Disciplinary Counsel v. Corner (Slip Opinion) ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Corner, Slip Opinion No. 2020-Ohio-961.]
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. 2020-OHIO-961
DISCIPLINARY COUNSEL v. CORNER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Corner, Slip Opinion No.
2020-Ohio-961.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—One-
year suspension, fully stayed on conditions.
(No. 2019-0215—Submitted December 10, 2019—Decided March 18, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-063.
_______________________
Per Curiam.
{¶ 1} Respondent, Beverly J. Corner, of Columbus, Ohio, Attorney
Registration No. 0042725, was admitted to the practice of law in Ohio in 1989.
{¶ 2} In February 2016, we suspended Corner’s license for two years, with
the second year stayed on conditions, for misappropriating client funds, lying to a
client, misusing her client trust account, failing to competently and diligently
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represent a client, and other misconduct. Disciplinary Counsel v. Corner, 145 Ohio
St.3d 192, 2016-Ohio-359, 47 N.E.3d 847. Although Corner could have applied
for reinstatement in February 2017, she did not do so until August 2017. In October
2017, we denied her request for reinstatement. Disciplinary Counsel v. Corner,
151 Ohio St. 3d 1404, 2017-Ohio-8306, 84 N.E.3d 1045. Although her application
indicated that she had complied with the continuing-legal-education requirements
for suspended attorneys, she had in fact fallen far short of completing the requisite
number of credit hours.
{¶ 3} On December 4, 2017, relator, disciplinary counsel, charged Corner
in a four-count complaint with committing professional misconduct after we issued
our February 2016 suspension order. On the same day, Corner filed a second
application for reinstatement. Gov.Bar R. V(24)(C)(4), however, permits this court
to reinstate suspended attorneys only if “[n]o formal disciplinary proceedings are
pending against the respondent.” On December 15, 2017, we denied Corner’s
second reinstatement application. Disciplinary Counsel v. Corner, 151 Ohio St. 3d
1463, 2017-Ohio-9034, 87 N.E.3d 1263.
{¶ 4} The parties stipulated to some facts and exhibits in the new case, but
Corner denied that she had violated any ethical rules. After a hearing, a three-
member panel of the Board of Professional Conduct found that Corner had engaged
in the misconduct alleged in count three of relator’s complaint, dismissed the other
counts, and recommended that Corner serve a one-year conditionally stayed
suspension, commencing upon reinstatement from her February 2016 suspension.
The board issued a report adopting the panel’s findings of misconduct and
recommended sanction. Relator has filed objections to the board’s report, arguing
that the board should have found that Corner committed the misconduct alleged in
count two of relator’s complaint and that, regardless, Corner’s actions warrant an
actual suspension from the practice of law.
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{¶ 5} For the reasons explained below, we overrule relator’s objections and
accept the board’s findings of misconduct and recommended sanction.
Misconduct
{¶ 6} Prior to Corner’s February 2016 suspension, her stepmother, Perciline
Beverly, sought her assistance with the purchase of a parcel of real property from
Joe McDaniels. Because McDaniels’s deceased wife had an interest in the
property, he first had to obtain a certificate from the probate court transferring his
wife’s interest to him. Beverly gave Corner a $75 check dated February 2, 2016,
which was the amount of the filing fee to obtain the certificate of transfer.
{¶ 7} The following day, we suspended Corner from the practice of law.
She nevertheless continued to assist Beverly with filing documents and nonattorney
tasks relating to the property transfer. For example, in October 2016, Corner
purchased a $75 money order that was used to pay the probate court filing fee. And
after the probate court issued the certificate of transfer, Corner filed the certificate
in the recorder’s office and paid the $28 filing fee with a check provided by Beverly.
{¶ 8} In November 2016, relator received an unsigned grievance—
purportedly from McDaniels—alleging that Corner had continued to practice law
after her suspension. Relator requested that Corner respond to the grievance and
explain, among other things, who had paid the filing fees relating to McDaniels’s
certificate of transfer. In response, Corner admitted that she had filed the certificate
at the recorder’s office but denied having paid the filing fee and stated that she was
unaware who had paid the probate court fee.
{¶ 9} In a follow-up letter, relator requested that Corner further explain why
she had filed the certificate of transfer on behalf of McDaniels. Corner did not
directly answer relator’s question and instead described her work as a part-time
notary signing agent. Corner stated that in that capacity, she filed documents and
paid filing fees on behalf of the “entity” that retained her. Relator then requested
Corner to provide the name of the “entity” that had hired her for McDaniels’s
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matter, but Corner refused to identify her stepmother as the person who had sought
her assistance.
