Cleveland Metro. Bar Assn. v. Whipple (Slip Opinion) , 2022 Ohio 510 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Whipple, Slip Opinion No. 2022-Ohio-510.]
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
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SLIP OPINION NO. 2022-OHIO-510CLEVELAND METROPOLITAN BAR ASSOCIATION v. WHIPPLE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Whipple, Slip Opinion No.
2022-Ohio-510.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct, including
filing a frivolous motion, filing a motion containing threats of criminal and
professional-misconduct charges for the sole purpose of obtaining an
advantage in a civil matter, and engaging in conduct prejudicial to the
administration of justice—One-year suspension with six months
conditionally stayed.
(No. 2021-0229—Submitted September 7, 2021—Decided February 24, 2022.)
ON CERTIFIED REPORT by the Board of Professional Conduct
of the Supreme Court, No. 2020-013.
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Per Curiam.
{¶ 1} Respondent, Douglas Paul Whipple, of University Heights, Ohio,
Attorney Registration No. 0025754, was admitted to the practice of law in Ohio in
1980.
{¶ 2} In a March 2020 complaint, relator, Cleveland Metropolitan Bar
Association, charged Whipple with professional misconduct arising from his filing
of a motion in a civil case requesting that the court refer his opposing counsel to
the Ohio Lawyers Assistance Program (“OLAP”). In that motion, Whipple alleged
that opposing counsel’s performance as a lawyer was impaired by a mental or
emotional condition or some other condition and sought dismissal of the underlying
civil case.
{¶ 3} The parties in this case submitted some stipulations of fact, and the
matter proceeded to a hearing before a three-member panel of the Board of
Professional Conduct. After the hearing, the panel unanimously dismissed one of
the alleged rule violations. However, the panel found that Whipple’s motion
contained threats of criminal and professional-misconduct charges for the sole
purpose of obtaining an advantage in a civil matter. It also found that he filed a
frivolous motion, violated or attempted to violate the professional-conduct rules,
and engaged in conduct that was prejudicial to the administration of justice. The
panel recommended that Whipple be suspended from the practice of law for one
year with six months conditionally stayed. The board adopted the panel’s report
and recommendation in its entirety.
{¶ 4} Whipple objects to the board’s findings of misconduct and argues that
the record does not support the imposition of a sanction any greater than a public
reprimand. For the reasons that follow, we overrule Whipple’s objections and
adopt the board’s findings of misconduct and recommended sanction.
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Misconduct
Background of the Seeley litigation
{¶ 5} Glenn Seeley was Whipple’s friend and former colleague. In 2010,
Glenn executed a durable power of attorney and a durable power of attorney for
healthcare appointing his wife, Kristina Seeley, as his agent. He also designated
Kristina as a cotrustee of the Glenn J. Seeley Trust. By early 2015, Glenn had been
diagnosed with Alzheimer’s disease and moved into a residential facility for people
with dementia. In February 2016, Glenn executed a second durable power of
attorney, in which he designated his son and grandson, Gregory and Matthew
Seeley (both of whom are attorneys licensed to practice law in Ohio), as his agent
and successor agent, respectively. Whipple alleged that Glenn had amended his
trust to designate Gregory as cotrustee in Kristina’s place.
{¶ 6} In November 2016, Kristina hired Whipple to challenge the validity
of the February 2016 documents. In January 2017, Whipple filed a lawsuit on
behalf of Kristina and Glenn (collectively, “the Seeleys”) against Gregory and
attorney Gary Ebert in the Cuyahoga County Court of Common Pleas (“the Seeley
litigation”). On February 13, 2017, Roger Synenberg entered an appearance on
behalf of the defendants, along with two other attorneys.
{¶ 7} Although the Seeley litigation was contentious, the parties entered
into a settlement agreement in December 2018. After a hearing, the court issued a
journal entry in January 2019, finding that the proposed settlement was fair and
reasonable and directing the parties to complete the remaining obligations under
the agreement, including filing a dismissal entry with the court.
{¶ 8} In March 2019, Synenberg began to question whether Kristina was
competent to sign the settlement agreement; Whipple asserted that she was. During
an April 2019 status conference, the inquiry appeared to focus more on Kristina’s
capacity, though the parties continued to refer to Kristina’s competence and
capacity interchangeably. At the conclusion of the hearing, the court directed
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Whipple to submit a letter from a medical professional indicating that Kristina was
competent to oversee the cotrustee position and the medical power of attorney. The
court also instructed the parties to file a stipulated dismissal entry by May 14, 2019.
