Disciplinary Counsel v. Stobbs , 2023 Ohio 1719 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Stobbs, Slip Opinion No. 2023-Ohio-1719.]
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. 2023-OHIO-1719DISCIPLINARY COUNSEL v. STOBBS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Stobbs, Slip Opinion No.
2023-Ohio-1719.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Suspension for 18 months with 12 months conditionally stayed.
(No. 2022-1511—Submitted February 7, 2023—Decided May 25, 2023.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2022-012.
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Per Curiam.
{¶ 1} Respondent, Brent Clark Stobbs, of Reynoldsburg, Ohio, Attorney
Registration No. 0041262, was admitted to the practice of law in Ohio in 1989.
{¶ 2} In a two-count complaint, relator, disciplinary counsel, alleged that
Stobbs committed eight ethical violations arising from his representation of clients
in two related civil cases and a separate criminal case. The first count alleged that
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Stobbs engaged in an impermissible conflict of interest by representing both parties
to a civil action and made false statements to a tribunal and that his conduct was
dishonest and prejudicial to the administration of justice. Among other things, the
second count alleged that Stobbs intentionally and habitually made frivolous
motions and engaged in other conduct that was undignified, discourteous, and
degrading to the tribunal.
{¶ 3} A three-member panel of the Board of Professional Conduct heard
testimony from six witnesses, including Stobbs. After that hearing, the panel issued
a report finding that Stobbs committed seven of the alleged rule violations,
unanimously dismissing the eighth charge, and recommending that he be suspended
from the practice of law for 18 months with 12 months conditionally stayed. The
board adopted the panel’s findings of fact, conclusions of law, and recommended
sanction. No timely objections have been filed. However, on March 31, 2023,
Stobbs filed a motion to strike this court’s December 14, 2022 show-cause order
essentially raising untimely objections to the board’s report and recommendation.
That motion is hereby denied.
{¶ 4} After reviewing the record and our precedent, we adopt the board’s
findings of misconduct and the recommended sanction.
MISCONDUCT
Count One: The Lost Hollow Campground litigation
The Hocking County case
{¶ 5} Judy Davis owned a lot in the Lost Hollow Campground in Hocking
County. In December 2018, Stobbs filed a complaint for a declaratory judgment
on Davis’s behalf in the Hocking County Court of Common Pleas against the Lost
Hollow Property Owners Association, Inc., its board of directors, and two
individuals. Davis sought a judicial determination that R.C. Chapter 5312
(governing planned communities) does not apply to lots, tracts, or parcels of
property that are part of the campground. On February 15, 2019, the court granted
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the defendants’ motion to dismiss the case without prejudice for failure to join all
Lost Hollow property owners as necessary parties.
{¶ 6} In April 2019, Stobbs filed a motion to vacate the dismissal entry,
arguing that all 386 Lost Hollow property owners were parties to the action Davis
filed because the property-owners association had been named as a defendant. The
court overruled that motion in May 2019. In June 2019, Stobbs filed a Civ.R. 50(B)
motion for judgment notwithstanding the verdict or, in the alternative, a new trial,
in which he reiterated the claims set forth in his earlier motion to vacate the
dismissal entry. Later in June, the defendants’ counsel filed a motion for sanctions
for frivolous conduct pursuant to Civ.R. 11, alleging that Stobbs’s motions had
“regurgitated the exact same arguments” raised in his opposition to the defendants’
motion to dismiss and offered no legal support for those arguments.
{¶ 7} In August 2019, Stobbs filed a motion to remove the defendants’
counsel and to strike ab initio all of the defendants’ pleadings, including their
motion for sanctions. Stobbs later objected to the defendants’ response to that
motion. In November 2019, Stobbs filed a motion for summary judgment, once
again requesting that the court vacate its dismissal entry.
{¶ 8} In February 2020, the court overruled all of Stobbs’s pending
motions.
{¶ 9} In June 2020, the court found that with the exception of his motion to
vacate, Stobbs’s postdismissal filings were filed in bad faith and had no basis in
law or fact. The court ordered Stobbs to pay $5,812.50 in attorney fees that the
defendants had incurred to defend against those frivolous filings. Stobbs did not
appeal that judgment, and relator has asserted that the sanction remained unpaid at
the time of Stobbs’s disciplinary hearing.
