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Sex, lies and disciplinary counsel: An ethical review

By Philip Bogdanoff

A magistrate tells a young new assistant prosecutor she is doing an excellent job in his courtroom and starts mentoring her after she is assigned to his court. They develop a close relationship that evolves into a romantic relationship although both are married. After he becomes a judge, their relationship progresses and they engage in intimate relations in his chambers and shower together in the woman’s locker room in the courthouse. The affair continues for six months and during this time the assistant prosecutor tries two cases in front of this judge and neither the judge nor the prosecutor disclose their romantic relationship to the opposing party.1
 
Rumors of this tryst disseminate around the courthouse when a deputy sheriff observes the cars of the judge and the assistant prosecutor in the courthouse parking lot after hours.2 Both parties are aware of their ethical dilemma with this relationship and actively cover up their romance. The assistant prosecutor sought out several judges and superiors in her office to deny that a romantic relationship existed claiming that she was the victim of false rumors.3 The judge also denied the existence of any improper relationship when confronted by the administrative judge and chief judge of the district. Eventually, the judge’s wife found out about the intimate relationship and wrote a letter to the presiding judge disclosing the relationship. The judge resigned and the assistant prosecutor was fired.4
 
The Colorado disciplinary counsel filed ethical charges against the judge and the prosecutor for conduct prejudicial to the administration of justice, trying a case in front of a judge when the parties were having a secret romantic relationship and having sex in the courthouse.5 Colorado RPC 8.4(d) like its counterpart in Ohio provides that it is unethical for a lawyer to engage in conduct that is prejudicial to the administration of justice. The disciplinary counsel also filed numerous disciplinary charges against the judge and the prosecutor for concealing the relationship, lying to the prosecutors and the judges when the judge and the prosecutor repeatedly denied the intimate relationship.6 Colorado RPC 8.4(c) is identical to the Ohio rule and provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.7
 
This disciplinary violation is at the heart of many suspensions and disbarments for one simple reason: Attorneys often face more disciplinary sanctions for concealing their misdeeds than for the original misconduct. Unfortunately, some attorneys resort to lies and deceit to bury their misconduct rather than admitting their ethical mistakes. This ethical misconduct spreads like a cancer and the attorney fatally destroys his or her professional career. In the Colorado case, the assistant prosecutor and the judge were suspended for their misconduct in the courtroom and for their deceit and dishonesty outside the courtroom.8

The Supreme Court of Ohio will suspend an attorney who lies in court

The Supreme Court of Ohio has admonished attorneys who lie to the court to cover up their professional misconduct. “A lawyer who engages in a material misrepresentation to a court ... violates, at a minimum, the lawyer’s oath of office that he or she will not ‘knowingly ... employ or countenance any ... deception, falsehood, or fraud.’ Gov. Bar R. I(8)(A).”9 The Court has emphasized that respect for our profession is diminished with every dishonest act of an attorney and that the public cannot trust attorneys if the Court does not sanction those attorneys who are dishonest.10 The justices have set forth a rule that, “[w]e will not allow attorneys who lie to courts to continue practicing law without interruption.”11
 
In Disciplinary Counsel v. Robinson, the attorney suspected that he may be fired from his law firm and talked to two other law firms about employment. He subsequently removed seven boxes of documents from his firm while his associates were on a retreat. The day after he was fired from his law firm, he was hired by another firm and his old firm filed a complaint alleging that he had violated the nonsolicitation and nondisclosure covenant of his employment agreement.12
 
During a deposition relating to this complaint, the attorney testified that he did not take any client files or client information. However, after his deposition testimony, he took his personal trial notebook into the men’s restroom, removed a firm report of his 2004-2007 billable hours, tore it up, and disposed of it in the restroom trash receptacle.13 A week after the deposition, the court ordered the attorney to return any law firm materials in his possession and he returned three boxes of materials. Four days after his testimony, he self-reported to his old law firm and to the court that he had destroyed law firm documents.14
 
The Board of Commissioners on Grievances and Discipline found that the attorney had violated Professional Conduct Rule 8.4(C) by testifying falsely during the deposition. Although the attorney alleged that he did not intentionally mislead the court, the Supreme Court of Ohio reviewed the evidence and found that the attorney had “willfully engaged in conduct that is deliberately dishonest.”15 The Court rejected the attorney’s claims that he should be given a public reprimand or stayed suspension noting that attorney misconduct involving dishonesty warrants an actual suspension from the practice of law because the court, “cannot permit attorneys who lie either to their clients or to the court to continue practicing law without interruption.”16 The Court ordered a one-year suspension stating that, the “respondent engaged in a pattern of misconduct involving multiple instances of lying and misrepresentation under oath, as well as the destruction of documents with potential evidentiary value in a pending civil proceeding.”17

