Disciplinary Counsel v. Harmon (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Harmon, Slip Opinion No. 2014-Ohio-4598.]
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
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made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-4598DISCIPLINARY COUNSEL v. HARMON.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as Disciplinary Counsel v. Harmon,
Slip Opinion No. 2014-Ohio-4598.]
Attorneys at law—Misconduct—Violations of the Rules of Professional Conduct,
including engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation, conduct prejudicial to the administration of justice,
and conduct adversely reflecting on fitness to practice law—Two-year
suspension with one year stayed on conditions.
(No. 2013-1983—Submitted February 5, 2014—Decided October 22, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 2012-081.
_______________________
Per Curiam.
{¶ 1} Respondent, Paul Dare Harmon of Howard, Ohio, Attorney
Registration No. 0023923, was admitted to the Ohio bar in 1979.
{¶ 2} In September 2013, relator, disciplinary counsel, submitted a
complaint to the Board of Commissioners on Grievances and Discipline alleging
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that Harmon engaged in conduct involving dishonesty, fraud, deceit, or
misrepresentation when he failed to disclose certain information and assets in his
December 2009 bankruptcy filing and gave false testimony during his bankruptcy
proceedings. Relator further alleged that this conduct adversely reflected on
Harmon’s fitness to practice law and was prejudicial to the administration of
justice. A probable-cause panel of the board certified the complaint in October
2013, and the secretary of the board appointed a three-member panel to hear the
case.
{¶ 3} The parties entered into stipulations of fact and mitigating factors.
After conducting a hearing, the panel issued a report finding that Harmon had
engaged in the charged misconduct and recommending that he be suspended from
the practice of law for one year. The board adopted the panel’s findings of fact
and misconduct as amended, but recommends that we suspend Harmon for two
years, with the second year stayed on conditions. For the reasons that follow, we
adopt the board’s findings of fact, conclusions of law, and recommended sanction.
Misconduct
{¶ 4} Harmon testified that he experienced a personal crisis in 2004. He
did not reveal any details of that crisis but explained that it resulted in a series of
poor financial decisions. In a letter that he sent to his bankruptcy attorney in
September 2010, however, he stated that following some painful disclosures by
his wife in 2004, he “escaped into alcohol and gambling.” His financial stress
was compounded by two unsuccessful judicial campaigns that he funded with his
retirement savings.
{¶ 5} In the spring of 2009, Harmon’s law-firm operating account was
attached by a creditor. Consequently, he stopped using that account and began to
pay his bills by cash and through his wife’s separate bank account.
{¶ 6} Harmon consulted with a bankruptcy attorney about filing for
bankruptcy protection in August 2009. His attorney prepared and filed a Chapter
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7 petition on his behalf in December 2009. By signing his bankruptcy petition,
Harmon declared under the penalty of perjury that he had fully disclosed his
finances. But it was later discovered that the petition did not properly disclose all
his assets.
{¶ 7} In January 2010, Harmon testified at a creditors’ meeting.
Responding to the trustee’s questions, he testified that he had reviewed his
bankruptcy petition before signing it and had fully disclosed his assets. He
specifically testified that he did not have a bank or retirement account and that
while he had approximately $1,000 in accounts receivable, they were not
realistically collectible.
{¶ 8} Shortly after the creditor’s meeting, the trustee learned that
Harmon was the plaintiff in a pending defamation action, filed just two months
before his bankruptcy petition, in which he sought $500,000 in damages. Harmon
amended his bankruptcy petition to include the lawsuit on February 26, 2010, and
while he signed this amendment asserting that he had fully disclosed his finances,
additional assets existed that he once again failed to disclose.
{¶ 9} An adversary proceeding ensued, and Harmon retained new
counsel, who represented him at his first two depositions. After Harmon’s second
deposition, counsel filed a second amended bankruptcy petition that finally
disclosed all of Harmon’s assets, including his interest in his wife’s bank account,
stocks, a security deposit associated with his office lease, and additional accounts
receivable.
{¶ 10} At his third deposition, Harmon appeared pro se and testified that
his prior deposition testimony was truthful but that he had made some mistakes in
his answers—like failing to disclose that he was using his wife’s bank account
when asked how he was paying his bills.
