Columbus Bar Association v. Nyce. , 152 Ohio St. 3d 501 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Columbus Bar Assn. v. Nyce, Slip Opinion No. 2018-Ohio-9.]
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. 2018-OHIO-9COLUMBUS BAR ASSOCIATION v. NYCE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Columbus Bar Assn. v. Nyce, Slip Opinion No. 2018-Ohio-9.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to advise clients in writing that attorney does not maintain
professional-liability insurance, failing to maintain required records
documenting funds held in client trust account, and making false statements
of material fact in connection with disciplinary investigation—Permanent
disbarment.
(No. 2017-1078—Submitted October 17, 2017—Decided January 3, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-007.
_______________________
Per Curiam.
{¶ 1} Respondent, Kinsley Frampton Nyce, of Columbus, Ohio, Attorney
Registration No. 0003547, was admitted to the practice of law in Ohio in 1982.
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{¶ 2} In a May 18, 2016 amended complaint, relator, Columbus Bar
Association, alleged that Nyce had failed to notify his clients in writing that he does
not maintain professional-liability insurance, had failed to maintain his clients’
signed acknowledgements that they had received that notice, had not maintained
required records documenting the funds held in his client trust account, had
commingled personal and client funds, and had made false statements of material
fact in connection with the ensuing disciplinary investigation.
{¶ 3} Following a two-day hearing, a panel of the Board of Professional
Conduct found that Nyce had committed all but one of the alleged violations and
that he had actively sought to conceal evidence of his misconduct, repeatedly given
false and evasive testimony, and actively sought to subvert the disciplinary process.
Given the extent of Nyce’s efforts to frustrate and degrade the disciplinary system,
the panel and board recommended that he be permanently disbarred. Nyce objects
and argues that there is insufficient evidence to support the board’s findings of fact
and misconduct and, therefore, that no sanction is warranted. For the reasons that
follow, we overrule Nyce’s objections, adopt the board’s findings of fact and
misconduct, and permanently disbar Nyce from the practice of law in Ohio.
Board Findings of Fact and Misconduct
Count One: Professional-Liability-Insurance Violations, Failure to Withdraw
from Representation, Improper Communication with Person Represented by
Counsel, and Engaging in Conduct Involving Dishonesty
{¶ 4} Nyce represented NC Plaza, L.L.C., and Arthur Goldner &
Associates, Inc. (“AGA”), in an action brought by a tenant of a commercial rental
property owned by NC Plaza and managed by AGA. When Nyce’s clients did not
prevail, AGA retained attorney Stephen Jones to appeal the trial court’s decision.
Jones requested that Nyce withdraw from the case, but he did not formally do so as
required by Local Rule 18.01 of the Franklin County Court of Common Pleas.
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{¶ 5} Jones soon discovered that AGA carried property-liability insurance
that would have covered AGA’s liability for several of the tenant’s claims. Nyce
had not advised AGA to submit a claim, and the insurer denied AGA’s later-filed
claim as untimely.
{¶ 6} Jones sent Nyce a letter informing him that his failure to advise AGA
to file an insurance claim could be a basis for a legal-malpractice claim and
requesting information about Nyce’s professional-liability insurance. When Nyce
failed to respond, Jones sent two additional letters. Jones’s second letter stated that
he presumed Nyce had malpractice insurance because AGA reported to him that
Nyce had never apprised them that he lacked insurance, as required by
Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the lawyer does not
maintain professional-liability insurance and obtain a signed acknowledgment of
that notice from the client). Nyce responded to Jones’s third letter by sending an
e-mail to Jones and Arthur Goldner, AGA’s president and chief executive officer,
decrying Jones’s “threats.”
{¶ 7} In subsequent communications, Jones repeated his earlier admonition
that Nyce should not contact Goldner directly, and he asked Nyce to let him know
“as soon as possible” whether he had insurance. Nyce again responded directly to
Goldner, threatening that if AGA sued him, he would no longer “stay silent” about
matters that his clients had allegedly communicated to him during the underlying
litigation. Nyce never told Jones whether he carried professional-liability
insurance.
