Disciplinary Counsel v. Geer ( 2006 )

[Cite as Disciplinary Counsel v. Geer, 112 Ohio St.3d 124, 2006-Ohio-6516.]
DISCIPLINARY COUNSEL v. GEER.
[Cite as Disciplinary Counsel v. Geer, 112 Ohio St.3d 124, 2006-Ohio-6516.]
Attorneys – Misconduct — Conduct adversely reflecting on fitness to practice law
— Failure to cooperate in a disciplinary investigation — Attorney in
default of child-support order — One-year suspension with conditions for
reinstatement.
(No. 2006-1177 — Submitted September 20, 2006 — Decided
December 27, 2006.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 05-072.
__________________
Per Curiam.
{¶ 1} Respondent, Thomas Lee Geer, last known address in New Castle,
Pennsylvania, Attorney Registration No. 0011038, was admitted to the practice of
law in Ohio in 1982. On January 24, 2005, we suspended respondent’s license for
an interim period, pursuant to Gov.Bar R. V(5)(A)(4), upon notice that he had
been adjudicated in default of a child-support order. In re Geer, 104 Ohio St.3d
1454, 2005-Ohio-235, 821 N.E.2d 572.
{¶ 2} On August 8, 2005, relator, Disciplinary Counsel, charged
respondent with two counts of professional misconduct: the first for his failure to
comply with a child-support order; the second for his failure to respond during
relator’s investigation of this misconduct. Relator attempted to serve respondent
with the complaint by certified mail at the address on file with the Attorney
Registration Section for him and where he had earlier signed a certified receipt for
a letter of inquiry. The mailing was returned unclaimed. Relator then perfected
service of the complaint on the Clerk of the Supreme Court, who is deemed the
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agent for service of notices for nonresident attorneys and attorneys who have
“concealed their whereabouts.” Gov.Bar R. V(11)(B).
{¶ 3} Respondent did not answer the complaint, and relator moved for
default pursuant to Gov.Bar R. V(6)(F). A master commissioner appointed by the
Board of Commissioners on Grievances and Discipline granted the motion and
made findings of misconduct and recommended a sanction. The board adopted
the master commissioner’s findings of fact, conclusions of law, and
recommendation.
Misconduct
Count I – The Child-Support Obligation
{¶ 4} Pursuant to a decree of dissolution of marriage entered in the
Franklin County Court of Common Pleas, Domestic Relations Division,
respondent was ordered to pay $3,000 per month in child support and $5,000 per
year in spousal support. On October 22, 2004, the Franklin County Child Support
Enforcement Agency (“FCCSEA”) issued a Notice to Obligor of Default and
Potential Action certifying an arrearage in excess of $319,900 and establishing a
current child-support obligation of $3,000 per month and an arrearage payment of
$300 per month.
{¶ 5} On October 28, 2005, FCCSEA advised relator of respondent’s
child-support arrearage. At about the same time, respondent asked for an
administrative hearing before the FCCSEA. On January 31, 2006, after an
administrative termination hearing, the common pleas court adopted an FCCSEA
decision establishing (1) respondent’s child-support and spousal-support arrearage
of $396,959.48 as of August 31, 2005, (2) a current child-support obligation of
$2,000 per month for his two youngest children, which accounted for the
emancipation of his oldest child, (3) an additional $1,300 per month obligation to
pay for past-due child support, and (4) an ongoing spousal-support obligation of
$416.67 per month.
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January Term, 2006
{¶ 6} In the meantime, FCCSEA initiated proceedings to register the
support order in Lawrence County, Pennsylvania, where respondent resided.
Respondent contested the registration of the order. On November 15, 2005, the
Lawrence County Common Pleas Court entered an order finding that it had
jurisdiction over the matter and authority under 23 Pa.Con.Stat.Ann. 7305 to
“determine the amount of arrearage, specify the payments and grant any other
relief.” In the succeeding six months, the court issued various orders to collect
ordered child support, including orders to attach respondent’s income from his
law practice and to freeze account assets.
