Disciplinary Counsel v. Owens (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Owens, Slip Opinion No. 2018-Ohio-5080.]
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. 2018-OHIO-5080DISCIPLINARY COUNSEL v. OWENS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Owens, Slip Opinion No.
2018-Ohio-5080.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation and engaging in conduct prejudicial to the
administration of justice—Conditionally stayed one-year suspension.
(No. 2018-0257—Submitted May 22, 2018—Decided December 19, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-025.
_______________________
Per Curiam.
{¶ 1} Respondent, Robert Morris Owens, of Delaware, Ohio, Attorney
Registration No. 0069866, was admitted to the practice of law in Ohio in 1998.
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{¶ 2} In a May 30, 2017 complaint, relator, disciplinary counsel, alleged
that Owens violated three professional-conduct rules in his efforts to purge a
client’s contempt for failure to pay court-ordered spousal support and obtain that
client’s release from jail.
{¶ 3} Based on the parties’ stipulations of fact and stipulated exhibits and
the evidence presented at the hearing, a panel of the Board of Professional Conduct
found that Owens committed the charged misconduct and recommended that he be
suspended from the practice of law in Ohio for six months and that he be required
to complete at least two hours of continuing legal education (“CLE”) regarding
compliance with client-trust-account regulations. The board adopted the panel’s
report and recommendation with two minor alterations. Owens objects, arguing
that the record and our precedent do not support the board’s findings of fact,
conclusions of law, or recommended sanction and that the board exhibited bias
against him.
{¶ 4} For the reasons that follow, we overrule Owens’s objections to the
board’s findings of fact and conclusions of law and adopt the board’s findings of
fact and misconduct. We also overrule his objection alleging that the board
improperly disregarded his evidence and amended closing brief based on bias it
harbored against him. However, we sustain Owens’s objection to the recommended
sanction in part and suspend him from the practice of law for one year, all stayed
on conditions.
The Board’s Findings of Misconduct
{¶ 5} Owens represented Edward J. Bittner in a divorce proceeding in the
Delaware County Court of Common Pleas. Pursuant to a 2012 divorce decree,
Bittner was required to pay his former wife, Delores I. Bittner, spousal support of
$8,000 a month for 144 months. In October 2013, Delores filed a motion alleging
that Bittner was in contempt of court for failure to pay spousal support and had
accumulated an arrearage of $26,378.71. Following an April 2014 hearing, a
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magistrate found that Bittner was $60,861.47 in arrears and ordered Bittner’s
former employer to allocate that amount plus a 2 percent administrative fee to
Delores from Bittner’s retirement plan.
{¶ 6} In February 2015, Judge J. Timothy Campbell adopted the
magistrate’s findings, over objections from both parties and the former employer.
He ordered Bittner’s former employer to prepare and submit a qualified domestic-
relations order allocating $62,078.69 from Bittner’s retirement plan to Delores.
Judge Campbell also found Bittner in contempt for failure to pay spousal support
and ordered him to serve 30 days in jail but gave him the opportunity to purge his
contempt by bringing all arrearages current within 30 days of the order. The Fifth
District Court of Appeals affirmed that judgment in November 2015. Bittner v.
Bittner, 2015-Ohio-4707, 49 N.E.3d 821 (5th Dist.).
{¶ 7} On Friday, July 29, 2016, Judge Campbell again found Bittner in
contempt of court for failure to pay spousal support and ordered him to immediately
serve 30 days in jail. The court offered Bittner the opportunity to purge his
contempt and secure his release from jail by paying his $58,242.93 spousal-support
arrearage in full.
{¶ 8} After the hearing, Bittner told Owens that his current wife, Yulia
Nedelko, would wire funds into Owens’s client trust account to pay the arrearage
and obtain his release. Owens went to his bank, where he obtained a counter check
for $58,242.93 drawn on his client trust account. At that time, his client trust
account contained $79,070.03, approximately $74,000 of which he held on behalf
of 19 clients—but none of those funds belonged to Bittner. While Owens was at
the bank, he obtained a “run sheet” from the teller, which showed that no money
had been wired into the account on Bittner’s behalf since the hearing that day.