{¶ 10} The board found that by falsely stating that she was unaware who
had paid the filing fees and that she had been hired by an “entity,” Corner violated
Prof.Cond.R. 8.1(a) (prohibiting a lawyer from knowingly making a false statement
of material fact in connection with a disciplinary matter). The board also found
that by refusing to provide Beverly’s name when relator requested the identity of
the entity who had retained her, Corner violated Prof.Cond.R. 8.1(b) (prohibiting a
lawyer from failing to disclose a material fact in response to a demand for
information from a disciplinary authority).
{¶ 11} We agree with the board’s findings of misconduct.
Relator’s objection to the dismissal of count two
{¶ 12} In the only objection to the board’s misconduct findings, relator
asserts that the board erred by dismissing count two of relator’s complaint. The
board’s decision is reviewable, relator argues, because it is “unclear” whether the
hearing panel unanimously dismissed count two or merely recommended dismissal,
and this court should construe any ambiguity in the panel’s report against a
unanimous dismissal.
{¶ 13} Gov.Bar R. V(12)(G) expressly authorizes a unanimous hearing
panel to “order on the record or in its report” the dismissal of a count if the panel
finds that there is insufficient evidence to support it. As an alternative to a
unanimous dismissal, Gov.Bar R. V(12)(H) provides that a hearing panel may refer
its findings of fact and recommendations for dismissal to the board for review.
Here, we find no ambiguity in the panel’s decision dismissing—rather than
recommending dismissal of—count two. The panel’s report, which was signed by
all three panel members, indicates that relator failed to establish the alleged rule
violation by clear and convincing evidence and “as such Count Two is dismissed.”
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The panel confirmed this finding later in its report when it noted that “three of the
counts have been dismissed so we are left with the McDaniels count.”
{¶ 14} “We have previously held that the unanimous dismissal of a count
by a hearing panel in a disciplinary hearing precludes further review of the
dismissal by the full board or this court.” Cincinnati Bar Assn. v. Fernandez, 147
Ohio St. 3d 329, 2016-Ohio-5586, 65 N.E.3d 724, ¶ 13. Therefore, because the
hearing panel unanimously dismissed count two for lack of sufficient evidence, we
are not permitted to consider the merits of relator’s objection. See Disciplinary
Counsel v. Maciak, 153 Ohio St. 3d 185, 2018-Ohio-544, 102 N.E.3d 485, ¶ 20
(“Review of the dismissed counts, for any reason, is not permitted”).
Sanction
{¶ 15} 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.
{¶ 16} As aggravating factors, the board found that Corner has a prior
disciplinary record and that she refused to acknowledge the wrongful nature of her
conduct in count three. See Gov.Bar R. V(13)(B)(1) and (7). In mitigation, the
board found that Corner did not act with a selfish or dishonest motive. See Gov.Bar
R. V(13)(C)(2). According to the board, Corner was “very upset” throughout
relator’s investigation because she could not understand why McDaniels had filed
a grievance against her. As it turned out, McDaniels had not filed the grievance.
Instead, the unsigned grievance had been filed by an unknown individual who had
written McDaniels’s name on the grievance, and relator did not discover that fact
until several months after commencing the investigation into Corner’s conduct.
The board noted that although Corner’s conduct during the investigation was
wrong, considering the circumstances of the fictitious grievance, it was “somewhat
understandable.”
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{¶ 17} To support its recommended sanction, the board cited Disciplinary
Counsel v. Wexler, 139 Ohio St. 3d 597, 2014-Ohio-2952, 13 N.E.3d 1168, in which
we imposed a six-month conditionally stayed suspension on an attorney who made
false statements during the course of a disciplinary investigation. Like the panel in
this case, the panel in Wexler had unanimously dismissed all the other charges
against the attorney relating to a grievance filed against him.
{¶ 18} As it did in Wexler, the board recommends a fully stayed suspension
in this case. The board recognized that Corner committed the misconduct while
she was suspended. But the board also noted the paucity of evidence for some of
relator’s allegations against Corner and that this case has resulted in her being
suspended for much longer than originally intended by our February 2016
suspension order. The board therefore concluded that Corner has already been
punished for her misconduct in this matter and recommends that we impose a one-
year suspension, stayed in its entirety on conditions, commencing upon her
reinstatement from our February 2016 suspension order.
