Disciplinary Counsel v. Character , 129 Ohio St. 3d 60 ( 2011 )

[Cite as Disciplinary Counsel v. Character, 129 Ohio St.3d 60, 2011-Ohio-2902.]
DISCIPLINARY COUNSEL v. CHARACTER.
[Cite as Disciplinary Counsel v. Character,
129 Ohio St.3d 60, 2011-Ohio-2902.]
Attorneys — Misconduct — Multiple and repeated violations of the Disciplinary
Rules and the Rules of Professional Conduct — Respondent disbarred.
(No. 2010-1693 — Submitted January 19, 2011 — Decided June 23, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 06-037.
__________________
Per Curiam.
{¶ 1} Respondent, Dea Lynn Character, currently incarcerated in
Marysville, Ohio, Attorney Registration No. 0042158, was admitted to the
practice of law in Ohio in 1989.
{¶ 2} In September 1998, we imposed a six-month conditionally stayed
suspension on respondent’s license based upon her failure to maintain complete
records of all funds coming into her possession, failure to promptly pay or deliver
funds or property that her client was entitled to receive, withdrawal of unearned or
disputed fees from a client trust account, charging a clearly excessive fee,
dividing fees with attorneys outside her firm without the prior consent of the
client, and neglecting a legal matter entrusted to her. Cleveland Bar Assn. v.
Character-Floyd (1998), 83 Ohio St.3d 306, 699 N.E.2d 922.
{¶ 3} On October 30, 2009, we suspended respondent’s license to
practice law on an interim basis as a result of her felony convictions for engaging
in a pattern of corrupt activity, theft by deception, and money laundering. In re
Character, 123 Ohio St.3d 1442, 2009-Ohio-5708, 915 N.E.2d 1228. And on
November 3, 2009, we imposed an attorney-registration suspension. In re
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Attorney Registration Suspension of Character, 123 Ohio St.3d 1475, 2009-Ohio-
5786, 915 N.E.2d 1256. Those suspensions remain in effect.
{¶ 4} In May 2006, the Cuyahoga County Bar Association filed a two-
count complaint charging respondent with professional misconduct. After
amending the complaint several times, the bar association transferred the matter to
relator, Disciplinary Counsel, who has charged respondent with 20 counts of
misconduct in a sixth amended complaint.
{¶ 5} The panel granted relator’s motions to dismiss five counts,
recommended the dismissal of four more based upon insufficiency of the
evidence, and agreed to stay count 20 pending the resolution of respondent’s
criminal appeal.
{¶ 6} Based upon findings that respondent had committed more than 40
violations of the ethical rules governing the conduct of attorneys in Ohio, the
panel recommended that respondent be indefinitely suspended from the practice
of law. The board adopted the panel’s findings of fact and misconduct but, citing
“the astonishing record of misconduct in this case,” recommends that we
permanently disbar respondent.
{¶ 7} Respondent objects to the board’s findings of fact and misconduct,
on the ground that they are not supported by the evidence. She further contends
that the disciplinary procedures employed in her case deprived her of her due
process and that her conduct does not warrant permanent disbarment.
{¶ 8} We adopt the board’s findings of fact and misconduct, with the
exception of certain alleged violations in counts 4 and 19. We overrule
respondent’s remaining objections and conclude that her extensive record of
serious misconduct involving multiple clients warrants permanent disbarment.
Misconduct
Count 1
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{¶ 9} In April 2004, respondent accepted a $750 flat fee to represent a
woman who had been discharged from her employment with University Hospitals
of Cleveland. Although respondent did not perform any work until after she had
received the fee, the board found that she did not deposit the fee into a client trust
account and that she admitted, through counsel, that she did not always maintain
such an account.
{¶ 10} While representing this client, respondent held herself out as a
member of the firm of Character, Character & Associates. Respondent admitted,
however, that her “associates” were attorneys outside her office with whom she
co-counseled on a regular basis. Respondent’s counsel admitted in his opening
statement that respondent did not have malpractice insurance and did not obtain
signed acknowledgements of that fact from her clients.
{¶ 11} The board found that respondent’s conduct violated DR 1-104(A)
through (C) (requiring a lawyer to disclose to the client that the lawyer lacks
professional-liability insurance and maintain a copy of that disclosure, signed by
the client, for five years after termination of the representation), 1-102(A)(6)
(prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law), 2-102(B) (prohibiting a lawyer from practicing
under a name that is misleading as to the identity of the lawyers practicing under
the name, or a firm containing names other than those of one or more of the
lawyers in the firm), 2-102(C) (prohibiting a lawyer from holding himself or
herself out as having a partnership with one or more lawyers unless they are in
fact partners), 9-102(A) (requiring a lawyer to hold property of clients separate
from the lawyer’s own property), 9-102(A)(2) (requiring funds belonging in part
to a client and in part presently or potentially to a lawyer to be deposited in a
client trust account and permitting the lawyer to withdraw the undisputed portion
belonging to him or her), and 9-102(E) (requiring a lawyer to maintain funds of
clients or other third parties in a separate interest-bearing account).
