Cleveland Metropolitan Bar Association v. Donchatz , 150 Ohio St. 3d 168 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Donchatz, Slip Opinion No. 2017-Ohio-2793.]
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. 2017-OHIO-2793CLEVELAND METROPOLITAN BAR ASSOCIATION v. DONCHATZ.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Donchatz, Slip Opinion No.
2017-Ohio-2793.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Indefinite suspension.
(No. 2016-0859—Submitted January 10, 2017—Decided May 16, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2014-085.
_______________________
Per Curiam.
{¶ 1} Respondent, Kenneth R. Donchatz, of Columbus, Ohio, Attorney
Registration No. 0062221, was admitted to the practice of law in Ohio in 1993.
{¶ 2} On March 23, 2015, relator, Cleveland Metropolitan Bar Association,
filed an amended complaint with the Board of Professional Conduct charging
Donchatz with multiple violations of the Rules of Professional Conduct in four
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separate legal matters. Specifically, the complaint alleged that Donchatz engaged
in dishonest conduct in three separate matters and failed to timely communicate
with a client regarding the nature and scope of his legal representation and his fee
in a fourth matter.
{¶ 3} The parties entered into stipulations of fact. A panel of the board
conducted a hearing, at which it received numerous exhibits and heard testimony
from several witnesses, including Donchatz. Thereafter, the panel issued a report
containing findings of fact, misconduct, and aggravating and mitigating factors and
recommending that Donchatz be suspended from the practice of law for two years
with six months stayed on the condition that he engage in no further misconduct.
{¶ 4} The board adopted the panel’s findings and recommended sanction.
Donchatz objects to the board’s findings of misconduct with respect to Counts
Three and Four, arguing that they are against the manifest weight of the evidence.
Both parties object to the recommended sanction.
{¶ 5} For the reasons that follow, we adopt the board’s findings of fact and
misconduct, make additional findings of fact, and indefinitely suspend Donchatz
from the practice of law in Ohio.
Misconduct
Count One—The Davey Tree Litigation
{¶ 6} In January 2010, Davey Tree Expert Company obtained a default
judgment against Donchatz on unpaid invoices. Without investigating or
confirming that the judgment had been paid and without receiving authorization
from Davey Tree, Donchatz filed a satisfaction of judgment in the Franklin County
Municipal Court.
{¶ 7} Thereafter, Davey Tree’s counsel informed Donchatz that a balance
remained due and asked him to withdraw the satisfaction of judgment. Donchatz
confirmed that the judgment remained unpaid, but he did not withdraw his filing.
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The court later granted Davey Tree’s motion to vacate the satisfaction and
reinstated the judgment.
{¶ 8} In October 2013, more than three years after the default judgment was
entered and nearly 18 months after it was reinstated, Donchatz moved the court to
reconsider the default judgment. Determining that the motion was frivolous and
without merit, the court denied it and awarded sanctions to Davey Tree. But
Donchatz did not pay the judgment or sanctions until April 15, 2014.
{¶ 9} Based on this conduct, the board found that Donchatz violated
Prof.Cond.R 3.1 (prohibiting a lawyer from bringing or defending a proceeding that
is unsupported by law or lacks a good-faith argument for an extension,
modification, or reversal of existing law), 3.3(a)(1) (prohibiting a lawyer from
knowingly making a false statement of fact or law to a tribunal), 3.4(c) (prohibiting
a lawyer from knowingly disobeying an obligation under the rules of a tribunal),
8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice). We adopt these findings
of fact and misconduct.
Count Two—The Cracknell Matter
{¶ 10} In early 2007, Donchatz began to represent a friend, Linda
Cracknell, in the dissolution of a family partnership. At the outset of the
representation, Donchatz and Cracknell agreed that there would be no fee, and there
was never a written fee agreement. Cracknell testified that whenever she later
would offer to pay Donchatz for representing her, he would respond, “Don’t worry
about it.” Donchatz testified that he had told Cracknell from the beginning that his
representation would be pro bono, but the evidence suggested otherwise.
Specifically, in a May 2013 e-mail, he suggested that she file a fee-arbitration claim
because she had not responded to his inquiry regarding his fee and he did not want
to be left “holding the bag on the legal fees.” In addition, during the representation,
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Donchatz accepted an antique desk as a gift from Cracknell, which he later
refurbished. And, on September 17, 2009, Donchatz borrowed $100,000 from
Cracknell.
