Columbus Bar Assn. v. Jones (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Columbus Bar Assn. v. Jones, Slip Opinion No. 2021-Ohio-4070.]
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
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the opinion is published.
SLIP OPINION NO. 2021-OHIO-4070COLUMBUS BAR ASSOCIATION v. JONES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Columbus Bar Assn. v. Jones, Slip Opinion No.
2021-Ohio-4070.]
Attorneys at law—Misconduct—Violations of the Rules of Professional Conduct—
Making a false statement in a disciplinary investigation, engaging in
deceitful conduct, and engaging in conduct that adversely reflects on fitness
to practice law—Conditionally stayed six-month suspension.
(No. 2021-0749—Submitted August 3, 2021—Decided November 18, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-041.
__________________
Per Curiam.
{¶ 1} Respondent, Eric Alan Jones, of Columbus, Ohio, Attorney
Registration No. 0081670, was admitted to the practice of law in Ohio in 2007.
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{¶ 2} In July 2020, relator, the Columbus Bar Association, charged Jones
with making a false statement in a disciplinary investigation, engaging in deceitful
conduct, and engaging in conduct that adversely reflects on his fitness to practice
law. Jones stipulated to the charged misconduct, and the parties jointly
recommended that he be publicly reprimanded for his behavior. After a hearing, a
three-member panel of the Board of Professional Conduct dismissed one alleged
rule violation, found that Jones had engaged in the remaining stipulated
misconduct, and recommended a conditionally stayed six-month suspension. The
board issued a report adopting the panel’s findings and recommended sanction, and
the parties jointly waived objections to the board’s report.
{¶ 3} Based on our review of the record, we adopt the board’s findings of
misconduct and recommended sanction, with one modification to the sanction.
Misconduct
Count one—the McKee grievance
{¶ 4} In April 2018, Sean McKee began dating Jones’s estranged wife.
Jones claims that about a month later, McKee left him a threatening voicemail.
McKee is employed in the men’s-clothing business and throughout his career, has
used “The Haberdasher Club” and “Alphasuit” as brand names for his business. In
August 2018, Jones filed articles of incorporation with the Ohio Secretary of State’s
office for two businesses: “Haberdasher Club, LTD” and “Alpha Suit, LLC.” Jones
had not contacted McKee about incorporating business entities with those names
and was not otherwise involved in the men’s-clothing business.
{¶ 5} In late 2019, McKee discovered what Jones had done and filed a
grievance against him with relator. In response to the grievance, Jones falsely
stated that (1) he had filed the articles of incorporation to protect McKee’s business
interests from “trademark bullying” and (2) he had filed the articles of incorporation
for Alpha Suit, L.L.C. to form “a debt purchasing company to purchase charged off
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automobile loans from banks” but abandoned the idea and eventually adopted a
different name for the company.
{¶ 6} Jones later dissolved the two companies and admitted that he had
incorporated the entities to retaliate against McKee for dating his wife. Jones also
admitted that his response to the grievance included “after-the-fact, false
rationalizations for his harassing conduct.” Based on these facts, the parties
stipulated and the board found that Jones violated Prof.Cond.R. 8.1(a) (prohibiting
a lawyer from knowingly making a false statement of material fact in connection
with a disciplinary matter) and 8.4(c) (prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation).
Count two—text messages to Jones’s ex-wife
{¶ 7} After Jones learned of McKee’s grievance, he sent his then ex-wife
hostile text messages about the grievance and his financial support of her. One of
the messages threatened retaliation against McKee for submitting the grievance. A
few months later, Jones sent his ex-wife another text message about the pending
disciplinary investigation. The message stated that his law license supported her
and their children and that McKee’s “false” allegations threatened the family’s
security.
{¶ 8} Jones admitted that his text messages were improper and that they
implied that he would retaliate in response to McKee’s grievance. Based on this
conduct, the parties stipulated and the board found that Jones’s conduct violated
Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely
reflects on the lawyer’s fitness to practice law).
{¶ 9} We agree with the board’s findings of misconduct.