Thereafter, Owens presented the counter check to the Delaware County Child
Support Enforcement Agency (“CSEA”) and received a receipt, which he
submitted to the common pleas court to secure Bittner’s release from jail.
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{¶ 9} For unknown reasons, Nedelko did not transfer any funds into
Owens’s client trust account on Friday, July 29, 2016. Owens made no effort to
determine whether the funds had been wired into the account on July 30 or 31,
2016. On Monday, August 1, Owens spoke with Bittner and learned that the funds
had not been wired. But Owens took no action either to protect the client funds
held in his client trust account or to disclose Bittner’s nonpayment to the court.
That same day, Nedelko wrote a $58,242.93 check payable to Owens and
overnighted it to him.
{¶ 10} Owens received Nedelko’s check on August 2, signed it over to
Child Support Payment Central (“CSPC”), and issued a stop-payment order on the
counter check he had previously issued to CSEA from his client trust account. He
then took Nedelko’s check to CSEA to replace that check. Although he explained
that the counter check might not clear due to its amount, he failed to inform anyone
at the agency that he had placed a stop-payment order on it. CSEA’s director, Joyce
Bowens, told Owens that CSPC would not accept the replacement check because it
was not made payable directly to the agency.
{¶ 11} Bowens left messages for Owens on August 3 and 8, but he waited
until August 9 to return her calls. At that time, Bowens informed Owens that CSPC
had attempted to process his counter check but that the bank had returned it due to
his stop-payment order. She offered him several acceptable ways to present
payment to the agency but suggested that the best method was to wire the money
directly to CSEA because it could be immediately recorded as a cash payment.
Bowens left messages for Owens again on August 11 and 16. When he returned
her call on August 18, he informed her that Bittner was attempting to resolve the
matter. Because Owens had made no effort to retrieve his client-trust-account
counter check, a CSEA representative personally delivered it to him on August 22.
{¶ 12} In the meantime, Delores filed a motion to impose the 30-day jail
sentence ordered by Judge Campbell and for attorney fees and sanctions based on
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Bittner’s failure to comply with the court’s order to pay his spousal-support
arrearage. Owens appeared at a September 6, 2016 hearing on that motion, but
Bittner did not appear, even after the court denied his motion to appear by
telephone. The court found that Bittner remained in contempt of its prior order and
also noted that he had accumulated an additional arrearage of $24,000 for the
months of July, August, and September. The court ordered that Bittner be
remanded to jail for 30 days and directed that a warrant be issued for his arrest, but
it again offered him the opportunity to purge his contempt by bringing his spousal
support current. The court also ordered Owens and Bittner to pay Delores’s
attorney fees of $1,809.60. The record shows that CSPC credited a $58,242.93
payment to Bittner’s account on September 16, 2016.
{¶ 13} The board found that Owens’s conduct violated three professional-
conduct rules. First, the board found that Owens violated Prof.Cond.R. 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation) by falsely representing that Bittner had paid his spousal-
support arrearage when he had not. Next, it found that Owens violated
Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is
prejudicial to the administration of justice) by commencing and participating in a
series of events that further delayed Delores’s long-overdue spousal support and
necessitated further court proceedings to collect the arrearage. Finally, the board
found that Owens 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) by
recklessly placing the funds of 19 clients in jeopardy.
Recommended Sanction
{¶ 14} When considering the appropriate sanction for attorney misconduct,
the board took into account several relevant factors, including the ethical duties that
the lawyer violated, relevant aggravating and mitigating factors, and the sanctions
imposed in similar cases. See Gov.Bar R. V(13)(A).