{¶ 11} The bankruptcy court ultimately found that by failing to fully
disclose his assets in his bankruptcy petition and in his deposition testimony,
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Harmon had knowingly made false statements of material fact under oath with
either fraudulent intent or reckless disregard of the truth. Therefore, the court
refused to discharge his debts in bankruptcy.
{¶ 12} Harmon stipulates that he failed to disclose five assets in his initial
bankruptcy petition: (1) his interest in the defamation action he had filed just two
months before his bankruptcy petition, (2) his interest in his wife’s bank account,
(3) a security deposit linked to his office lease, (4) stocks, and (5) accounts
receivable. In this disciplinary proceeding, he admitted that he did not read the
petition before signing it and claimed that he had merely signed the documents as
instructed, trusting that his attorney had properly completed the forms.
{¶ 13} Harmon steadfastly maintained, however, that his omissions were
due to his own ignorance of bankruptcy law and the malpractice of his bankruptcy
attorneys. He argued that even if he had read the documents, he is not a
bankruptcy attorney and would not have understood what needed to be disclosed.
He also claimed that while he believed his defamation suit had merit, he thought
that it had no value because he would not be able to prove damages. The panel
and board were not persuaded by these arguments and noted that the bankruptcy
court had stated that “one need not be a sophisticated bankruptcy attorney to
understand the [bankruptcy petition’s] schedules. They are written in plain
English that any literate person can understand.” Moreover, they observed that
Harmon did not avail himself of several opportunities to correct the record and
fully disclose his assets.
{¶ 14} Harmon repeatedly claimed that his attorneys and the bankruptcy
trustee were responsible for his misconduct. He testified that neither of his
attorneys had prepared him for his depositions and that he answered the questions
as best he could. He argued that he had not lied but that he had made “mistakes”
in answering some of the questions. Although he filed malpractice actions against
both of his attorneys, he reported that the claims were dismissed when the
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bankruptcy trustee refused to investigate them. He further claimed that the trustee
“targeted” him and refused to believe anything he told her.
{¶ 15} The panel found by clear and convincing evidence that Harmon’s
conduct violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law).
{¶ 16} In adopting the panel’s findings of fact and misconduct, the board
also expressly found that Harmon’s conduct was sufficiently egregious to support
a finding that his conduct adversely reflected on his fitness to practice law in
violation of Prof.Cond.R. 8.4(h), consistent with our opinion in Disciplinary
Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21
(holding that in order to find a violation of Prof.Cond.R. 8.4(h), there must be
clear and convincing evidence that a lawyer has engaged in conduct that while not
specifically prohibited by the rules, nonetheless adversely reflects on the lawyer’s
fitness to practice law, or that the lawyer’s conduct is sufficiently egregious to
warrant an additional finding that it adversely reflects on the lawyer’s fitness to
practice law).
{¶ 17} We adopt the board’s findings of fact and find that Harmon’s
conduct violates Prof.Cond.R. 8.4(c), (d), and (h).
Sanction
{¶ 18} 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
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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.
{¶ 19} As mitigating factors, the parties have stipulated and the panel and
board have found that Harmon (1) has no prior disciplinary record, (2)
demonstrated a cooperative attitude in the disciplinary proceedings, and (3) has
had other penalties or sanctions imposed for his misconduct, including the
bankruptcy court’s refusal to discharge his debts and his payment of restitution to
the trustee for the assets he withheld. See BCGD Proc.Reg. 10(B)(2)(a), (d), and
(f).
{¶ 20} The panel and board found just one aggravating factor—that
Harmon has failed to accept responsibility for his misconduct. See BCGD
Proc.Reg. 10(B)(1)(g). They note that Harmon admits only to mistakes that led to
his financial ruin, including his use of alcohol and gambling. But even though he
testified that he had completed an outpatient-treatment program for alcohol abuse,
he claimed that the real problem was not alcohol, but his inability to handle a
difficult time in his life. And although he testified that he had shared information
about his personal crisis in his pleadings, he has not offered any details that would
permit the board or this court to assess the severity of the problem, its effects on
him, or the risk of repetition in the future.