{¶ 8} The board found that at the time of the litigation, Goldner was AGA’s
principal representative and ultimate decision-maker. Goldner testified that he was
the only person who had authority to hire an attorney on behalf of AGA and that
Nyce never informed him that he did not carry professional-liability insurance. And
Nyce’s own hearing and deposition testimony confirmed that he has never
personally carried malpractice insurance, he did not advise Goldner of that fact, and
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he did not ask Goldner to sign a notice acknowledging that Nyce lacked malpractice
insurance.
{¶ 9} The board rejected Nyce’s argument that he had provided the required
notice to Rick Aronhalt, AGA’s on-site property manager. The board noted that
Nyce was required to “apprise Goldner of [his lack of malpractice insurance], rather
than rely on the off-chance that Goldner’s employee, Aronhalt, might remember
that during a prior representation of Aronhalt personally, Respondent had no such
coverage.” The board was skeptical of Nyce’s evidence of two forms purportedly
signed by Aronhalt by which he had supposedly provided the required notice to
Aronhalt. As the board noted, the forms were undated and referred to a rule that
had been superseded by Prof.Cond.R. 1.4(c) in 2007. The board was also
unconvinced that Aronhalt had actually signed either form.
{¶ 10} The board found that Nyce had violated Prof.Cond.R. 1.4(c),
1.4(c)(1) (requiring a lawyer to maintain, for five years after the termination of the
representation of the client, a copy of a client’s signed acknowledgment that the
attorney does not maintain professional-liability insurance), 1.16(c) (prohibiting a
lawyer from withdrawing from representation in a proceeding without leave of
court if the rules of the tribunal so require), and 4.2 (prohibiting a lawyer from
communicating about the subject of the representation with a person the lawyer
knows to be represented by another lawyer, unless the lawyer has the consent of
the other lawyer or is authorized by law or a court order). In addition, the board
found that Nyce had violated Prof.Cond R. 8.4(c) (prohibiting a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) by
deliberately ignoring and evading his successor counsel’s repeated and legitimate
requests that he provide information about his professional-liability insurance and
cease direct contact with Goldner. It also found that Nyce’s conduct was
sufficiently egregious to find a violation of Prof.Cond.R. 8.4(h) (prohibiting a
lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to
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practice law). See, e.g., Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-
Ohio-3998, 997 N.E.2d 500, ¶ 21.
Count Two: Professional-Liability-Insurance Violations and Failure to
Cooperate in the Ensuing Disciplinary Investigation
{¶ 11} In 2015, during the course of investigating Nyce’s representation of
AGA, relator requested and later subpoenaed Nyce’s client list and copies of his
client-signed acknowledgments under Prof.Cond.R. 1.4(c) dating back to January
2012. Relator also told Nyce to “direct[ly] answer” Jones’s questions regarding the
Prof.Cond.R. 1.4(c) notice in connection with his representation of NC Plaza and
AGA.
{¶ 12} During depositions, Nyce acknowledged that he represented at least
30 clients after January 2012 and that he has never personally carried malpractice
insurance. Based on this testimony, the board inferred that Nyce should have
retained possession of and been able to produce completed Prof.Cond.R. 1.4(c)
insurance notices for at least those 30 clients. But in June 2015, Nyce’s counsel
produced only the two notices that had purportedly been signed by Aronhalt. Nyce
later produced ten additional notices, but none of them fully complied with
Prof.Cond.R. 1.4(c).
{¶ 13} One of the clients for whom Nyce should have retained a signed
insurance notice was Ellen Shaffer, who retained him in June 2012. Shaffer
testified that Nyce never told her that he did not carry malpractice insurance and
had never given her written notice of that fact. Had he done so, she said, it would
have been significant to her: “It would have made me very uneasy about a legal
professional not looking after a client’s best interest.”
{¶ 14} At the hearing, Nyce did not challenge Shaffer’s contention that he
had failed to notify her that he lacked malpractice insurance. Instead, as described
by the board, Nyce responded by “embark[ing] on a rambling mix of cross-
examination and diatribe emblematic of his approach to the entire hearing, in the
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course of which he attempted to confuse and hoodwink Shaffer with a totally
different document that he had not previously disclosed to Relator * * *, feigned
acting with ‘integrity’ when Relator challenged his belated production, and accused
the panel chair of mischaracterizing what had happened during supervised
discovery.”
