Summary
In Disciplinary Counsel v. Levin (1988), 35 Ohio St.3d 4, 517 N.E.2d 892, an attorney became verbally abusive during a deposition.
Summary of this case from Cincinnati Bar Association v. StatzerOpinion
D.D. Nos. 86-22 and 87-3
Decided January 6, 1988.
Attorneys at law — Misconduct — Public reprimand — Behaving in an unprofessional fashion during a deposition — Indefinite suspension — Gaining title to a client's home through false pretenses.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
D.D. No. 86-22On June 3, 1983, relator, Disciplinary Counsel, filed a complaint against respondent, Jack M. Levin, alleging four counts of misconduct. This complaint was amended on July 24, 1984 by adding seven more allegations of disciplinary violations. Respondent answered the amended complaint on August 29, 1984.
Hearings were held before a panel of the Board of Commissioners on Grievances and Discipline on January 18, June 28, and October 24, 1985. Relator dismissed Counts I, X, and XI during the proceedings of June 28. Count IX was also dismissed on October 24. Counts IV, V, VI, VII and VIII were dismissed by the board. The allegations in the remaining counts involve respondent's actions during the course of and in response to a malpractice suit filed against him by attorney Richard Neller on behalf of Salvador Pena, Melquiades Pena, and Adrian Pena.
Counts II and III of the complaint as amended specified that respondent was the defendant in a matter styled Salvador Pena et al. v. Jack M. Levin, Sandusky C.P. No. 80-CV-942. The suit resulted from the representation respondent had provided Salvador and Melquiades Pena as defendants in a murder prosecution. On April 15, 1982, a deposition was held in the Sandusky County Courthouse wherein respondent, the party-deponent, represented himself with the assistance of his son and associate, Dennis Levin. As this proceeding progressed, respondent's language and demeanor became increasingly abusive. Respondent repeatedly threatened, among other things, to take his questioner's mustache off his face, to give Neller the beating of his life, to slap him across his face, and to break his head. Respondent also accused Neller of behaving in an undignified and obscene fashion. Respondent addressed Neller in a variety of expletives and otherwise unprofessional terms, including, but not limited to: "lying son-of-bitch," "asshole," "child and a punk," "fat slob," "fucker" and "cocksucker." The proceeding eventually deteriorated to the point that a local common pleas court judge threatened to eject the parties from the courthouse.
Disciplinary Counsel charged that the foregoing conduct violated DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), DR 1-102(A)(5) (engaging in conduct that adversely reflects on one's fitness to practice law), DR 7-106(C)(1) (stating a matter before a tribunal that one has no reasonable basis to believe is relevant or that will not be supported by admissible evidence), DR 7-106(C)(2) (asking any question before a tribunal that one has no reasonable basis to believe is relevant and that is intended to degrade a witness or other person), DR 7-106(C)(4) (asserting a personal opinion before a tribunal as to the justness of a cause), DR 7-106(C)(5) (failing to comply with known local customs of courtesy or practice while appearing before a tribunal), and DR 7-106(C)(6) (engaging in undignified or discourteous conduct while appearing before a tribunal).
The board's reaction to the evidence pertaining to Counts II and III was unanimous indignation. The board found respondent's behavior during the Neller deposition to be unprofessional. While the board acknowledged that respondent's adversary may have contributed to this already volatile situation, the board nevertheless determined respondent to have violated DR 1-102(A)(5), 1-102(A)(6), 7-106(C)(2), 7-106(C)(5), 7-106(C)(6) and 7-106(C)(7). Having so found, the board recommended that respondent be given a public reprimand and that the cost of the proceeding be taxed to him.
D.D. No. 87-3Relator filed a second complaint against respondent on August 13, 1985, specifying another three counts of misconduct. This matter was heard by a panel of three board commissioners on June 20 and November 14, 1986. All the specifications involve respondent's representation of Lawrence Bennice.
Count I of this complaint accuses respondent of having fraudulently induced Bennice to execute a quit-claim deed to Bennice's residence in Port Clinton, Ohio. Bennice had engaged respondent during the latter part of 1980 to represent him in a divorce action. Incident to the divorce action, Bennice agreed to pay respondent $5,000 by signing a note which identified neither the due date nor the payee. Bennice later agreed to pay respondent $10,000 for representing him in connection with a felony charge arising from an alleged assault upon Bennice's wife.