{¶ 9} Whipple submitted documents to defendants’ counsel in an effort to
comply with the court’s order, but Synenberg maintained that they were insufficient
to establish Kristina’s mental capacity. After the deadline for filing the dismissal
entry passed, the court scheduled a hearing for Monday, June 10, 2019.
{¶ 10} On June 3, 2019, Whipple sent a letter to the judge noting his
strenuous objection to the consideration of Kristina’s mental capacity in the case
and enclosing confidential copies of the documents that he had previously
submitted to defense counsel as well as an additional document. In a June 6 email,
Synenberg made it clear that his clients did not intend to drop the issue of Kristina’s
capacity.
Whipple’s allegations against Synenberg
{¶ 11} At 4:05 p.m. on Friday, June 7, 2019, Whipple filed a motion in the
Seeleys’ case to refer Synenberg to OLAP. In that motion, Whipple alleged that
Synenberg’s performance as a lawyer was impaired by a mental or emotional
condition or some other condition and repeatedly described Synenberg’s conduct
in terms that questioned his fitness as a lawyer. For example, Whipple accused
Synenberg of (1) retaliating against a witness, who testified against one of his
clients in an unrelated case, by sending an anonymous letter to the prospective
employer of the witness in which he referred to the witness as a “snitch,” (2)
making a misrepresentation to Judge Hagan’s staff attorney (and thereby the court)
regarding Whipple’s conduct at a deposition, (3) leaving a deposition while a
question was pending and failing to return to complete the deposition, and (4)
making false and defamatory statements about Whipple’s paralegal (who is also
Whipple’s wife) that resulted in the issuance of a cease-and-desist letter by her legal
counsel.
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Prof.Cond.R. 1.2(e)
{¶ 12} The board found that Whipple’s motion was nothing more than a
thinly veiled threat of criminal charges and professional-misconduct allegations
against Synenberg in violation of Prof.Cond.R. 1.2(e), which provides that
“[u]nless otherwise required by law, a lawyer shall not present, participate in
presenting, or threaten to present criminal charges or professional misconduct
allegations solely to obtain an advantage in a civil matter.”
{¶ 13} Regarding Whipple’s allegation that Synenberg had engaged in
witness retaliation in an unrelated case, the board noted that R.C. 2921.05 classifies
witness retaliation as a third-degree felony. In addition, the board found that an
attorney who engaged in witness retaliation would also violate several rules of
professional conduct, including rules that prohibit a lawyer from committing an
illegal act that reflects adversely on the lawyer’s honesty or trustworthiness and that
prohibit a lawyer from engaging in conduct that is prejudicial to the administration
of justice. See Prof.Cond.R. 8.4(b) and (d). Therefore, the board determined that
Whipple’s allegation that Synenberg had engaged in witness retaliation effectively
accused him of committing a crime and engaging in professional misconduct.
{¶ 14} The board also found that Whipple’s allegations that Synenberg had
made a misrepresentation to the court and walked out of a deposition effectively
alleged violations of Prof.Cond.R. 3.4, which prohibits an attorney from unlawfully
obstructing another party’s access to evidence and knowingly disobeying an
obligation under the rules of a tribunal. In addition, the board found that by alleging
that Synenberg had made false and defamatory statements about Whipple’s
paralegal, Whipple had effectively alleged a violation of Prof.Cond.R. 8.4(c),
which prohibits an attorney from engaging in conduct that involves dishonesty,
fraud, deceit, or misrepresentation.
{¶ 15} The board also found that Whipple’s motion repeatedly described
Synenberg’s conduct in terms that questioned Synenberg’s fitness as a lawyer. For
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example, Whipple claimed that (1) Synenberg’s conduct was “not [what] one would
expect from a lawyer thinking and acting rationally,” (2) Synenberg had engaged
in “irrational conduct which supports a reasonable belief that [he] may be suffering
from performance issues,” and (3) Synenberg’s “impulsive, irrational conduct * *
* might reasonably justify further investigation.” The board found that those
phrases were unmistakable references to Prof.Cond.R. 8.3(a), which provides that
“[a] lawyer who possesses unprivileged knowledge of a violation of the Ohio Rules
of Professional Conduct that raises a question as to any lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects, shall inform a disciplinary
authority empowered to investigate or act upon such a violation.”
