Mahoning Cty. Bar Assn. v. Macala , 2024 Ohio 3158 ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Mahoning Cty. Bar Assn. v. Macala, Slip Opinion No. 2024-Ohio-3158.]
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. 2024-OHIO-3158MAHONING COUNTY BAR ASSOCIATION v. MACALA.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Mahoning Cty. Bar Assn. v. Macala, Slip Opinion No.
2024-Ohio-3158.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Conditionally stayed six-month suspension.
(No. 2023-1561—Submitted March 12, 2024—Decided August 22, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct
of the Supreme Court, No. 2023-010.
__________________
The per curiam opinion below was joined by FISCHER, DONNELLY,
STEWART, and BOCK, JJ. KENNEDY, C.J., concurred in part and dissented in part
and would impose a fully stayed one-year suspension. DEWINE and DETERS, JJ.,
concurred in part and dissented in part and would impose a public reprimand.
GINGER BOCK, J., of the First District Court of Appeals, sat for BRUNNER, J.
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Brian John Macala, of Salem, Ohio, Attorney
Registration No. 0059224, was admitted to the practice of law in Ohio in 1992.
{¶ 2} In a May 2023 complaint, relator, Mahoning County Bar Association,
charged Macala with professional misconduct related to his representation of the
fiduciary of two related probate estates. Among other things, relator alleged that
Macala signed waivers of partial accounts on behalf of the fiduciary and
beneficiaries without authorization and then filed the documents with the probate
court. Although Macala holds a part-time elected position as prosecutor and
director of law for the City of Campbell, Ohio, the conduct at issue in relator’s
complaint does not involve his public office.
{¶ 3} The parties entered into stipulations of fact, misconduct, and
aggravating and mitigating factors, but they did not agree on a recommended
sanction. Macala testified at a hearing before a three-member panel of the Board
of Professional Conduct. On relator’s motion, the panel unanimously dismissed
two alleged rule violations. The panel issued a report finding that Macala
committed the stipulated rule violations and recommending that he be publicly
reprimanded for his misconduct. The board adopted the panel’s findings of fact
and misconduct and recommended sanction.
{¶ 4} Relator objects to the board’s recommended sanction. Relator argues
that while an attorney’s dishonest conduct generally warrants an actual suspension,
an isolated incident of dishonesty in an otherwise blameless career, the absence of
harm to clients, or the presence of abundant mitigating evidence may justify a
downward departure to a fully stayed suspension, but no further. Analyzing our
precedent, relator asserts that Macala’s misconduct warrants a fully stayed 12-
month suspension.
{¶ 5} After a thorough review of the record and our precedent, we adopt the
board’s findings of misconduct. We also sustain relator’s objection in part and find
2
January Term, 2024
that a six-month conditionally stayed suspension is the appropriate sanction for
Macala’s misconduct.
I. FINDINGS OF FACT AND MISCONDUCT
{¶ 6} Sandra Billec hired Macala to handle the estate of her sister-in-law,
Marie E. Harris, after Marie died without a will in November 2018. Under the laws
of descent and distribution, Marie’s husband, Ronald J. Harris, was her sole heir.
See R.C. 2105.06. Following Marie’s death, Macala prepared a will for Ronald,
naming Ronald’s four nephews, Austin McClellan, John McClellan, Brett Billec,
and Chad Billec, as equal beneficiaries of his estate. Ronald died in April 2019.
{¶ 7} The Harris estates were relatively complex, and Macala did
substantial work over a period of approximately two years to identify the Harrises’
assets. During his disciplinary hearing, Macala testified that he applied to
Mahoning County Probate Court to open both estates and have Sandra Billec
appointed as fiduciary just six or seven months into the process of identifying estate
assets because some companies wanted to see letters of authority before they would
discuss the Harrises’ assets.
{¶ 8} By April 2020, the probate court had begun to send notices to Macala
and Billec informing them that the estates’ inventories were delinquent. The court
eventually issued an order on September 23, 2020, directing Macala and Billec to
appear and file the delinquent inventories. After obtaining a continuance in each
case, Macala filed both inventories on November 16, 2020.