Bennice apparently paid respondent $4,000 toward the cost of his legal fees. After a July 10, 1981 hearing in the divorce action, respondent and Dennis Levin took Bennice with them to obtain a legal description of the property Bennice owned. They then drove Bennice to his home which was locked and vacant. (Bennice's wife had moved out, but had secured an order restraining Bennice from entering the residence.) Upon their arrival, respondent gave Bennice a clipboard with some papers on it and told Bennice to sign them so that he would be able to get back in his house. Bennice did so after he was encouraged to "trust" respondent. On August 4, 1981, respondent met again with Bennice and directed him to draft a document which reads:
"I here by [ sic] give Jack Levin a security interest for my fees and expenses in my divorce cases and felony case."
The felony trial commenced on November 15, 1981. At the disciplinary hearing, respondent explained that after the first day of the felony trial, Bennice had announced that respondent would never see him again if he were found guilty. The criminal action was dismissed. Nevertheless, on November 17, 1981, respondent caused a quit-claim deed transferring title of Bennice's residence to himself to be filed as an exempt transaction. The deed was purportedly notarized on August 4, 1981 by Dennis Levin with Bennice's signature being witnessed by Dennis and respondent's secretary, who was also his daughter. (Respondent admitted that his daughter was not present when this deed was executed, but contends Bennice's signature was acknowledged during a subsequent telephone conversation. Respondent's daughter did not testify before the panel.)
Pursuant to Count I of the second complaint, Disciplinary Counsel charged that respondent had violated DR 1-102(A)(3) (illegal conduct involving moral turpitude), DR 1-102(A) (4), 1-102(A)(5), and 1-102(A)(6).
In addition to incorporating the averments of Count I, Count II alleged that the market value of Bennice's interest in his residence substantially exceeded that owed respondent as of the date the deed was filed. (The most conservative evaluation of Bennice's home was $85,000. A mortgage of $34,000 to $38,000 was outstanding in 1981 and Bennice's equity was subject to his wife's half interest.) It was further submitted that the deed did not contain any conditions under which the property could be returned to Bennice, although the exemption statement, supplied contemporaneously, reflected the transaction was to provide security. Count II also specified that respondent had not explained the terms of this transaction to Bennice and that, consequently, the transfer was without Bennice's consent or knowledge. Disciplinary Counsel charged that these actions violated DR 7-101(A)(3), 5-104(A) (entering into business transaction with client without full disclosure), and DR 2-106(A) (charging a clearly excessive fee).
Finally, Count III charged that after gaining title to Bennice's home through false pretenses, respondent refused to reconvey the property and Bennice was forced to sue respondent over the transaction. A jury verdict rendered in Bennice's favor was later, on appeal, reversed and remanded for a new trial. The $11,000 award to respondent on his counterclaim for fees, however, remained intact. Disciplinary Counsel charged that this conduct violated DR 7-101(A)(3).
Upon review of the second complaint, it was the opinion of the board that respondent's actions were tantamount to deceit and fraud and thereby adversely reflected on his fitness to practice law. Thus, of the infractions specified, the board determined that respondent had violated DR 1-102 (A)(4) and 1-102(A)(6), as well as DR 7-101(A)(3). Due to the severity of respondent's offense, the board recommended that respondent be indefinitely suspended from the practice of law.
This court granted relator's motion to consolidate the matters raised in these two complaints on February 27, 1987, such that all are now before us.
J. Warren Bettis, disciplinary counsel, and Mark H. Aultman, for relator.
Jack M. Levin, pro se, and Dennis P. Levin, for respondent.
This court finds that respondent committed the disciplinary violations identified by the board. Accordingly, this court adopts the board's recommendations. Respondent is hereby publicly reprimanded for the misconduct found by the board in D.D. No. 86-22. It is further ordered that respondent be indefinitely suspended from the practice of law in the state of Ohio for the misconduct found by the board in D.D. No. 87-3. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and H. BROWN, JJ., concur.
WRIGHT, J., concurs in judgment only.