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{¶ 15} As aggravating factors, the board found that Owens engaged in
multiple offenses and caused harm to his client’s former wife, who incurred
$1,809.60 in additional attorney fees and waited an additional month to collect her
long-overdue spousal support. See Gov.Bar R. V(13)(B)(4) and (8). And because
Owens attempted to minimize his misconduct and repeatedly characterized his
actions as mere mistakes, the board also found that he failed to acknowledge the
wrongful nature of his misconduct. See Gov.Bar R. V(13)(B)(7).
{¶ 16} The board found that just two mitigating factors are present: Owens
has no prior disciplinary record and he submitted letters attesting to his good
reputation in the community. See Gov.Bar R. V(13)(C)(1) and (5). The board
declined to attribute any mitigating effect to the fact that Owens paid approximately
$1,800 of Delores Bittner’s attorney fees, noting that he paid those fees more than
one year after the court ordered him to do so, nearly two months after the court’s
order was affirmed on appeal, and just one day before his disciplinary hearing. See
Gov.Bar R. V(13)(C)(3) (providing that a timely good-faith effort to make
restitution may be considered as a mitigating factor weighing in favor of a less
severe sanction).
{¶ 17} In determining the appropriate sanction for Owens’s misconduct, the
board considered two cases in which we imposed fully stayed six-month
suspensions on attorneys who violated Prof.Cond.R. 8.4(c), (d), and (h).
{¶ 18} In Disciplinary Counsel v. Bunstine, 131 Ohio St.3d 302, 2012-
Ohio-977, 964 N.E.2d 427, the attorney fabricated an attorney-client relationship
and refused to surrender documents to law-enforcement officials, in an effort to
shield himself from potential criminal liability. Although he acted with a selfish
motive and refused to acknowledge the wrongful nature of his conduct, he had no
prior discipline and entered a no-contest plea to misdemeanor counts of disorderly
conduct arising out of the incident. And in Disciplinary Counsel v. Koehler, 132
Ohio St.3d 465, 2012-Ohio-3235, 973 N.E.2d 262, the attorney signed his client’s
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name to a letter of authorization, improperly notarized the document by using his
secretary’s notary stamp and signing her name, and then used the fraudulent
document to access a bank account on his client’s behalf. However, no aggravating
factors were present and Koehler had no prior discipline, did not act with a selfish
or dishonest motive, and demonstrated a cooperative attitude toward the
disciplinary proceeding, although he did not appear remorseful.
{¶ 19} Emphasizing Owens’s failure to acknowledge his misconduct or
accept responsibility for his actions, the board concluded that his misconduct
warranted a more severe sanction than that imposed in Bunstine and Koehler.
Therefore, the board recommended that we suspend Owens from the practice of
law for six months with no stay, and that we require him to complete two hours of
CLE focused on client-trust-account management as a condition of his
reinstatement.
Owens’s Objections
Objections to the Board’s Findings of Fact and Conclusions of Law
{¶ 20} In his first two objections to the board’s report, Owens argues that
the board’s findings of fact and conclusions of law are not supported by sufficient
evidence and are contrary to law. He contends that the board disregarded much of
his testimony and insists that he not only took appropriate action to get Bittner’s
spousal-support arrearage paid but that he did so without placing any client funds
in jeopardy. We disagree.
{¶ 21} We have stated, “[I]t is of no consequence that the board’s findings
of fact are in contravention of respondent’s or any other witness’s testimony.
‘Where the evidence is in conflict, the trier of facts may determine what should be
accepted as the truth and what should be rejected as false.’ ” Disciplinary Counsel
v. Zingarelli, 89 Ohio St.3d 210, 217, 729 N.E.2d 1167 (2000), quoting Cross v.