{¶ 19} Relator objects to the board’s recommended sanction, arguing that
because this is Corner’s second disciplinary case—and second case involving
dishonest conduct—an actual suspension is warranted. Relator also takes issue
with the board’s comments that Corner’s dishonesty was “somewhat
understandable” and that she has already been “punished” based on the length of
her February 2016 suspension. According to relator, it was irrelevant who had filed
the grievance because relator had the authority to investigate anonymous
grievances, and relator believes that accepting the board’s position would set a
dangerous precedent by giving attorneys “carte blanche permission” to provide
false information in a disciplinary investigation “simply because they believe the
allegations are meritless.” Relator also asserts that any delay in Corner’s
reinstatement was her own fault.
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{¶ 20} Relator is correct that a disciplinary authority may investigate an
anonymous grievance or “any matter * * * that comes to its attention.” Gov.Bar R.
V(9)(C)(1); see also Disciplinary Counsel v. Kramer, 149 Ohio St. 3d 425, 2016-
Ohio-5734, 75 N.E.3d 1174, ¶ 34. The board’s concern here, however, was that
relator had investigated an unsigned grievance without timely reaching out to the
purported grievant to determine whether he had in fact filed the document.
Regardless, the board concluded—and we agree—that despite the circumstances of
the grievance, Corner “had a duty to cooperate, be truthful, and provide material
information, all of which she did not do.” We interpret the board’s comment that
Corner’s conduct was “somewhat understandable” as providing context for her
motive in light of the unusual circumstances in this case—not as establishing
precedent condoning her false statements in connection with the disciplinary
investigation. As the board found, there was no excuse for Corner’s dishonest
conduct and she had a duty “to cooperate with the investigation regardless of how
it was instigated.”
{¶ 21} Relator is also correct that some of the delay in Corner’s
reinstatement is attributable to her own conduct. The fact remains, however, that
she has been suspended for over four years for what was supposed to be, at most, a
two-year suspension, and the charges pending in this case have prevented her
reinstatement. We have consistently recognized that “the goal of disciplinary
proceedings is not to punish the errant lawyer, but to protect the public.” Toledo
Bar Assn. v. Hales, 120 Ohio St. 3d 340, 2008-Ohio-6201, 899 N.E.2d 130, ¶ 21.
And “[w]hile consistency is also a goal, ‘we examine each case individually and
impose the discipline we believe appropriate based on the unique circumstances of
each case.’ ” Id., quoting In re Disciplinary Action Against Ruffenach, 486 N.W.2d
387, 390 (Minn.1992).
{¶ 22} In Disciplinary Counsel v. Bunstine, 144 Ohio St. 3d 115, 2015-
Ohio-3729, 41 N.E.3d 384, we imposed a six-month suspension on an attorney who
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had failed to cooperate in a disciplinary investigation. We noted that because the
attorney had two prior disciplinary cases in a three-year period, a greater sanction
might have been warranted. However, because the charges pending against the
attorney in the third case had prevented him from seeking reinstatement from a one-
year suspension that we had imposed over two years prior, we found a six-month
suspension to be appropriate. Id. at ¶ 26.
{¶ 23} We apply the same rationale here. Although we in no way condone
Corner’s attempts to mislead relator, considering the unique circumstances of this
case—including that she has now served a four-year suspension under our February
2016 suspension order—the goals of the disciplinary system are served by
imposing the stayed suspension recommended by the board. We also agree that the
stayed suspension shall commence upon Corner’s reinstatement from our February
2016 suspension order, assuming that she is able to prove that she has complied
with the reinstatement requirements imposed by that order. We therefore overrule
relator’s objection and adopt the board’s recommended sanction. See Disciplinary
Counsel v. Derryberry, 152 Ohio St. 3d 41, 2017-Ohio-8767, 92 N.E.3d 844
(imposing a one-year conditionally stayed suspension on an attorney who—in his
second disciplinary case involving dishonest conduct—made false statements
during the disciplinary investigation and failed to reasonably communicate with a
client).
Conclusion
{¶ 24} For the reasons explained above, Beverly J. Corner is hereby
suspended from the practice of law in Ohio for one year, with the entire suspension
stayed on the conditions that she achieve a passing score on the Multistate
Professional Responsibility Examination and engage in no further misconduct. If
Corner violates either condition of the stay, the stay will be lifted and she will serve
the entire one-year suspension. Corner’s stayed suspension shall commence upon
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her reinstatement from our February 3, 2016 suspension order. Costs are taxed to
Corner.
