Cincinnati Bar Assn. v. Newman ( 2010 )

[Cite as Cincinnati Bar Assn. v. Newman, 127 Ohio St. 3d 123, 2010-Ohio-5034.]
CINCINNATI BAR ASSOCIATION v. NEWMAN.
[Cite as Cincinnati Bar Assn. v. Newman,
127 Ohio St. 3d 123, 2010-Ohio-5034.]
Attorneys at law — Misconduct — Indefinite license suspension.
(No. 2009-1917 — Submitted August 10, 2010 — Decided October 21, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-041.
__________________
Per Curiam.
{¶ 1} Respondent, George W. Newman III of Cincinnati, Ohio, Attorney
Registration No. 0050769, was admitted to the practice of law in Ohio in October
1964. In June 2009, relator, Cincinnati Bar Association, filed a complaint
charging respondent with violations of Prof.Cond.R. 8.1(b) (prohibiting a lawyer
from knowingly failing to respond to a demand for information from a
disciplinary authority), 8.3(a) (requiring an attorney to report to disciplinary
authority his own violations of the Rules of Professional Conduct that raise a
question about his honesty, trustworthiness, or fitness as a lawyer), and 8.4(b)
(prohibiting a lawyer from committing an illegal act that reflects adversely on the
lawyer’s honesty or trustworthiness).
{¶ 2} Although the complaint was served on July 22, 2009, in
accordance with Gov.Bar R. V(11)(B), respondent failed to file an answer.
Therefore, in August 2009, relator moved for default pursuant to Gov.Bar R.
V(6)(F).
{¶ 3} The Board of Commissioners on Grievances and Discipline
referred the default motion to a master commissioner, who made findings of fact,
conclusions of law, and a recommendation that the board indefinitely suspend
SUPREME COURT OF OHIO
respondent from the practice of law. The board adopted the report and submitted
the matter to this court. We found, however, that the record lacked sufficient
sworn or certified evidence to support the allegations of misconduct, and we
remanded the cause to the board for further proceedings consistent with our
opinion. Cincinnati Bar Assn. v. Newman, 124 Ohio St. 3d 505, 2010-Ohio-928,
924 N.E.2d 359, ¶ 9.
{¶ 4} On remand, relator amended its motion for default and submitted
certified copies of respondent’s indictment, bill of particulars, plea agreement,
and judgment entry of sentencing, as well as the affidavit of its investigator.
Based upon this evidence, the master commissioner and the board once again
recommend that we indefinitely suspend respondent.
{¶ 5} We agree that respondent violated Prof.Cond.R. 8.1(b), 8.3(a), and
8.4(b), as found by the board, and that his conduct warrants an indefinite
suspension.
Misconduct
{¶ 6} The board found that in October 2006, respondent was indicted on
seven counts of passing bad checks in violation of R.C. 2913.11(B) and three
counts of theft in violation of R.C. 2913.02(A)(3). A bill of particulars alleged
that he had engaged in a scheme by which he deposited checks drawn on closed
accounts or accounts with insufficient funds into other bank accounts and then
withdrew cash from those artificially inflated accounts, causing losses of
$5,809.67 to Fifth Third Bank, $11,804 to U.S. Bank, and $4,459.99 to
Huntington Bank.
{¶ 7} Respondent pleaded guilty to three counts of theft, felonies of the
fifth degree, in September 2007. The following month, he was sentenced to three
years of community control and was ordered to pay restitution of $4,454.59 to
Huntington Bank and $5,804.57 to Fifth Third Bank. He failed to notify any Ohio
attorney disciplinary authority of his conviction.
2
January Term, 2010
{¶ 8} When the board brought respondent’s conviction to our attention,
we imposed an interim felony suspension from the practice of law against
respondent on February 2, 2009, and referred the matter to relator for
investigation and commencement of this disciplinary proceeding. In re Newman,
120 Ohio St. 3d 1500, 2009-Ohio-381, 900 N.E.2d 618.
{¶ 9} Respondent did not respond to the resulting disciplinary
investigation, despite relator’s attempts to communicate with him via certified
mail and telephone, and he did not file an answer to the complaint. The board
also noted that respondent has failed to submit an affidavit confirming his
compliance with our February 2, 2009 interim suspension order. The board
concluded that these acts violated Prof.Cond.R. 8.1(b), 8.3(a), and 8.4(b).
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 11} In this case, respondent has committed illegal acts that adversely
reflect on his honesty and trustworthiness by stealing approximately $22,000 from
three banks and by failing to respond to the resulting disciplinary investigation.
In aggravation, the board has found that he failed to cooperate in the disciplinary
process. BCGD Proc.Reg. 10(B)(1)(e). And in mitigation of punishment, this is
respondent’s only disciplinary violation in more than 45 years of practice. BCGD
Proc.Reg. 10(B)(2)(a).
3
SUPREME COURT OF OHIO
{¶ 12} “An attorney who has been convicted of felony theft offenses has
violated the basic professional duty to act with honesty and integrity.” Cincinnati
Bar Assn. v. Blankemeyer, 109 Ohio St. 3d 156, 2006-Ohio-2038, 846 N.E.2d 523,
¶ 12. “One of the fundamental tenets of the professional responsibility of a lawyer
is that [the lawyer] should maintain a degree of personal and professional integrity
that meets the highest standard. The integrity of the profession can be maintained
only if the conduct of the individual attorney is above reproach. [The lawyer]
should refrain from any illegal conduct. Anything short of this lessens public
confidence in the legal profession — because obedience to the law exemplifies
respect for the law.” Cleveland Bar Assn. v. Stein (1972), 29 Ohio St. 2d 77, 81, 58
O.O.2d 151, 278 N.E.2d 670.
{¶ 13} We have imposed an indefinite suspension for similar misconduct.
See, e.g., Disciplinary Counsel v. Dragelevich, 106 Ohio St. 3d 478, 2005-Ohio-
5515, 835 N.E.2d 1261, ¶ 3, 7 (imposing indefinite suspension on attorney who
knowingly caused the odometer on a vehicle to be altered to reflect less than the
actual mileage, a felony); Disciplinary Counsel v. Woods (1986), 28 Ohio St. 3d
245, 247, 28 OBR 325, 503 N.E.2d 746 (imposing indefinite suspension on
attorney convicted of theft, forgery, and uttering); Lake Cty. Bar Assn. v. Baxter
(1983), 4 Ohio St. 3d 82, 83, 4 OBR 263, 446 N.E.2d 1121 (imposing indefinite
suspension on attorney involved in a check-kiting scheme when $16,000 in
restitution remained unpaid).
{¶ 14} Having reviewed the record, weighed the aggravating and
mitigating factors, and considered the sanctions imposed for comparable conduct,
we adopt the board’s findings of fact and conclusion that respondent violated
Prof.Cond.R. 8.1(b), 8.3(a), and 8.4(b). Accordingly, George W. Newman III is
indefinitely suspended from the practice of law in the state of Ohio. As a
condition of reinstatement, respondent shall pay restitution of $4,454.59 to
4
January Term, 2010
Huntington Bank and $5,804.57 to Fifth Third Bank. Costs are taxed to
respondent.
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Naomi C. Dallob and Edwin Wilhite Patterson III, for relator.
______________________
5