{¶ 7} Respondent has not filed with the board (1) a certified copy of a
judgment entry reversing the determination of default as to his child-support
obligation, (2) a notice from a court or child-support enforcement agency that
respondent is no longer in default of a child-support order, or (3) a notice from a
court or child-support enforcement agency that respondent is in compliance with a
withholding or deduction notice to collect current support or any arrearage due
under the child-support order that was in default. Gov.Bar R. V(5)(D)(1)(b) and
(c). The board thus concluded that the interim child-support-default suspension
imposed on January 24, 2005, remained in effect and that respondent remained in
default of his child-support obligation. The board found that respondent had
thereby violated DR 1-102(A)(6) (prohibiting conduct that adversely reflects on a
lawyer’s fitness to practice law).
Count II - Failure to Respond to Investigative Inquiries
{¶ 8} On February 14, 2005, relator sent a letter to respondent at his last
known address, inquiring as to the status of his compliance with his child-support
obligation. Respondent did not reply. Relator sent a second letter of inquiry to
respondent at the same address on March 17, 2005. Respondent signed the
certified mail receipt, but still did not reply. On July 18, 2005, relator sent a
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notice of relator’s intent to file the instant complaint and invited a response.
Respondent did not reply.
{¶ 9} The board found that respondent had thereby violated Gov.Bar R.
V(4)(G) (requiring a lawyer to cooperate in an investigation of professional
misconduct).
Recommended Sanction
{¶ 10} In recommending a sanction for respondent’s misconduct, the
board weighed the aggravating and mitigating factors of his case. See Section 10
of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline (“BCGD
Proc.Reg.”).
{¶ 11} As aggravating factors, the board found that respondent’s
misconduct was motivated by selfishness, that he had failed to cooperate in any of
the disciplinary proceedings, that he had refused to acknowledge the wrongful
nature of his conduct, that he had caused great financial harm to vulnerable
victims – his children, and that he had failed to make restitution. BCGD
Proc.Reg. 10(B)(1)(b), (e), (g), (h), and (i).
{¶ 12} In mitigation, the board noted that respondent had no disciplinary
record other than his interim suspension for defaulting on child support. He had,
however, been suspended from practicing law since December 5, 2005, for failing
to register as an attorney, as required by Gov.Bar R.VI(1)(A), for the biennium
beginning on September 1, 2005. See In re Attorney Registration Suspension,
107 Ohio St.3d 1431, 2005-Ohio-6408, 838 N.E.2d 671.
{¶ 13} Based on respondent’s considerable failure to meet his financial
obligations to his children, his failure to cooperate with disciplinary authorities,
and his failure to provide any explanation or mitigating circumstances for his
conduct, relator advocated respondent’s indefinite suspension from the practice of
law. The master commissioner rejected this sanction, recommending instead the
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January Term, 2006
sanction he had urged in another case of a lawyer’s failure to comply with his
child-support obligations. See Disciplinary Counsel v. Curry, 112 Ohio St.3d
130, 2006-Ohio-6517, 858 N.E.2d 392. Declining to distinguish these cases on
the basis that respondent’s child-support arrearage was so much larger than the
arrearage in Curry, the master commissioner recommended that respondent be
suspended from the practice of law for a period of one year, with no credit for his
interim suspension and with any reinstatement to be on the condition that he
proves compliance with all of the requirements imposed in the interim suspension
order.
Review
{¶ 14} We agree that respondent violated DR 1-102(A)(6) and Gov.Bar R.
V(4)(G), as found by the board. We also agree that the recommended sanction is
appropriate.
{¶ 15} Respondent is therefore suspended from the practice of law in
Ohio for a period of one year, with no credit for his interim suspension and with
any reinstatement to be on the condition that he proves compliance with all
requirements imposed in our interim suspension order. Costs are taxed to
respondent.
Judgment accordingly.
MOYER, C.J., RESNICK, PFEIFER, O’CONNOR and O’DONNELL, JJ., concur.
LUNDBERG STRATTON and LANZINGER, JJ., dissent.
__________________
LUNDBERG STRATTON, J., dissenting.
{¶ 16} I respectfully dissent. This is a matter of first impression for this
court. Pursuant to Gov.Bar R. V, this court has determined that a failure to pay
child support is lawyer misconduct warranting discipline. Gov.Bar R. V(5)
provides:
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{¶ 17} “(A)(1) Interim Suspension. A justice, judge, or an attorney
admitted to the practice of law in Ohio shall be subject to an interim suspension
under either of the following circumstances:
{¶ 18} “* * *
{¶ 19} “(b) A final and enforceable determination has been made pursuant
to Chapter 3123. of the Revised Code that the justice, judge, or attorney is in
default under a child support order.”