{¶ 11} Cracknell testified that Donchatz never advised her in writing that
there were special rules governing transactions between lawyers and their clients,
that there were potential conflicts of interest between lawyers and their clients in
such transactions, or that she should seek independent counsel before making the
loan to him. Nor did he provide her with a promissory note setting forth the terms
of the loan as she requested. In December 2014, Cracknell agreed to accept $57,000
($17,000 that Donchatz had already paid, plus an additional payment of $40,000)
and the return of the antique desk as repayment of the loan.
{¶ 12} At the hearing, Donchatz admitted that he accepted the $100,000
check from Cracknell without providing the written notices required by
Prof.Cond.R. 1.8(a) (prohibiting a lawyer from entering into a business transaction
with a client unless the client is advised in writing of the desirability of obtaining
independent legal counsel and the terms of the transaction are fair, reasonable, and
fully disclosed in a writing signed by the client) and therefore violated the rule the
moment he took the loan. In addition to finding a violation of that rule, the board
found that he violated Prof.Cond.R. 1.5(b) (requiring an attorney to communicate
the basis or rate of the fee and expenses within a reasonable time after commencing
the representation, preferably in writing). Donchatz does not dispute these findings
of fact or misconduct, and after independently reviewing the record, we adopt them.
Count Three—The Hampton Matter
{¶ 13} Donchatz represented attorney Carol Hampton in a disciplinary
proceeding in 2014. In a deposition, Hampton testified that J.T. Holt, counsel for
the person who had filed a grievance against her, had tape-recorded three meetings
with Hampton regarding her alleged misconduct. Upon request, assistant
disciplinary counsel Karen Osmond provided Donchatz with copies of two
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recorded conversations but informed him that she did not have a recording of a third
conversation. After Donchatz made a second request for the alleged recording of
the third meeting, Osmond contacted Holt and was informed that Holt had not
recorded that meeting. On April 29, 2014, Osmond informed Donchatz that Holt
had denied that he had recorded the third meeting, provided him with Holt’s phone
number, and invited him to speak directly with Holt to verify that there was no
recording of the third meeting.
{¶ 14} The next day, Donchatz filed a motion in limine claiming that Holt
had recorded the third meeting and further stating:
[D]espite two requests to do so, Relator has not produced this
recording, instead taking the position that because Relator does not
possess it, Relator does not have to produce it.
But this response implicates Relator’s basic duties as a
prosecutor and calls into question the fundamental fairness of
pursuing charges against Respondent when the prosecutor is fully
aware that exculpatory evidence exists. Respondent now knows
without a doubt that a recording exists that contains statements that
exonerate the Respondent. * * * Yet, Relator hides behind a
discovery rule rather than making sure that justice is fulfilled in this
case.
Donchatz concluded his motion by declaring, “Since the Relator is refusing to
produce exculpatory evidence with regards to Count Nine, the Hearing Panel
should exclude evidence related to the aforementioned charges.” (Emphasis
added.)
{¶ 15} The board found that Donchatz’s motion failed to mention that
Osmond (1) had investigated the alleged third recording, (2) had informed
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Donchatz that it did not exist, and (3) had given him the opportunity to investigate
for himself whether the recording existed. In addition to finding that “Osmond
viewed the statements about her conduct in the motion as ‘just false,’ ” the board
noted that after disciplinary counsel sought clarification from Donchatz, Donchatz
“defended the statements he had made in the motion even though they were not
true.”
{¶ 16} The board found that by filing the motion in limine that contained
false statements and misrepresentations, Donchatz violated Prof.Cond.R 3.1,
3.3(a)(1), 3.4(c), 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), and 8.4(d).
{¶ 17} Donchatz objects to the board’s findings of fact and misconduct,
arguing that the panel “disregarded the greater weight of credible evidence,” issued
a report that contains almost no analysis or reasoning, and failed to explain why his
evidence was “disregarded.” He claims that the evidence shows that statements he
made in his motion had a reasonable basis in fact and that he disclosed those facts
in the motion and more fully in his later response to disciplinary counsel’s letter of
inquiry. He therefore contends that the challenged statements were “statement[s]
of opinion” subject to First Amendment protection rather than “knowingly false
statement[s]” actionable under the Rules of Professional Conduct. And he urges us
to evaluate his statements under the test articulated in Berry v. Schmitt, 688 F.3d
290 (6th Cir.2013), which held that “[a]n opinion can ‘be the basis for sanctions
only if it could reasonably be understood as declaring or implying actual facts
capable of being proved true or false.’ ” Id. at 303, quoting Standing Comm. on
Discipline of the United States Dist. Court for the Cent. Dist. of California v.
