Gaining Advantage Charge At Issue
An oral argument today before the Ohio Supreme Court
Cleveland Metropolitan Bar Association v. Douglas P. Whipple, Case No. 2021-0229
Cuyahoga County
A Cleveland-area attorney is facing a one-year suspension with six months stayed for his actions while representing a retired lawyer and his wife in a contentious estate-planning dispute.
Douglas Whipple filed a civil lawsuit for the couple against the lawyer’s son and a former colleague. The Board of Professional Conduct determined that Whipple improperly made criminal and professional misconduct allegations against the defendants’ attorney to try to gain an advantage in the case.
Whipple objects to the board’s conclusions and suggested sanction. He maintains he was acting out of sincere concern when he asked the judge in a publicly filed motion to refer his opposing counsel to the Ohio Lawyers Assistance Program (OLAP).
When a party objects to a professional conduct board disciplinary report, the Ohio Supreme Court must hear oral argument in the case.
Retired Lawyer Sets Up Estate-Planning Documents
Glenn Seeley founded a law firm in 1979 that is now known as Seeley, Savidge, Ebert & Gourash. Whipple worked until 2011 as an attorney at the firm.
In 2010, Seeley named his wife, Kristina, in his power-of-attorney documents and as a co-trustee to a trust. While living in a nursing home in 2016, Seeley changed these documents, naming his son Gregory as his power of attorney and replacing his wife as the trust’s co-trustee. Kristina Seeley hired Whipple to represent her to contest these changes. Whipple also submitted a disciplinary grievance in November 2016 against Gregory and Seeley’s grandson – who are both attorneys – as well as against Gary Ebert, a partner at the Seeley firm. The disciplinary investigation subsequently was closed.
In January 2017, Whipple pursued a civil case for Glenn and Kristina Seeley against the son and Ebert regarding the 2016 amendments. Roger Synenberg represented the defendants. The parties agreed in December 2018 to a settlement, which the Cuyahoga County Common Pleas Court judge approved. The judge directed the parties to complete the remaining obligations under the settlement, including filing an entry to dismiss the case. The judge’s term ended, and Judge Emily Hagan took over the case in January 2019.
Concerns Raised About Wife’s Competency
A few months later, Synenberg began questioning whether Seeley’s wife was competent to sign the agreement. Synenberg told Judge Hagan that he wasn’t asking for an independent medical evaluation, but only a medical professional’s statement regarding her competency to serve as Seeley’s power of attorney and the co-trustee. Whipple supplied a January 2019 Alzheimer’s assessment and a May 2019 letter from a certified nurse practitioner. Synenberg objected to both, and the judge scheduled a June hearing.
On the Friday before the hearing, Whipple filed a motion with the court to refer Synenberg to OLAP. Whipple argued the attacks on Seeley’s wife were unfounded and designed to delay the dismissal of the case. He suggested that Synenberg’s conduct indicated he was unfit to practice law.
Whipple stated at the court hearing that if the defendants’ attorneys would sign the dismissal of the case without challenging Kristina Seeley’s competency, there would be no need to address his motion requesting that Synenberg be referred to OLAP.
Board Describes Professional Conduct Violations
The board’s report found that Whipple violated rules governing the conduct of Ohio attorneys. In violation of one rule, Whipple alleged in his motion that Synenberg retaliated against a witness in an earlier case and committed professional misconduct in this case – statements designed “solely to obtain an advantage in a civil matter,” the board stated.
“[Whipple] described Synenberg’s conduct as ‘not conduct that one would expect from a lawyer thinking and acting rationally,’ ‘irrational [and] suffering from performance issues,’ ‘impulsive, irrational conduct that might reasonably justify further investigation,’ and ‘out of control to some degree, and perhaps as a result of a mental, emotional, or other condition,’” according to the report.
Whipple also violated rules against filing frivolous motions and against conduct prejudicial to the administration of justice, the board concluded.
In determining the recommended suspension of one year with six months stayed, the board considered aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction. The board determined that Whipple’s pattern of misconduct (citing the November 2016 grievance), refusal to admit his conduct was wrong, and harm to Synenberg were aggravating circumstances. Mitigating factors were Whipple’s lack of a disciplinary record, cooperation in the disciplinary process, and character references.
Attorney Maintains He Violated No Professional Conduct Rules
Whipple responds that he spent two years advocating for the Seeleys to protect them from being exploited. He maintains that he filed the motion recommending the OLAP referral because he was concerned that Synenberg might retaliate against him and Seeley’s wife, as happened in the earlier case. Nor did the motion “threaten” criminal charges of witness retaliation because the earlier case was widely known – covered by the news media and discussed around the courthouse, he contends.
He points to a judicial conduct rule requiring judges to take appropriate action if they believe an attorney is impaired in some way. He argues he had an obligation to inform the Judge Hagan about Synenberg’s conduct so she could decide what to do. Whipple states that he wanted Judge Hagan to understand why Synenberg needed help.
Whipple acknowledges that it was a poor decision to file such a confidential matter on the court docket. But the motion had nothing to do with preventing an inquiry into Kristina Seeley’s mental competency or intimidating Synenberg into signing the case dismissal, he maintains. He notes that he contacted OLAP himself after he was unable to persuade Judge Hagan to make the referral – further demonstrating his concern had nothing to do with the Seeley lawsuit.
The evidence shows that an actual suspension isn’t necessary to protect the public, Whipple argues. He suggests that, if any sanction is warranted, a public reprimand or a fully stayed suspension would be appropriate.
Bar Association Highlights Ties Between OLAP Motion and Attempt to Close Civil Case
The Cleveland Metropolitan Bar Association, which investigated the matter, counters that Whipple filed the motion to refer Synenberg when he realized the defendants and Synenberg weren’t going to drop the issue of Kristina Seeley’s mental capacity. Whipple’s motion clearly connects his accusations against Synenberg to the dismissal of the Seeleys’ civil case. The bar association points to Whipple’s statements at the June 2019 court hearing:
“If the attorneys are not going to unconditionally sign the [dismissal], then I would like to speak on the motion that I filed Friday,” Whipple said. “So to me it’s really a question, Do we dismiss the case or do we proceed with my motion? … If we dismiss the case, then we don’t need a ruling on my motion. If we don’t dismiss the case, then I would like to address the merits of my motion.”
The if-then statements demonstrate that obtaining dismissal of the Seeley case was the true motive for filing the OLAP motion regarding Synenberg, the bar association argues.
The bar association also notes that the judicial conduct rule Whipple mentions in no way conveys that lawyers must file a motion on a court’s public docket to alert the judge to a lawyer in distress. Any concerns Whipple had about his opposing counsel could have been raised in several other ways while ensuring confidentiality, the bar association states. It quotes the board report, which stated, “[Whipple] chose to raise the allegations on the record, in open court and, as the transcripts of the court hearing revealed, ultimately used the motion as leverage in an attempt to have the underlying matter dismissed.”
– Kathleen Maloney