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{¶ 12} Because the board found no evidence that respondent had failed to
provide files to the client or that she had assumed the responsibility of filing a
wrongful-termination suit or representing the client at any hearings, we dismiss
alleged violations of DR 1-102(A)(4) and (5) (prohibiting a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation and engaging
in conduct that is prejudicial to the administration of justice), 6-101(A)(3)
(prohibiting neglect of an entrusted legal matter), 7-101(A)(1) through (3)
(prohibiting a lawyer from intentionally failing to seek the lawful objectives of his
client, failing to carry out a contract of employment for legal services, and
prejudicing or damaging a client during the course of the professional
relationship), and 9-102(B)(4) (requiring a lawyer to promptly pay or deliver
funds and property to which a client is entitled).
{¶ 13} Respondent objects to the board’s findings of fact and misconduct,
arguing that they are not supported by clear and convincing evidence because the
client did not testify, and therefore, there is no evidence to contradict respondent’s
own version of the events. Accordingly, respondent argues, the entire count must
be dismissed.
{¶ 14} Respondent cites Cincinnati Bar Assn. v. Newman, 124 Ohio St.3d
505, 2010-Ohio-928, 924 N.E.2d 359, Dayton Bar Assn. v. Sebree, 104 Ohio
St.3d 448, 2004-Ohio-6560, 820 N.E.2d 318, and Dayton Bar Assn. v. Wilson,
127 Ohio St.3d 10, 2010-Ohio-4937, 935 N.E.2d 841, for the proposition that this
court must dismiss allegations of misconduct that are not supported by sworn or
certified documentary prima facie evidence from the grievants themselves.
{¶ 15} It is true that all findings of misconduct must be supported “by
clear and convincing evidence.” Gov.Bar R. V(6)(J). In the context of default
proceedings, like those at issue in Newman, Sebree, and Wilson, Gov.Bar R.
V(6)(F)(1) requires the motion for default to contain “[s]worn or certified
documentary prima facie evidence in support of the allegations made.” This
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requirement ensures that sufficient authenticated, admissible evidence exists to
support findings that the alleged misconduct occurred.
{¶ 16} In Sebree, we held that the “summary, conclusory, and hearsay-
filled affidavits” of the relator’s investigator, who lacked firsthand knowledge of
the attorney’s conduct, did not constitute prima facie evidence sufficient to
support findings of attorney misconduct. Id.,104 Ohio St.3d 448, 2004-Ohio-
6560, 820 N.E.2d 318, ¶ 9, 12, 14. On remand, we instructed relators in default
disciplinary proceedings to submit the affidavits of the grievants themselves in
support of relators’ motions for default judgment. Id. at ¶ 9. We remanded
Newman for further proceedings upon discovering that the relator had failed to
submit a certified copy of the attorney’s felony conviction in support of its default
motion seeking disbarment. Newman, 124 Ohio St.3d 505, 2010-Ohio-928, 924
N.E.2d 359, ¶ 4 and 9. And in Wilson, 127 Ohio St.3d 10, 2010-Ohio-4937, 935
N.E.2d 841—another default proceeding—we adopted the board’s
recommendation to dismiss an alleged violation of Prof.Cond.R. 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation) because the record contained no evidence proving
that an overdraft of the attorney’s trust account resulted from her dishonesty,
fraud, deceit, or misrepresentation. Id. at ¶ 8.
{¶ 17} This case differs from Newman, Sebree, and Wilson in that
respondent appeared and aggressively defended herself against the allegations of
misconduct. She entered into a number of factual stipulations with regard to this
count and testified about her conduct in this matter, and the parties submitted a
total of 129 joint exhibits, several of which relate to this count. Although the
client involved in this count did not testify or submit an affidavit describing her
interaction with respondent, the record does contain clear and convincing
evidence to support the board’s findings of fact and conclusions that respondent
violated DR1-102(A)(6), 1-104(A) through (C), 2-102(B) and (C), and 9-102(A),
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(A)(2), and (E). However, in accordance with the board’s recommendation, we
dismiss the alleged violations of DR 1-102(A)(4) and (5), 6-101(A)(3), 7-
101(A)(1) through (3), and 9-102(B)(4).
Count 4
{¶ 18} Count 4 of the amended complaint relates to respondent’s
representation of a client in a bankruptcy proceeding. The parties stipulated that
when respondent electronically filed the bankruptcy petition, the case was
erroneously assigned three separate case numbers (the “triple-filed case”) and that
respondent had represented herself as an attorney with the firm of Character,
Character & Associates.
{¶ 19} The board found that in April 2005, the bankruptcy court issued an
order for respondent to appear and show cause why the filing fees had not been
paid with respect to 11 bankruptcy cases, including one of the cases from the
triple-filed case. The show-cause hearing was adjourned to May 10, 2005, to
permit respondent to pay the required fees. Respondent testified that she had
experienced technical difficulties in getting the electronic filing system and the
bankruptcy clerk to accept and process her credit card payments.
{¶ 20} The board also found that respondent had failed to appear at the
May 10 hearing and at a July 26 hearing to show cause why she had failed to file
certain documents under one of the triple-filed case numbers, resulting in the
dismissal of that case. The board found, however, that respondent had testified
that she could not understand why the hearing had been scheduled, given that the
case had been dismissed in May.
{¶ 21} The board found that respondent’s conduct violated DR 1-
102(A)(5), and (6) 6-101(A)(2) (prohibiting a lawyer from handling a legal matter
without adequate preparation ) and (A)(3), and 7-101(A)(1) through (3).