{¶ 20} On December 16, 2004, pursuant to Gov.Bar R. V(5)(A), the
Secretary of the Board of Commissioners on Grievances and Discipline of the
Supreme Court of Ohio submitted to this court a certified copy of a determination
of default of a child-support order by respondent. On January 24, 2005, this court
suspended respondent from the practice of law for an interim period. This court
further ordered that respondent “shall not be reinstated to the practice of law until
(1) the Board of Commissioners on Grievances and Discipline files in accordance
with Gov.Bar R. V(5)(D)(1)(b) with the Supreme Court a certified copy of a
judgment entry reversing the determination of default under a child support order,
or it files in accordance with Gov.Bar R. V(5)(D)(1)(c) with the Supreme Court a
notice from a court or child support enforcement agency that respondent is no
longer in default under a child support order or is subject to a withholding or
deduction notice or a new or modified child support order to collect current
support or any arrearage due under the child support order that was in default and
is complying with that notice or order, and (1) this court orders respondent
reinstated to the practice of law.”
{¶ 21} This process disciplines an attorney for his or her failure to comply
with a court order, yet allows a cure upon proof that the respondent has complied
with the court order either by satisfaction of the arrearages or by a withholding
arrangement. Until then, the attorney remains suspended.
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January Term, 2006
{¶ 22} In this case of first impression, on August 8, 2005, relator,
Disciplinary Counsel, charged respondent with two counts of professional
misconduct: the first for his failure to comply with a child-support order, and the
second for his failure to respond during relator’s investigation of this misconduct.
The board concluded that the interim child-support-default suspension imposed
on January 24, 2005, remained in effect and that respondent remained in default
of his child-support obligation. Therefore, the board found that respondent had
violated DR 1-102(A)(6) (prohibiting conduct that adversely reflects on a
lawyer’s fitness to practice law).
{¶ 23} The majority concluded that respondent violated DR 1-102(A)(6)
and Gov.Bar R. V(4)(G), as found by the board. The majority therefore
suspended respondent from the practice of law for a period of one year, with no
credit for his interim suspension and with any reinstatement to be on the condition
that he proves compliance with all requirements imposed in our interim
suspension order.
{¶ 24} I am concerned that a finite term of suspension on top of his
interim suspension reduces respondent’s ability to earn a living, thereby
diminishing his ability to support his children in the long run. Respondent is
already under an interim suspension pursuant to this court’s January 24, 2005
order. Therefore, respondent is already being sanctioned. I would continue
respondent’s interim suspension as previously ordered by this court. We need not
do anything further, as respondent is already suspended from the practice of law.
There is no need for relator to spend precious resources on investigating and
prosecuting this second case against respondent to accomplish what has already
happened.
{¶ 25} I believe this added discipline accomplishes nothing and, in the
long run, potentially harms the victims, the children, to whom child support is
owed. Under an interim suspension, if respondent is able to get a loan or secure
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other resources to bring his arrearages current (or obtain a satisfactory
garnishment of his wages to lift the default), then he may come into compliance
with his child-support obligations and apply to be reinstated; the children then
benefit. Under the majority’s new sanction, respondent no longer has any
motivation for paying his arrearages promptly. Not only has his livelihood been
cut off, so that he might not be able to repay a loan, but so has the possibility of a
satisfactory garnishment to lift the default. The children are the ones really
punished.
{¶ 26} And what now happens when respondent fails to comply? Do we
reimpose an interim suspension, or do we investigate, prosecute, and apply
another form of suspension? It gains nothing. I believe we should only continue
the interim suspension — a penalty with built-in incentives to satisfy the
arrearage. As soon as respondent’s arrearages are paid, I would allow him to
provide proof of the payment, and permit him to apply to be reinstated on the
condition that he proves compliance with all the requirements imposed in this
court’s interim suspension order. In so doing, respondent would be able to more
quickly return to the practice of law and be able to earn a living and better provide
for his children. If respondent continued not to comply, he would remain
suspended. I respectfully dissent.
LANZINGER, J., concurs in the foregoing opinion.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa,
Assistant Disciplinary Counsel, for relator.
______________________
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