You do not have the right to remain silent

In criminal cases, when the police suspect a person of criminal misconduct, they must inform the suspect of their Miranda rights to remain silent and the suspect need not utter a word in his defense. However, in disciplinary cases, when the disciplinary counsel or bar association suspects an attorney of professional misconduct, there is no corresponding right to remain silent. An attorney is required to speak, cooperate and appear. Professional Conduct Rule 8.1(b) indicates that a lawyer shall not in response to a demand for information from a disciplinary authority, fail to disclose a material fact or knowingly fail to respond (except for privileged information). Further, Gov. Bar R. V(4)(G) requires a lawyer to cooperate with a disciplinary investigation.
 
In Akron Bar Association v. Fink, the Akron Bar Association received a complaint and then sent letters and subpoenas to the attorney to investigate the complaint. The attorney failed to respond to two letters and ignored both subpoenas. Without a response from the attorney, the bar association investigated the complaint and dismissed it. However, because the attorney remained silent, the bar association filed a complaint charging the attorney with violations of Prof. Cond. R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice) and Gov. Bar R. V(4)(G) (requiring a lawyer to cooperate with a disciplinary investigation).18 The Court found a disciplinary violation and emphasized that “timely response to disciplinary investigations is necessary to preserve the integrity of, and public confidence in, the legal profession.”19
 
Not only can a failure to cooperate act as disciplinary violation, but it will also result in a more severe sanction. In Disciplinary Counsel v. Nittsko, the attorney did not respond to two letters of inquiry sent by disciplinary counsel after a client filed a grievance against the attorney regarding his handling of an estate.20 Although the attorney showed up at a deposition with the requested documents, he did not respond to two other letters of inquiry sent by the disciplinary counsel and did not file an answer to the formal complaints.21 Failure to cooperate in the disciplinary proceeding is an aggravating factor in the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline that will result in a more severe sanction.22 The Court indicated that, “We repeatedly have recognized that neglect of an entrusted legal matter, coupled with a failure to cooperate in the ensuing disciplinary investigation, warrants an indefinite suspension.”23 The Court ordered an indefinite suspension even though the attorney had neglected only one legal matter, there was no selfish motive, and the attorney had no prior disciplinary record.24

Lying to cover up misconduct can lead to an increased sanction

Although attorneys must speak to disciplinary counsel, this does not mean that they are always forthcoming with the truth. Prof. Cond. R. 8.1(a) indicates that in connection with a disciplinary matter a lawyer shall not knowingly make a false statement of material fact. Simply stated, an attorney cannot lie to disciplinary counsel to conceal his unethical conduct without violating the rules of professional conduct. Further, in determining the appropriate sanction for a disciplinary violation, BCGD Proc.Reg. 10(B)(1)(f) indicates that it is an aggravating factor if an attorney submits false evidence, false statements, or other deceptive practices during the disciplinary process.
 
In Toledo Bar Association v. Scott, the attorney obtained a power of attorney for a client that was accused of aggravated murder and incarcerated on those charges. The attorney obtained his client’s ATM card, identification number and access to the client’s home. The attorney then made seven withdraws of $500 without putting the money in a trust account, transferred $24,456 from his client’s business account before earning the money, fraudulently transferred his client’s cars to his name, and took his client’s Cleveland Browns tickets and attended the game with a friend.25 After a grievance was filed, the attorney submitted false documents including fabricated bills claiming time spent conferring with his client that were not supported by the visitor log at the jail.26
 
The Board of Commissioners on Grievances and Discipline conducted a hearing, accepted the parties’ agreed stipulations, made additional findings of fact and conclusions of law, and recommended that respondent be suspended from the practice of law for one year, with six months of the suspension stayed upon conditions. Although neither party objected to this sanction, the Supreme Court increased the sanction and imposed a two-year suspension with one year stayed upon conditions.27 One important factor that the court emphasized when imposing a more severe sanction was that the attorney lied to disciplinary investigators about his billing records noting that, “Lawyers who choose to engage in fabrication of evidence, deceit, misrepresentation of facts, and distortion of truth do so at their peril.”28