Ledford, 161 Ohio St. 469, 478, 120 N.E.2d 118 (1954). “Unless the record weighs
heavily against a hearing panel’s findings, we defer to the panel’s credibility
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determinations, inasmuch as the panel members saw and heard the witnesses
firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550,
842 N.E.2d 35, ¶ 24.
{¶ 22} Here, the panel heard and considered conflicting evidence from
several witnesses, including Owens. At the hearing and in his objections, Owens
insisted that he had every reason to believe that Nedelko had wired $58,242.93 to
him before he delivered his client-trust-account check to CSEA. Based on that
belief, he contends that he did not jeopardize client funds or make a
misrepresentation to CSEA and the court when he issued that check to satisfy
Bittner’s spousal-support obligation and secure Bittner’s release. But the record
demonstrates that Owens’s beliefs were not reasonable.
{¶ 23} It is undisputed that Owens had a duty to protect the client funds
entrusted to his care. See Prof.Cond.R. 1.15. But Owens himself testified that after
he obtained the counter check from his bank and verified that Bittner’s funds had
not been wired into his client trust account, he went directly to the CSEA office—
less than five minutes away—and handed over a $58,242.93 check drawn on his
client trust account. Although he testified that he relied on his wealthy, long-term
client’s assurances that a wire transfer was imminent, that client had been jailed for
contempt based on his failure to pay any spousal support for nearly four years.
Owens also testified that he relied on a Delaware County CSEA employee’s
representation that CSPC (a separate but related agency located in Franklin County)
would not process his check until Wednesday, August 3, at the earliest. However,
that employee testified only that the earliest the check would be mailed from CSEA
to CSPC was Monday, August 1, not that CSPC would not process it until
Wednesday or later.
{¶ 24} Thus, there is ample evidence to support the board’s conclusions that
(1) Owens knew or acted with reckless disregard as to whether Bittner’s funds were
or were not in his client trust account when he presented to CSEA a check that was
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drawn on that account and (2) Owens placed the funds of 19 other clients at risk
when he relied on Bittner’s representations and the anticipated float time of his
client-trust-account check (i.e., the time that it would take CSEA and the bank to
process that check) to protect his clients’ funds. There is also sufficient evidence
to establish that Owens made a material misrepresentation when he presented a
$58,242.93 client-trust-account check to CSEA in order to satisfy Bittner’s spousal-
support obligation, thereby representing to CSEA and the court that those funds had
been deposited into that account on Bittner’s behalf, either with knowledge or with
reckless disregard as to whether any such funds had been deposited into that
account. And the court did rely on that misrepresentation, as it released Bittner
from jail after receiving notice of the payment from Owens.
{¶ 25} Our finding that Owens made a material misrepresentation would
not change even if we were to find that he did not have actual knowledge that
Bittner’s funds had not been deposited into his client trust account when he issued
the check and presented the receipt to the court. Once he learned that the facts were
not as he originally believed, he had a duty to step forward and correct his prior
representations to avoid engaging in misrepresentation by omission. See, e.g.,
Prof.Cond.R. 3.3(a)(1) (prohibiting an attorney from knowingly making a false
statement of fact or law to a tribunal or failing to correct a false statement of
material fact or law the lawyer previously made to the tribunal); Miles v. McSwegin,
58 Ohio St.2d 97, 99, 388 N.E.2d 1367 (1979) (“It is well established that an action
for fraud and deceit is maintainable not only as a result of affirmative
misrepresentations, but also for negative ones, such as the failure of a party to a
transaction to fully disclose facts of a material nature where there exists a duty to
speak”).
{¶ 26} Instead of taking reasonable action to correct his misrepresentation,
however, Owens waited nearly six weeks for Bittner, the contemnor and primary
beneficiary of Owens’s misrepresentation, to satisfy the prerequisite for his release
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from jail by purging his contempt. That delay further postponed Delores’s spousal-
support payment and also interfered with the court’s ability to enforce its
judgments.
{¶ 27} Based on the foregoing, we overrule Owens’s objections to the
board’s findings of fact and conclusions of law and adopt the board’s findings that
Owens’s conduct violated Prof.Cond.R. 8.4(c), (d), and (h).
