Lorain County Bar Association v. Lewis. , 152 Ohio St. 3d 614 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lorain Cty. Bar Assn. v. Lewis, Slip Opinion No. 2018-Ohio-2024.]
NOTICE
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SLIP OPINION NO. 2018-OHIO-2024
LORAIN COUNTY BAR ASSOCIATION v. LEWIS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lorain Cty. Bar Assn. v. Lewis, Slip Opinion No.
2018-Ohio-2024.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including committing an illegal act and engaging in conduct involving
dishonesty—Submitting a false written witness statement to police—Two-
year suspension, with six months stayed on conditions.
(No. 2017-1419—Submitted November 21, 2017—Decided May 30, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-033.
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Per Curiam.
{¶ 1} Respondent, Kenneth James Lewis, of Cleveland, Ohio, Attorney
Registration No. 0073002, was admitted to the practice of law in Ohio in 2000. In
2009, we suspended him for one year after finding that he had forged a judge’s
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signature on a previously time-stamped judgment entry. Medina Cty. Bar Assn. v.
Lewis, 121 Ohio St. 3d 596, 2009-Ohio-1765, 906 N.E.2d 1102.
{¶ 2} In April 2017, relator, Lorain County Bar Association, charged Lewis
with violating multiple professional-conduct rules for, among other things, giving
a false written witness statement about an alcohol-related traffic incident. Lewis
stipulated to some, but not all, of the charged misconduct, and the matter proceeded
to a hearing before a three-member panel of the Board of Professional Conduct.
The panel found that Lewis engaged in the stipulated misconduct, dismissed all
other counts against him, and recommended that we suspend him for two years,
with the final six months stayed on conditions. The board issued a report adopting
the panel’s findings and recommended sanction, and neither party has objected to
the board’s report.
{¶ 3} Based on our review of the record, we adopt the board’s findings of
misconduct and recommended sanction.
Misconduct
{¶ 4} At around 1:00 a.m. on June 8, 2016, Lewis and another attorney,
Heather Wilsey, left a bar in Elyria, Ohio, and entered Lewis’s car.1 According to
Lewis, they were both intoxicated and Wilsey was driving. Wilsey lost control of
the car, and it struck a utility pole and ended up in a tree lawn on the other side of
the street, rendering the vehicle inoperable. Shortly after the accident, an Elyria
police officer observed Lewis and Wilsey walking away from the scene and stopped
them for questioning.
{¶ 5} At Lewis’s disciplinary hearing, two Elyria police officers testified
that during their questioning of Lewis and Wilsey at the scene, Lewis told them that
an unknown African American man had been driving the car at the time of the
1
Relator filed a separate disciplinary action against Wilsey. But according to the board’s report—
and as substantiated by evidence in the record—the action against Wilsey was dismissed after she
died of an apparent drug overdose during the pendency of her case.
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accident and that Lewis and Wilsey were only passengers in the vehicle. Lewis
testified, however, that it was Wilsey—not him—who had told the officers that
another man had been driving the car and that he had merely confirmed her story
by telling an officer “that it happened just like she said it did.” Regardless, Lewis
admitted that the following day, he submitted a false written witness statement to
the police. Specifically, Lewis affirmatively declared in his written statement that
on the night of the accident, he had given his car keys to an unknown man who
agreed to drive Lewis and Wilsey to her home, that the unknown man crashed
Lewis’s car, that Lewis sat in the back seat and Wilsey sat in the passenger seat,
and that the man left the scene after the accident. According to Lewis, he made the
false statements to protect Wilsey, with whom he had recently begun a romantic
relationship.
{¶ 6} The police, however, had obtained a video recording from the bar
showing that Lewis and Wilsey had left the establishment by themselves just prior
to the accident, with Wilsey driving. Therefore, immediately after Lewis gave the
false written statement at the Elyria police station, the police arrested him for
obstructing official business, a second-degree misdemeanor. Relator subsequently
opened a disciplinary investigation regarding the pending charge.
{¶ 7} On September 12, 2016—during the pendency of the Elyria case and
this disciplinary matter—Lewis and Wilsey were involved in another alcohol-
related traffic incident, and an officer with the Brunswick Hills police department
arrested Lewis for operating a motor vehicle while under the influence of alcohol
(“OVI”). Four days later, on September 16, Lewis appeared in Medina Municipal
Court and entered a no-contest plea to the OVI charge. The court found him guilty,
suspended his driver’s license, and imposed a fine. Lewis did not voluntarily
disclose his OVI conviction to relator, although relator later learned of the
conviction from another source.
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{¶ 8} On September 20, 2016—just four days after Lewis’s OVI conviction
in the Medina court—he appeared in Elyria Municipal Court and entered a no-
contest plea to the charge of obstructing official business. The court found him
guilty and later sentenced him to 90 days in jail with 80 days suspended and
imposed a one-year term of probation and a $750 fine. Lewis served his ten-day
jail sentence in November and December 2016.
{¶ 9} Lewis stipulated and the board found that by giving the false written
statement to the Elyria police department, he 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) (prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice). We agree with the board’s findings of misconduct.