{¶ 9} Between the summer of 2020 and the spring of 2021, the probate court
sent several postcards to Macala and Billec informing them that the fiduciary’s
accounts and status reports for both estates were also delinquent.
{¶ 10} In March 2022, the probate court issued notices of a hearing to file
the status reports. At the same time, the court also issued citations and orders for
Macala and Billec to appear and show cause why the fiduciary’s accounts for both
3
SUPREME COURT OF OHIO
estates were delinquent. The court set a late-April hearing for those matters. On
Macala’s motion, the court continued the hearing to mid-May.
{¶ 11} Three days before the May hearing date, Macala filed waivers of
partial accounts for both estates that were purportedly signed by Billec as fiduciary.
In addition, the waiver in Ronald’s estate was purportedly signed by the four
beneficiaries of that estate. In fact, Macala had signed the names of Billec (the
fiduciary) and the beneficiaries without their knowledge or consent, though none
of the signatures were notarized. Because the waivers were filed before the
scheduled hearing, the probate court issued an entry in each case withdrawing the
citations to appear and show cause.
{¶ 12} Within a few weeks of Macala’s filing of the waivers, Billec
discovered the forgeries and sent Macala a letter terminating his representation.
Macala called Billec to apologize for his actions and to express that he understood
her decision to terminate his representation. Macala cooperated in transitioning the
estates and their respective case files to successor counsel. He received no fee for
the services he provided for either estate.
{¶ 13} Chad Billec filed a grievance with relator regarding Macala’s
forgeries. In his written response to relator’s letter of inquiry, Macala admitted to
the alleged wrongdoing. Macala has also admitted in his stipulations and testimony
before the panel that he signed the documents without the knowledge or consent of
any of the purported signatories.
{¶ 14} The parties stipulated, and the board found by clear and convincing
evidence, that Macala’s conduct violated Prof.Cond.R. 1.4(a)(3) (requiring a
lawyer to keep a client reasonably informed about the status of a matter), 3.3(a)(1)
(prohibiting a lawyer from knowingly making a false statement of fact or law to a
tribunal), and 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation). We adopt those findings of
misconduct.
4
January Term, 2024
II. AGGRAVATING AND MITIGATING FACTORS AND
RECOMMENDED SANCTION
{¶ 15} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the attorney 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 parties stipulated and the board found
that Macala had acted with a dishonest or selfish motive and committed multiple
offenses. See Gov.Bar R. V(13)(B)(2) and (4). As for mitigation, the parties
stipulated and the board found that Macala had a clean disciplinary record, made
full and free disclosure to the board and exhibited a cooperative attitude toward the
disciplinary proceedings, and presented evidence of his good character. See
Gov.Bar R. V(13)(C)(1), (4), and (5). Indeed, Macala submitted 34 letters from
judges, attorneys, friends, and family members attesting to his good character and
reputation. One panel member described those letters as “some of the best [he had]
ever seen.”
{¶ 17} In determining the proper sanction to recommend for Macala’s
misconduct, the board began with the presumption that Macala’s violation of
Prof.Cond.R. 8.4(c) should result in an actual suspension from the practice of law
unless mitigating factors warrant a stay. See Disciplinary Counsel v. Fowerbaugh,
74 Ohio St.3d 187 (1995), syllabus (“When an attorney engages in a course of
conduct that violates [an ethical rule prohibiting dishonesty, fraud, deceit, or
misrepresentation],[1] the attorney will be actually suspended from the practice of
law for an appropriate period of time.”). Quoting this court’s decision in
Disciplinary Counsel v. Shaffer, 2003-Ohio-1008, ¶ 11, the board noted that when
1. Fowerbaugh refers to former DR 1-102(A)(4), which has since been superseded by Prof.Cond.R.
8.4(c). Both rules prohibit lawyers from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation.
