Stayed Suspension For Dishonesty

The Ohio Supreme Court has imposed a fully stayed one year suspension with conditions

Here, Davis failed to diligently and competently represent two clients, falsely notarized and then filed two affidavits, and initially failed to cooperate in the investigation of one of the two grievances. As aggravating factors, the board found that Davis acted with a dishonest or selfish motive, engaged in a pattern of misconduct, committed multiple offenses, and exhibited a lack of cooperation in the disciplinary process. See Gov.Bar R. V(13)(B)(2), (3), (4), and (5). The board found that just one mitigating factor was present—the absence of prior discipline. See Gov.Bar R. V(13)(C)(1). The board also noted that Davis eventually cooperated in the disciplinary proceedings by stipulating to all the alleged misconduct and relator’s exhibits, fully cooperating at the hearing, and joining the relator in a posthearing brief.

The court approved a recommendation for a stayed suspension.

A concurring opinion of Justice Kennedy noting that the presumptive sanction for a false statement to a client or tribunal is actual suspension under the court’s Fowerbaugh precedent

this court announced a new presumptive sanction: “When an attorney engages in a course of conduct resulting in a finding that the attorney has [engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation], the attorney will be actually suspended from the practice of law for an appropriate period of time.” Id…

In any case, Fowerbaugh provides the rule of decision in this case, and unless and until it is overruled, it holds that the presumptive sanction for misrepresentations to clients and tribunals is an actual suspension from the practice of law. The majority, however, neither cites Fowerbaugh nor uses its presumption as the starting point for determining the required sanction. But as former justice Deborah Cook cautioned, the correct analysis when this court has set a presumptive sanction for specific misconduct is to “begin[] with the presumptive sanction” and determine whether there is any reason not to impose it. Cleveland Bar Assn. v. Harris, 96 Ohio St.3d 138, 2002-Ohio-2988, 772 N.E.2d 621, ¶ 9 (Cook, J., dissenting). The emphasis, then, must be on whether there is “sufficient evidence of mitigating or extenuating circumstances” to warrant imposition of a lesser sanction than the one presumed by our caselaw. Edwards at ¶ 18.

But here

In my view, the evidence of mitigating circumstances presented is sufficient to rebut the presumption that an actual suspension from the practice of law is necessary to protect the public and deter future misconduct. I therefore concur in the majority’s judgment suspending Davis from the practice of law for one year, with the entire suspension stayed on the conditions that he make restitution, complete monitored probation, and refrain from committing further misconduct.

(Mike Frisch)