The Franklin County case
{¶ 10} In summer 2020, Stobbs met with Davis and her friend Laura
Wurzburger, who also owned property at Lost Hollow, to discuss litigating the
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applicability of R.C. Chapter 5312 to their campground lots. They planned to have
Wurzburger file a complaint against Davis in Franklin County seeking the same
declaratory relief that Davis had sought in the Hocking County case. They also
agreed that Davis would be the sole defendant and that they would agree to resolve
the case. To that end, Davis conceded every allegation of the complaint.
{¶ 11} According to Davis’s testimony at the disciplinary hearing, Stobbs
informed her and Wurzburger that he had a conflict of interest and could not
represent both of them. Stobbs and Davis testified that he represented only Davis
and that Wurzburger proceeded pro se. Nevertheless, Stobbs acknowledged that he
drafted Wurzburger’s complaint and gave it to her for her review and approval. In
September 2020, that complaint was filed in the Franklin County Municipal Court,
bearing Stobbs’s signature as the plaintiff’s attorney. Accompanying that
complaint were a civil-case filing form signed by Stobbs as the filing party and a
military-service affidavit in which Stobbs averred that he was the plaintiff’s
attorney and that the defendant (Davis) was not in the military.
{¶ 12} At his disciplinary hearing, Stobbs offered conflicting testimony
about his signature on Wurzburger’s complaint. He attempted to blame
Wurzburger for filing a “rough draft” without correcting the signature block that
bore his signature. After acknowledging that the signature on the complaint was
his and that he had put it there “in another complaint,” he claimed that he had not
signed the complaint and that Wurzburger had signed his name, before stating, “I
didn’t realize my signature was on there.” Stobbs also testified, “Now, as far as
who took it to the courthouse, I happened to take it to the courthouse,” though he
later backtracked by stating that he “probably” had done so.
{¶ 13} The board found that the complaint bearing Stobbs’s signature
misrepresented material facts about the litigation. The complaint alleged that
Wurzburger and Davis were contemplating a contract concerning nonresidential
campground lots and that the court’s clarification regarding the applicability of R.C.
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Chapter 5312 to campground lots would “lead to resolution of the conflict between
the two parties, * * * without affecting others, such that all required affected
persons are before the Court.” The board determined that that statement was false
in that it directly contradicted several representations that Stobbs had made in the
Hocking County case. For example, in his motion to vacate the dismissal of the
Hocking County case, Stobbs had asserted that all defendants in that action—which
he claimed included all 386 Lost Hollow property owners—would be affected by a
declaratory judgment regarding the applicability of R.C. Chapter 5312 to
campground lots. And in his Civ.R. 50(B) motion, Stobbs stated, “Defendants’
ridiculous proposition (that only one of 386 Association members will be affected
by a declaratory judgment) is fundamentally dishonest, and its assertion that the
other 385 members will not be affected by res judicata is both dishonest and
contrary to law.” (Emphasis sic.)
{¶ 14} As the board noted, Stobbs not only had failed to name all affected
parties in the Franklin County case but also had substituted his “true client”—
Davis—for them. He then drafted Davis’s answer and filed it, though it falsely
represented that Davis represented herself pro se, when in fact Stobbs represented
her at all times in that case.
{¶ 15} At Stobbs’s disciplinary hearing, Franklin County Municipal Court
Judge Jodi Thomas testified that sometime after Davis’s answer to the complaint
was filed, Stobbs approached her while she was serving as the court’s duty judge.
He presented her with an unfiled joint motion for a declaratory judgment and a
proposed entry. Judge Thomas questioned Stobbs about whom he represented in
the case and found his answers to be evasive. After reviewing the documents and
case file, Judge Thomas declined to sign the entry and dismissed the case for lack
of subject-matter jurisdiction. Despite that dismissal, Stobbs later presented the
same motion and proposed entry to another judge in the duty-judge room who
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approved the entry; upon learning that the case had previously been dismissed, the
judge vacated that entry.
{¶ 16} The board found that Stobbs’s conduct in the Lost Hollow
Campground litigation violated Prof.Cond.R. 1.7(c)(2) (prohibiting a lawyer from
accepting or continuing a representation that would involve the assertion of a claim
by one client against another client represented by the lawyer in the same
proceeding), 3.3(a)(1) (prohibiting a lawyer from knowingly making a false
statement of fact or law to 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 those findings of misconduct.