{¶ 16} There was no doubt, according to the board, that Whipple’s motion
successfully conveyed a threat to report Synenberg’s conduct. The board noted that
the threat was not unintentional, merely an angry reaction to a frustrating situation,
or as Whipple claimed, a misguided effort to get help for a colleague. Instead, the
board found that Whipple intended for the threat to pressure Synenberg to abandon
the issue of Kristina’s capacity and agree to dismiss the case—or in other words, to
obtain an advantage in a civil matter.
{¶ 17} In support of that finding, the board observed that Whipple’s motion
clearly connected his accusations against Synenberg with the dismissal of the case.
Indeed, the first paragraph of the motion emphasized that the matter was set for a
hearing on Monday, June 10, 2019, that there were no other pending motions, and
that the court had directed the parties to submit a stipulated dismissal entry but that
the case remained pending. And while the motion was styled as a motion to refer
Synenberg to OLAP, the motion concluded with the following language:
All Plaintiffs ask for is the dismissal entry that has been
overdue since January of this year. This inexcusable delay has been
a financial and emotional nightmare for a case that was settled
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months ago. With the granting of the instant Motion, the docket is
clear and the final dismissal, with prejudice as to the Complaint and
Counterclaim, should be filed immediately.
{¶ 18} The board acknowledged that “[o]n its face, the fitness motion ties
together two requests that are not related—a referral to OLAP for Synenberg on the
one hand, and the entry of the stipulated dismissal on the other.” But any
uncertainty the board had about the purpose of Whipple’s motion disappeared when
it reviewed what Whipple said at the June 10 hearing. At that hearing, Whipple
insisted multiple times that if the defendants would sign the stipulated dismissal
without further exploration of Kristina’s capacity, Judge Hagan would not have to
act on his motion.
{¶ 19} For example, Whipple stated:
If I may first mention, because I wasn’t entirely clear what
the agenda was for today’s hearing, at our previous hearing, you had
ordered the execution of a stipulated journal entry. I have a
stipulated journal entry here that I’m prepared to sign; and if the
other two attorneys sign it and you sign it and it’s filed with the
clerk, this case is over.
If that’s the case, there’s nothing more to discuss.
He also stated:
If the attorneys are not going to unconditionally sign the
stipulated order, then I would like to speak on the motion that I filed
Friday because that is the only motion pending before you. There is
no other motion about [Kristina’s] mental capacity before you. So
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to me it’s really a question, Do we dismiss the case or do we proceed
with my motion?
{¶ 20} Whipple continued to tie his motion to the dismissal of the case,
stating: “If they still have conditions, then I want to discuss my motion. If they
don’t have conditions, I am ready to sign [the stipulated dismissal] right now.”
{¶ 21} The board found that Whipple’s use of these “if—then” statements
revealed that the motion’s request for a referral to OLAP was “nothing more than
a pretense to allow [Whipple] to outline the accusations that formed the foundation
of his threat to Synenberg in order to secure a dismissal entry.” Further, it found
that “[h]is concern for Synenberg’s mental health was not substantial enough to
survive the stipulated dismissal of the case,” because the true purpose of the motion
was to obtain the dismissal of the case.
{¶ 22} During his disciplinary hearing, Whipple admitted that he made no
effort to contact OLAP before filing his motion. While recognizing that Whipple
eventually called OLAP, the board noted that he did so only after the June 10
hearing, during which Judge Hagan suggested that Whipple’s motion may have
violated Prof.Cond.R. 1.2(e). Whipple also admitted that he had filed his motion
on the public docket, even though OLAP is intended to be a confidential resource
and Whipple had taken efforts to protect his own client’s confidentiality by
emailing documentation regarding Kristina’s capacity directly to the judge just days
before he made his public allegations against Synenberg. Furthermore, the board
found that the timing of Whipple’s motion—which was filed late in the afternoon
on Friday before a Monday morning hearing—maximized the pressure on
Synenberg by leaving him little time to respond to the allegations and the entire
weekend to ponder the potential damage to his reputation and practice.