{¶ 22} Respondent objects and argues that there is not sufficient evidence
to support the board’s findings of misconduct because the client did not testify,
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and there was no evidence to contradict her testimony. Having conducted an
independent review of the record, we find that even in the absence of the client’s
own testimony, the evidence clearly and convincingly demonstrates that
respondent handled this client’s case without adequate preparation and neglected
it, and that her actions adversely reflected upon her fitness to practice law and
were prejudicial to the administration of justice.
{¶ 23} Finding no evidence that respondent held herself out as a partner in
a nonexistent law firm in her representation of this client, the board recommends
that we dismiss alleged violations of DR 2-102(B) and (C). We observe,
however, that respondent has stipulated that she had held herself out as an
attorney with the firm of Character, Character & Associates with regard to this
count. She testified that she considered her outside co-counsel to be her
associates. Therefore, we find that relator has proved by clear and convincing
evidence that respondent violated DR 2-102(B) and (C) with respect to this count.
{¶ 24} The record, however, does not contain sufficient evidence to
support the board’s findings that respondent violated DR 7-101(A)(1) through (3),
which prohibit an attorney from intentionally failing to seek the lawful objectives
of her client, intentionally failing to carry out the contract of employment for legal
services, and intentionally prejudicing or damaging the client during the course of
the professional relationship.
{¶ 25} The parties have stipulated that the client’s bankruptcy was
erroneously assigned three separate case numbers. Although one of those cases
was dismissed for respondent’s failure to submit the requisite documents and
respondent was sanctioned for her failure to timely pay the fees in the two
remaining cases, the parties jointly submitted a receipt from the United States
Bankruptcy Court of the Northern District of Ohio, Cleveland Division,
demonstrating that respondent paid the $194 filing fee in the oldest of the client’s
three bankruptcy proceedings on May 9, 2005. Respondent testified that the
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client did not complete the Chapter 13 proceeding under one of the remaining
case numbers because he could not afford to maintain the scheduled payments.
Relator offered no evidence to contradict this testimony. Thus, there is no
evidence that respondent intentionally (1) failed to seek the lawful objectives of
this client, (2) failed to carry out the contract of employment for legal services, or
(3) prejudiced or damaged the client. Accordingly, we dismiss the alleged
violations of DR 7-101(A)(1) through (3).
Count 10
{¶ 26} Respondent’s misconduct in this count arises from her
representation of a mentally challenged woman in a postdecree domestic-relations
matter and certain real estate matters, beginning with the client’s eviction from
her home in April 2002. The panel and board found that the client was not a
sophisticated individual and that respondent had attained a position of trust by
taking her to dinner, socializing with her, and helping her find housing. Despite
the client’s mental and emotional challenges, the board found that she evidenced
normal memory recall and comprehension during her testimony.
{¶ 27} The client testified that she did not sign a fee agreement and that
she did not know how much respondent would charge her for the work, but that
respondent had told her it would be “a lot of money * * * like $29,000.” During
the course of the representation, the client received $35,000 from her former
husband, representing her share of the proceeds from the sale of the marital
residence, and an additional $21,500, representing her share of his 401(k) plan.
She also began to receive $345 per month from her former husband’s pension.
{¶ 28} Respondent and her co-counsel received $15,000 in attorney fees
from the $35,000 in real estate proceeds. Respondent received an additional
$3,000 when the client received her share of her former husband’s 401(k) and
$3,750 when the client closed on the purchase of a new home. Respondent also
admitted that she and her co-counsel had received an additional $2,000 payment
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from certain funds that the client had invested with Skywater Investment Group
and Network (“Skywater”). Thus, respondent has acknowledged that she and her
co-counsel received $23,750 for handling the client’s postdecree and real estate
matters.
{¶ 29} The board acknowledged that respondent assisted with the client’s
real estate closing and attended one hearing related to the former husband’s
401(k) plan, but found that “there does not appear to have been anything
approaching $23,500 of legal work performed by Respondent on behalf of [the
client].” They observed that the client had walked the motion through the court to
obtain the funds from her former husband’s 401(k) plan and had pursued the
monthly pension benefits on her own.
{¶ 30} In addition to the attorney fees respondent received from the client,
respondent also induced the client to invest $4,800 in Skywater, which was a
division of Time Reveals, L.L.C. Respondent served as the senior vice president
of legal and business affairs for Time Reveals and testified that she “was the
person in charge of the money for investments.” Respondent did not disclose that
her boyfriend (with whom she cohabitated from 2000 to 2007) and his brother
owned the companies.
{¶ 31} The client testified that she received no profit from her Skywater
investment and that the principal was never returned to her. Respondent claimed
that she distributed the funds to several of the client’s creditors at the client’s
direction. The only documentation she provided was a receipt for $600
purportedly paid to the client, but the client testified that the signature on that
receipt was not hers.
{¶ 32} Moreover, the panel and board found that respondent had failed to
cooperate in the Cuyahoga County Bar Association’s investigation of this matter,
observing that she had failed to attend scheduled interviews and was late for
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appointments and for her deposition. She also failed to make a timely, orderly,
and organized production of her files and other documents.
