Toledo Bar Assn. v. Miller , 132 Ohio St. 3d 63 ( 2012 )

[Cite as Toledo Bar Assn. v. Miller, 132 Ohio St.3d 63, 2012-Ohio-1880.]
TOLEDO BAR ASSOCIATION v. MILLER.
[Cite as Toledo Bar Assn. v. Miller, 132 Ohio St.3d 63, 2012-Ohio-1880.]
Attorneys at law—Misconduct—One-year license suspension, with six months
stayed on condition of no further misconduct, followed by monitored
probation.
(No. 2011-1750—Submitted December 7, 2011—Decided May 2, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-006.
__________________
Per Curiam.
{¶ 1} Respondent, Harvey C. Miller of Sylvania, Ohio, Attorney
Registration No. 0071490, was admitted to the practice of law in Ohio in 1999. In
February 2011, relator, Toledo Bar Association, filed a complaint against Miller,
charging him with violating Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from
knowingly making a false statement to a tribunal), 1.15(a) (requiring that client
property be held separate from the lawyer’s own property), 8.4(c) (prohibiting
conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h)
(prohibiting conduct that adversely reflects on the lawyer’s fitness to practice
law).
{¶ 2} The parties entered into stipulations of fact that Miller made false
statements to a tribunal, diverted funds from a client trust account of the law firm
to pay the expenses of one of Miller’s personal clients, and engaged in conduct
that adversely reflects on Miller’s fitness to practice law. The stipulations
expressed the parties’ agreement that Miller had thereby violated the Rules of
Professional Conduct as charged except Prof.Cond.R. 8.4(c); the relator dismissed
that count at the hearing of the panel of the Board of Commissioners on
Grievances and Discipline.
SUPREME COURT OF OHIO
{¶ 3} The panel found that Miller had committed the stipulated
violations and recommended imposing the agreed-upon sanction of a one-year
license suspension conditionally stayed for six months. The panel further
recommended that the six-month actual suspension be followed by a year of
monitoring by an attorney of relator’s choosing. The board concurred in these
findings and conclusions, and we accept the board’s recommendation.
Factual Background
{¶ 4} Miller joined the law firm Bugbee & Conkle, L.L.P. (“Bugbee”),
in Toledo, Ohio, in November 2000 and was a full-time, hourly employee at the
firm until 2007, when he became a nonequity partner. Miller continued as partner
at the firm until his termination on December 21, 2009.
{¶ 5} Miller is a debtor subject to a Wisconsin judgment enforced
against him through Miller v. Miller, Lucas C.P. No. LN-2006-03795. On June 4,
2007, a garnishment notice was delivered to the law firm concerning Miller’s
debt, naming the law firm as garnishee. As a Bugbee partner, Miller responded to
the court in the “answer of garnishee” that Bugbee did not possess, hold, or
otherwise own any property of Miller’s that might be subject to garnishment.
Additionally, Miller marked the answer “NO” on behalf of the firm with respect
to whether Miller was employed with the firm.
{¶ 6} A second garnishment notice arrived at the law firm two months
later. That notice asked whether Bugbee had “money, property, or credits other
than personal earnings of the Judgment Debtor under the Garnishee’s control and
in the Garnishee’s Possession.” Miller marked “No” and signed the response as a
partner of Bugbee. The notice was filed with the court on September 6, 2007.
Miller has stipulated that the answers on both forms were false. Bugbee
terminated Miller’s employment on December 21, 2009.
{¶ 7} On June 17, 2009, Miller and his wife had filed a Chapter 13
bankruptcy in the United States Bankruptcy Court for the Northern District of
Ohio, case No. 09-34073. Miller had been ordered to pay to certain creditors
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January Term, 2012
about ten percent of what he owed them. Two days after his dismissal from
Bugbee, Miller filed a motion in the bankruptcy case to suspend his payments
under this wage-earner plan because Miller had been “laid off” from Bugbee and
had no income. But while Miller’s formal employment with Bugbee had ended,
Miller received from Bugbee his draw of $6,000 on December 31, 2009.
Additionally, a separation agreement between Bugbee and Miller authorized three
payments to Miller totaling $25,000, beginning in January 2010. Miller stipulated
that he was aware when he filed the motion in the bankruptcy court that he would
receive three payments under the separation agreement if he satisfied certain
obligations. In addition, Miller liquidated the $22,392 in his Bugbee retirement
plan on January 10, 2010.
{¶ 8} On February 1, 2010, Miller received the first of his three
separation-agreement payments, for $8,333. At the hearing on Miller’s motion to
suspend his payments on January 19, 2010, Miller did not inform the bankruptcy
trustee or court of any funds he had received or would be entitled to after
December 21. On January 20, 2010, the court, without knowing of these
payments, granted Miller’s motion to suspend his Chapter 13 payments because
Miller had been “laid off.” Miller stipulated that his failure to disclose the
payments in connection with his motion in the bankruptcy court constituted a
violation of Prof.Cond.R. 3.3(a)(1).