{¶ 23} The board rejected Whipple’s efforts at his disciplinary hearing to
recast his motion as a demonstration of genuine concern for Synenberg’s well-
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being. Ultimately, the board concluded that Whipple violated Prof.Cond.R. 1.2(e)
because his sole purpose in filing his motion was to force Synenberg to forgo the
issue of Kristina Seeley’s capacity and dismiss the case.
Prof.Cond.R. 3.1
{¶ 24} Prof.Cond.R. 3.1 prohibits a lawyer from asserting an issue in a
proceeding unless there is a nonfrivolous basis in law and fact for doing so. In this
case, Whipple stated that he filed his motion in accordance with two authorities—
Jud.Cond.R. 2.14(A) (requiring a judge who has a reasonable belief that the
performance of a lawyer is impaired by drugs or alcohol or by a mental, emotional,
or physical condition, to take appropriate action, which may include a confidential
referral to a lawyer-assistance program) and R.C. 2305.28(D) (providing a qualified
privilege for statements made to a peer-review committee, professional-standards-
review committee, or counseling and assistance committee of a state or local
professional organization).
{¶ 25} However, the board noted that Jud.Cond.R. 2.14(A) applies only to
judges and that R.C. 2305.28(D) does nothing more than insulate those who provide
information to certain peer-review committees from liability for civil damages. The
board acknowledged that in the underlying litigation, Judge Hagan denied the
defendants’ motion to declare Whipple’s motion frivolous and award sanctions
pursuant R.C. 2323.51, though at Whipple’s disciplinary hearing, she testified that
she believed the motion was frivolous. Finding that Whipple could point to no
authority that permits, much less requires, an attorney to publicly file a motion to
obtain an OLAP referral, the board concluded that his motion “was frivolous and
was of the type of conduct that Prof.Cond.R. 3.1 is intended to prevent.”
Prof.Cond.R. 8.4(a) and (d)
{¶ 26} Prof.Cond.R. 8.4(a) prohibits a lawyer from violating or attempting
to violate the Rules of Professional Conduct, and Prof.Cond.R. 8.4(d) prohibits a
lawyer from engaging in conduct that is prejudicial to the administration of justice.
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In this case, the board found that the true purpose of Whipple’s motion to refer
Synenberg to OLAP was to force Synenberg to dismiss the Seeley case without
further exploration of Kristina’s capacity. It further determined that his attempt to
involve Judge Hagan in his scheme to force Synenberg’s hand was the “epitome of
unfairness” and a clear violation of Prof.Cond.R. 8.4(a) and 8.4(d).
Whipple’s Objections to the Board’s Findings of Misconduct
{¶ 27} In his first two objections to the board’s report, Whipple contends
that relator failed to prove by clear and convincing evidence that he violated
Prof.Cond.R. 1.2(e) and 3.1. He also asserts that the board’s finding that his motion
was frivolous is barred by the doctrine of res judicata.
{¶ 28} Whipple argues that the allegations he made in his motion to refer
Synenberg to OLAP did not constitute a threat and that contrary to the board’s
findings, the purpose of his motion was neither to prevent an examination of
Kristina’s capacity nor to compel a dismissal of the Seeley litigation. Instead, he
testified and continues to claim that it was his intention to invoke Judge Hagan’s
duty under Jud.Cond.R. 2.14 to refer Synenberg to OLAP.
{¶ 29} However, the board found that Whipple’s belated attempts to
demonstrate genuine concern for Synenberg were “undermined by the simple fact
that, at every turn, [Whipple] made deliberate choices aimed at exerting pressure
on Synenberg, and not to find him help.” The board found Whipple’s own words
during the Seeley litigation more credible than his testimony at his disciplinary
hearing. We defer to the board’s determinations in that regard because our
independent review shows that the record does not weigh heavily against them.
See, e.g., Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649, 800
N.E.2d 1117, ¶ 8, citing Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 191, 198,
754 N.E.2d 235 (2001).
{¶ 30} Indeed, after an independent review of the record, we find that the
evidence overwhelmingly supports the board’s finding that the sole purpose of
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Whipple’s motion was to force Synenberg to forgo the issue of Kristina’s capacity
and dismiss the case. Whipple contends that his refusal to withdraw the motion
even after he obtained the desired dismissal and his subsequent call to OLAP refutes
the finding. But those actions do not refute the finding, because the record shows
that Whipple repeatedly offered to withdraw his motion in exchange for the
dismissal until Synenberg’s cocounsel accused him of filing his “scurrilous” motion
to gain leverage and the judge stated her intention to entertain that accusation. Only
then did his focus shift to his purported goal of seeking help for Synenberg.