5
SUPREME COURT OF OHIO
an attorney’s misconduct has involved forgery or falsification, this court has
“‘tempered [its] disposition according to whether the case presents an isolated
incident in an otherwise unblemished legal career or [a] more egregious course of
conduct.’ ” In addition, the board acknowledged that this court “has ‘typically
imposed lesser sanctions of public reprimands or six-month fully stayed
suspensions for isolated notary offenses,’ ” quoting Akron Bar Assn. v. Binger,
2014-Ohio-2114, ¶ 22.
{¶ 18} The board compared the facts of this case to those of six other cases
in which we publicly reprimanded attorneys who fraudulently signed, notarized, or
altered legal documents. See Disciplinary Counsel v. Eisenberg, 81 Ohio St.3d 295(1998); Warren Cty. Bar Assn. v. Clifton, 2016-Ohio-5587; Disciplinary Counsel
v. Wilson, 2014-Ohio-5487; Disciplinary Counsel v. Mezacapa, 2004-Ohio-302;
Mahoning Cty. Bar Assn. v Melnick, 2005-Ohio-6265; Columbus Bar Assn. v.
Craig, 2012-Ohio-1083. After considering those cases, the board recommended
that we publicly reprimand Macala for his misconduct.
III. RELATOR’S OBJECTION
{¶ 19} Relator objects to the board’s recommended sanction. Like the
board, relator begins its analysis with the proposition that an attorney’s dishonest
conduct generally warrants an actual suspension from the practice of law. Relator
further acknowledges that an isolated incident of dishonesty in an otherwise
blameless career, the absence of harm to clients, or the presence of abundant
mitigating evidence may justify a downward departure from that general rule.
However, relator contends that those mitigating factors may justify a downward
departure to a fully stayed suspension—but not to a public reprimand as
recommended by the board. Relator asserts that the facts of this case are
distinguishable from the facts of the public-reprimand cases cited by the board, and
that application of the appropriate precedent requires the imposition of a fully
stayed 12-month suspension for Macala’s misconduct.
6
January Term, 2024
{¶ 20} Macala, on the other hand, asserts that the board’s decision is well-
reasoned and supported by the facts of this case and our precedent. He therefore
maintains that this court should adopt the board’s recommended sanction and
publicly reprimand him for his misconduct.
IV. ANALYSIS
A. Fowerbaugh and its progeny
{¶ 21} In Fowerbaugh, 74 Ohio St.3d at 191, we held that “when an
attorney engages in a course of conduct that violates [an ethical rule prohibiting
dishonesty, fraud, deceit, or misrepresentation], the attorney will be actually
suspended from the practice of law for an appropriate period of time.” (Emphasis
added.) We have since treated our pronouncement in Fowerbaugh as a presumptive
sanction, though we have not hesitated to impose lesser sanctions in the presence
of significant mitigating evidence. See, e.g., Disciplinary Counsel v. Proctor,
2012-Ohio-684, ¶ 18.
{¶ 22} Since deciding Fowerbaugh, we have found that an attorney who
misrepresented to his clients the status of their case for nearly three years had
engaged in a course of conduct that warranted an actual suspension from the
practice of law. See Cincinnati Bar Assn. v. Caliman, 83 Ohio St.3d 461, 461-462
(1998). We have also determined that an attorney’s “repeated deceit regarding [a
client’s] arbitration proceedings constitute[d] a ‘course of conduct’ rather than an
isolated act and consequently warrant[ed] an actual suspension from the practice of
law.” Akron Bar Assn. v. Hoffer, 86 Ohio St.3d 97, 99 (1999). And in Disciplinary
Counsel v. Stollings, 2006-Ohio-5345, we imposed a six-month suspension on an
attorney who, in two letters sent six months apart, misled a client about the
dismissal of the client’s case and about the neglect that had caused the dismissal.