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
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aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 11} As aggravating factors, the board found that Jones had had a
dishonest or selfish motive and engaged in deceptive practices during the
disciplinary process. See Gov.Bar R. V(13)(B)(2) and (6). In mitigation, the board
found that Jones has no prior disciplinary offenses and had made a timely and good
faith effort to rectify the consequences of his misconduct, eventually exhibited a
cooperative attitude toward the disciplinary proceedings, submitted evidence
attesting to his good character, and undergone other interim rehabilitation. See
Gov.Bar R. V(13)(C)(1), (3) through (5), and (8). The board also found that Jones
had acknowledged the wrongful nature of his misconduct.
{¶ 12} Throughout its report, the board noted some of Jones’s personal
struggles both before and at the time of his misconduct. In 2004, while in law
school, Jones sought help from the Ohio Lawyers Assistance Program (“OLAP”)
for alcohol abuse and completed a two-year recovery-and-treatment contract. In
2018, Jones relapsed, and in November 2019, he was hospitalized for suicidal
thoughts and to undergo detoxification. After his release from the hospital, Jones
entered into a new three-year OLAP contract, completed an intensive outpatient
program, started attending Alcoholics Anonymous meetings, and commenced
counseling. Jones submitted evidence indicating that he had complied with all his
treatment recommendations.
{¶ 13} Soon after he was released from the hospital, Jones learned of
McKee’s grievance. At his disciplinary hearing, Jones testified that when he
submitted his response to the grievance, he had just started new medications, was
still feeling suicidal, and felt “totally overwhelmed.” At the hearing, Jones accepted
responsibility for his actions and expressed remorse.
{¶ 14} The board recognized that Jones had been diagnosed with mental
and substance-abuse disorders and that he had undergone successful treatment for
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those conditions. The board concluded, however, that Jones did not establish the
existence of a qualifying mitigating disorder pursuant to Gov.Bar R. V(13)(C)(7).
Nonetheless, the board credited Jones for his rehabilitative efforts, found his
testimony authentic and genuine, and noted that he has a good prognosis to continue
ethically practicing law with the support services he has in place.
{¶ 15} Although the parties recommended that Jones be publicly
reprimanded, the board concluded that a more severe sanction was necessary “to
impress upon [Jones] the importance of honesty and proper conduct as a practicing
member of the Ohio bar.” The board concluded that a six-month suspension,
stayed on conditions—including continued compliance with his OLAP contract and
completion of a one-year term of monitored probation—should motivate Jones,
assist him on his road to recovery, protect the public, and preserve the public’s trust
in the legal profession.
{¶ 16} To support its recommendation, the board cited several cases in
which we imposed stayed suspensions under comparable circumstances. For
example, in Akron Bar Assn. v. DeLoach, 130 Ohio St.3d 153, 2011-Ohio-4201,
956 N.E.2d 811, an attorney—as part of her response to a disciplinary grievance—
recreated letters that she claimed to have sent her client. When the relator’s
investigator became suspicious of the letters and further questioned the attorney,
she misrepresented why she had retyped the letters. Although we noted that
Prof.Cond.R. 8.4(c) violations usually result in an actual suspension, we concluded
that the existence of significant mitigating factors—such as the attorney’s clean
disciplinary record and remorse for her actions—warranted a conditionally stayed
six-month suspension. Id. at ¶ 13-15.
{¶ 17} Similarly, in Disciplinary Counsel v. Wexler, 139 Ohio St.3d 597,
2014-Ohio-2952, 13 N.E.3d 1168, an attorney made false or misleading statements
to the relator in the attorney’s initial response to a grievance and then again during
an interview with the relator a few months later. We concluded that a conditionally
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stayed six-month suspension was appropriate considering the mitigating factors
present, including the attorney’s efforts to acknowledge and correct his false
statements, the absence of a prior disciplinary record, evidence of his good
character and reputation, his full disclosures to the board, and the absence of harm
to any clients as a result of the misconduct. Id. at ¶ 17-18.