{¶ 33} The board found by clear and convincing evidence that
respondent’s conduct violated DR 1-102(A)(3) (prohibiting a lawyer from
engaging in illegal conduct involving moral turpitude) and (A)(4), 1-102(A)(6), 1-
104, 2-106(A) and (B) (prohibiting a lawyer from making an agreement for,
charging, or collecting an illegal or clearly excessive fee), 5-104 (prohibiting a
lawyer from entering into a business transaction with a client if they have
differing interests unless the client has consented after full disclosure), and 5-105
(requiring a lawyer to refuse to accept or continue employment if the interests of
another client may impair the independent professional judgment of the lawyer)
and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a disciplinary
investigation). But citing a lack of sufficient evidence, the board recommends
that we dismiss alleged violations of DR 2-107(A) (permitting division of fees by
lawyers who are not in the same firm only with prior consent of client and if
certain conditions are met) and 9-102(A)(2).
{¶ 34} Respondent objects to the board’s findings of fact and misconduct,
reciting her version of the events without any citations to the record, and claiming
that she performed substantial work for the client and worked without pay during
the greater part of the representation. Respondent, however, offered no
documentary evidence to demonstrate how much time she spent working on the
client’s case, and the client testified that she pursued some of the postdecree
matters on her own. The panel, whose findings were adopted by the board, found
the client’s testimony more credible than that of respondent. We defer to the
panel’s determination because the record does not weigh heavily against it.
Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d
467, ¶ 39, citing Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-
6649, 800 N.E.2d 1117, ¶ 8. Accordingly, we overrule respondent’s objections
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and adopt the board’s findings of fact and misconduct in count 10, as well as the
board’s recommendation to dismiss alleged violations of DR 2-107(A) and 9-
102(A)(2).
Count 12
{¶ 35} In 2004, a college student retained respondent to defend him
against criminal charges that he had stabbed two students during an altercation at
a fraternity house and to represent him in a related suspension proceeding at the
university he attended. The client never executed a fee agreement, but his father
paid respondent a $23,000 retainer to cover her representation and investigator
and expert-witness fees. Respondent has stipulated that she represented herself as
an attorney with the firm Character, Character & Associates during this
representation.
{¶ 36} Although respondent was the attorney retained to handle the case,
the board found that she did “virtually nothing” in the criminal matter.
Respondent brought in two other attorneys to assist in the criminal matter without
the client’s consent, one of whom served as lead counsel, handling court
appearances and filing discovery requests and motions with the court. When he
failed to attend a hearing, the client’s bond was revoked, although it was later
reinstated. The client and his father also testified that despite their repeated
requests, they never spoke with any investigator or outside consultants or received
the names of any such persons from respondent.
{¶ 37} Respondent advised the client to plead guilty to two misdemeanor
counts of assault, stating that he would probably not serve any jail time and would
be reinstated as a student at the university. Relying on this erroneous information,
the client entered a guilty plea, but he was sentenced to six months in jail and was
not permitted to return to the university. He obtained his early release by filing a
pro se motion.
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{¶ 38} Respondent appeared with the client at just one hearing regarding
his university suspension. Although she was permitted to actively participate in
the hearing, she only took notes. Following that hearing, the client was
suspended. The client terminated the respondent’s representation two days before
his second university hearing because she had provided virtually no assistance in
preparing him for the hearing and had failed to obtain the appearance of witnesses
that he needed to conduct his defense. He requested an accounting of his fees and
expenses, but respondent never provided one.
{¶ 39} Based upon these facts, the board found that respondent’s conduct
violated DR 1-102(A)(5), 2-102(B) and (C), 2-106(A) and (B), 6-101(A)(2) and
(3), 7-101(A)(1) through (3), and 9-102(A). The board also recommends that we
dismiss an alleged violation of Gov.Bar R. V(4)(G) for lack of sufficient
evidence.
{¶ 40} Respondent objects to the board’s findings of fact and misconduct,
arguing that she thoroughly and diligently represented the client and that her fee
was reasonable for the time she spent and the expenses she incurred on the
client’s behalf. Having independently reviewed the record, we overrule
respondent’s objection and adopt the board’s findings of fact and misconduct, and
we dismiss the alleged violation of Gov.Bar R. V(4)(G).
Count 13
{¶ 41} Mary Ann Rini was assigned to investigate three grievances that
were part of the Cuyahoga County Bar Association’s initial case against
respondent. She testified that respondent was not cooperative and was very
difficult to contact by letter and phone. Rini estimated that respondent failed to
attend five or six scheduled appointments and stated that on the occasions when
respondent did attend, she was constantly on the telephone or left early. She
recalled one occasion when, in response to a subpoena for records, respondent
arrived four hours late with a box of disorganized records. Although Rini
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attempted to question her about the records, she gave up because the documents
were in such disarray. The board determined that while respondent had offered
several explanations as to the whereabouts of her records, the majority of the
requested records were not promptly produced, if they were produced at all. The
record also contains the transcripts of three attempted depositions, each reflecting
that respondent was aware of, but failed to attend, a scheduled deposition.
{¶ 42} Respondent objects to the board’s findings of fact and misconduct
and argues that over the course of the five-year investigation of these grievances,
she submitted to a number of depositions, produced numerous documents, and
faced a number of unexpected personal challenges that prevented her from fully
participating in all aspects of the investigation. While we acknowledge that
respondent did cooperate in certain aspects of this disciplinary proceeding, the
record clearly and convincingly demonstrates that she failed to cooperate on a
number of occasions, causing unnecessary delay and expense. Accordingly, we
overrule respondent’s objections, adopt the board’s findings of fact, and conclude
that respondent violated Gov.Bar R. V(4)(G) as found by the board.
