Ohio Hears Bar Matter

A summary of a bar discipline matter scheduled to be heard tomorrow by the Ohio Supreme Court

Attorney Gregg Rossi of Youngstown faces discipline for professional misconduct involving a nondisclosure agreement (NDA) he drafted for a friend accused of assault. The Board of Professional Conduct found that Rossi made a false statement to a court about the NDA and engaged in conduct prejudicial to the administration of justice. The board recommends to the Supreme Court of Ohio that Rossi be suspended from practicing law for six months with conditions for reinstatement.

Rossi objects to the board’s suggested sanction, arguing for a public reprimand or a stayed suspension. Rossi’s objections require the Supreme Court to hear the disciplinary case during oral arguments.

Friend Charged With Assault
In December 2021, John Yerkey was charged in Mahoning County Court No. 5 with the assault of Theresa Dean. Yerkey and Dean were in a romantic relationship. Rossi represented Yerkey in the case.

Rossi and Yerkey had known each other professionally and personally for many years. Yerkey, a chiropractor, referred clients to Rossi and used Rossi as his attorney for several matters. Yerkey also rented a house from Rossi.

As a condition of bond in the assault case, the court ordered Yerkey to have no contact with Dean. A few days later, on Christmas Eve, Dean texted a Christmas message to Yerkey and said she was willing to talk. Rossi reminded Yerkey on several occasions of the no-contact order.

In February 2022, Yerkey texted Rossi saying the court was asking Dean for text messages about their relationship. Yerkey also said Dean might be interested in an agreement to prohibit both of them from sharing photos, data, and communications regarding their relationship.

Attorney Drafts Non-Disclosure Agreement
At Yerkey’s request, Rossi drafted an NDA for the time period from May 2021 to February 2022. The agreement included a requirement that Dean ask the prosecutor to dismiss the charges. The NDA stated that breaches of the agreement would incur a $1,000 penalty. Dean later testified that Yerkey had suggested the NDA and she thought it would protect both of them. She said Yerkey had implied he would share private information with her employer, which could harm her professionally.

She also noted that Rossi never discussed the NDA with her, and he didn’t tell her she could enlist the advice of an attorney. She signed the NDA at Rossi’s office after hours. Afterward, Dean informed the prosecutor’s office that she could no longer talk about the case. The prosecutor filed a motion to obtain the NDA. In the response, Rossi wrote, “The terms and conditions of this Agreement were negotiated between Teresa Dean and undersigned counsel and entered into, providing mutual release and non-disclosure agreement with respect to the alleged incident.”

Dean eventually hired an attorney and resumed cooperation with the state. Yerkey was found guilty of assault and sentenced. 

Board Finds Attorney Violated Two Ethics Rules
The professional conduct board found that Rossi made a false statement to the court regarding the NDA. Rossi’s statement indicated that he negotiated the agreement when he didn’t, the board determined. Instead, information was obtained from Yerkey, who by communicating with Dean was violating the no-contact order and potentially violating victim’s rights laws, the board report stated. The board also noted that texts from Rossi to Yerkey said the attorney couldn’t recommend violating the order, but mentioned Yerkey could benefit in the long run if he were on good terms with Dean. The assistant prosecutor said that had he known of a violation, he would’ve asked the court to revoke Yerkey’s bond. The judge stated that she would have scheduled a hearing on the issue if such allegations were made.

The board determined that Rossi’s conduct was prejudicial to the administration of justice. Among the reasons, the NDA was drafted in part to influence the case against Yerkey, the attorney failed to explain the NDA to Dean, and the attorney didn’t suggest she find legal counsel before signing. The conduct also led to additional motions, hearings, and delays in the case, the board report concluded.

Among the aggravating circumstances weighing against Rossi, the report noted the multiple ethics violations, a dishonest or selfish motive, and Rossi’s refusal to acknowledge the misconduct. Rossi’s lack of a prior disciplinary record, his cooperative attitude during the disciplinary proceedings, and evidence of the attorney’s good character and reputation were found to be mitigating factors.

Attorney Disputes That NDA Restricted Victim
Rossi maintains that the NDA was designed to protect the professional reputations of both Yerkey and Dean. The attorney contends that the NDA didn’t require Dean to refuse to cooperate with the prosecutors, only that she request dismissal. In addition, Rossi argues, the statement had no effect on the outcome of the criminal case, given that Yerkey was found guilty.

Rossi also states that the Court has tempered the presumed actual suspension for an attorney’s dishonest conduct in certain circumstances that apply in his case. He argues there was no course of misconduct. Instead, there was one misstatement in a court filing, he maintains. In addition, he points to the mitigating evidence. He explains that he has served as an attorney for 34 years with no prior discipline and he has an excellent reputation in the community.

He contends that he is an experienced attorney who made a mistake. He argues for a public reprimand, citing other disciplinary cases where that sanction was imposed. However, if the Court determines a suspension is appropriate, a stayed suspension would be adequate to protect the public, he contends.

Disciplinary Counsel Questions Attorney’s Claims Regarding NDA
The Office of Disciplinary Counsel, which filed the complaint against Rossi, responds that just his conduct regarding the NDA was enough to warrant an actual suspension. The NDA was designed to silence a victim in a criminal case, the disciplinary counsel argues. The office notes that attorneys can use NDAs, but contracts that interfere with the reporting of crimes are void on public policy grounds. If the NDA truly weren’t meant to thwart the prosecution, Rossi could have informed his client or Dean of that fact, or drafted an NDA with that specific exclusion, or told the trial court or prosecutor that Dean could participate in the prosecution, but Rossi took none of these steps, the disciplinary counsel maintains.

The disciplinary counsel argues that Rossi has shown no awareness of the harm he caused or any regret for his conduct. He also testified he did nothing wrong in securing the NDA. He has minimized his behavior by suggesting it was inconsequential because Yerkey was eventually found guilty in court, the disciplinary counsel asserts.

If Rossi had only lied about negotiating the NDA with Dean, his mitigating factors weighed against the ethics violation would be enough to support a fully stayed suspension, the disciplinary counsel states. However, Rossi interfered with the administration of justice by drafting an NDA designed to silence the victim and by encouraging Yerkey to violate the no-contact order, the disciplinary counsel argues.

– Kathleen Maloney

(Mike Frisch)