Yagman, 55 F.3d 1430, 1438-1439 (9th Cir.1995).
{¶ 18} Generally, the First Amendment protects an attorney as it would any
ordinary citizen, except for when the attorney is acting in some professional
capacity in the matter in which the speech occurs. See Charles W. Wolfram,
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Modern Legal Ethics 632 (1986). Indeed, the United States Supreme Court has
observed that “lawyers in pending cases [are] subject to ethical restrictions on
speech to which an ordinary citizen would not be.” Gentile v. State Bar of Nevada,
501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). Given that attorneys
are officers of the court with an integral role in the judicial system, the court has
concluded, narrow restrictions on attorney speech are justified when that speech is
highly likely to obstruct or prejudice the administration of justice. Id. at 1074-1076;
accord Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003-Ohio-4048, 793
N.E.2d 425, ¶ 14.
{¶ 19} In light of this principle, Donchatz’s reliance on Berry is misplaced.
The statement at issue in Berry was in a postproceeding letter written by an attorney
in his role as a private citizen, Berry at 305—whereas Donchatz’s statements were
in a motion filed in court. The Sixth Circuit recognized that an attorney’s right to
free speech is “ ‘extremely circumscribed’ ” once the attorney enters a courtroom
and took no position on whether its analysis would apply to attorney statements that
were made in the course of judicial proceedings. Id. at 304, quoting Gentile at
1071. Separately, the Sixth Circuit made clear that whether an attorney is engaged
in a judicial proceeding—either in court or through the filing of pleadings—impacts
whether the attorney’s speech is protected. Lewter v. Kannensohn, 159 Fed.Appx.
641, 645 (6th Cir.2005), quoting Mezibov v. Allen, 411 F.3d 712, 720-721 (6th
Cir.2005)) (“We held that because attorneys are usually not ‘engaged in free
expression,’ but, by ‘filing motions and advocating for [a] client’ attorneys are
simply ‘doing [their] job’, and because attorneys voluntarily agree to relinquish
their rights in judicial proceedings, ‘in the context of the courtroom proceedings,
an attorney retains no personal First Amendment rights when representing his
client in those proceedings.’ ” (Brackets and emphasis sic and citation omitted.)
{¶ 20} Consistent with this precedent, we previously adopted an objective
standard to determine whether a lawyer’s statements during the course of judicial
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proceedings about a judicial officer were made with knowledge or reckless
disregard of their falsity. Gardner at ¶ 26-29. We now apply the same standard to
lawyers’ statements made during the course of judicial proceedings against other
lawyers or officers of the court. To assess such a statement, we consider what a
reasonable attorney—in light of all the attorney’s professional obligations—would
do under the same or similar circumstances and we focus on whether the attorney
had a reasonable factual basis for making the statement. Id. at ¶ 26; Yagman, 55
F.3d at 1437, citing United States Dist. Court for the E. Dist. of Washington v.
Sandlin, 12 F.3d 861, 867 (9th Cir.1993).
{¶ 21} Here, Donchatz argues that he had a reasonable factual basis for
stating that Osmond had refused to produce exculpatory evidence because (1)
Hampton and her son asserted, when deposed during the disciplinary investigation
and separately to Donchatz, that Holt had recorded the third meeting, (2) Holt had
a proven practice of recording meetings given the existence of two other recordings,
and (3) Osmond did not give him or his predecessor copies of the two known
recordings until April 29, 2014—approximately two years after the investigation
into Hampton’s misconduct began.
{¶ 22} Donchatz’s assertions are unpersuasive. The transcripts of
Hampton’s and her son’s deposition testimony reflect only hearsay knowledge of a
third recording, gleaned from a statement that Holt’s client had made to Hampton
and a newspaper article that Hampton’s son claimed to have read. Thus, the
existence of a third recording was far from certain, and Donchatz’s reliance on the
hearsay assertions when making his statements against Osmond was unreasonable.
{¶ 23} And although Osmond did not immediately provide Hampton or her
counsel with copies of the two existing recordings, she testified that they did not
contain exculpatory evidence, that they were disclosed as potential exhibits several
months before Donchatz requested them, and that Holt had been disclosed as a
potential witness at least six months before the scheduled hearing date. Nothing
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about Osmond’s conduct regarding the two existing recordings would lead a
reasonable attorney to conclude that she was refusing to disclose a third recording.