Count Two: The Dugger case
{¶ 17} In 2019, Eliot Dugger was indicted in Franklin County on charges
of receiving stolen property, having weapons while under disability with a gun
specification, and aggravated possession of drugs. Stobbs entered a notice of
appearance as Dugger’s attorney on August 30, 2021. At that time, the court had
already denied a motion to suppress evidence filed by Dugger’s prior counsel.
{¶ 18} On October 15, 2021, just four days before the scheduled trial,
Stobbs filed a motion to dismiss the weapons charge and the related gun
specification for “insufficient evidence of elements of the charge and inability to
prove guilt beyond a reasonable doubt.” Instead of proceeding with the trial, Judge
Christopher Brown conducted a hearing on Stobbs’s motion to dismiss. Judge
Brown found that the motion was inappropriate because it essentially asked the
court to dismiss the case based on the evidence Stobbs believed that the state would
present at trial.1 After a lengthy discussion, Judge Brown denied the motion and
rescheduled the trial for December 6, 2021.
1. In this disciplinary case, relator contended that Stobbs’s motion to dismiss was essentially a
premature motion for a directed verdict or acquittal pursuant to Crim.R. 29(A), which allows a court
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{¶ 19} Stobbs filed a discovery motion on November 16. On December 3,
he filed three additional motions: (1) a motion to continue the trial, alleging that
discovery was incomplete, (2) a motion to vacate the court’s October 19 entry
denying his motion to dismiss, and (3) an amended pretrial motion to dismiss
Dugger’s weapons charge.
{¶ 20} In his motion to vacate, Stobbs referred to the case Ex Parte
Bushnell, but he did not provide any citation to the case. Ex Parte Bushnell, 8 Ohio
St. 599 (1858), is a 165-year-old case involving a habeas corpus petition that has
no relevance to Dugger’s pretrial motion to dismiss the criminal charges against
him or his motion to vacate the court’s denial of that motion. In his motion to
vacate, Stobbs claimed that “a new burden of proof shifted to [the prosecution]
upon Defendant’s challenge to the elements of the [weapons] charge,’ ” but he
offered no legal authority to support that argument.
{¶ 21} On December 6, the day of trial, Stobbs filed a second amended
motion to dismiss the weapons charge, arguing that the weapon had been seized in
violation of Dugger’s rights under the Fourth Amendment to the United States
Constitution, but he cited no legal authority to support that argument. Instead,
Stobbs presented his own version of the facts in an attempt to challenge the court’s
denial of Dugger’s earlier motions to suppress evidence and to dismiss the weapons
charge. During the hearing on his pretrial motions, Stobbs repeatedly interrupted
Judge Brown and at one point told him, “You don’t understand the argument.” The
judge announced his intention to proceed to trial, denying the motions on their
merits and/or as untimely. Stobbs then met with the assistant prosecuting attorney
assigned to Dugger’s case and negotiated a plea agreement, which was finalized
later that day.
to acquit a defendant “if the evidence is insufficient to sustain a conviction” but only after the close
of all the evidence.
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{¶ 22} During the December 6 hearing—and later in his testimony at the
disciplinary hearing—Judge Brown expressed his belief that Stobbs’s motion to
continue the trial had been filed for a dilatory purpose. Judge Brown also testified
that Stobbs’s tone, his demeanor, the way that he kept interrupting him while he
was making rulings, and his refusal to move on at the December 6 hearing were
disrespectful to the court.
{¶ 23} The board found that Stobbs’s conduct in Dugger’s case violated
Prof.Cond.R. 3.1 (prohibiting a lawyer from asserting an issue in a proceeding
unless there is a basis in law and fact for doing so that is not frivolous), 3.4(d)
(prohibiting a lawyer from intentionally or habitually making a frivolous pretrial
motion), and 3.5(a)(6) (prohibiting a lawyer from engaging in undignified or
discourteous conduct that is degrading to a tribunal). We adopt these findings of
misconduct.
RECOMMENDED SANCTION
{¶ 24} 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.