Count 15
{¶ 43} A woman hired respondent to resolve a judgment lien of $2,000 to
$3,000 that a creditor had obtained against a certain parcel of her real property.
As part of the representation, respondent was supposed to pay the judgment on the
client’s behalf from the proceeds of a certain investment with a division of Time
Reveals. Respondent issued a check to the client’s creditor, but after it was
returned for insufficient funds, the client paid the judgment herself. Respondent
attempted to reimburse the client with a check that she had drafted on an account
belonging to Time Reveals. The client witnessed respondent sign the name of one
of the company’s owners to the check and testified that the bank refused to cash it
due to insufficient funds.
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{¶ 44} Based upon these facts, the board found that respondent had
violated DR 1-102(A)(4) and (6) and 7-101(A)(3).
{¶ 45} Respondent objects to the board’s findings, claiming that someone
else drafted and delivered the check to the client without her knowledge and that
respondent later reimbursed the client in cash. The client’s testimony directly
contradicted respondent’s version of the events, and the board found the client’s
testimony more credible. Therefore, we adopt the board findings of fact and
misconduct. And on the board’s recommendation, we dismiss the alleged
violation of DR 1-102(A)(3) based upon the insufficiency of the evidence.
Count 16
{¶ 46} In March 2006, at respondent’s request, the client discussed in
count 15 invested $35,000 in certain property-rehabilitation projects being
conducted by SIGN Joint Ventures, a division of Time Reveals, with a stated
return of $10,000 for a seven-day investment.
{¶ 47} On April 7, 2006, after the client had received the return of her
$35,000 investment plus $12,000 in interest, she agreed to invest an additional
$25,000 for ten days, with a stated return of $8,000. The client wired the money
from her bank account into a Huntington Bank account in the name of Time
Reveals. The term of the investment was supposed to be only ten days, but on
November 12, 2009, the client testified that she had received less than $5,000 of
the $33,000 she was owed.
{¶ 48} Respondent admitted that she had “some oversight” of the use of
the money, although she did not have an ownership interest in the company. She
did not provide the client with a prospectus or information about the properties in
which she would be investing. Nor did she provide the client with any appraisal
information. Respondent blamed the client’s investment loss on the real estate
market crash.
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{¶ 49} The board found that respondent’s conduct violated DR 1-
102(A)(4) and (6), 5-104(A), and 7-101(A)(3) and recommends that we dismiss
an alleged violation of DR 1-102(A)(3) based upon the insufficiency of the
evidence. Having reviewed the record and considered the respondent’s objection,
in which she blames the recent real estate crash and economic downturn for the
client’s losses, we adopt these findings of fact and misconduct and dismiss the
alleged violation of DR 1-102(A)(3).
Count 17
{¶ 50} The testimony and stipulated facts of this case demonstrate that in
December 2007, a mother hired respondent to represent her son in his appeal of a
criminal conviction. Although the mother paid respondent $5,850 between
December 2007 and March 17, 2008, respondent did not appeal the client’s
criminal conviction and left the matter to his court-appointed attorney.
{¶ 51} Respondent did not enter an appearance in the client’s other
pending criminal matters prior to trial, and he was continually represented by
court-appointed counsel. But when respondent advised the client’s mother that
she would need to hire an investigator for the pending charges, his mother paid
her an additional $600 for that purpose. When the client’s mother expressed
concern that respondent would be out of town during the son’s criminal trial,
respondent advised her that she would talk with his court-appointed counsel. The
court-appointed attorney testified that he never spoke with the investigator
purportedly hired by respondent and that he never discussed any particulars of the
pending matter with respondent. Respondent was in Florida during the client’s
February 2008 trial, and he was represented by his court-appointed counsel.
{¶ 52} Respondent asked the client’s mother to pay another $500 toward
her son’s attorney fees, but she refused to pay until respondent showed her that
the postconviction motions had been filed on the client’s behalf. Respondent
prepared a motion for a new trial, a motion for judgment of acquittal
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notwithstanding the verdict, and a motion for reconsideration and/or modification
of sentence and presented them to the mother with a notice of limited appearance
to represent the son with respect to two of the three motions. But the motions
stated that they were prepared pro se and therefore did not identify respondent as
the son’s counsel. Respondent and the client’s mother both testified that the
signatures on the motions were not the client’s. Nonetheless, after receiving the
motions, the mother paid respondent an additional $500. While each of the
motions bears a certificate of service dated March 13, 2008, a printout of the
court’s docket reflects that only the motion for a judgment of acquittal
notwithstanding the verdict was filed with the court as of June 20, 2008.
{¶ 53} The client’s mother testified that when she left respondent
messages, her calls were not returned and that many times she could not even
leave a message because respondent’s voicemail box was full.
{¶ 54} Respondent has stipulated that although she is a sole practitioner,
she represented herself as an attorney with the firm Character & Character. She
also admitted that she did not have malpractice insurance while she represented
this client and did not have him or his mother sign an acknowledgment of that
fact.
{¶ 55} The board found that respondent’s conduct violated Prof.Cond.R.