Id. at ¶ 8-9, 13. There, we emphasized that “an actual suspension is particularly
appropriate when an attorney’s dishonesty has been directed toward a client.” Id.
at ¶ 13. Moreover, in another case involving multiple acts of misconduct, we
7
SUPREME COURT OF OHIO
recognized that a judge’s “pattern of misrepresentation in her interactions with
judges, litigants, attorneys, and court personnel” constituted “pervasive conduct of
misrepresentation” that alone warranted an actual suspension from the practice of
law. Disciplinary Counsel v. O’Neill, 2004-Ohio-4704, ¶ 23, 52.
{¶ 23} Although Fowerbaugh held that an actual suspension was the
appropriate sanction for a course of conduct involving dishonesty, fraud, deceit, or
misrepresentation, Fowerbaugh at 191, we have at times suggested that
Fowerbaugh stands for the proposition that any misconduct involving dishonesty,
fraud, deceit, or misrepresentation warrants an actual suspension from the practice
of law. See, e.g., Disciplinary Counsel v. Beeler, 2005-Ohio-1143, ¶ 44 (citing
Fowerbaugh in support of the proposition that “[a] violation of [an ethical rule
prohibiting an attorney from engaging in dishonesty, fraud, deceit, or
misrepresentation] ordinarily calls for the actual suspension of an attorney’s
license”); Disciplinary Counsel v. Karris, 2011-Ohio-4243, ¶ 16 (citing
Fowerbaugh to support the statement that “[g]enerally, misconduct involving
dishonesty, fraud, deceit, or misrepresentation warrants an actual suspension from
the practice of law”); Disciplinary Counsel v. Adelstein, 2020-Ohio-3000, ¶ 26
(citing Fowerbaugh in support of the statement that “[c]onduct involving
dishonesty, fraud, deceit, or misrepresentation usually requires an actual suspension
from the practice of law”).
{¶ 24} We have tempered the presumptive sanction of an actual suspension
for an attorney’s dishonest conduct in two sets of circumstances. First, we have
done so when an attorney has engaged in an isolated incident of dishonest conduct.
For example, in Eisenberg, 81 Ohio St.3d 295, an attorney directed his secretary to
trace the signatures of an estate’s beneficiaries onto the estate’s inventory and
receipt vouchers without the knowledge or consent of the beneficiaries, and then
the attorney filed the forged documents in the probate court. There, we adopted the
board’s findings of fact and conclusions of law, including its findings that
8
January Term, 2024
Eisenberg had no intent to defraud anyone, that the signatures were signed as a
convenience to the parties and were not under oath, and that no party suffered a
financial loss as a result of his misconduct. Id. at 295-296. We acknowledged our
holding in Fowerbaugh, but we found that Eisenberg’s misconduct “was an
isolated incident in an otherwise unblemished legal career and not a course of
conduct.” (Emphasis added.) Id. at 296. Therefore, instead of an actual
suspension, we publicly reprimanded Eisenberg for his isolated incident of
dishonest conduct. Id.{¶ 25} Second, we have recognized that “an abundance of mitigating
evidence can justify a lesser sanction.” Disciplinary Counsel v. Markijohn, 2003-
Ohio-4129, ¶ 8; see also, e.g., Disciplinary Counsel v. Cuckler, 2004-Ohio-784,
¶ 10 (publicly reprimanding an attorney who, for more than a year before his
admission to the Ohio bar, held himself out as “deputy chief legal counsel” to the
Speaker of the Ohio House of Representatives even though he actually served as a
legislative aide or law clerk under the supervision of a licensed attorney; mitigating
factors included the attorney’s expressed remorse and contrition, evidence of his
good character and reputation, and the absence of any detrimental reliance on his
misrepresentation); Disciplinary Counsel v. Carroll, 2005-Ohio-3805, ¶ 13
(imposing a conditionally stayed six-month suspension on an attorney who
submitted inaccurate time sheets while working for a state board; mitigating factors
included his cooperation with investigators, effort to remedy any harm caused by
his errors, and the absence of a dishonest or selfish motive).