{¶ 25} Four aggravating factors are present in this case—Stobbs engaged in
a pattern of misconduct, failed to cooperate in the disciplinary process, refused to
acknowledge the wrongful nature of his conduct, and failed to timely pay the
monetary sanctions imposed on him in the Hocking County case. See Gov.Bar R.
V(13)(B)(3), (5), (7), and (9). The board also noted that Stobbs had failed to
comply with an order to disclose his witnesses, failed to attend a scheduled pretrial
conference, failed to respond to relator’s proposed stipulations, and waited until
one day before the disciplinary hearing to file a motion for a continuance based on
complications of COVID-19. Furthermore, he made inappropriate comments to
two of relator’s witnesses as they left the stand during his disciplinary hearing,
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telling Judge Brown, “And someday you owe me an apology” and calling another
witness a “liar.” The only mitigating factor is Stobbs’s clean disciplinary record.
See Gov.Bar R. V(13)(C)(1).
{¶ 26} In determining the appropriate sanction for Stobbs’s misconduct, the
board noted that in Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 190,
658 N.E.2d 237 (1995), we expressed concern regarding the growing number of
cases in which members of the bar had deceived a court or their clients. In that
case, we recognized that conduct involving material misrepresentation to a court or
a pattern of dishonesty with a client “strikes at the very core of a lawyer’s
relationship with the court and with the client” and that “[r]espect for our profession
is diminished with every deceitful act of a lawyer.” Id. Upon finding that the
sanctions we had previously imposed for such misconduct had not had the desired
deterrent effect, we announced, “When an attorney engages in a course of conduct
resulting in a finding that the attorney has violated [former] DR 1-102(A)(4) [now
Prof.Cond.R. 8.4(c)], the attorney will be actually suspended from the practice of
law for an appropriate period of time.” Fowerbaugh at 190.
{¶ 27} With that precept in mind, the board considered three cases in which
we imposed term suspensions (two of which were partially stayed on conditions)
on attorneys who had engaged in conduct prejudicial to the administration of justice
by making false statements of fact or law to a court or engaging in discourteous or
disruptive conduct that was degrading to a tribunal.
{¶ 28} In Erie-Huron Cty. Bar Assn. v. Bailey and Bailey, 161 Ohio St.3d
146, 2020-Ohio-3701, 161 N.E.3d 590, Kenneth Ronald Bailey refused to
participate in his client’s criminal trial after the court denied several motions
seeking appointment of a defense expert and continuance of the trial, and his client
was convicted of all charges. Bailey was found to be in direct contempt of court
and was sentenced to the statutory maximum sentence of 30 days in jail for his
conduct. Over Bailey’s objections, we found that his conduct violated
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Prof.Cond.R. 3.5(a)(5) (requiring a lawyer to refrain from conduct intended to
disrupt a tribunal), 3.5(a)(6), and 8.4(d). Id. at ¶ 20, 31. Although Bailey’s trial
conduct was more egregious than that of Stobbs, he did not make false statements
to the court as Stobbs did. See id. at ¶ 43.
{¶ 29} Like Stobbs, Bailey committed multiple offenses and refused to
acknowledge the wrongful nature of his misconduct. See id. at ¶ 33. Although
Bailey’s refusal to participate in the trial caused significant harm to his client, he
had no prior disciplinary record, did not act with a selfish or dishonest motive,
submitted multiple letters attesting to his good character and reputation, and had
other sanctions imposed for his misconduct. Id. at ¶ 33, 42. Citing the highly
unusual circumstances of the case and Bailey’s completion of his 30-day jail
sentence, we rejected the board’s recommendation that Bailey be suspended from
the practice of law for two years with one year conditionally stayed. Instead, we
adopted the panel’s recommended sanction of a one-year suspension with six
months stayed on the condition that Bailey engage in no further misconduct. Id. at
¶ 45-46.
