, 124 Ohio St. 3d 269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10; Cleveland Bar
Assn. v. Judge, 94 Ohio St. 3d 331, 332, 763 N.E.2d 114 (2002). However, when
such conduct is accompanied by the misappropriation of client funds and fraudulent
or dishonest conduct, as it is here, we have held that disbarment is the appropriate
sanction. See, e.g., Cleveland Metro. Bar Assn. v. Freeman, 128 Ohio St. 3d 421,
2011-Ohio-1483, 945 N.E.2d 1034, ¶ 22-25.
{¶ 19} Having considered Roland’s misconduct, the applicable aggravating
and mitigating factors, and the sanctions imposed for comparable misconduct, we
agree that the only appropriate sanction in this case is permanent disbarment.
{¶ 20} Accordingly, David Keith Roland is permanently disbarred from the
practice of law in Ohio. Costs are taxed to Roland.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Flevares Law Firm, L.L.C., and William M. Flevares; and Randil J. Rudloff,
for relator.
David Keith Roland, pro se.
_________________
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