{¶ 24} Moreover, Donchatz’s own efforts to find the alleged third recording
were minimal. Neither Donchatz nor his predecessor made any formal discovery
requests in Hampton’s disciplinary matter. And although Osmond provided Holt’s
telephone number so that Donchatz could contact him about whether he had a third
recording, Donchatz attempted to call Holt just once, using a telephone number
provided by his own client, and he never actually spoke with Holt or made any
additional attempt to obtain the recording directly from him. We have previously
held in a different context that although it is improper for a law-enforcement agency
to suppress evidence, “it is not the agency’s obligation to engage in affirmative
action in gathering evidence which an accused might feel necessary to his defense.
The accused must protect his own interests.” Kettering v. Baker, 42 Ohio St.2d
351, 354, 328 N.E.2d 805 (1975).
{¶ 25} Just one day after Osmond told Donchatz that she had inquired about
the existence of a third recording, Donchatz challenged Osmond’s personal
integrity and the integrity of the entire disciplinary process in his motion in limine.
Given all the information available to Donchatz at the time he filed his motion, we
find that no reasonable attorney would have alleged that Osmond was “fully aware”
that exculpatory evidence existed or that she was “refusing to produce” it. Nor
would a reasonable attorney have attempted to shift the blame for his own failure
to conduct discovery by impugning the integrity of an assistant disciplinary
counsel, the office of disciplinary counsel, and the entire disciplinary process.
{¶ 26} Based on the foregoing, we find that the weight of the evidence
supports the board’s finding that Donchatz knowingly made false statements of fact
in the motion in limine that he filed with the board. We therefore overrule
Donchatz’s objection to the board’s findings of fact regarding the Hampton matter
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and agree that his filing of the motion violated Prof.Cond.R. 3.1, 3.3(a)(1), 3.4(c),
8.4(c), and 8.4(d).
Count Four—The McKibben/Leader Technologies Matter
{¶ 27} While Donchatz was affiliated with a law firm, he represented
Leader Technologies, Inc., and its principal, Michael McKibben. The law firm later
initiated legal action against Leader and McKibben for unpaid attorney fees. When
the firm dissolved, certain receivables were assigned to Donchatz and he in turn
assigned them to Recovery Funding, L.L.C., of which Donchatz was the sole
member. Recovery Funding was substituted for Donchatz’s former law firm as a
party in the action against Leader and McKibben. The matter was referred to
mediation, and a magistrate was assigned as the mediator. The board found that
although the parties to the attorney-fee litigation agreed about the amount of fees
owed, they were unable to resolve several remaining issues in mediation.
{¶ 28} In early April 2012, Donchatz circulated a draft “stipulated entry and
consent judgment.” Neither Leader nor McKibben consented to Donchatz’s
document. Nonetheless, without any direction from the mediator to do so,
Donchatz submitted the document to the court. The document did not indicate that
it was a draft or proposed judgment, nor did it mention that other issues remained
unresolved.
{¶ 29} The court adopted the consent judgment and terminated the case,
prompting McKibben and Leader’s counsel, Robert Storey, to request that
Donchatz withdraw the document that the court had relied on. In an e-mail, Storey
wrote that if Donchatz did not withdraw the document, Storey would be left with
“no recourse but to institute disciplinary action.” Donchatz responded by
threatening Storey with an action for frivolous conduct and alleging that Storey had
“defam[ed]” him and “commit[ted] fraud upon the court.” Donchatz refused to
withdraw the document and instead filed a response in opposition to McKibben’s
formal objection to the entry. The trial court ultimately vacated the consent
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judgment, finding that there had been no settlement agreement between the parties
and that the entry had been signed in error.
{¶ 30} Before the board, Donchatz argued that the “stipulated entry and
consent judgment” was proper under Loc.R. 25.01 of the Court of Common Pleas
of Franklin County, General Division. As explained below, however, the board
determined that Loc.R. 25.01 did not apply in this case. And, based on the
foregoing, the board found that by filing the “stipulated entry and consent
judgment,” Donchatz violated Prof.Cond.R. 3.1, 3.3(a)(1), 3.4(c), 8.4(c), and
8.4(d).