B. A public reprimand may be an appropriate sanction for an attorney’s
dishonest conduct
{¶ 26} Here, relator argues that an isolated incident of dishonest misconduct
in an otherwise blameless career alone or accompanied by abundant mitigating
evidence may justify a downward departure from the presumptive sanction of an
9
SUPREME COURT OF OHIO
actual suspension—but only to a fully stayed suspension and not to a public
reprimand.
{¶ 27} However, as stated above, the board relied on Eisenberg, 81 Ohio
St.3d 295, and five other cases involving attorneys who engaged in isolated
incidents of document falsification to support its recommendation that Macala be
publicly reprimanded for his misconduct in this case. Those cases unequivocally
demonstrate that a public reprimand can be the appropriate sanction for isolated
incidents of dishonest conduct arising from an attorney’s fraudulent signing,
alteration, and/or notarization of documents that are then filed with a court or
government agency.
{¶ 28} For example, in Clifton, 2016-Ohio-5587, an attorney altered a
deceased client’s will by adding the erroneously omitted name of one of the client’s
children before filing the will in the probate court. Id. at ¶ 6, 14. The alteration
constituted a single misrepresentation to a court that did not change the outcome of
the probate proceedings. Id. at ¶ 5, 12. Clifton’s conduct violated two of the three
rules at issue in this case, namely Prof.Cond.R. 3.3(a)(1) and 8.4(c). Clifton at ¶ 9.
No aggravating factors were present, but mitigating factors included Clifton’s clean
disciplinary record, his good-faith effort to rectify the consequences of his
misconduct, and his full cooperation in the disciplinary process—including his self-
report of his misconduct to relator. Id. at ¶ 7, 11. We publicly reprimanded Clifton
for the misconduct. Id. at ¶ 14.
{¶ 29} In Wilson, 2014-Ohio-5487, an attorney signed the name of her
granddaughter’s mother on an affidavit with the mother’s text-message
authorization. Id. at ¶ 2, 7-8. Wilson then notarized the document without
disclosing that she had signed the mother’s name with authority, filed it in a
guardianship proceeding related to her granddaughter, and instructed the child’s
mother to tell the magistrate that the signature was her own. Id. at ¶ 7-8. In addition
to violating Prof.Cond.R. 3.3(a)(1) and 8.4(c) as Macala did in this case, Wilson
10
January Term, 2024
also violated Prof.Cond.R. 8.4(d), which prohibits lawyers from engaging in
conduct that is prejudicial to the administration of justice. Wilson at ¶ 11. Like
Macala, Wilson acted with a dishonest or selfish motive but also had a clean
disciplinary record, exhibited a cooperative attitude toward the disciplinary
proceedings, and presented evidence of her good character. Id. at ¶ 13. But
Wilson’s misconduct was not as extensive as Macala’s is in this case. Id. at ¶ 18
(noting that Wilson’s conduct was comparable to cases involving a single false
notarization). We publicly reprimanded Wilson for her misconduct. Id. at ¶ 20.
{¶ 30} In Mezacapa, 2004-Ohio-302, the attorney signed a client’s name to
an affidavit with authorization and, like Wilson, notarized the signature without
noting on the document that he had signed it on his client’s behalf. The attorney
then filed the affidavit in court along with a motion to modify the client’s child-
support obligation. Id. at ¶ 2. Mezacapa violated former disciplinary rules
prohibiting attorneys from engaging in dishonest conduct and conduct prejudicial
to the administration of justice. Id. at ¶ 3. In addition to finding the same mitigating
factors present here in Macala’s case, we found that Mezacapa “had not committed
his misconduct out of self-interest” and had tried to rectify the consequences of his
misconduct. Id. at ¶ 4. We publicly reprimanded Mezacapa for his misconduct.
Id. at ¶ 5.
{¶ 31} In Melnick, 2005-Ohio-6265, the attorney relied on the assurances
of an interested third party that three affiants’ signatures were authentic, and he
notarized them with a jurat that falsely stated that the affidavits were sworn to and
subscribed in his presence. Id. at ¶ 5-6. We found that Melnick committed a single
violation of a former disciplinary rule analogous to Prof.Cond.R. 8.4(c). Melnick
at ¶ 10. Only one aggravating factor was significant to the board: the damage to
the perception that an official notarial act is worthy of public trust. See id. at ¶ 11.