{¶ 15} During his December 2016 deposition, Nyce testified that Shaffer
had signed a Prof.Cond.R. 1.4(c) notice in relation to his representation of her
husband in an earlier case. Nyce stated that he could not provide a copy of the
notice because it had been lost in a flood at his office—ostensibly with his other
clients’ notices—but he could not recall when the flood had occurred and did not
offer any corroborating evidence of a flood. He also said that she had refused to
return the notice that he had provided to her in relation to her case.
{¶ 16} The panel did not find Nyce’s testimony regarding providing Shaffer
with notice, his testimony regarding the alleged flood, or his testimony regarding
the insurance notices allegedly signed by other clients to be credible. Accordingly,
it found that Nyce’s conduct violated Prof.Cond.R. 1.4(c), 1.4(c)(1), 8.1(a)
(prohibiting a lawyer from knowingly making a false statement of material fact in
connection with a disciplinary matter), and 8.1(b) (prohibiting a lawyer from failing
to disclose a material fact or knowingly failing to respond to a demand for
information by a disciplinary authority during an investigation) and Gov.Bar R.
V(9)(G) (requiring a lawyer to cooperate in disciplinary investigations). The panel
and board also found that Nyce made misrepresentations during discovery and at
the hearing and had otherwise acted deceitfully and dishonestly toward relator and
the panel in violation of Prof.Cond.R. 8.4(c). Furthermore, they determined that
Nyce’s extreme efforts to conceal evidence with respect to this count constitute
egregious misconduct adversely reflecting his fitness to practice law in violation of
Prof.Cond.R. 8.4(h). See Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d
500, at ¶ 21.
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Count Three: Client-Trust-Account Records
{¶ 17} Nyce maintains a client trust account at Huntington National Bank.
On March 24, 2016, relator asked Nyce to provide records related to that account
by April 4, 2016. Among the requested documents were (for the time period of
January 1, 2012, through February 29, 2016) Nyce’s client fee agreements; client
ledgers—that is, a record for each client showing the date, amount, and source of
all funds deposited on behalf of the client; the date, amount, payee, and purpose of
all disbursements; each client’s running balance; monthly account reconciliations;
and (for the time period of September 1, 2015, through February 29, 2016) copies
of all bank statements, deposit slips, and canceled checks for the account. And to
the extent that between January 1, 2012, and February 29, 2016, Nyce “received
funds or other property in which a client or third party claimed a lawful interest,”
relator also requested copies of the notifications Nyce sent to those persons.
Although relator made repeated requests for all of these records, Nyce never
produced anything close to the full set of requested documents.
{¶ 18} As the board noted, Nyce’s nonresponsiveness was consistent with
his behavior throughout discovery and on the first day of the hearing. Because the
case had been contentious, the panel chairperson closely monitored discovery,
made himself available to resolve disputes, and conducted multiple teleconferences
with the parties. And after one attempt to take Nyce’s deposition quickly descended
into chaos, the chairperson telephonically monitored Nyce’s next deposition. The
board remarked that “[t]hroughout discovery and continuing into the first day of
the hearing, Respondent could hardly have been less forthcoming, open, and candid
in responding to discovery, particularly with respect to producing his [client-trust-
account] related records.”
{¶ 19} For example, in Nyce’s November 28, 2016 response to relator’s
request for production of documents, he asserted that he had already produced the
requested records and that they consisted of just “nine pages.” Yet Nyce did not
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mention this alleged production in his April 15, 2016 letter to relator, his May 18,
2016 motions to dismiss and quash, or his June 17, 2016 answer to the amended
complaint, which added Counts Three and Four. Nyce also remained silent when
relator asserted in its June 22, 2016 response to his motion to quash that it had not
received the requested records.