{¶ 9} During 2008, Miller represented pro bono a client who was not a
client of the Bugbee firm (the “Miller client”). In August 2008, Miller directed
Bugbee’s bookkeeper to access the escrow account of another client, who was a
client of the firm (the “Bugbee client”), to pay a filing fee of the Miller client.
When the check was discovered, the firm advised the Bugbee client that its
account had been erroneously accessed to pay a filing fee, and the firm repaid the
Bugbee client $300. Miller has stipulated that his conduct violated Prof.Cond.R.
1.15(a) and 8.4(h).
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SUPREME COURT OF OHIO
{¶ 10} In reviewing the stipulations and the panel’s recommendation, we
agree with the board that Miller has violated Prof.Cond.R. 1.15(a), 3.3(a)(1), and
8.4(h).
Sanction
{¶ 11} When imposing sanctions for attorney misconduct, we consider
several factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 12} After finding that Miller had committed the stipulated violations,
the board weighed the mitigating and aggravating factors. In mitigation, the
board took into account that Miller had not previously been disciplined, that he
has acknowledged his wrongdoing and has expressed remorse about it, and that he
has been active in his church. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (e). As
aggravating factors, the board concluded that the unauthorized use of client funds
indicated a character flaw and that Miller had acted with a dishonest motive in the
pro bono case and in misleading the bankruptcy court. BCGD Proc.Reg.
10(B)(1)(b). Lastly, the board concluded that the violations constituted a pattern
of misconduct and multiple offenses. BCGD Proc.Reg. 10(B)(1)(c) and (d).
{¶ 13} Case law supports an actual license suspension when extensive
misconduct involves dishonesty that adversely reflects on the attorney’s fitness to
practice law. See Disciplinary Counsel v. Greene, 74 Ohio St.3d 13, 655 N.E.2d
1299 (1995), syllabus; see also Cincinnati Bar Assn. v. Lukey, 110 Ohio St.3d
128, 2006-Ohio-3822, 851 N.E.2d 493, ¶ 23; accord Mahoning Cty. Bar Assn. v.
Olivito, 110 Ohio St.3d 64, 2006-Ohio-3564, 850 N.E.2d 702, ¶ 20, citing
Disciplinary Counsel v. Shaffer, 98 Ohio St.3d 342, 2003-Ohio-1008, 785 N.E.2d
429, ¶ 13-14.
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January Term, 2012
{¶ 14} Likewise, mishandling of trust-account funds has resulted in
sanctions ranging from a stayed six-month suspension, Disciplinary Counsel v.
LaRue, 122 Ohio St.3d 445, 2009-Ohio-3604, 912 N.E.2d 101, to an indefinite
suspension when combined with lack of candor in the disciplinary process itself,
Disciplinary Counsel v. Wise, 108 Ohio St.3d 381, 2006-Ohio-1194, 843 N.E.2d
1198. In light of Miller’s admitted dishonesty and the seriousness of these
combined violations, we agree that precedent supports the board’s
recommendation.
{¶ 15} Miller, as a lawyer and a party, lied to courts in both the
garnishment inquiry and at the bankruptcy hearing. In Greene, we imposed a
partially stayed suspension upon the license of a lawyer who lied to a judge about
a fact in a case and whose conduct adversely reflected on his fitness to practice
law. 74 Ohio St.3d at 14, 655 N.E.2d 1299. We held, “When a lawyer
intentionally misrepresents a crucial fact to a court in order to effect a desired
result to benefit a party, the lawyer will be suspended from the practice of law in
Ohio for an appropriate period of time.” Id. at syllabus. In Olivito, we imposed a
two-year suspension with one year stayed, where the respondent had, among other
things, made misrepresentations to the bankruptcy court. 110 Ohio St.3d 64,
2006-Ohio-3564, 850 N.E.2d 702, ¶ 9, 20, 22. And in Lukey, we echoed our
holding in Greene by emphasizing, “An actual suspension of a lawyer’s license to
practice is the appropriate sanction when the lawyer has intentionally
misrepresented a crucial fact to a court in order to benefit a party.” 110 Ohio
St.3d 128, 2006-Ohio-3822, 851 N.E.2d 493, ¶ 23.
{¶ 16} We therefore find that Miller violated Prof.Cond.R. 1.15(a),
3.3(a)(1), and 8.4(h), and we agree that a one-year suspension of Miller’s license,
with six months of the suspension stayed on condition, is appropriate. Miller is
suspended from the practice of law for one year, with six months of the
suspension stayed upon the condition that he engage in no further misconduct. If
Miller violates the terms of this stay, the stay will be lifted, and Miller will serve
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SUPREME COURT OF OHIO
the entire 12-month suspension. When Miller returns to the practice of law, a
one-year period of probation shall begin pursuant to Gov.Bar R. V(9), during
which Miller shall work with a monitoring attorney. Miller shall meet with the
monitoring attorney at least once a month, and the monitoring attorney shall
submit reports to the relator on a quarterly basis.
{¶ 17} Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Michael A. Bonfiglio, Toledo Bar Counsel, and Amy E. Stoner, for
relator.
Boss & Vitrou Co., L.P.A., and Charles M. Boss, for respondent.
______________________
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