1.3 (requiring a lawyer to act with reasonable diligence in representing a client),
1.4(c) (requiring a lawyer to inform the client if the lawyer does not maintain
professional-liability insurance), 1.5(a) (prohibiting a lawyer from making an
agreement for, charging, or collecting an illegal or clearly excessive fee), 7.5(a)
(prohibiting a lawyer from practicing under a firm name containing names other
than those of the lawyers in the firm), 7.5(d) (permitting lawyers to state or imply
that they practice in a partnership or other organization only when that is the
fact), 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation), and 8.4(h) (prohibiting a lawyer from
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engaging in conduct that adversely reflects on the lawyer’s fitness to practice
law).
{¶ 56} Respondent objects to these findings of fact and misconduct,
arguing that in the absence of the client’s testimony, there is insufficient evidence
to prove her misconduct. She contends that she was retained by the client, not his
mother, that she took her orders directly from the client, and that he received
appropriate representation at a reasonable cost.
{¶ 57} The testimony of the client’s mother, based upon her personal
knowledge of the events, refutes many of respondent’s claims. Moreover, the
evidence clearly and convincingly demonstrates that despite having received
almost $7,000 to represent the client, respondent did not seek to obtain the
admitted object of her representation — the pursuit of her client’s criminal appeal.
Nor did she enter an appearance in his other criminal matters until after the client
had been convicted — even though the client’s mother had paid her to do so. And
then her appearance was limited to the pursuit of postconviction motions,
prepared by her, that state they were prepared and filed pro se. For these reasons,
we overrule respondent’s objections and find that the record clearly and
convincingly establishes the violations found by the board. Therefore, we adopt
the board’s findings of fact and misconduct.
Count 18
{¶ 58} A woman paid respondent a $700 retainer to represent family
members who were facing residential foreclosure – one in Cleveland and the other
in Georgia. The property owners hoped to achieve short sales and had buyers for
both properties. Respondent stipulated that she did not notify the woman that she
did not carry malpractice insurance.
{¶ 59} Although respondent filed an answer on behalf of the Cleveland
property owner in the foreclosure proceeding, she did not oppose the mortgage
company’s motion for summary judgment, and it was eventually granted. The
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property owner filed a pro se motion for relief from judgment, stating that her
“counsel just disappeared,” and she eventually resolved the matter herself.
{¶ 60} Respondent falsely represented that she was licensed to practice
law in Georgia. Although respondent facilitated the filing of the Georgia property
owner’s Chapter 13 bankruptcy petition, he eventually lost the property to
foreclosure.
{¶ 61} The panel and board found that respondent’s conduct violated
Prof.Cond.R. 1.4(c), 8.4(c), and 8.4(h) and recommends that we dismiss alleged
violations of Prof. Cond.R. 1.3 and 1.5(a) based upon the insufficiency of the
evidence. Respondent objects and argues that this count should be dismissed
because the clients themselves did not testify or otherwise provide their
testimony, and therefore, the board’s findings cannot be supported by clear and
convincing evidence.
{¶ 62} We have rejected this argument in counts 1 and 4, above, and we
reject it here. Because the record contains competent, credible evidence that
clearly and convincingly supports the board’s findings of fact and misconduct
with respect to this count, we adopt those findings.
Count 19
{¶ 63} In 2007, respondent attended a conference about setting up private
investment funds on behalf of Time Reveals and Skywater. While there, she and
another acquaintance met a man who was interested in investing in real estate.
The three began exchanging e-mails and telephone calls to explore investment
opportunities. Respondent provided the investor with information on the lease-
back of a single-family home in Gates Mills, Ohio that could be fixed up and sold
at a higher price.
{¶ 64} The investor signed a contract to purchase the property for $3.5
million as the buyer and as the “nominee for Skywater Investment Group &
Network (buyer).” He was supposed to obtain a mortgage to cover the purchase
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price. Respondent stipulated that she instructed the investor to electronically wire
$40,000 to a bank account at Key National Bank. The evidence reveals that the
investor wired a total of $50,000 to an account at that bank titled in the name of
respondent’s parents. After the investor was unable to secure financing for the
Gates Mills property, he contacted respondent to obtain a refund, but respondent
did not return the money. She testified that the money the investor wired to Key
National Bank was a nonrefundable and transferable deposit for the assignment of
the purchase agreement.
{¶ 65} Respondent testified that the money was wired to her mother’s
account because Skywater owed her mother money and because respondent could
not get to her own bank in time to transfer some of the money to another account.
She claimed that some of the checks her mother wrote against the funds were to
pay Time Reveals expenses, but she offered no documentary evidence to support
this contention. Finding that the canceled checks demonstrated that the funds
were not used for company purposes, the panel and board rejected respondent’s
testimony to the contrary.
{¶ 66} The board found that respondent’s conduct violated Prof.Cond.R.
8.4(b) (prohibiting a lawyer from committing an illegal act that reflects adversely
on the lawyer’s honesty or trustworthiness), 8.4(c), and 8.4(h), but recommends
that we dismiss the alleged violation of 8.4(d) (prohibiting a lawyer from
engaging in conduct that is prejudicial to the administration of justice) based upon
the insufficiency of the evidence.
{¶ 67} Respondent objects to these findings of misconduct, arguing that
we lack jurisdiction to discipline her in this matter because her conduct “involved
another company that is not one represented by or affiliated with Respondent” and
does not involve her “position or conduct or duties as a lawyer.” These
arguments lack merit, however, because the charged misconduct relates solely to
respondent’s own actions with respect to these transactions. Moreover, the fact
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that respondent’s course of conduct did not arise from actions undertaken solely
in her capacity as an attorney does not insulate her conduct from our scrutiny. We
have long recognized that attorneys are expected to “maintain a degree of
personal and professional integrity that meets the highest standard.” Cleveland
Bar Assn. v. Stein (1972), 29 Ohio St.2d 77, 81, 58 O.O.2d 151, 278 N.E.2d 670.