Confession, cooperation and correction

Certainly, all attorneys make mistakes in their practice of law and on occasion these mistakes may violate the Rules of Professional Conduct. However, to avoid an actual suspension for unethical misconduct, an attorney discovering a mistake should confess, cooperate and take corrective measures to prevent the mistake from occurring in the future. The Supreme Court will often take a lenient stance when an attorney cooperates in a disciplinary investigation and takes corrective measures after discovering an ethical misstep. In Disciplinary Counsel v. Groner, the attorney was retained by the decedent’s son to oppose the appointment of the decedent’s daughter, Brenda Joyce Fowler, as a fiduciary for the deceased mother’s estate. When the attorney arrived at court for a hearing, she learned that she had to file her objections to the appointment of Fowler as administrator of the estate that same day. The attorney used an online service and obtained a report indicating that a Brenda Joyce Fowler of New Philadelphia, Ohio, had a felony record and had declared bankruptcy. The attorney hastily placed this information in a pleading without checking to determine if this person was the same person serving as the executor.29 Ten days after filing the pleading, the attorney discovered that the information in the report referred to another person and was erroneous. She filed an amendment to the pleading correcting the mistake and the court did not rely on this erroneous pleading when ruling on the objection.30

The Akron Bar Association filed a complaint and the panel of the Board of Commissioners on Grievances and Discipline found that the attorney had violated Prof. R. Cond. 3.1, 3.3(a)(1), 3.3(a)(1)(3), and 4.1 relating to the filing of a false statement in a pleading and Prof. Cond. R. 8.4(C), (d), and (h) for dishonesty, fraud and deceit. The panel and board recommended that the attorney be suspended for 12 months with six months stayed.31 The Supreme Court disagreed and dismissed the charges involving dishonesty, fraud and deceit finding that the attorney corrected her mistake within 10 days of filing the motion. Because of this correction, her conduct “fell short of being intentional.”32 Based partly on the attorney’s full and free disclosure and her cooperative attitude, the Court reduced the sanction to a six-month suspension with the sanction stayed based on no further misconduct.33

The practice of law is not a right, and our Rules of Professional Conduct demands the highest standards of conduct from those in our profession. The Supreme Court of Ohio has made it clear that attorneys are not fit to continue to practice law if they make false and misleading statements to the courts or to disciplinary counsel to hide their professional misconduct. However, those attorneys who are honest and brave enough to admit their ethical errors and cooperate with disciplinary counsel will often be able to continue their legal careers without interruption.
 
Author bio
Philip Bogdanoff was a career assistant prosecutor for the Summit County Prosecutor’s Office for close to 30 years before retiring from that office in 2008. He argued cases in the Ninth District Court of Appeals and Ohio Supreme Court. Currently he is doing interactive CLE presentations on Ethics, Professionalism, Contempt of Court, Self Defense and other issues. He has spoken to various groups including the Ohio Judicial College, Ohio Prosecuting Attorney Association, West Virginia Prosecuting Attorney Association and Ohio Municipal Attorney Association. You can contact Bogdanoff at philipbogdanoff.com

Endnotes
1 People v. Biddle (2007), 180 P.3d 461.
2 Ethics Complaint, People v. Biddle and Steinman, No. 07PDJ 024 (April 20, 2007) at ¶21. The Court adopted the facts and rule violations detailed in the complaint. People v. Biddle (2007), 180 P.3d 461.
3 Id. at ¶22-27.
4 Id. at ¶29-33.
5 Ethics Complaint, People v. Biddle and Steinman.
6 Id.
7 Id. at ¶47.
8 People v. Biddle.
9 Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio St.3d 187, 190, 658 N.E.2d 237, 239.
10 Id.
11 Cleveland Bar Assn. v. Herzog (1999), 87 Ohio St.3d 215, 217, 718 N.E.2d 1274.
12 Disciplinary Counsel v. Robinson, 126 Ohio St.3d 371, 2010-Ohio-3829, 933 N.E.2d 1033.
13 Id. at ¶11.
14 Id. at ¶13.
15 Id. at ¶22.
16 Id. at ¶41.
17 Id. at ¶49.
18 Akron Bar Association v. Fink, 131 Ohio St.3d 34, 2011-Ohio-6342, 959 N.E.2d 1045, ¶1-5.
19 Id. at ¶11.
20 Disciplinary Counsel v. Nittsko , 130 Ohio St.3d 433, 2011-Ohio-5758, 958 N.E.2d 1223, ¶14.
21 Id. at ¶17.
22 BCGD Proc.Reg. 10(B)(1)(e).
23 Id. at ¶30.
24 Id. at ¶34 (Justice Pfeifer dissent).
25 Toledo Bar Association v. Scott, 129 Ohio St.3d 479, 2011-Ohio-4185, 953 N.E.2d 831, ¶4-5.
26 Id. at ¶7.
27 Id at ¶ 2-3.
28 Id at ¶ 19.
29 Akron Bar Assoc. v. Groner, 131 Ohio St.3d 194, 2012-Ohio-222, _N.E.2d_, ¶5-9.
30 Id. at ¶16.
31 Id. at ¶2.
32 Id. at ¶16-17.
33 Id. at ¶26.  

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