{¶ 30} In Disciplinary Counsel v. Phillabaum, 144 Ohio St.3d 417, 2015-
Ohio-4346, 44 N.E.3d 271, an assistant prosecutor insisted that a legal assistant add
to an indictment gun specifications that had not been presented to a grand jury, then
signed the indictment knowing that it contained a false statement. After
Phillabaum’s misconduct came to light, the prosecutor’s office presented the case
to the grand jury a second time and obtained a superseding indictment that included
a gun specification. Phillabaum pleaded guilty to a single count of dereliction of
duty, a second-degree misdemeanor. In addition to finding that Phillabaum’s
conduct violated Prof.Cond.R. 3.3(a)(1), 8.4(c), and 8.4(d), all of which are at issue
in this case, we also found that it violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer
from engaging in conduct that adversely reflects on the lawyer’s fitness to practice
law). See id. at ¶ 7. In the presence of four mitigating factors and no aggravating
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factors, we suspended Phillabaum from the practice of law for one year with no
stay. Although Stobbs made false statements of fact in several court filings and in
his interactions with two judges, none of those misrepresentations rose to the level
of Phillabaum’s misrepresentation of fact in a criminal indictment. But Stobbs also
committed additional acts of misconduct by representing both parties in a civil
action, intentionally and habitually making frivolous motions, and repeatedly
interrupting and arguing with a judge.
{¶ 31} And in Disciplinary Counsel v. LoDico, 106 Ohio St.3d 229, 2005-
Ohio-4630, 833 N.E.2d 1235, an attorney engaged in repeated acts of defiance
during several criminal proceedings. During a murder trial, LoDico made
inappropriate, loud, and rude statements that wrongly impugned the integrity of a
prospective juror during voir dire, he spoke loudly during sidebars in an apparent
effort to ensure that the jury heard his statements, he made dramatic and
inappropriate facial expressions in front of the jury as witnesses testified, and he
repeatedly ignored the court’s admonishments about his behavior. LoDico also
repeatedly ignored the court’s rulings, argued with the judge, and made
inappropriate and disrespectful comments during trial and at sidebars.
{¶ 32} We found that LoDico’s conduct violated rules prohibiting conduct
that is prejudicial to the administration of justice, undignified or discourteous
conduct that degrades a tribunal, and conduct that adversely reflects on a lawyer’s
fitness to practice law. Id. at ¶ 15. We also found that his conduct violated a rule
prohibiting the intentional or habitual violation of an established rule of procedure
or evidence. Id. at ¶ 16 and 23. However, LoDico’s misconduct appeared to be
“part of a much grander pattern” in that he admitted that he had paid “thousands of
dollars” in contempt fines. Id. at ¶ 27. As additional aggravating factors, we found
that he had made false statements about his past and failed to acknowledge any
wrongdoing. Id. at ¶ 18, 27. In mitigation, LoDico, lacked a dishonest or selfish
motive, and presented evidence of his good reputation. Id. at ¶ 18, 29.
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{¶ 33} In contrast with the facts of this case, the evidence suggested that
LoDico suffered from one or more mental-health disorders that may have
contributed to his misconduct—though we did not attribute any mitigating effect to
them. See id. at ¶ 14, 29. Finding that LoDico’s misconduct warranted a substantial
sanction, we suspended him from the practice of law for 18 months with six months
stayed on conditions designed to ensure that he would be capable of resuming the
competent, ethical, and professional practice of law. Id. at ¶ 33-37.
{¶ 34} After reviewing the record and the precedent cited by the board, we
conclude that Stobbs’s pattern of dishonest conduct—which extended to his
testimony in this disciplinary proceeding—warrants an actual suspension from the
practice of law and that the scope of his additional misconduct warrants a
substantial, albeit stayed, suspension. We adopt the board’s recommendation that
he be suspended from the practice of law for 18 months with 12 months
conditionally stayed.
CONCLUSION
{¶ 35} Accordingly, we deny the motion to strike our December 14, 2022
show-cause order and we hereby suspend Brent Clark Stobbs from the practice of
law in Ohio for 18 months, with 12 months stayed on the conditions that he submit
proof to relator within 90 days that he has paid the $5,812.50 in monetary sanctions
ordered in Davis v. Lost Hollow Property Owners Assoc., Inc., Hocking C.P. No.
18-CV0227, and commit no further misconduct. If Stobbs fails to comply with a
condition of the stay, the stay will be revoked and he will be required to serve the
full 18-month suspension. Costs are taxed to Stobbs.
Judgment accordingly.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
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Joseph M. Caligiuri, Disciplinary Counsel, and Matthew A. Kanai and
Donald M. Scheetz, Assistant Disciplinary Counsel, for relator.
Brent C. Stobbs, pro se.
_________________
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