Paragraph three of the preamble to the Ohio Rules of Professional Conduct
contemplates that attorneys may be disciplined for personal conduct: “In
addition, there are rules that apply to * * * practicing lawyers even when they are
acting in a nonprofessional capacity. For example, a lawyer who commits fraud
in the conduct of a business is subject to discipline for engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation. See Rule 8.4.”
{¶ 68} For example, we consistently discipline attorneys for personal
conduct that violates criminal statutes. See, e.g., Disciplinary Counsel v.
O’Malley, 126 Ohio St.3d 443, 2010-Ohio-3802, 935 N.E.2d 5, ¶ 15 (imposing a
two-year suspension for an attorney convicted of transporting obscene materials
in interstate or foreign commerce by downloading this material to his home
computer). See also Disciplinary Counsel v. Landis, 124 Ohio St.3d 508, 2010-
Ohio-927, 924 N.E.2d 361, ¶ 2 (imposing a one-year suspension for an attorney
convicted of operating a motor vehicle while intoxicated). And we have also
disciplined attorneys for engaging in conduct involving fraud, deceit, or
misrepresentation even when it is not evident that criminal charges have resulted.
See, e.g., Lake Cty. Bar Assn. v. Baxter (1983), 4 Ohio St.3d 82, 83, 4 OBR 263,
446 N.E.2d 1121 (indefinitely suspending an attorney who engaged in a pattern of
check kiting, with no mention of corresponding criminal charges).
{¶ 69} On the record before us, we cannot determine whether the disputed
$40,000 of the investor’s payment was intended as earnest money for the
purchase of the Gates Mills property or whether it represented a nonrefundable
payment for the assignment of Skywater’s rights to purchase other properties.
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January Term, 2011
Therefore, we cannot conclude that the retention of these funds was unlawful.
Respondent’s conduct in diverting the payment intended for Skywater and
directing it to her parents’ checking account, however, constitutes conduct
involving dishonesty, fraud, deceit, or misrepresentation and adversely reflects
upon her fitness to practice law.
{¶ 70} Therefore, we adopt the board’s findings that respondent has
violated Prof. Cond.R. 8.4(c) and 8.4(h) and dismiss the alleged violations of
Prof.Cond.R. 8.4(b) and 8.4(d).
Due Process
{¶ 71} In addition to challenging the sufficiency of the evidence against
her, respondent also contends that the procedures utilized in this disciplinary
proceeding have violated her due process rights in three respects.
{¶ 72} First, respondent complains that her criminal prosecution and
conviction, as well as her subsequent appeal and petition for postconviction relief,
somehow prejudiced her in this disciplinary proceeding and “potentially
compromise[d] her position with her criminal case by having and needing to
respond to the related Grievances herein.”
{¶ 73} Respondent cites no legal authority to support these arguments and
makes no effort to demonstrate that she has suffered actual prejudice as the result
of her concurrent participation in this disciplinary proceeding and her criminal
prosecution.
{¶ 74} Moreover, relator and respondent’s counsel agreed to bifurcate
count 20 of the sixth amended complaint, which dealt with the conduct underlying
respondent’s criminal convictions, in light of her pending appeal and
postconviction proceedings. Respondent did not object to the bifurcation, and at
the oral argument before this court, her counsel plainly stated that she did not
wish to stay this proceeding pending the outcome of her criminal appeal.
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{¶ 75} Next, respondent argues that her incarceration at the Ohio
Reformatory for Women and corresponding inability to attend her disciplinary
hearing and observe the testimony against her prejudiced her defense against
relator’s complaint. Once again, she fails to cite any legal authority in support of
her argument and fails to demonstrate that she suffered any actual prejudice.
{¶ 76} We have declared that attorney-discipline proceedings “are neither
civil nor criminal; they are instituted to safeguard the courts and to protect the
public from the misconduct of those who are licensed to practice law.” Ohio
State Bar Assn v. Weaver (1975), 41 Ohio St.2d 97, 100, 70 O.O.2d 175, 322
N.E.2d 665. Consequently, we have recognized that the “standards of due process
in a disciplinary proceeding are not equal to those in a criminal matter.” In re
Judicial Campaign Complaint Against Carr (1996), 76 Ohio St.3d 320, 322, 667
N.E.2d 956, citing Ohio State Bar Assn. v. Illman (1976), 45 Ohio St.2d 159, 162,
74 O.O.2d 284, 342 N.E.2d 688. We have held that due process requirements in
attorney-discipline proceedings have been satisfied when the respondent is
afforded a hearing, the right to issue subpoenas and depose witnesses, and an
opportunity for preparation to explain the circumstances surrounding his actions.
Cleveland Bar Assn v. Acker (1972), 29 Ohio St.2d 18, 20, 58 O.O.2d 71, 278
N.E.2d 32.