{¶ 31} We are also unpersuaded by Whipple’s contention that the doctrine
of res judicata precludes this court from considering whether his motion violated
Prof.Cond.R. 3.1. Whipple bases this argument on Judge Hagan’s denial of a
motion to sanction him for frivolous conduct, under R.C. 2323.51, in the Seeley
litigation. Whipple offers no authority to support his contention that the doctrine
of res judicata can in any way preclude this court from exercising its original
jurisdiction over the discipline of attorneys admitted to the practice of law in this
state. See Article IV, Section 2(B)(1)(g), Ohio Constitution.
{¶ 32} The doctrine of res judicata renders final judgments conclusive only
when both actions involve the same parties (or those in privity with them), identical
issues to which the evidence is directed, and the identical quantum of proof
necessary to render both the original and subsequent judgments. Ohio State Bar
Assn. v. Weaver, 41 Ohio St.2d 97, 99-100, 322 N.E.2d 665 (1975). Applying those
standards, we held in Weaver that an attorney’s acquittal on criminal charges does
not preclude charges of professional misconduct under principles of res judicata,
because those proceedings do not share the same parties, purpose, or quantum of
proof. Id. There is likewise no shared parties, purpose, or quantum of proof
between the motion for sanctions for frivolous conduct in the Seeley litigation and
this disciplinary proceeding. Consequently, the doctrine of res judicata has no
application here.
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{¶ 33} Based on the foregoing, we overrule each of Whipple’s objections
to the board’s findings of misconduct and adopt those findings as our own.
Recommended Sanction
{¶ 34} When imposing sanctions for attorney misconduct, we consider all
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.
{¶ 35} The board found that three aggravating factors are present in this
case. First, the board found that Whipple’s motion was not his first attempt to use
the threat of discipline as a means to bend another attorney to his will. In fact, it is
undisputed that after Kristina retained him to challenge the validity of the February
2016 estate-planning documents, Whipple’s first action was to file a disciplinary
grievance against Gary Ebert and Gregory and Matthew Seeley. In that grievance,
he alleged that Ebert, Gregory, and Matthew had engaged in the “unethical
treatment of a mentally impaired man and his wife,” and he sought the rescission
of the February 2016 documents and all actions taken under their authority.
Consequently, the board found that Whipple engaged in a pattern of misconduct
that began with his filing of that grievance and culminated with the filing of his
motion to refer Synenberg to OLAP and his conduct at the June 10, 2019 hearing.
See Gov.Bar R. V(13)(B)(3). In addition, the board found that Whipple refused to
acknowledge the wrongful nature of his conduct and caused harm to the public’s
perception of the legal profession and to Synenberg’s reputation by filing a public
document alleging that Synenberg lacked the requisite fitness to practice law. See
Gov.Bar R. V(13)(B)(7) and (8).
{¶ 36} In mitigation, the board found that Whipple had no prior discipline,
participated and cooperated in the disciplinary process, and presented several letters
and the testimony of three witnesses regarding his good character. See Gov.Bar R.
V(13)(C)(1), (4) and (5). However, the board determined that those mitigating
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factors were insufficient to overcome the severity of Whipple’s misconduct—
which it found to be a calculated decision to threaten a fellow attorney to gain an
advantage in a civil matter.
{¶ 37} In determining the appropriate sanction for Whipple’s misconduct,
the board considered a number of cases in which we imposed sanctions ranging
from public reprimands to indefinite suspensions for misconduct bearing some
similarities to the misconduct at issue in this case. Believing this case to be one of
first impression, the board afforded exceptional weight to the content of Whipple’s
publicly filed motion and the comments that he made at the June 10, 2019 hearing
and recommended that he be suspended for one year with six months conditionally
stayed.
Whipple’s Objections to the Aggravating Factors Found by the Board
{¶ 38} In his third objection to the board’s report, Whipple challenges the
board’s findings that three aggravating factors are present in this case.