{¶ 31} Donchatz objects and argues that the board’s findings are against the
manifest weight of the evidence. He contends that all his actions were taken with
the advice and guidance of his counsel, attorney Rick Brunner, and that the board
improperly disregarded Brunner’s “uncontested” testimony that Donchatz’s actions
complied with the local rules and the customs and practices of attorneys in Franklin
County.
{¶ 32} Loc.R. 25.01 directs “counsel for the party in whose favor a decision,
order, decree, or judgment is rendered” to prepare a journal entry and submit it to
counsel for the adverse party, who then has three days to approve or reject the
proposed entry. The rule further provides that an entry approved by opposing
counsel “shall be signed and presented to the Trial Judge for approval” and that if
the judge signs the entry, it shall be filed with the clerk. But, if counsel does not
agree to the entry, the rule specifies that “the dispute shall be submitted to the Trial
Judge, who will direct what entry shall be made.”
{¶ 33} In this case, however, the board found that the rule did not apply
because there was no judicial decision, order, decree, or judgment rendered in
Donchatz’s favor. Moreover, nothing in the local rules or our jurisprudence
purports to create a stipulated entry or consent to judgment by implication based
solely on a party’s failure to timely object to an opposing party’s proposal.
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Therefore, we find that the board properly disregarded Brunner’s testimony
regarding the alleged propriety of Donchatz’s actions. In addition, the board’s
finding that Donchatz made a false statement to the court was supported by the
evidence. Although Donchatz testified that the mediator had requested that he
circulate the “stipulated entry and consent judgment,” Storey testified that the
mediator had instructed Donchatz simply to put his settlement proposal in writing.
The panel heard this conflicting testimony and was therefore in the best position to
determine the two witnesses’ credibility and assess the weight of the evidence. The
panel believed Storey, and because the record does not weigh heavily against the
panel’s determinations, we defer to them. See Disciplinary Counsel v. Heiland,
116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 39, citing Cincinnati Bar
Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶ 8.
{¶ 34} Based on the foregoing, we overrule Donchatz’s objection to the
board’s findings of fact regarding the McKibben/Leader Technologies matter, and
we adopt the board’s findings that his conduct violated Prof.Cond.R. 3.1, 3.3(a)(1),
3.4(c), 8.4(c), and 8.4(d).
Sanction
{¶ 35} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases. “The primary purpose of the disciplinary process is to
protect the public from lawyers who are unworthy of the trust and confidence
essential to the attorney-client relationship and to allow us to ascertain the lawyer’s
fitness to practice law.” Disciplinary Counsel v. Sabroff, 123 Ohio St.3d 182, 2009-
Ohio-4205, 915 N.E.2d 307, ¶ 20.
{¶ 36} The board found that just two mitigating factors are present—the
absence of prior discipline and the imposition of another sanction, namely the
Franklin County Municipal Court’s order requiring Donchatz to pay Davey Tree’s
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attorney fees. See Gov.Bar R. V(13)(C)(1) and (6). As aggravating factors, the
board found that Donchatz committed multiple offenses and refused to accept any
responsibility for his misconduct because he personally failed to admit any
wrongdoing even though his counsel conceded rule violations during his closing
argument. See Gov.Bar R. V(13)(B)(4) and (7). The board also found that
Donchatz acted with a selfish motive because he “repeatedly and intentionally”
failed to withdraw court filings that were calculated for his personal advantage and
that he caused damage to clients and his profession. See Gov.Bar R. V(13)(B)(2)
and (8).
{¶ 37} Although the board did not expressly identify Donchatz’s
submission of false evidence, false statements, or other deceptive practices during
the disciplinary process as aggravating factors, it identified numerous acts that
amply support such findings. See Gov.Bar R. V(13)(B)(6).
{¶ 38} Specifically, the board noted that Donchatz’s responses to each of
the four counts against him lacked credibility and called into question his character
and integrity as a lawyer. For example, in the Davey Tree matter, Donchatz offered
three different explanations for his belief that the judgment against him had been
satisfied, but none of those explanations proved to be true.
{¶ 39} The board also found that while Donchatz claimed that it would have
been improper for him to modify the title of the “stipulated entry and consent
judgment” in the McKibben/Leader Technologies matter to reflect that it was
merely a proposed document that had not been approved by the other parties, he
actually did modify the document to reflect that it had been submitted to the
opposing parties for their approval before he submitted it to the court. And although
he testified that he was not seeking to obtain a judgment entry terminating the case,
he never informed the court of that fact and actually opposed McKibben’s attempt
to have the consent judgment set aside.