{¶ 21} While Harmon testified that he entered into a four-year contract
with the Ohio Lawyers Assistance Program (“OLAP”) in October 2010, the panel
and board found that at the time of the hearing he had not been in contact with the
organization for a year and a half. Moreover, he blamed OLAP for the lapse in
communication, arguing that its representatives should have tracked him down.
The week before his disciplinary hearing, Harmon revoked the release that would
have permitted OLAP to discuss his case with relator. He explained that because
OLAP had no idea what was going on in his life, he did not want its
representatives discussing his case with relator. The board was clearly frustrated
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by Harmon’s efforts to conceal this information, which hampered its efforts to
assess his ability to deal with the crises in his life and raised additional concerns
regarding the risk of harm to future clients.
{¶ 22} Relator argued in favor of a one-year actual suspension for
Harmon’s misconduct, citing Toledo Bar Assn. v. Miller, 132 Ohio St.3d 63,
2012-Ohio-1880, 969 N.E.2d 239. When a garnishment notice concerning his
private debt was sent to Miller’s law firm, Miller, a nonequity partner, twice made
false statements about his employment. Id. at ¶ 4-6. And in his subsequent
bankruptcy proceeding, he falsely represented that he had been laid off and had no
income, though he knew that he would receive more than $30,000 following his
separation from his firm. Id. at ¶ 7-8. Miller also used money held in escrow for
a client of the law firm to pay a filing fee for a pro bono client who was not a
client of the law firm. Id. at ¶ 9. After weighing these factors, we suspended
Miller from the practice of law for twelve months, with six months stayed on
conditions. Id. at ¶ 16.
{¶ 23} The board noted that a violation of Prof.Cond.R. 8.4(c) typically
results in an actual suspension from the practice of law unless significant
mitigating factors warrant a departure from that rule. See, e.g., Disciplinary
Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521, 930 N.E.2d 307, ¶ 10;
Disciplinary Counsel v. Rohrer, 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d
180, ¶ 45.
{¶ 24} Distinguishing the sanction imposed in Miller on the ground that
Miller had acknowledged his wrongdoing and expressed remorse, while Harmon
continues to blame others for his failure to disclose all of his assets in his
bankruptcy proceedings, the panel recommended that Harmon be suspended for
one year, with no stay. The panel further recommended that before Harmon be
permitted to apply for reinstatement to the practice of law, he be required to
submit to an evaluation conducted by OLAP or a health-care professional
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designated by OLAP, enter into an OLAP contract with the duration and terms to
be determined by OLAP, and comply with the terms of that contract.
{¶ 25} The board amended the panel’s recommendation and suggests that
a two-year suspension, with the second year stayed on conditions, is the
appropriate sanction for Harmon’s misconduct. Harmon has demonstrated an
inability to accept responsibility for his failure to fully disclose his assets,
concealed the nature of the personal crisis that purportedly set his misconduct in
motion, failed to abide by the terms of his four-year OLAP contract, denied that
his alcohol use and gambling are a problem, and silenced OLAP in an effort to
conceal the true nature of his personal struggles. For these reasons we agree that
a two-year suspension, with the second year stayed on conditions, is necessary to
protect the public from future harm.
{¶ 26} Accordingly, Paul Dare Harmon is suspended from the practice of
law in the state of Ohio for two years, with the second year stayed on the
conditions that he commit no further misconduct and that he (1) submit to a
mental-health evaluation conducted by OLAP, and if OLAP determines that
treatment is necessary, (2) enter into an OLAP contract, the duration of which
shall be determined by OLAP, and (3) comply with all of OLAP's treatment
recommendations. If Harmon fails to comply with the conditions of the stay, the
stay will be lifted, and he will serve the entire two-year suspension. Costs are
taxed to Harmon.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, and KENNEDY, JJ., concur.
PFEIFER, FRENCH, and O’NEILL, JJ., dissent, and would impose a one-year
suspension with six months stayed.
_________________________
Scott J. Drexel, Disciplinary Counsel, and Stacy Solochek Beckman,
Assistant Disciplinary Counsel, for relator.
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Paul Dare Harmon, pro se.
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