{¶ 77} And in In re Colburn (1987), 30 Ohio St.3d 141, 30 OBR 452, 507
N.E.2d 1138, we denied an incarcerated attorney’s petition for a writ of habeas
corpus ad testificandum to appear at his disciplinary hearing. There, we observed
that provisions of Civ.R. 30(A) (deposition upon oral examination) and 32(A)(3)
(use of depositions in court proceedings) and Gov.Bar R. V (disciplinary
procedure) provided a mechanism for the taking of depositions of incarcerated
parties and that the submission of a such deposition testimony may constitute a
sufficient opportunity for a respondent to present his or her testimony. Colburn at
142-143. Therefore, we held that the primary means of securing the testimony of
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a prisoner in a disciplinary action should be by deposition. Id. at 143. The panel
followed this procedure in respondent’s case. It viewed the video recording of
respondent’s deposition testimony and actually went to the Ohio Reformatory for
Women on November 13, 2009, to question respondent. Furthermore, respondent
failed to object to these procedural issues at the time of her deposition and
hearing.
{¶ 78} Third, respondent argues that the participation of just two of the
three panel members appointed to hear this matter has prejudiced her case.
Because Gov.Bar R. V(6)(D)(3) (probable-cause panel; appointment of hearing
panel) provides that a “majority of the panel shall constitute a quorum” and two of
the three appointed panel members presided over respondent’s hearing, this
objection has no merit. See also Section 5 (quorum of panel or board) of the
Rules and Regulations Governing Procedure on Complaints and Hearings Before
the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”).
{¶ 79} Based upon the foregoing, we conclude that respondent was
afforded all the process required by the Rules for the Government of the Bar of
Ohio and our precedent. Therefore, we overrule this objection.
Sanction
{¶ 80} When imposing sanctions for attorney misconduct, we consider
relevant 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.
{¶ 81} As aggravating factors, the board found that respondent has
committed prior disciplinary offenses, has engaged in a pattern of misconduct
involving multiple offenses, has refused to acknowledge the wrongful nature of
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her conduct, has caused harm to vulnerable victims, and has failed to make
restitution. See BCGD Proc.Reg. 10(B)(1)(a), (c), (d), (g), (h), and (i). Rejecting
the parties’ stipulation that other penalties or sanctions have been imposed, see
BCGD Proc.Reg. 10(B)(2)(f), the board found that none of the mitigating factors
set forth in BCGD Proc.Reg. 10(B)(2) apply. Respondent objects to these
findings, but she does not cite any authority or present any argument in support of
her objection. Because the board’s findings in this regard are amply supported by
the record, we adopt them.
{¶ 82} In his posthearing brief, relator argues that permanent disbarment
is the only appropriate sanction for respondent’s misconduct. Respondent argues
that her license should be suspended for an unspecified period of time and that she
should serve a period of monitored probation upon her reentering the practice of
law.
{¶ 83} The panel recommended that respondent be indefinitely suspended
from the practice of law in Ohio. The board, however, recommends that
respondent be permanently disbarred. Respondent objects to the recommended
sanction, arguing that due to the alleged procedural and evidentiary infirmities in
relator’s case, disbarment is not warranted. We disagree.
{¶ 84} Respondent engaged in a pattern of misconduct over a period of
years and involving multiple clients. She engaged in multiple acts of dishonesty,
charged excessive fees, handled clients’ legal matters without adequate
preparation, neglected multiple client matters, intentionally damaged her clients,
and entered into business relationships with her clients without making the
requisite disclosures. She also failed to hold client money separate from her own,
failed to disclose that she did not carry malpractice insurance, and falsely
represented that she was part of a law firm, when in fact, she was a sole
practitioner. In so doing, she engaged in multiple acts that adversely reflect on
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her fitness to practice law. All told, she committed more than 40 violations of the
Code of Professional Responsibility and Rules of Professional Conduct.
{¶ 85} We have previously imposed the sanction of permanent disbarment
for misconduct similar to that found here. See, e.g., Toledo Bar Assn. v. Mason,
118 Ohio St.3d 412, 2008-Ohio-2704, 889 N.E.2d 539, ¶ 32 (“continuous course
of conduct involving deceit, misappropriation of clients’ funds, neglect of clients’
cases, failure to account for fees, failure to make restitution, and failure to
cooperate in the investigation of this misconduct” demonstrates that the attorney
is not fit to practice law); Cincinnati Bar Assn. v. Weaver, 102 Ohio St.3d 264,
2004-Ohio-2683, 809 N.E.2d 1113, ¶ 15 (an attorney’s “persistent neglect of his
clients’ interests, failure to perform as promised, failures to account for his
clients’ money, and lack of any participation in the disciplinary proceedings”
compel his disbarment); Columbus Bar Assn. v. Gueli, 119 Ohio St.3d 434, 2008-
Ohio-4786, 894 N.E.2d 1231(permanent disbarment is the only result for repeated
misconduct involving dishonesty, fraud, deceit, or misrepresentation,
misappropriation of fees, intentionally damaging clients during his professional
employment, failing to maintain records of all funds received on behalf of clients,
handling legal matters without adequate preparation, neglect of client matters, and
accepting legal employment when the lawyer’s professional judgment may be
affected by the lawyer’s personal or financial interests without obtaining the
client’s informed consent).
{¶ 86} Therefore, we adopt the board’s recommended sanction of
permanent disbarment. Accordingly, Dea Lynn Character is permanently
disbarred from the practice of law in Ohio. Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
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Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Hissom,
Assistant Disciplinary Counsel, for relator.
Gerald Walton, for respondent.
______________________
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