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
Aggravating and mitigating factors
{¶ 11} As aggravating factors, the board found that Lewis has a prior
disciplinary record and that he acted with a dishonest and selfish motive. See
Gov.Bar R. V(13)(B)(1) and (2). In mitigation, the board noted that Lewis
submitted evidence establishing that he has a good reputation among his clients and
also noted that criminal sanctions were imposed for his misconduct. See Gov.Bar
R. V(13)(C)(5) and (6). The board refused to assign any aggravating or mitigating
weight regarding Lewis’s cooperation during the disciplinary proceedings, finding
that although he cooperated with relator regarding the Elyria incident, he should
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have been more forthcoming with relator about his OVI conviction. See Gov.Bar
R. V(13)(B)(5) and (C)(4).
{¶ 12} The board also noted that Lewis took responsibility for his poor
judgment, showed remorse, and appeared to be successfully addressing an alcohol
addiction. Specifically, in February 2017, he completed a five-week intensive-
outpatient-treatment program for alcohol dependency, and in May 2017, he
completed a 12-week outpatient/aftercare program. He also signed a contract with
the Ohio Lawyers Assistance Program (“OLAP”) and, at the time of his disciplinary
hearing, was active in Alcoholics Anonymous (“AA”). The board did not find that
Lewis’s alcohol dependency qualified as a mitigating factor under Gov.Bar R.
V(13)(C)(7), likely because that rule requires a determination that the disorder
contributed to his misconduct, and the board noted that there was no evidence that
Lewis’s addiction caused him to give the false written statement to the police.
Indeed, Lewis admitted that he had misrepresented the facts of the accident to
protect Wilsey and that he was not intoxicated at the time he gave the false written
statement. Nonetheless, the board considered Lewis’s successful treatment in
recommending its sanction.
Applicable precedent
{¶ 13} To support its recommended sanction, the board reviewed several
cases imposing sanctions on attorneys with prior disciplinary records for dishonest
conduct. For example, the board cited Mahoning Cty. Bar Assn. v. DiMartino, 145
Ohio St. 3d 391, 2016-Ohio-536, 49 N.E.3d 1280, in which an attorney engaged in
dishonest conduct toward a client, neglected two client matters, mishandled funds
in his client trust account, and failed to cooperate in disciplinary investigations. We
had previously disciplined the attorney in three other cases, including one matter in
which he made a false statement on a government application. We indefinitely
suspended him from the practice of law.
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{¶ 14} The board also cited Warren Cty. Bar Assn. v. Marshall, 113 Ohio
St.3d 54, 2007-Ohio-980, 862 N.E.2d 519, in which an attorney neglected two
client matters and made a false statement to the relator during an investigation. We
had previously disciplined the attorney for dishonesty, neglecting client matters,
and other misconduct only a few years earlier. In mitigation, the board noted that
the attorney had cooperated in the disciplinary process, but we gave little weight to
his cooperation, based on the consideration that he had failed to appreciate the
serious nature of his offenses. We suspended the attorney for two years.
{¶ 15} Similar to the attorneys in DiMartino and Marshall, Lewis has
previously been disciplined for dishonest conduct and is the subject of another
disciplinary action for his dishonesty. The board found, however, that Lewis’s false
written statement here was not as egregious as the attorneys’ misconduct in
DiMartino and other cases in which we have imposed indefinite suspensions for
attorneys with prior discipline. And considering that Lewis took responsibility for
his actions, expressed remorse, and appeared to be sustaining a period of successful
treatment for his addiction, the board concluded that a two-year suspension, with
the final six months stayed on conditions, is the appropriate sanction in this case.
{¶ 16} We agree with the board’s reasoning. “Respect for our profession is
diminished with every deceitful act of a lawyer. We cannot expect citizens to trust
that lawyers are honest if we have not * * * sanctioned those who are not.”
Disciplinary Counsel v. Fowerbaugh, 74 Ohio St. 3d 187, 190, 658 N.E.2d 237
(1995). The board’s recommended sanction demonstrates to the bar and the public
that deceitful conduct—even in the context of an attorney’s personal affairs—will
not be tolerated. However, the sanction also gives Lewis the opportunity to practice
law again if he continues with treatment for his alcohol addiction and avoids
additional misconduct. Therefore, having reviewed the record and considered the
sanctions imposed for comparable conduct, we adopt the board’s recommended
sanction.
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Conclusion
{¶ 17} For the reasons explained above, Kenneth James Lewis is hereby
suspended from the practice of law for two years, with the final six months stayed
on the conditions that he (1) comply with all terms of his OLAP contract and any
extension of that contract, (2) continue attending AA meetings and stay in regular
contact with his sponsor, and (3) refrain from further misconduct. In applying for
reinstatement, Lewis must submit evidence demonstrating that he is able to return
to the competent, ethical, and professional practice of law. Upon reinstatement,
Lewis must submit to a two-year period of monitored probation in accordance with
Gov.Bar R. V(21) to help ensure his continued abstinence from alcohol. If Lewis
fails to comply with a condition of the stay, the stay will be lifted and he will serve
the entire two-year suspension. Costs are taxed to Lewis.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FISCHER, and DEWINE, JJ.,
concur.
FRENCH, J., concurs in judgment only.
DEGENARO, J., not participating.
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Wickens, Herzer, Panza, Cook & Batista Co. and Daniel A. Cook; Trigilio
& Stephenson, P.L.L., and Richard Mellott Jr., Bar Counsel, for relator.
Gallagher Sharp, L.L.P., Timothy T. Brick, and Kevin R. Marchaza, for
respondent.
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