{¶ 20} Even after relator filed a motion to compel discovery in December
2016, Nyce continued to insist that he had already produced the documents—which
he asserted consisted of nine pages—rather than to simply provide relator “another”
copy of the documents. Nyce did not bring a copy of the documents to his
deposition or the first day of the hearing. And when the panel chairperson ordered
him to give a copy to relator by the end of the day, Nyce produced just six pages of
records and claimed that the three missing pages were redundant. The board noted
that those six pages were not fully responsive to relator’s original discovery request
and that a seventh page later produced by Nyce at the panel chairperson’s
instruction did not remedy the deficiency. Nyce never produced the remaining two
pages of the nine that he claimed to have already given to relator.
{¶ 21} Ultimately, the board found that Nyce had failed to produce the
requested documents and that he had never maintained the records, in violation of
Prof.Cond.R. 1.15(a)(1) through (5) (requiring a lawyer to hold funds belonging to
a client or third party in a client trust account separate from his own property and
to maintain certain records including fee agreements, client ledgers, bank
statements, deposit slips, canceled checks, and monthly reconciliations of the
account). The board also found that Nyce had knowingly breached his duties to
disclose material information when requested and to cooperate and assist in
relator’s investigation in violation of Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G).
Count Four: The Barbara Nyce Funds
{¶ 22} Nyce’s mother, Barbara, became a patient at Burlington Health &
Rehabilitation Center, a nursing facility in Burlington, Vermont, in 2013. At the
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time, she had assets in excess of $700,000, including sizable accounts in two
Vermont banks on which Nyce and his brother, Roger, were listed. But by the time
she was discharged from Burlington Health in early 2014, she owed the facility
more than $68,000.
{¶ 23} Beginning on March 18, 2014, Barbara resided at Kindred
Transitional Care and Rehabilitation-Birchwood Terrace (“Birchwood”), also in
Vermont. When she died on May 25, 2015, she allegedly owed Birchwood more
than $137,000. But by then, Barbara had no assets from which to pay those debts.
{¶ 24} The board found that Barbara had no liquid assets at the time of her
death because Nyce and his brother had systematically withdrawn the funds from
her bank accounts. On June 19, 2013, Nyce and his brother caused $584,619.23 to
be transferred from Barbara’s accounts and distributed in seven cashier’s checks
made payable to themselves. Two days later, Nyce deposited those checks into his
client trust account. Over the next two weeks, Nyce transferred most of those funds
out of his client trust account in three batches. He deposited $200,000 into the
account of a closed probate estate for which he was the executor, deposited
$200,000 into a certificate of deposit held in his name, and used $177,171.87 to pay
for a condominium held in the name of Nyce’s wife, both individually and as a co-
trustee with their son.1
{¶ 25} Nyce testified that he had later moved $200,000 from the certificate
of deposit “to investments” for nine “clients,” at his mother’s direction (though he
also said that she suffered from dementia and was “brain damaged”). According to
Nyce, the funds were now titled in the name of a trust for the nine clients, for which
his son (a nonattorney) serves as the trustee. He refused to identify the nine
individuals, but said that his mother had some connection to them. Although Nyce
said that it was “hard for [him] to really know” what her connection was to these
1
Nyce has provided no evidence—save for his own testimony—regarding the purported trust or its
intended beneficiaries.
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individuals, he described them as “desperate” and said, “My mother had them deal
with me over the years.” He also testified that there are three “third parties that the
nine clients have to embrace” who are “mutually symbiotic,” and who have a
potential interest in the investments. Although he denied that the third parties were
clients, he refused to identify them, stating “I can’t disclose the names of the third
parties, but the third parties only have a future interest if things happen at this point
in time. So when we negotiated and got everybody on board, they don’t have any
way to do anything to harm the nine until possibly a much later date and time.”
{¶ 26} None of the nine “clients” is identified in what Nyce claimed was
his “complete” client-trust-account ledger for 2013. And when relator’s counsel
inquired about the insurance-notification forms for the nine clients, Nyce replied,
“Those are with me.” Nyce admitted that he had not produced those forms in
response to relator’s requests for all insurance-notification forms and attempted to
explain why by stating:
Because they’re private clients, and I’m not doing legal
services for them. I’m running their accounts and running their
homes. So I did not see that they’re legal clients. None of them are
suing anybody or getting benefits. When I say they’re clients, they
start out that way because of my mother; but they don’t transition.