{¶ 39} First, Whipple asserts that there is no lawful basis to consider the
grievance filed against Gary Ebert and Gregory and Matthew Seeley as part of a
pattern of misconduct, because he (1) filed it on behalf of his clients, (2) did not
seek to use that filing to gain an advantage in the Seeley litigation, and (3) was not
charged with any misconduct arising from that filing. It is true that relator’s
complaint did not expressly charge Whipple with misconduct in relation to his
filing of that disciplinary grievance. Nonetheless, the complaint alleged that
Whipple’s first course of conduct to challenge the execution of the 2016 estate-
planning documents was to use the disciplinary process to avoid the civil-litigation
process. Indeed, the record demonstrates that Whipple drafted, signed, and filed
that grievance on behalf of his clients and accused the three attorneys of conspiring
“to induce[] a man known by them to be mentally incompetent to execute a power
of attorney and other legal documents so as to give them access to his wealth.” But
rather than seek disciplinary sanctions for their alleged misconduct, Whipple
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demanded that the three attorneys “immediately rescind the Power of Attorney and
other improper documents, and all actions that have been taken under the authority
of [those documents],” and “make restitution to [his clients] for any damages or
losses they have suffered as a result of [those] actions.” On these facts, the board
reasonably found that that grievance was the first step in Whipple’s pattern of
misconduct.
{¶ 40} Next, Whipple contends that his expression of regret and remorse for
publicly filing the motion to refer Synenberg to OLAP contradicts the board’s
finding that he exhibited a “complete refusal to accept responsibility for his actions
or acknowledge the wrongfulness of his conduct.” Whipple testified that he
regretted his actions to the extent that his public filing of the motion violated
Synenberg’s expectation of privacy and caused him embarrassment, although he
remained entrenched in his position that he did not violate any rules of professional
conduct.
{¶ 41} There is no doubt that Whipple was entitled to defend himself
against the allegations of misconduct that relator leveled against him. However,
Whipple never acknowledged that his own words in his motion, his prayer for relief,
or his statements at the June 10, 2019 hearing sought just one goal—to obtain the
long-desired dismissal of the Seeley litigation. On the contrary, he stood by those
words, which expressly and inextricably linked his accusations against Synenberg
with the dismissal of the litigation, and refused to acknowledge that it was he who
forged that link. Whipple’s belated expression of regret is insufficient to overcome
his refusal to acknowledge the wrongful nature of his conduct.
{¶ 42} In his final argument in support of this objection, Whipple asserts
that the record does not support the board’s finding that he caused harm to
Synenberg’s reputation. Specifically, he contends that Synenberg’s alleged
retaliation against a witness had already been publicized in a June 5, 2019 article
on Cleveland.com and that although Synenberg was not happy about the motion,
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he was not really harmed, because as Synenberg testified, he has “a pretty thick
skin.”
{¶ 43} An attorney’s most valuable asset is his or her professional
reputation for competence, honesty, and integrity. See Kala v. Aluminum Smelting
& Refining Co., Inc., 81 Ohio St.3d 1, 12, 688 N.E.2d 258 (1998). Here, Whipple
went far beyond the previously publicized incident of witness retaliation to make
unfounded allegations that Synenberg’s performance as an attorney was adversely
affected by some unidentified condition. There can be no doubt that those
allegations—made in a public filing—caused at least some harm to Synenberg’s
reputation for competence, though that harm is not quantifiable. Moreover,
Whipple’s objection fails to consider the harm that his conduct wrought on the
public’s perception of the legal profession by reinforcing one of the worst
stereotypes of attorneys—that they will abuse the legal process to gain an unfair
advantage for their clients.
{¶ 44} Contrary to Whipple’s claims, the record amply supports the board’s
findings that three aggravating factors are present in this case. We, therefore,
overrule Whipple’s third objection to the board’s report.
Whipple’s Objection to the Board’s Recommended Sanction
{¶ 45} In his fourth and final objection, Whipple contends that the
recommended sanction of a one-year suspension with six months stayed on
conditions is not supported by our precedent or warranted by the facts of this case.
He asserts that the customary sanction for a single violation of Prof.Cond.R. 1.2(e)
is no more than a public reprimand. Furthermore, he argues that when placed in
the proper context and given the appropriate weight, his conduct and the
aggravating and mitigating factors present in this case warrant a sanction no greater
than a fully stayed suspension. We respectfully disagree.