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{¶ 40} The board’s findings with regard to Donchatz’s conduct in the
Cracknell matter further support a finding that Donchatz submitted false statements
and engaged in deceptive practices in the disciplinary process. Donchatz testified
that he sent Cracknell an e-mail explaining the rules governing business
transactions between attorneys and their clients (though he later testified that the e-
mails are inaccessible because the computer hard drive containing them is
damaged). But his initial response to the Cracknell grievance does not mention any
e-mail regarding the disclosures required by Prof.Cond.R. 1.8(a), and in his answer
to the amended complaint, he admitted that he never made the required
communication in writing.
{¶ 41} But those are not the only false statements that Donchatz made
regarding his representation of Cracknell. Donchatz testified that he had agreed to
handle the matter pro bono and that his purpose in instructing her to seek fee
arbitration was to have a third party convince her that she did not need to pay him
for his services. But in Donchatz’s initial response to relator’s investigation of the
Cracknell matter, his counsel, Richard Alkire, stated that Donchatz issued a bill to
Cracknell each month during his representation with a description of the work
performed and the time he had spent on that work. Alkire claimed, however, that
the bills did not state an amount due for Donchatz’s services because Donchatz and
Cracknell had agreed “to try and get the partnership to pay” Donchatz’s legal fees
and that “[a]nytime the difficulty inherent in this approach was discussed,
[Cracknell] would indicate to Ken that, ‘I’ll take care of it at the end. Don’t worry.’
”
{¶ 42} Moreover, in the same e-mail in which Donchatz recommended that
Cracknell pursue fee arbitration with the local bar association, he stated:
Throughout this case you said to me and several others that you
would take care of [the legal fees] at “the end.” I also recall you
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telling me * * * that I should use the [loan] money for legal fees,
although I am sure that you guys will say that you don’t remember
that. I think I would like to have the arbitrators look at all of this
and make a decision about the [loan] funds and the legal fees.
These are hardly the words of an attorney seeking to convince a client that he never
intended to collect a fee for his services, and they cannot be reconciled with
Donchatz’s testimony that he intended to represent Cracknell pro bono.
{¶ 43} Accordingly, in addition to the aggravating factors noted by the
board, we find that Donchatz also submitted false statements and engaged in other
deceptive practices during the disciplinary process. See Gov.Bar R. V(13)(B)(6).
{¶ 44} The parties did not agree on the appropriate sanction for Donchatz’s
misconduct. Relator sought an indefinite suspension of Donchatz’s license, while
Donchatz argued in favor of a fully stayed suspension.
{¶ 45} In weighing the appropriate sanction for Donchatz’s misconduct, the
board quoted the following passage from our decision in Disciplinary Counsel v.
Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995):
A lawyer who engages in a material misrepresentation to a court
* * * violates, at a minimum, the lawyer’s oath of office that he or she
will not “knowingly * * * employ * * * any * * * deception, falsehood,
or fraud.” [Former] Gov.Bar R. I(8)(A). Such conduct strikes at the
very core of a lawyer’s relationship with the court and with the client.
Respect for our profession is diminished with every deceitful act of a
lawyer. We cannot expect citizens to trust that lawyers are honest if
we have not sanctioned those who are not.
(Second and fourth ellipses sic.) Id. at 190.
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{¶ 46} And the board acknowledged that this court “will not allow attorneys
who lie to courts to continue practicing law without interruption.” Cleveland Bar
Assn. v. Herzog, 87 Ohio St.3d 215, 217, 718 N.E.2d 1274 (1999), citing Toledo
Bar Assn. v. Batt, 78 Ohio St.3d 189, 192, 677 N.E.2d 349 (1997). Indeed, the
board considered several cases in which we indefinitely suspended attorneys for
conduct involving dishonesty, fraud, deceit, or misrepresentation, see, e.g.,
Disciplinary Counsel v. Frost, 122 Ohio St.3d 219, 2009-Ohio-2870, 909 N.E.2d
1271; Cleveland Metro. Bar Assn. v. Wrentmore, 138 Ohio St.3d 16, 2013-Ohio-
5041, 3 N.E.3d 149, and noted our pronouncement that “[t]here is simply no place
in the legal profession for those who are unwilling or unable to be honest with
clients, the courts, and their colleagues,” Columbus Bar Assn. v. Cooke, 111 Ohio
St.3d 290, 2006-Ohio-5709, 855 N.E.2d 1226, ¶ 32.