In addition to finding the same three mitigating factors present in Macala’s case,
we also found that Melnick did not act in his own self-interest. Id. at ¶ 13. Melnick
11
SUPREME COURT OF OHIO
also attempted to rectify his wrongdoing by speaking with each of the affiants to
confirm the authenticity of their signatures before filing the affidavits in court,
though the false notarial jurat remained. Id. at ¶ 7, 13. We publicly reprimanded
Melnick for his misconduct. Id. at ¶ 17.
{¶ 32} The final case considered by the board was Craig, 2012-Ohio-1083.
Craig forged a client’s signature on an affidavit of transfer on death, notarized the
forgery, and then filed it with the county recorder. Id. at ¶ 1. We found that Craig
had committed three ethical violations that were nearly identical to Macala’s
violations in this case. Id. at ¶ 3. But in contrast to this case, there were no
aggravating factors. Id. at ¶ 4. And in addition to the same mitigating factors
present here, we also found that Craig did not act with a selfish motive and made a
timely, good-faith effort to rectify the consequences of his misconduct. Id. We
adopted the parties’ consent-to-discipline agreement and publicly reprimanded
Craig for his misconduct. Id. at ¶ 5-6.
{¶ 33} Our holdings in Eisenberg, Clifton, Wilson, Mezacapa, Melnick, and
Craig demonstrate that a public reprimand can sometimes be the appropriate
sanction for an attorney’s dishonest conduct. We therefore overrule relator’s
objection to the board’s recommended sanction to the extent that it asserts that a
public reprimand cannot be an appropriate sanction when an attorney has engaged
in an isolated incident of dishonest conduct or when there is an abundance of
mitigating evidence.
C. Macala’s dishonest conduct
{¶ 34} In this case, Macala, on a single occasion, forged the signature of his
client (Billec), as the fiduciary of the Harrises’ estates, on two waivers of partial
accounts. On one of those waivers, he also forged the signatures of the four
beneficiaries to the estates. He then filed both of the forged documents in the
probate court, thereby waiving the beneficiaries’ rights to receive the partial
accounting of the estates’ assets that was then overdue. See R.C. 2109.301(B)(4)
12
January Term, 2024
(providing that after a waiver of partial account is filed, every administrator and
executor shall render further accounts or file waivers of partial accounts at least
once each year until the estate is closed unless a certificate of termination is filed).
{¶ 35} When asked to explain his actions, Macala testified that he thought
he had identified the assets that would need to be distributed through the probate
estates. But around the time that he received the notice that an account was due, a
relative of the Harrises discovered a life insurance policy that could be an asset of
the estates. Macala testified that he prepared an application to extend the
administration of the estate and had Billec (the fiduciary) sign it with the
understanding that they would need to investigate the newly discovered asset. But
when Macala presented the application to the magistrate, he was informed that
instead of the application to extend the administration, the court wanted a waiver
of a partial account within seven days.
{¶ 36} Macala testified that after meeting with the magistrate, he took the
file back to his office, set it down, and left it for nearly a week before he realized
that the waivers were due the following day. He stated that he panicked and signed
the names of Billec and the four beneficiaries without their authority. In contrast
to the facts of Wilson and Mezacapa, both of which involved an attorney’s
authorized signing of single person’s name combined with a false notarization,
Macala forged multiple signatures like the attorney in Eisenberg. But in contrast
to the attorney in Craig, who forged his client’s signature and then falsely notarized
that forgery, and the attorney in Melnick, who falsely notarized three signatures that
he did not witness, Macala did not falsely notarize any of the signatures he forged.