Judgment accordingly.
FRENCH, DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only.
O’CONNOR, C.J., dissents, with an opinion joined by FISCHER, J.
FISCHER, J., dissents, with an opinion joined by O’CONNOR, C.J.
_________________
O’CONNOR, C.J., dissenting.
{¶ 25} Because I disagree with the majority’s conclusion that a fully stayed
one-year suspension is the appropriate sanction in this case, I dissent.
{¶ 26} The majority correctly agrees with the Board of Professional
Conduct’s findings that respondent, Beverly J. Corner, violated Prof.Cond.R. 8.1(a)
by lying in connection with a disciplinary matter and violated Prof.Cond.R. 8.1(b)
by failing to disclose a material fact in the disciplinary process. But the majority
sends mixed signals to members of the public and the legal profession by failing to
impose an actual suspension while agreeing with the board that “there was no
excuse for Corner’s dishonest conduct and she had a duty ‘to cooperate with the
investigation regardless of how it was instigated.’ ” Majority opinion at ¶ 20,
quoting the board’s report. Additionally, although the majority acknowledges that
“some of the delay in Corner’s reinstatement is attributable to her own conduct,” it
incorrectly finds that the delay warrants a lesser sanction. Id. at ¶ 21.
{¶ 27} The only factor the board found in mitigation here—that Corner did
not act with a selfish or dishonest motive—is not supported by the record. In my
view, the facts of this case clearly demonstrate that Corner’s misconduct was borne
out of a selfish and dishonest motive. At the time of the violations in this case,
Corner was already serving a prior suspension for dishonest conduct. By deceiving
relator, disciplinary counsel, and withholding information during the disciplinary
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investigation that Corner had a duty to disclose, she clearly was protecting herself
from further discipline.
{¶ 28} The board and the majority mistakenly rely on Disciplinary Counsel
v. Wexler, 139 Ohio St. 3d 597, 2014-Ohio-2952, 13 N.E.3d 1168, to support their
conclusions that a fully stayed suspension is appropriate here. Unlike the
respondent in Wexler, there is no evidence in the record that Corner made efforts in
the disciplinary proceedings to acknowledge her dishonesty and correct her
misconduct through full disclosure. Instead, Corner made an issue of the identity
of the grievant which, as the majority correctly acknowledges, is entirely irrelevant
to whether an attorney must cooperate during a disciplinary proceeding.
Additionally, in Wexler, the board found in mitigation that Wexler had not had a
prior disciplinary record and that he had presented evidence of his good character
and reputation. Id. at ¶ 14. Neither of these factors are present here. For these
reasons, Wexler is distinguishable.
{¶ 29} I agree with the majority and relator that Disciplinary Counsel v.
Bunstine, 144 Ohio St. 3d 115, 2015-Ohio-3729, 41 N.E.3d 384, is more instructive
here, but not for the reasons cited by the majority. In Bunstine, this court found
that a six-month actual suspension was the proper sanction for an attorney who had
failed to cooperate in the disciplinary process and, like Corner, had a prior
disciplinary record and refused to acknowledge any wrongdoing. Id. at ¶ 26.
Notably, Bunstine’s misconduct was the failure to cooperate with the disciplinary
process in violation of Prof.Cond.R. 8.1(b). Id. at ¶ 25. Corner also violated that
provision, but she additionally violated Prof.Cond.R. 8.1(a) by making a false
statement in connection with her disciplinary investigation. Thus, I would find that
this additional violation warrants a longer suspension than the six-month
suspension imposed in Bunstine.
{¶ 30} The board and the majority also have lost their way by relying on
Bunstine for the proposition that the time that has elapsed since Corner’s February
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2016 suspension supports the imposition of a fully stayed suspension here. In
Bunstine, additional charges of professional misconduct that we rejected prevented
the attorney from seeking reinstatement from a prior suspension when he otherwise
would have been eligible. Here, however, Corner was eligible for reinstatement
from her February 2016 suspension in February 2017. But Corner chose to wait
until August 2017 to first seek reinstatement. During this time, no disciplinary
charges were pending. This court expeditiously grants reinstatement as long as the
suspended attorney has complied with the conditions for reinstatement set forth in
Gov.Bar R. V(24), which includes the completion of the continuing-legal-education
requirements set forth in Gov.Bar R. X. See Gov.Bar R. V(24)(C)(3). Corner’s
attempt at reinstatement failed because she had been dishonest regarding her
completion of the continuing-legal-education requirements. Thus, Corner’s delay
and dishonesty prevented her reinstatement.