Objection to the Board’s Reference to Owens’s Prior Counsel
{¶ 28} In his fourth objection, Owens argues that the board exhibited bias
against him when it mentioned that his counsel in this disciplinary proceeding
“curiously” withdrew from the representation after filing a posthearing
memorandum and then it failed to discuss Owens’s testimony or the arguments
presented in the amended pro se closing brief that he filed. In support of this
argument, he contends that in contrast, relator’s closing brief “seemed to be re-
printed nearly word-for-word” in the board’s report. Having reviewed the entire
record, we find no evidence of improper bias based on the withdrawal of Owens’s
former counsel, and further, that the board’s failure to discuss Owens’s testimony
did not indicate any bias against him but instead reflected its determination that his
testimony was not credible. Therefore, we overrule this objection.
Objection to the Recommended Sanction
{¶ 29} In his third objection, Owens contends that the sanction
recommended by the board is excessive in light of this court’s precedent and
additional mitigating factors that he claims are present in this case. He argues that
the complaint should be dismissed and no discipline should issue because relator
failed to prove the alleged misconduct by clear and convincing evidence.
Alternatively, he suggests that because his “mistakes” caused “little to no harm”
and present an “isolated incident” in his otherwise unblemished career, only a
public reprimand is justified.
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{¶ 30} Owens suggests that the board failed to attribute mitigating effect to
his payment of Delores’s legal fees, his professed lack of a dishonest intent or
motive, his delivery of a valid check to CSEA (albeit one that violated CSPC’s
internal policy), his efforts to notify CSEA that his client was not able to transfer
the funds as expected, and his participation in CLE focused on ethics and client-
trust-account management. These factors, however, warrant little, if any,
mitigating effect.
{¶ 31} As the board found, Owens’s payment of Delores’s attorney fees was
not timely and it is not clear from the record before us that Owens acted entirely
without a dishonest or selfish motive. Neither Owens’s efforts to inform CSEA of
the failed transfer nor his delivery of a check that did not comply with agency
policies is sufficient to overcome his failure to notify the court that the payment
that secured his client’s release from jail had not, in fact, occurred. And although
Owens completed 9 hours of CLE, many of which focused on client-trust-account
management and ethics, we note that pursuant to Gov.Bar R. X, he had a preexisting
obligation to complete at least 24 hours of CLE during the 2017-2018 biennium.
{¶ 32} Because we have found that Owens committed all of the misconduct
alleged in relator’s complaint, we reject his call for an outright dismissal of this
case. We also find that the three cases that Owens cites, in the alternative, in
support of a public reprimand for his misconduct are factually distinguishable from
this case.
{¶ 33} For example, in Cleveland Bar Assn. v. Cox, 98 Ohio St.3d 420,
2003-Ohio-1553, 786 N.E.2d 454, we publicly reprimanded an attorney who failed
to keep a client informed about the status of the client’s case and then intentionally
lied to a bar-association grievance-committee member about his misconduct. But
unlike Owens, who repeatedly denied having made any misrepresentation to CSEA
or the court, Cox told the truth when confronted with evidence of his
misrepresentation and his misconduct caused little harm.
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{¶ 34} In Disciplinary Counsel v. Cuckler, 101 Ohio St.3d 318, 2004-Ohio-
784, 804 N.E.2d 966, we publicly reprimanded an attorney who accepted and used
the title of “Deputy Chief Legal Counsel” while working for the speaker of the Ohio
House of Representatives for more than a year before he was licensed to practice
law, id. at ¶ 2. Despite his title, however, the evidence showed that Cuckler actually
performed the work of a legislative aide or law clerk under the supervision of a
licensed attorney. And in contrast to the record here, the record in Cuckler
contained no evidence that anyone had relied on Cuckler’s misrepresentations to
their detriment.
{¶ 35} We are not persuaded that the decisions cited by Owens support the
imposition of a public reprimand in this case. Nor, however, are we convinced that
the six-month suspension recommended by the board is the appropriate sanction
for Owens’s misconduct.