{¶ 46} Whipple cites two cases to support the proposition that a public
reprimand is the appropriate sanction for violations of Prof.Cond.R. 1.2(e)—Butler
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Cty. Bar Assn. v. Cunningham, 118 Ohio St.3d 188, 2008-Ohio-1979, 887 N.E.2d
343, and Cincinnati Bar Assn. v. Cohen, 86 Ohio St.3d 100, 712 N.E.2d 118 (1999).
In each of those cases, the attorney committed a single violation of former DR 7-
105 which, like Prof.Cond.R. 1.2(e), prohibited a lawyer from threatening to pursue
criminal charges solely to obtain an advantage in civil litigation. Those cases,
however, are readily distinguishable from this case.
{¶ 47} Cunningham represented a woman regarding certain financial
matters stemming from her earlier divorce. In an attempt to resolve those matters
on terms favorable to his client, Cunningham wrote a letter to the client’s ex-
husband suggesting that he had not disclosed all of the marital assets in the divorce
proceeding—including funds that might have been illegally obtained. Cunningham
at ¶ 3-4. The letter presented a list of demands and promised that the client would
forgo further proceedings if the ex-husband complied. Id. at ¶ 5. In a similar
fashion, Cohen sent three letters to a former client threatening to pursue criminal
charges if the client did not make good on two checks for his legal fees that had
been returned by the bank for insufficient funds. Cohen at 118-119.
{¶ 48} Cunningham conceded that he violated his duty under DR 7-105.
Cunningham at ¶ 7. His case presented no aggravating factors and four mitigating
factors—namely he had no disciplinary record, did not act with a dishonest or
selfish motive, cooperated in the disciplinary proceedings, and presented evidence
of his good character and reputation. Id. at ¶ 9. In Cohen, the panel did not identify
any aggravating or mitigating factors and attributed Cohen’s misconduct to an
isolated incident of bad judgment. In addition, upon learning that his client had
filed a grievance against him, Cohen wrote the client to apologize and acknowledge
his improper conduct. Cohen at 119.
{¶ 49} Like Cunningham and Cohen, Whipple committed a single violation
of a rule that prohibited lawyers from threatening to pursue criminal charges solely
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to obtain an advantage in civil litigation. But Whipple also violated Prof.Cond.R.
3.1, 8.4(a), and 8.4(d).
{¶ 50} There are also significant aggravating factors present in this case.
Whipple engaged in a pattern of misconduct over a period of several years and
refused to acknowledge the wrongful nature of his conduct or accept responsibility
for his actions—other than to express regret for making the allegations in a publicly
filed motion. In addition to the harm that Whipple’s allegations inflicted on
Synenberg’s reputation, his conduct also caused immeasurable harm to the public’s
perception of the legal profession. On these facts, Whipple’s conduct warrants a
sanction greater than the public reprimand he seeks.
{¶ 51} In determining the appropriate sanction for Whipple’s conduct, the
board considered Akron Bar Assn. v. Groner, 131 Ohio St.3d 194, 2012-Ohio-222,
963 N.E.2d 149. Groner had filed a pleading that contained misrepresentations and
false accusations about a person who had applied to be the administrator of a
probate estate. The board found that Groner had violated rules that prohibit a
lawyer from (1) asserting an issue unless there is a basis in law or fact for doing so,
(2) knowingly making false statements of law or fact to a tribunal and to a non-
client, and (3) offering evidence that the lawyer knows to be false and requiring a
lawyer to take reasonable measures to remedy the situation when the lawyer
discovers the evidence is false. Groner at ¶ 2. The board also found that Groner’s
conduct constituted a matter of fundamental dishonesty that was prejudicial to the
administration of justice and adversely reflected on her fitness to practice law in
violation of Prof.Cond.R. 8.4(c), (d), and (h). Id. at ¶ 12. The board recommended
that she be suspended from the practice of law for one year with six months
conditionally stayed. Id. at ¶ 2.
{¶ 52} Groner objected to the board’s findings of misconduct and
recommended sanction, arguing that she had made the statements in good faith and
believed them to be correct. Id. at ¶ 13. Noting that relator had agreed that Groner’s
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conduct was negligent or reckless—but fell short of being intentionally fraudulent
or deceitful— and that Groner had made a timely attempt to amend the pleading
once she suspected that her allegations were not correct, we dismissed the alleged
violations of Prof.Cond.R. 8.4(c), (d), and (h). Id. at ¶ 16-17. We determined that
Groner had exercised poor judgment and recklessly prepared the pleading using
information that she had hastily obtained and inadequately reviewed. Id. at ¶ 22.