{¶ 37} In his testimony before the panel, Macala admitted that what he did
was wrong. Although he was found to have acted with a dishonest or selfish
motive, the only benefit that he received from his actions was that he avoided
having to appear in court to explain why he had not complied with the court’s
deadline for filing the partial accounts. Macala explained that if he had not
13
SUPREME COURT OF OHIO
submitted the waivers or the partial accounts, he would have received “a very harsh
rebuttal” or “incurr[ed] the court’s wrath” for failing to comply with the court’s
order. He acknowledged, however, that if he had appeared at the show-cause
hearing, it was safe to assume that the court would have imposed another deadline
and that the case would have proceeded normally from there. Macala estimated
that he had put somewhere between 75 and 100 hours of work into locating the
Harrises’ assets, for which he neither charged nor received a fee.
D. Cases in which we have imposed conditionally stayed one-year
suspensions for an attorney’s dishonest conduct
{¶ 38} Despite the similarities between this case and the cases cited by the
board to support its recommended sanction of a public reprimand, relator contends
that the facts of this case most closely resemble six cases in which we imposed
conditionally stayed one-year suspensions on attorneys who engaged in various acts
of dishonest conduct, most of which include a lack of candor toward a tribunal.
{¶ 39} Four of the cases that relator relies on are readily distinguishable
from the facts of this case because they involve additional acts of misconduct or
misconduct arising from criminal conduct—facts that simply are not present here.
See Akron Bar Assn. v. Gibson, 2011-Ohio-628, ¶ 2, 11 (in addition to making
misrepresentations of fact to a court when seeking payment for nonlegal services
rendered to client, an attorney induced an escrow agent to release funds without
obtaining proper approval and withdrew from the representation of a second client
without obtaining leave of court or protecting the client’s interests); Medina Cty.
Bar Assn. v. Cameron, 2011-Ohio-5200, ¶ 7-8 (in addition to making false
statements to a tribunal, an attorney communicated with a person known to be
represented by a lawyer about the subject of that representation without first
obtaining the consent of that person’s lawyer); Columbus Bar Assn. v. Chodosh,
2019-Ohio-765, ¶ 2-3, 9 (in addition to forging a client’s signature on several
documents, notarizing one of those documents, and then submitting the notarized
14
January Term, 2024
document to an insurer, an attorney also failed to reasonably communicate with two
clients, failed to properly disclose a fee-sharing arrangement to his client, and
disclosed confidential client information without consent); Mahoning Cty. Bar
Assn. v. Cochran, 2018-Ohio-4, ¶ 7, 9 (an attorney’s misconduct consisted of
making incomplete and misleading statements to a tribunal during his own federal
criminal trial, conduct that led him to plead guilty to a single count of misbehavior
in the presence of the court).
{¶ 40} The other two cases that relator relies on to support its recommended
sanction are likewise distinguishable from this case on their facts. In each of those
cases, the attorney’s misconduct was more egregious because the forgeries or
alterations were undertaken in an effort to conceal other acts of misconduct.
{¶ 41} First, in Disciplinary Counsel v. Niermeyer, 2008-Ohio-3824,
Niermeyer voluntarily withdrew a worker’s compensation claim with his client’s
permission, but he failed to refile the claim before it was time-barred. Id. at ¶ 3-4.
Niermeyer did not forge his client’s signature to a document to obtain additional
time like Macala. Instead, Niermeyer attempted to remedy his neglect by
photocopying a date stamp from an unrelated case and then superimposing that date
stamp onto a document from the client’s case to make it appear that the document
had been timely filed. Id. at ¶ 4. He then filed the document with the Bureau of
Workers’ Compensation in the hope that the agency would not notice the
fabrication and would allow the claim to be processed. Id. Overwhelmed with
guilt, Niermeyer self-reported his misconduct to disciplinary counsel, withdrew the
claim, and only then attempted to notify his client of the missed deadline. Id. at
¶ 5-6.