{¶ 47} Nonetheless, the board found our decision in Disciplinary Counsel
v. Shaw, 126 Ohio St.3d 494, 2010-Ohio-4412, 935 N.E.2d 405, to be more
instructive. Shaw named his own children as the beneficiaries of an elderly client’s
revocable living trust and accepted an unsecured loan from the same client. He
took those actions without advising his client of the inherent conflicts of interest or
suggesting that she seek the advice of independent counsel and also failed to repay
the loan as agreed. In addition, in an unrelated matter, he improperly obtained fees
from his clients in a guardianship without first obtaining the court’s approval and
then sought to collect additional fees from the probate court.
{¶ 48} We found that Shaw engaged in a pattern of misconduct involving
multiple offenses that caused harm to vulnerable clients, that he failed to make
restitution, and that he attempted to minimize his misconduct—though he did
amend the client’s trust to revoke the bequest to his children and had practiced law
for 30 years without prior discipline. Id. at ¶ 15 and 26. We suspended him from
the practice of law for two years with one year stayed on the conditions that he
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engage in no further misconduct and make restitution to the affected clients. Id. at
¶ 30.
{¶ 49} In light of the sanction we imposed in Shaw and granting weight to
the fact that Donchatz has no prior disciplinary record, the panel and board
recommend that Donchatz be suspended from the practice of law for two years with
six months stayed on the condition that he engage in no further misconduct.
{¶ 50} Both parties object to the board’s recommended sanction. Donchatz
argues that it is too harsh because the board “improperly disregarded” his mitigation
evidence, which includes extensive pro bono and community service and letters
from colleagues, clients, and friends that attest to his good character and generosity.
In contrast, relator argues that Donchatz’s repeated acts of dishonesty and refusal
to accept responsibility for his misconduct warrant an indefinite suspension from
the practice of law.
{¶ 51} Having independently reviewed the record, we find the board’s
reliance on Shaw to be misplaced. We acknowledge that a portion of Donchatz’s
misconduct arises from his acceptance of a gift and a loan from Cracknell without
properly advising her about the inherent conflicts of interest in those business
dealings—conduct comparable to that in Shaw. But Donchatz’s misconduct also
involves multiple instances of dishonesty, fraud, deceit, or misrepresentation. He
has made knowingly false statements of fact and law to multiple tribunals. He has
knowingly disobeyed his obligations under the rules of multiple Ohio courts. And
he has prejudiced the administration of justice in multiple cases. Furthermore,
Donchatz has continued to engage in dishonest conduct throughout this disciplinary
proceeding.
{¶ 52} We acknowledge that Donchatz has submitted 16 letters that attest
to his honesty, his compassion, his competent and zealous representation, his skills
as an attorney, and his commitment to volunteering with the Ohio Center for Law-
Related Education. We note, however, that only four of those letters reflect that
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SUPREME COURT OF OHIO
the writers were aware of the serious ethical charges pending against him. And we
find that the mitigating effect of the letters is insufficient to overcome Donchatz’s
extensive pattern of dishonesty and the numerous aggravating factors present in this
case.
{¶ 53} Having thoroughly reviewed the record and considered the sanctions
we have imposed for comparable misconduct, we adopt the board’s findings of fact,
misconduct, and aggravating and mitigating factors. As a result of the significant
acts of dishonesty at the heart of three of the four counts of relator’s amended
complaint and the false and contradictory statements that Donchatz has made
throughout the disciplinary process, we find that the sanction recommended by the
board will not adequately protect the public from future harm. Therefore, we
overrule Donchatz’s objection with regard to the recommended sanction, sustain
relator’s objection to the sanction, and indefinitely suspend Donchatz from the
practice of law.
{¶ 54} Accordingly, Kenneth R. Donchatz is indefinitely suspended from
the practice of law in Ohio. Costs are taxed to Donchatz.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEWINE, JJ., concur.
KENNEDY, FRENCH, and O’NEILL, JJ., dissent and would suspend
respondent for 24 months with six months stayed.
_________________
Tucker Ellis, L.L.P., Sarah L. Bunce, and Robert J. Hanna; and Heather M.
Zirke, Bar Counsel, for relator.
Montgomery, Rennie & Jonson and George D. Jonson, for respondent.
_________________
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