Opinion
D.D. No. 84-25
Decided December 31, 1984.
Attorneys at law — Misconduct — Indefinite suspension — Filing of false accountings — Conviction for falsification.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
The Office of Disciplinary Counsel, relator, commenced this disciplinary action against Irving Bell, respondent, charging respondent with violations of DR 1-102(A)(1), (2), (3), (4), (5) and (6), DR 2-106(A), and DR 7-102(A)(3), (4), (5), (6), (7) and (8) of the Code of Professional Responsibility. These charges arose from respondent's representation of prospective adoptive parents in several private adoptions. A hearing was held before a three-member panel of the Board of Commissioners on Grievances and Discipline ("board") on June 1, 1984.
The charges against respondent, as stated, stemmed from respondent's involvement with a series of private adoptions. As found by the board, respondent filed false accountings in the Court of Common Pleas of Summit County, Probate Division, in connection with two private adoptions. The first revealed respondent's failure to include a $1,000 payment to the natural mother of the adopted infant. The other involved respondent's failure to disclose a $500 payment to the natural mother of the adopted infant. The board found further that respondent, in the latter adoption, had advised the adoptive parents not to disclose this payment even after an investigation had begun into respondent's conduct for fear of jeopardizing the adoption. In this latter adoption, respondent also listed the attorney fees to be $1,000 when in fact the adoptive parents had paid respondent $15,000 to arrange the adoption.
The board additionally found that on two other occasions respondent had quoted fees for arranging a private adoption to prospective adoptive parents ranging from $10,000 to $15,000 with the actual attorney fees being approximately $5,000 to $7,500.
Respondent was subsequently indicted by the Summit County Grand Jury for a violation of R.C. 2913.42 which prohibits falsifying a record kept by a governmental agency and provides that such a violation is a felony of the fourth degree. The felony count was thereafter dismissed upon respondent's plea of no contest to a violation of R.C. 2921.13, falsification, a misdemeanor of the first degree. The trial court found respondent guilty and sentenced respondent to a jail term of six months and a $1,000 fine. Respondent's jail term was thereafter suspended on the condition that respondent pay the fine within two weeks from the sentencing date.
On August 23, 1983, this court ordered that respondent be indefinitely suspended under Gov. Bar R. V(8) based on respondent's conviction.
In the instant proceeding, the board found that respondent had violated: DR 1-102(A)(3) by engaging in illegal conduct involving moral turpitude; DR 1-102(A)(4) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; DR 1-102(A)(5) by engaging in conduct prejudicial to the administration of justice; DR 1-102(A)(6) by engaging in conduct that adversely reflected on his fitness to practice law; DR 2-106(A) by charging an illegal and excessive fee; DR 7-102(A)(3) by knowingly failing to disclose that which he was required to disclose by law; DR 7-102(A)(4) by knowingly making a false statement of law and fact; DR 7-102(A)(6) by participating in the creation of evidence that was false; and DR 7-102(A)(7) by counselling clients in conduct knowing that it was illegal and fraudulent. The board also found that respondent violated his oath of office by misleading the court.
Respondent suggested before the board that he either be given a public reprimand or, at the worst, a one-year suspension. Relator urged that respondent be permanently disbarred. The board recommended that respondent be permanently disbarred. Respondent filed objections to the board's report.
Mr. Angelo J. Gagliardo, disciplinary counsel, and Ms. Karen B. Hull, for relator.
Blakemore, Rosen, Meeker Varian and Mr. Donald S. Varian, Jr., for respondent.
Respondent's objections to the board's recommendations are principally that his conduct did not involve moral turpitude, that his conduct was not fraudulent, and that the charges against him were merely cumulative.
We are satisfied that respondent's conviction for falsification under R.C. 2921.13 represents illegal conduct involving moral turpitude. The gravamen of a violation of R.C. 2921.13 is that a person knowingly makes a false statement. Here, respondent knowingly made a false statement in a judicial proceeding with the obvious purpose to mislead the court. We are unpersuaded by respondent's contention that such a transgression is not one of moral turpitude. To deliberately falsify documents under any circumstance is immediately morally suspect. For an attorney to deliberately falsify documents in a judicial proceeding in an attempt to avoid disclosure of exorbitant fees and questionable payments is manifestly contrary to the professional qualities of honesty, justice, and good character. We conclude, therefore, that commission of a violation of R.C 2921.13 under the circumstances presented by the case at bar constitutes "illegal conduct involving moral turpitude."
Respondent next argues that his conduct was not fraudulent. The board found that "[r]espondent caused to be filed an account in the Summit County Probate Court which was false." Respondent does not dispute that particular finding but insists that since he made a subsequent full disclosure to the probate court, he lacked the intent to defraud. Contrary to respondent's position, the record amply supports the board's finding that, in intentionally submitting two false accountings to the probate court, respondent's conduct was fraudulent. Respondent's argument in this regard is thus without merit.
Respondent additionally suggests that a number of the charges against him are based on the same set of facts and are thus cumulative in nature. In our view, each and every violation found by the board is adequately supported by the record. As such, we uphold the board's decision that respondent's conduct constituted numerous violations of the Code of Professional Responsibility.
Nonetheless, we decline to adopt the board's recommendation that respondent be permanently disbarred. It is the view of this court that respondent's conduct was reprehensible, inexcusable, and a grave breach of his ethical responsibilities. Respondent as much as admits that his actions represent an attempt to prey upon and profit from the eagerness of a couple to adopt a child. In mitigation, respondent has submitted documentation from professional colleagues, and personal references as well, attesting to respondent's good character, trustworthiness, and willingness to devote time and resources to worthy causes. The record does not indicate respondent is as altruistic as his references would attest, thus, an indefinite suspension is warranted.
Accordingly, the findings of the board are adopted and respondent is hereby indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and J. P. CELEBREZZE, JJ., concur.
HOLMES, J., dissents.
I dissent from the judgment of the majority in this disciplinary matter in that it is my honest conviction that the violations of the Code of Professional Responsibility perpetrated by the respondent are of a grave nature involving moral turpitude. They not only involved the falsification of public reporting to the judiciary, but involved both fraud upon that judicial system and the public being served by such system. Even more grievous, in my opinion, is this respondent's most deplorable utilization of his cloak of professionalism to ply his trade upon these couples eagerly anticipating the adoption of children, and charging exorbitant commercial-type fees to accomplish their honest parental desires.
I would strongly recommend permanent disbarment.