{¶ 42} We found that Niermeyer’s conduct violated former disciplinary
rules that prohibited a lawyer from engaging in dishonest conduct and from creating
or preserving evidence that the lawyer knows to be false. Id. at ¶ 7. Like Macala,
Niermeyer had a clean disciplinary record, fully cooperated in the disciplinary
15
SUPREME COURT OF OHIO
proceedings, and presented evidence of his good character and reputation. Id. at
¶ 9. Niermeyer also made immediate efforts to rectify the consequences of his
misconduct. Id. The sole aggravating factor was Niermeyer’s dishonest or selfish
motive. Id. But there, in contrast to Macala, Niermeyer altered the documents in
order to conceal his neglect in failing to refile his client’s claim before it was time-
barred.
{¶ 43} In determining the appropriate sanction for Niermeyer’s misconduct,
we acknowledged our holding in Fowerbaugh, 74 Ohio St.3d 187. Niermeyer at
¶ 12. But we found that Niermeyer’s misconduct was an isolated incident rather
than a course of conduct. Id. at ¶ 13. Citing his willingness to accept responsibility
for his actions and his “otherwise unblemished legal career,” we concluded that he
was unlikely to commit additional misconduct going forward. Id. Rather than
imposing an actual suspension from the practice of law, we suspended Niermeyer
for 12 months with the entire suspension stayed on the condition that he commit no
further misconduct. Id. at ¶ 14.
{¶ 44} Second, in Disciplinary Counsel v. Champion, 2016-Ohio-8023,
Champion responded to a civil action to collect his delinquent municipal income
taxes by repeatedly and falsely claiming that he had paid the taxes. In an attempt
to support his repeated false claims, he also submitted a fraudulently altered copy
of a canceled check to the taxing authority that purported to show partial payment
of the taxes owed. Id. at ¶ 4, 5. The aggravating and mitigating factors in Champion
were identical to those of this case—except that Champion was not found to have
committed multiple offenses as Macala was here. Id. at ¶ 8. We imposed a one-
year conditionally stayed suspension for Champion’s dishonest conduct. Id. at
¶ 11.
{¶ 45} Here, in contrast to Niermeyer and Champion, Macala did not
engage in dishonesty to conceal any other alleged or actual wrongdoing. Rather,
the evidence shows that he the forged the signatures of the estates’ fiduciary and
16
January Term, 2024
beneficiaries in a misguided effort to obtain additional time to provide a complete
accounting of the estates’ assets to the probate court. Moreover, the parties
stipulated and the board found that Macala’s misconduct did not affect the outcome
of the probate case or result in any harm to the client or the beneficiaries. While
his conduct fell below the standards we have set for Ohio attorneys, we conclude
that it was not as egregious as the misconduct at issue in Niermeyer and Champion.
E. Macala’s misconduct warrants a conditionally stayed six-month
suspension
{¶ 46} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the attorney violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases. 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, 2008-Ohio-6201, ¶ 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).
{¶ 47} Macala’s misconduct in this case consisted of forging the signatures
of five people—namely, the fiduciary and four beneficiaries—on a waiver of partial
accounting in one estate and forging the signature of the fiduciary on a separate
waiver of partial accounting in a second estate. That misconduct is more serious
than the isolated instances of signature- and notary-related misconduct at issue in
the cases cited by the board, but not as egregious as the cases involving the
concealment of other acts of misconduct in the cases cited by relator. After
weighing Macala’s misconduct, the aggravating and mitigating factors present in
this case, and our precedent, we conclude that the appropriate sanction for Macala’s
misconduct is a conditionally stayed six-month suspension from the practice of law.
17
SUPREME COURT OF OHIO
We therefore sustain in part relator’s objection to the board’s recommended
sanction.
V. CONCLUSION
{¶ 48} Accordingly, Brian John Macala is suspended from the practice of
law in Ohio for six months with the entire suspension stayed on the condition that
he commit no further misconduct. If Macala fails to comply with the condition of
the stay, the stay will be lifted and he will serve the full six-month suspension.
Costs are taxed to Macala.
Judgment accordingly.
__________________
J. Michael Thompson and David C. Comstock, Jr., Bar Counsel, for relator.
John B. Juhasz Jr., for respondent.
__________________
18