{¶ 18} Jones engaged in two incidents of deceitful conduct: he filed the
articles of incorporation for no legitimate business purpose and then lied about his
conduct to relator. Jones also sent inappropriate text messages to his ex-wife
implying retaliatory actions in response to the disciplinary grievance that McKee
filed against him. As in DeLoach and Wexler, significant mitigating factors are
present here, including Jones’s clean disciplinary record, eventual cooperation in
the disciplinary process, acknowledgement of his misconduct, good character and
reputation, and ongoing rehabilitation and treatment efforts. Considering the
balance of aggravating and mitigating factors and the applicable precedent, we
agree that a conditionally stayed six-month suspension is the appropriate sanction
in this case. We modify the conditions by directing that Jones’s monitored
probation focus on ethics.
Conclusion
{¶ 19} For the reasons explained above, Eric Alan Jones is hereby
suspended from the practice of law in Ohio for six months with the suspension
stayed in its entirety on the conditions that he (1) comply with his OLAP contract
for a period of two years or longer if recommended by OLAP, (2) complete a one-
year term of monitored probation pursuant to Gov.Bar R. V(21) focused on ethics,
(3) refrain from any further misconduct, and (4) pay the costs of these proceedings.
If Jones fails to comply with any condition of the stay, the stay will be lifted and he
will serve the entire six-month suspension.
Judgment accordingly.
O’CONNOR, C.J., and FISCHER, DONNELLY, and STEWART, JJ., concur.
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KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
BRUNNER, J., not participating.
_________________
KENNEDY, J., concurring in part and dissenting in part.
{¶ 20} I concur in the majority’s conclusion that respondent, Eric Alan
Jones, engaged in professional misconduct, and I agree with most of the sanctions
this court imposes today. However, I dissent from the portion of the sanction
requiring Jones to complete a one-year term of monitored probation “focused on
ethics,” majority opinion at ¶ 19. “Monitors should be given a framework in which
to skillfully examine certain aspects of a respondent’s practice, rather than be forced
to attempt an all-encompassing, untargeted supervision of the practice.”
Disciplinary Counsel v. Harmon, 158 Ohio St.3d 248, 2019-Ohio-4171, 141
N.E.3d 142, ¶ 57 (Kennedy, J., dissenting). The one-year probation to be “focused
on ethics” imposed by the majority is so broad as to be meaningless. It provides no
specificity or benchmarks for the monitor or for Jones.
{¶ 21} Jones’s offenses are those of human frailty. His misconduct
stemmed from a specific source: bitterness about his ex-wife’s dating life. He also
admitted to alcohol abuse and mental illness. His contract with the Ohio Lawyers
Assistance Program (“OLAP”) should address his emotional and substance abuse
problems. There is no pattern of professional misbehavior alleged here and there
are no grievances from clients. “We are ever mindful that the primary purpose of
the disciplinary process is not to punish the offender but to protect the public from
lawyers who are unworthy of the trust and confidence essential to the attorney-
client relationship.” Columbus Bar Assn. v. Kiesling, 125 Ohio St.3d 36, 2010-
Ohio-1555, 925 N.E.2d 970, ¶ 44, citing Disciplinary Counsel v. Agopian, 112
Ohio St.3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10. The specific bad acts
Jones committed involved people who were not his clients. There is no reason to
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believe that Jones failed to appreciate that his conduct was unethical. Monitoring
by another attorney is unnecessary in this case.
{¶ 22} Therefore, I would suspend Jones from the practice of law in Ohio
for six months with the suspension stayed in its entirety on the conditions that he
(1) comply with his OLAP contract for two years or longer if recommended by
OLAP, (2) refrain from any further misconduct, and (3) pay the costs of these
proceedings. Because the majority imposes more, I dissent in part.
DEWINE, J., concurs in the foregoing opinion.
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Anne M. Valentine; Mark C. Collins Co., L.P.A., and Mark C. Collins; and
Kent R. Markus, Bar Counsel, and Thomas E. Zani, Deputy Bar Counsel, for
relator.
Charles J. Kettlewell, L.L.C., and Charles J. Kettlewell, for respondent.
_________________
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