They’re people that eat, have a home, stay warm, survive because of
what my mother and I do. That’s not a legal client. It’s a client.
And when the panel chairperson asked, “If they’re not legal clients, then why can’t
we know who they are?” Nyce replied, “They don’t want to be known” and “It’s
not anybody in here’s business.”
{¶ 27} On this evidence, the board concluded that Nyce had used his client
trust account and the dormant probate estate’s bank account to try to launder the
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money from his mother’s bank accounts.2 The board characterized his story about
the nine clients as “a complete sham concocted by Respondent in a vain effort to
sanitize and legitimize his improper use of his [client trust] account.” The board
found that it was sufficiently clear that when Nyce transferred the funds out of his
client trust account, he knew that at least one third party would claim an interest in
them. Thus, the board concluded that Nyce’s conduct with respect to the funds
transferred from his mother’s accounts violated Prof.Cond.R. 1.15(a) (a lawyer
shall hold property of clients or third persons that is in a lawyer’s possession in
connection with a representation separate from the lawyer’s own property), 1.15(b)
(permitting a lawyer to deposit the lawyer’s own funds in a client trust account for
the sole purpose of paying or obtaining a waiver of bank service charges on that
account, but only in an amount necessary for that purpose), and 1.15(d) (requiring
a lawyer to promptly notify a client or third person upon receiving funds or other
property in which the client or third person has a lawful interest).3
Nyce’s Objections to the Board Report
{¶ 28} Nyce has filed 50 pages of rambling, almost stream-of-
consciousness, objections to the board’s findings of fact and recommended
sanction, along with numerous exhibits. In doing so, Nyce presents facts and
exhibits—which were apparently not presented at his disciplinary hearing—in an
attempt to recharacterize the evidence and bolster his own credibility. For example,
Nyce makes repeated unsubstantiated claims that relator engaged in prosecutorial
misconduct throughout the disciplinary process by falsely accusing him of
committing conduct-rule violations, falsifying documents, and conspiring with the
2
The board acknowledged that there are ongoing federal proceedings in Vermont regarding the
transfer of Barbara’s assets and that the status of those proceedings and Nyce’s liability, if any, are
unclear from the record in this case.
3
The panel unanimously dismissed an alleged violation of Prof.Cond.R. 8.4(h) with respect to this
count. See Gov.Bar R. V(12)(G).
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attorneys who allegedly filed grievances against him to advance their positions in
related civil litigation.
{¶ 29} A primary focus of Nyce’s objections appears to be his belief that
this disciplinary proceeding should have been stayed until Vermont litigation
regarding his mother’s Medicaid eligibility and nursing-home bills is resolved.
Nyce claims, without citing any law in support, that Vermont law prevents him
from disclosing any information regarding those proceedings. He then argues that
the outcome of the Vermont litigation is relevant to the charges in this case. But
only the allegations in Count Four are in any way related to the Vermont litigation,
and those allegations arise solely from Nyce’s failure to comply with the rules
governing the use of his Ohio client trust account with regard to certain funds that
originated in Vermont. Thus, it does not appear that the Vermont proceedings have
any bearing on the charges alleged in relator’s complaint. Moreover, nothing in the
Rules for the Government of the Bar requires the board to issue a stay pending the
outcome of related civil litigation and no one suggests that the Vermont
proceedings are criminal in nature. See Gov.Bar R. V(18)(C) (prohibiting
proceedings in disciplinary matters arising from convictions for criminal offenses
to go forward until all direct appeals in the underlying criminal proceedings have
concluded).
{¶ 30} Nyce also claims that the evidence against him is insufficient to
support the board’s findings that he engaged in the charged misconduct because the
evidence consists entirely of hearsay and he was denied the opportunity to present
witnesses in violation of his constitutional right to procedural due process. These
claims are without merit. Relator presented testimony from multiple witnesses and
submitted numerous documents to prove much of the charged misconduct.
