Cincinnati Bar Assn. v. Newman , 124 Ohio St. 3d 505 ( 2010 )

[Cite as Cincinnati Bar Assn. v. Newman, 124 Ohio St.3d 505, 2010-Ohio-928.]
CINCINNATI BAR ASSOCIATION v. NEWMAN.
[Cite as Cincinnati Bar Assn. v. Newman,
124 Ohio St.3d 505, 2010-Ohio-928.]
Attorneys at law — Misconduct — Disciplinary procedure — Sworn or certified
documentary evidence required upon default — Gov.Bar R. V(6)(F)(1).
(No. 2009-1917 — Submitted December 16, 2009 — Decided March 17, 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 the Ohio Rules of Professional Conduct.
Relator served respondent with the complaint, but he did not answer. Therefore,
in August 2009, relator moved for default. See Gov.Bar R. V(6)(F). 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 respondent from the practice
of law, all of which the board adopted. However, because we find that the record
lacks sufficient sworn or certified evidence to support the allegations of
misconduct, we return this cause to the board for further proceedings consistent
with this decision.
{¶ 2} In its complaint, relator alleged that in September 2007, respondent
had entered a guilty plea and was convicted of three counts of theft in violation of
R.C. 2913.02, fifth-degree felonies. Specifically, relator stated that respondent
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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. Relator
noted that based upon the conduct alleged, this court had imposed an interim
felony suspension from the practice of law against respondent on February 2,
2009. In re Newman, 120 Ohio St.3d 1500, 2009-Ohio-381, 900 N.E.2d 618.
Additionally, relator alleged that despite having received notice of the disciplinary
investigation pending against him, respondent failed to respond or otherwise
participate in the disciplinary process.
{¶ 3} Based upon the foregoing conduct, relator alleged that respondent
violated his oath of office and Prof.Cond. R. 8.1(b) (forbidding failure to respond
to a demand for information from a disciplinary authority), 8.3(a) (requiring a
lawyer to self-report violations of the Ohio Rules of Professional Conduct that
raise questions about the lawyer’s honesty, trustworthiness, and fitness), and
8.4(b) (prohibiting illegal acts that reflect adversely on the lawyer’s honesty or
trustworthiness).
{¶ 4} Relator supported its motion for default judgment with copies of
documents purporting to be the indictment, bill of particulars, guilty plea,
judgment entry, our interim-suspension order, three letters addressed to
respondent, and two certified-mail return receipts that appear to have been signed
by respondent. Additionally, relator submitted the affidavit of its attorney
investigator.1
1. {¶ a} The affidavit states:
{¶ b} “1. I am an attorney licensed to practice law in the State of Ohio.
{¶ c} “2. I am and have been for many years a member of the Certified Grievance Committee
of the Cincinnati Bar Association.
{¶ d} “3. I was asked to investigate a complaint against George W. Newman III arising out of
his felony theft conviction.
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January Term, 2010
{¶ 5} Gov.Bar R. V(6)(F)(1) provides: “A motion for default shall
contain all of the following: * * * (b) Sworn or certified documentary prima
facie evidence in support of the allegations made.” Additionally, Gov.Bar R.
V(6)(J) specifies that findings of misconduct must be supported by clear and
convincing evidence.
{¶ 6} The Supreme Court Rules for the Government of the Bar of Ohio
do not define the terms “sworn or certified documentary * * * evidence.”
Therefore, we use the common, ordinary, and accepted meaning. Black’s Law
Dictionary (9th Ed.2009) 385 defines “certified copy” as “[a] duplicate of an
original (usu. official) document, certified as an exact reproduction usu. by the
officer responsible for issuing or keeping the original.”
{¶ 7} Additionally, in the context of documents submitted in support of a
motion for summary judgment, we have stated, “The requirement of Civ.R. 56(E)
that sworn or certified copies of all papers referred to in the affidavit be attached
is satisfied by attaching the papers to the affidavit, coupled with a statement
therein that such copies are true copies and reproductions.” State ex rel. Corrigan
v. Seminatore (1981), 66 Ohio St.2d 459, 467, 20 O.O.3d 388, 423 N.E.2d 105.
Likewise, we conclude that a party may satisfy the Gov.Bar R. V(6)(F)(1)
requirement by submitting copies of documents attached to an affidavit containing
a statement that they are true copies and reproductions.
{¶ 8} Here, however, the documents submitted by relator in support of
its motion for default judgment were neither certified nor sworn. None of the
documents bears any certification by the officer responsible for issuing or keeping
the original that the copy is a true or exact reproduction. And although relator
{¶ e} “4. I attempted to contact Mr. Newman by telephone (his listed number was not
functional) and by certified and regular mail. He received the certified mail but did not respond in
any way.
{¶ f} “5. Following the filing of the complaint herein, I contacted Mr. Newman by certified
letter of July 9, 2009. He received the certified mail but did not respond in any way.”
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submitted an affidavit from its investigative attorney, that affidavit refers only to
the letters addressed to respondent and the two certified-mail return receipts that
appear to have been signed by respondent. It contains no statement that the
copies referred to in the affidavit are true copies or reproductions of the originals.
Nor does it mention the submitted copies of the indictment, bill of particulars,
guilty plea, judgment entry, or our interim-suspension order, let alone contain a
sworn statement that they are true copies.
{¶ 9} Based upon the foregoing, we reject the findings of fact,
conclusions of law, and recommendation of the board because the record before
us lacks sufficient sworn or certified documentary prima facie evidence in support
of relator’s allegations. Accordingly, we return this case to the board for further
proceedings consistent with this decision, including the submission and
consideration of sworn or certified evidence establishing the charges of
respondent’s misconduct. See Dayton Bar Assn. v. Sebree, 104 Ohio St.3d 448,
2004-Ohio-6560, 820 N.E.2d 318, ¶ 16.
Judgment accordingly.
MOYER, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
LUNDBERG STRATTON, J., dissents and would permanently disbar the
respondent.
__________________
Naomi C. Dallob and Edwin W. Patterson III, for relator.
______________________
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