{¶ 36} Instead, we find Mahoning Cty. Bar Assn. v. Cochran, 152 Ohio
St.3d 448, 2018-Ohio-4, 97 N.E.3d 454, to be instructive. In that case, a federal
judge declared a mistrial in the case of an attorney charged with obstruction of
justice and making a false statement to law enforcement, among other offenses, and
later acquitted the attorney on two of the charged counts. Id. at ¶ 4-6. After the
government indicated its intention to retry the attorney on three remaining charges,
he agreed to plead guilty to a single count of misbehavior in the presence of the
court in violation of 18 U.S.C. 401(1) and admitted that he gave two incomplete
and misleading statements during his testimony at the first trial. Id. at ¶ 7. Finding
that the attorney did not give the incomplete responses with the intent to obstruct
justice, the federal judge treated the offense as a misdemeanor, sentenced the
attorney to two years of probation, and imposed a $2,500 fine. Id. at ¶ 8.
{¶ 37} We found that Cochran’s conduct violated Prof.Cond.R. 3.3(a)(1)
(prohibiting an attorney from knowingly making a false statement of fact or law to
a tribunal or failing to correct a false statement of material fact or law previously
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made to the tribunal by the lawyer) and Prof.Cond.R. 8.4(b) (prohibiting a lawyer
from committing an illegal act that reflects adversely on the lawyer’s honesty or
trustworthiness). Id. at ¶ 9. Noting the absence of aggravating factors and the
presence of several mitigating factors—including a lack of prior discipline, the
absence of a dishonest or selfish motive, the submission of numerous letters
attesting to Cochran’s character and reputation, and his demonstration of “genuine
remorse”—we concluded that a stayed one-year suspension was the appropriate
sanction for Cochran’s misconduct. Id. at ¶ 16.
{¶ 38} The facts and circumstances of Cochran are arguably more
egregious than those in this case. But here, we agree with the board that three
aggravating factors and just two mitigating factors are present—as compared to
zero aggravating factors and four mitigating factors in Cochran, id. at ¶ 11. We
typically impose an actual suspension from the practice of law for an appropriate
period of time when an attorney has engaged in a course of conduct involving
dishonesty. See Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 191, 658
N.E.2d 237 (1995). In this case, however, we believe that a longer-term suspension,
all stayed on conditions that include a period of monitored probation and a
requirement that Owens complete additional CLE focused on client-trust-account
management, will best protect the public from future harm. Therefore, we sustain
Owens’s third objection in part.
{¶ 39} Accordingly, Robert Morris Owens is suspended from the practice
of law in Ohio for one year, all stayed on the conditions that in addition to the CLE
requirements of Gov.Bar R. X, he complete a two-hour CLE course focused on
client-trust-account management and serve a one-year period of monitored
probation in accordance with Gov.Bar R. V(21). If Owens fails to comply with a
condition of the stay, the stay will be lifted and he will serve the full one-year
suspension. Costs are taxed to Owens.
Judgment accordingly.
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O’CONNOR, C.J., and O’DONNELL, FISCHER, DEWINE, and DEGENARO, JJ.,
concur.
KENNEDY, J., dissents and would suspend respondent for six months, and
would require that as a condition of reinstatement that in addition to completing the
continuing legal education requirements of Gov.Bar. R. X, respondent must
complete an additional two-hour continuing legal education course focused upon
client-trust-account management.
FRENCH, J., dissents and would suspend respondent for six months, all
stayed on the condition that in addition to completing the continuing legal education
requirements of Gov.Bar. R. X, respondent must complete an additional two-hour
continuing legal education course focused upon client-trust-account management.
_________________
Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant
Disciplinary Counsel, and Karen H. Osmond, Assistant Disciplinary Counsel, for
relator.
Louis H. Herzog, for respondent.
_________________
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