In light of mitigating evidence that included no prior discipline, Groner’s
cooperation in the disciplinary proceedings, evidence of her good character and
reputation, and the resolution of the underlying probate proceeding, we concluded
that an actual suspension was not necessary to protect the public from future harm.
We, therefore, rejected the board’s recommended sanction and imposed a six-
month conditionally stayed suspension for Groner’s misconduct. Id. at ¶ 26.
{¶ 53} Whipple argues that if the mitigating factors here are appropriately
weighed, this court should reach the same conclusion that it did in Groner—that no
actual suspension from the practice of law is necessary to protect the public from
future harm.
{¶ 54} We acknowledge that Whipple has no record of prior discipline and
that he has participated and cooperated in the disciplinary process. We also
acknowledge that he has presented letters from six attorneys and two judges who
have attested to his competence, professionalism, and ethics. He has also presented
testimony from three additional attorneys regarding his volunteer work for the
Legal Aid Society of Cleveland and his reputation for honesty and integrity. Like
the board, however, we conclude that this mitigating evidence is insufficient to
overcome the significant aggravating factors in this case—not the least of which is
Whipple’s failure to acknowledge the wrongful nature of his conduct. We,
therefore, reject Whipple’s assertion that a fully stayed suspension will adequately
protect the public from future harm in this case.
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{¶ 55} Ultimately, we conclude that the facts of this case are most
comparable to those in Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-
Ohio-550, 842 N.E.2d 35. Wise believed that a court’s ruling required a child’s
aunt to immediately return custody of the child to his client, the child’s mother. Id.
at ¶ 3. When the aunt failed to turn the child over to the mother, Wise called the
aunt’s employer, the Cleveland Police Department, and suggested that kidnapping
charges might be filed if she did not comply with his request to turn over the child.
Id. at ¶ 5-6. He further implied that he would personally go to his friend, the county
prosecutor, to pursue kidnapping charges. Id. We found that Wise threatened to
present criminal charges solely to obtain an advantage in a civil matter and that he
also asserted a position that would serve merely to harass or maliciously injure
another. Just two mitigating factors were present—Wise had no prior discipline
and did not act with a dishonest or selfish motive. Id. at ¶ 15. However, we found
multiple aggravating factors, including that Wise failed to accept any responsibility
for his wrongdoing, harmed the aunt’s relationship with her employer, and made
several attempts to delay the disciplinary process. Id. at ¶ 16-19. Finding that Wise
had compromised his duty to promote confidence in the legal system and the legal
profession, failed to acknowledge the seriousness of his misconduct, and
unnecessarily complicated the disciplinary proceedings, we suspended him from
the practice of law for one year with six months stayed on the condition that he
commit no further misconduct. Id. at ¶ 29, 34-35.
{¶ 56} Whipple similarly compromised his duty to promote confidence in
the legal system and the profession by engaging in a pattern of misconduct intended
to threaten his fellow attorneys with allegations of professional misconduct and
criminal charges to gain an advantage in civil litigation. Although Whipple has
expressed some regret over his decision to make the allegations against Synenberg
in a public filing, he has failed to acknowledge that it was unethical for him to link
those allegations to his prayer for relief in the underlying litigation. On these facts,
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we believe that the sanction recommended by the board and imposed in Wise is
necessary to protect the public and the legal profession and to send a strong message
to the bar that such gamesmanship will not be tolerated.
Conclusion
{¶ 57} Based on the foregoing, we overrule each of Whipple’s four
objections to the board’s report and adopt the board’s findings of misconduct and
recommended sanction.
{¶ 58} Accordingly, Douglas Paul Whipple is suspended from the practice
of law in Ohio for one year with six months stayed on the conditions that he engage
in no further misconduct and pay the costs of these proceedings. If Whipple fails
to comply with the conditions of the stay, the stay will be lifted and he will serve
the entire one-year suspension.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Tucker Ellis, L.L.P., Robert J. Hanna, Melissa Z. Kelly, and Emily J.
Johnson; and Heather M. Zirke, Bar Counsel, for relator.
Douglas P. Whipple, pro se.
_________________
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