Summary
In Disciplinary Counsel v. Heffernan (1991), 58 Ohio St.3d 260, 569 N.E.2d 1027, we imposed a six-month suspension for a violation of DR 1-102(A)(5) and (A)(6).
Summary of this case from Disciplinary Counsel v. CirincioneOpinion
No. 90-2090
Submitted November 28, 1990 —
Decided April 3, 1991.
Attorneys at law — Misconduct — Six-month suspension — Conviction for indirect contempt of court — Duty to reveal fraud upon the court — DR 7-102(B)(1).
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-14.
Respondent, Edward A. Heffernan, was retained to represent Joseph Fresenda in a traffic case on a charge of having driven left of center. Respondent appeared in Shaker Heights Municipal Court on February 4, 1985 and pled no contest to the charge on behalf of Fresenda. Fresenda was found guilty and fined $50.
On April 14, 1987, Joseph Fresenda made a motion to withdraw the no contest plea and vacate the finding of guilt based on the fact that it was actually his brother Phillip Fresenda who was cited and found guilty of the traffic offense and that Phillip had held himself out to be Joseph to the citing officer and the municipal court. At a hearing on the motion, Joseph Fresenda informed the court that respondent had encouraged Phillip Fresenda to assume his brother Joseph's identity. Subsequently, respondent was charged with and convicted of indirect contempt of court. On appeal, respondent's conviction was affirmed. See Shaker Hts. v. Heffernan (1989), 48 Ohio App.3d 307, 549 N.E.2d 1231.
On April 21, 1989, relator, Disciplinary Counsel, filed a complaint against respondent alleging seven violations of the Code of Professional Responsibility, including violations of DR 1-102 (A)(5) (conduct prejudicial to the administration of justice), 1-102(A)(6) (conduct adversely reflecting on one's fitness to practice law), and 7-102(B)(1) (duty to reveal a client's fraud perpetrated on a tribunal in the course of representation). Respondent denied any violations of the Disciplinary Rules in his answer. Subsequently, respondent and relator stipulated certain facts. A hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on May 18, 1990. Respondent testified that he was unaware of the identity problem with his client until a few months after the court hearing, but admitted not informing the court of his discovery at that time.
The panel attempted to determine the credibility of the respondent and the Fresenda brothers by reviewing the evidence before it, and found the following facts: (1) Phillip Fresenda lied about his identity initially, by presenting his brother Joseph's driver's license and Social Security number to the citing officer; (2) Phillip had previously held himself out to be his brother; (3) Joseph had appeared in a criminal case in which Phillip was a defendant and had testified that he committed the acts of which Phillip was accused; and (4) both brothers have criminal records. Based on this evidence, the panel concluded that respondent did not knowingly deceive the Shaker Heights Municipal Court. The panel also concluded that once respondent discovered the identity deception he confronted the brothers, but did not notify the court of the fraud. The panel acknowledged respondent's admission to violations of DR 1-102(A)(5) and 1-102(A)(6) regarding this conduct, and recommended that respondent be publicly reprimanded. The sanction of public reprimand was based on the favorable character evidence introduced by respondent's professional peers and the personal repercussions respondent had already experienced as a result of the court conviction and disciplinary action.
The board adopted the findings of fact and recommendation of the panel and further recommended that costs of the disciplinary proceeding be taxed to the respondent.
J. Warren Bettis, disciplinary counsel, and Charles T. Brown, for relator.
Charles W. Kettlewell, for respondent.
We accept the findings of the board that respondent did not know of the fraud perpetrated on the court at the time of the trial in the Shaker Heights Municipal Court. However, once respondent learned of the fraud and confronted the Fresenda brothers, he had a duty to reveal the fraud to the court. See DR 7-102(B)(1). We consider respondent's inaction in this matter a serious breach of duty for which a public reprimand is not an adequate sanction.
Accordingly, we hereby suspend respondent from the practice of law in Ohio for six months. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT and RESNICK, JJ., concur.
DOUGLAS and H. BROWN, JJ., dissent.
I concur in the recommendation of the Board of Commissioners on Grievances and Discipline of the Supreme Court, and I would issue a public reprimand of respondent.
H. BROWN, J., concurs in the foregoing dissenting opinion.