Although Nyce refused to directly authenticate many of relator’s exhibits pertaining
to Count Four, in some instances—particularly with respect to the bank statements
for Nyce’s client trust account—his own testimony ultimately confirmed the
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accuracy of the exhibits and helped establish his misconduct. And despite Nyce’s
claims to the contrary, the record demonstrates that he was not deprived of the
opportunity to present witnesses in his defense but that he chose to rest his case
without doing so.
{¶ 31} Nyce’s remaining objections and his pending motions—which
among other things seek to supplement the record with documents purportedly
related to the Vermont litigation, to stay the disciplinary proceedings pending the
outcome of the Vermont litigation, to raise additional arguments in the nature of
objections, to strike relator’s oral argument from the record, and to urge this court
not to impose sanctions against him—are likewise without merit. Accordingly, we
overrule each of Nyce’s objections as well as his October 12 and 30, 2017 motions
and we adopt the board’s findings of fact and misconduct.
Sanction
{¶ 32} 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), any other relevant
factors, and the sanctions imposed in similar cases.
{¶ 33} Here, the board found that just one mitigating factor is present—
Nyce does not have a prior disciplinary record. See Gov.Bar R. V(13)(C)(1). In
contrast, it found that six aggravating factors are present. Specifically, Nyce (1)
acted with a dishonest and selfish motive, (2) engaged in a pattern of misconduct,
(3) committed multiple offenses, (4) failed to cooperate in the disciplinary process,
(5) submitted false evidence, made false statements, and used deceptive practices
during the disciplinary process, and (6) refused to acknowledge the wrongful nature
of his misconduct. See Gov.Bar R. V(13)(B)(2), (3), (4), (5), (6), and (7).
{¶ 34} The board also detailed Nyce’s numerous failures to cooperate in the
disciplinary process, setting forth a litany of his obstructive and deceptive practices.
Significantly, the board stated:
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From the beginning, Respondent displayed open and
undisguised hostility toward the disciplinary system, the attorneys
representing Relator, and the panel. It would be difficult to imagine
an accused attorney demonstrating less respect for the disciplinary
process or less remorse for his misconduct. Throughout the
proceedings, from the initial complaint through the end of the
hearing, Respondent actively sought to conceal evidence of his
misconduct, gave false and evasive testimony, and used a multitude
of means in a dishonest effort to subvert, derail, and undermine the
disciplinary process. In his answer to the amended complaint, for
example, he denied the allegation, “Respondent is not licensed to
practice law in Vermont” due to “lack of specificity.” Relator’s Ex.
35 at p. 2. He asserted “counterclaims” against Relator and its
individual lawyers for a variety of constitutional violations and for
violations of federal and state racketeering laws. Relator’s Ex. 34
at 3-5. During discovery, he had subpoenas issued to take
depositions of particular witnesses, often requiring the panel chair
to issue special entries, then he failed to show up for the depositions,
inconveniencing the witnesses, Relator’s counsel, and Board staff.
At his own aborted deposition in early December 2016, Respondent
objected to the court reporting service employed by Relator as
biased.
{¶ 35} Nyce also quibbled endlessly over trivial matters at his disciplinary
hearing. For example, he spent five minutes debating whether he had said he had
30 clients, at least 30 clients, or approximately 30 clients during a certain period of
time. And he was evasive when asked to identify documents that should have been
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familiar to him, including relator’s amended complaint, to which he stated, “I
recognize that this is what it says on the front page. I don’t know even upon looking
I will be able to identify for certain, but that is what it says here.” When shown an
exhibit and asked whether he agreed that it was a letter addressed to him, he said,
“Well, it is certainly not addressed to me in any way that is who I am, but I
understand it is my last name and first name, but it is not me, but I got the letter, I
received this letter.”
{¶ 36} At Nyce’s December 22, 2016 deposition, he invoked his Fifth
Amendment privilege and refused to identify Roger Nyce as his brother. In
February 2017, he reversed course and filed a memorandum in which he repeatedly
identified Roger as his brother, but in his testimony at the hearing the following
month, he took several minutes to ponder whether Roger was his brother before
refusing to answer the question. Later during that hearing, Nyce routinely called
Roger his brother as though he had never cast any doubt on the matter.