{¶ 31} Corner had almost a year to seek reinstatement before relator filed
the disciplinary complaint in this case in December 2017. Contrary to the
majority’s view, I would find that the circumstances surrounding Corner’s failed
reinstatement attempt weigh in favor of additional protection for the public, not
less. And I disagree with the majority’s conclusion that Corner has essentially
served a “four-year suspension under our February 2016 suspension order” and that
the goals of the disciplinary system are served by a stayed suspension. Majority
opinion at ¶ 23. Any additional time that Corner served under her prior suspension
can be attributed only to her own actions.
{¶ 32} For these reasons, I would impose a two-year suspension, with one
year stayed on the condition that Corner engage in no further misconduct.
Additionally, I would not award Corner any credit for the time that she served under
her prior suspension.
FISCHER, J., concurs in the foregoing opinion.
_________________
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FISCHER, J., dissenting.
{¶ 33} I join the first dissenting opinion. I write separately to explain why
this court should review the board’s dismissal of count two.
{¶ 34} The majority opinion does not consider the merits of relator’s
objection to the Board of Professional Conduct’s dismissal of count two. Its basis
for doing so is that the hearing panel “unanimously dismissed” count two for lack
of sufficient evidence. Majority opinion at ¶ 14. The majority opinion is not
correct.
{¶ 35} As I have explained in a prior case, when a hearing panel
unanimously dismisses counts pursuant to Gov.Bar R. V(12)(G), the dismissal
order is effectively insulated from any type of review. Disciplinary Counsel v.
Mancino, 154 Ohio St. 3d 49, 2018-Ohio-3017, 110 N.E.3d 1265, ¶ 15 (Fischer, J.,
concurring). Thus, as the majority opinion recognizes, in order for a panel’s
dismissal to have this preclusive effect, the panel’s dismissal must be unanimous.
{¶ 36} I disagree with the conclusion of the majority opinion that the
panel’s dismissal of count two was unanimous. The board’s report states that “the
panel feels Relator failed to establish by clear and convincing evidence the
Respondent violated Prof.Cond.R. 3.4 and Count Two is dismissed.” This language
does not specify that the panel’s dismissal was unanimous and is in direct contrast
to the portion of the board’s report addressing count four: “Relator submits that
Respondent engaged in the unauthorized practice of law in Virginia and as such
violated Prof.Cond.R. 5.5(a), but the panel unanimously finds no clear and
convincing evidence to support that position and dismisses this alleged violation.”
(Emphasis added.)
{¶ 37} The board’s use of the word “unanimously” in relation to the
dismissal of count four indicates that when the panel acted unanimously, the board
specifically said so. Because the board used neither “unanimous” nor
“unanimously” in relation to the dismissal of count two, the board’s report is
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ambiguous regarding whether the dismissal of count two was unanimous. I would
resolve this ambiguity in favor of preserving this court’s ability to oversee the
practice of law in Ohio and review the dismissal of count two.
{¶ 38} Because the board’s report is ambiguous regarding whether the panel
dismissed count two unanimously, and because I would resolve that ambiguity in
favor of this court being able to review the dismissal, I would have this court
proceed to consider the merits of relator’s objection. .
{¶ 39} Pursuant to the stipulated facts in this case, respondent, Beverly J.
Corner, conceded that pursuant to an order of this court, before she entered into an
employment, contractual, or consulting relationship with any attorney or law firm,
she had been required to verify that the attorney or law firm had complied with the
registration requirements of Gov.Bar R. V(23)(C). She further stipulated that she
had entered into an independent-contractor relationship with an attorney without
first complying with this requirement. In fact, she conceded that she had registered
this independent-contractor relationship only after she had finished working with
the attorney and only after relator inquired as to why she had failed to comply with
the requirement.
{¶ 40} Corner’s failure to comply with this requirement constitutes a
violation of Prof.Cond.R. 3.4(c) (prohibiting an attorney from disobeying an
obligation under the rules of a tribunal). This violation provides further support for
imposing a two-year suspension with one year of that suspension stayed on
conditions. I accordingly join the first dissenting opinion.
O’CONNOR, C.J., concurs in the foregoing opinion.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond, Assistant
Disciplinary Counsel, for relator.
Law Office of Philip A. King, L.L.C., and Philip A. King, for respondent.
_________________
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