{¶ 37} In a similar fashion, Nyce invoked his Fifth Amendment privilege
during his deposition and refused to answer questions related to his actions with
regard to the money withdrawn from bank accounts in Vermont, but then at the
hearing, he opened his case with a long discussion of those very matters. He also
repeatedly refused to answer proper “yes” or “no” questions posed by relator’s
counsel—even when instructed to answer.
{¶ 38} Moreover, the board found that Nyce had provided false testimony
and fabricated elaborate stories in an attempt to explain his failure to cooperate in
the disciplinary investigation, including the following: (1) he claimed that a flood
had destroyed most of his Prof.Cond.R. 1.4(c) insurance notices (despite never
mentioning the flood in his first deposition or his motions attacking relator’s
complaint), (2) he claimed that he had satisfied relator’s document request by
turning over “nine pages” of client-trust-account records (which turned out to be
just six pages that were produced for the first time at the hearing), and (3) he
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claimed that there are nine unidentified “private clients” who are rightfully entitled
to the funds that were withdrawn from his mother’s bank accounts and passed
through his client trust account. The board found these explanations to be
incredible and concluded that Nyce is “dangerously unable to distinguish right from
wrong.”
{¶ 39} The self-governing nature of the legal profession requires each
lawyer to cooperate in disciplinary proceedings—even when it is the lawyer’s own
conduct that is being scrutinized. “So when an attorney disregards or fails to
cooperate in the disciplinary process, not only does he disserve the public and this
court’s mission to protect it, he also compromises the profession and himself as a
member of it.” Disciplinary Counsel v. Watson, 98 Ohio St.3d 181, 2002-Ohio-
7088, 781 N.E.2d 212, ¶ 14. Thus, when a lawyer testifies falsely during the
disciplinary process, attempts to impede, obstruct or protract the disciplinary
process, or persistently refuses to accept responsibility for his or her misconduct—
all of which Nyce has done here—he or she may no longer be worthy of the trust
and confidence of the public and the courts. And in such cases, the appropriate
sanction may tip from a term of indefinite suspension to permanent disbarment.
See, e.g., Disciplinary Counsel v. Hoskins, 150 Ohio St.3d 41, 2017-Ohio-2924, 78
N.E.3d 845 (permanently disbarring an attorney who continued to practice law
while his license was suspended, falsely represented to opposing counsel during a
deposition that his license had been reinstated, submitted false statements during
the disciplinary process, and failed to acknowledge the wrongful nature of his
conduct); Toledo Bar Assn. v. Harvey, 150 Ohio St.3d 74, 2017-Ohio-4022, 78
N.E.3d 875, ¶ 23 (permanently disbarring an attorney who neglected client matters,
abandoned clients, and had “a history of not complying with the orders of the
Supreme Court of Ohio and ignoring the requirements associated with the
disciplinary process”); Trumbull Cty. Bar Assn. v. Roland, 147 Ohio St.3d 274,
2016-Ohio-5579, 63 N.E.3d 1200 (permanently disbarring an attorney who
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January Term, 2018
engaged in fraudulent and dishonest conduct, neglected clients’ legal matters, and
failed to participate in the disciplinary process after filing answers largely denying
the allegations against him).
{¶ 40} Based on the foregoing, the board determined that Nyce “no longer
is fit to practice a profession grounded on trust, integrity, and candor” and that the
only way to ensure the protection of the public is to permanently disbar him.
Having reviewed the record, the board’s report, the arguments presented in Nyce’s
objections and motions, and our precedent, we agree.
{¶ 41} Accordingly, we overrule Nyce’s objections and pending motions
and permanently disbar him from the practice of law in Ohio. Costs are taxed to
Nyce.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEWINE, JJ., concur.
KENNEDY, FRENCH, and O’NEILL, JJ., dissent, and would indefinitely
suspend respondent from the practice of law.
_________________
Scott & Nolder Co., L.P.A., and Steven S. Nolder; Terry K. Sherman; and
Lori J. Brown, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel, for
relator.
Kinsley Frampton Nyce, pro se.
_________________
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