Summary
In State v. Rance, 701 N.E.2d 699 (Ohio 1999), the Ohio Supreme Court considered the precise issue Petitioner raises, which is "whether cumulative punishments imposed within a single trial for more than one offense resulting from the same criminal conduct violate the federal and state constitutional protections against double jeopardy."
Summary of this case from McKitrick v. JeffriesOpinion
No. 96-2183
Submitted August 19, 1998.
Decided November 25, 1998.
APPEAL from the Court of Appeals for Franklin County, No. 95APD10-1327.
Calfee, Halter Griswold and William L.S. Ross, for appellant.
Betty D. Montgomery, Attorney General, and Dennis L. Hufstader, Assistant Attorney General, for appellee.
Frederick O. Kiel, Gates T. Richards and Edwin W. Patterson III, General Counsel, for relator.
John H. Burlew, for respondents.
The judgment of the court of appeals is affirmed consistent with the opinion of the court of appeals.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur. court on the papers signed by Erdman. One of those documents was an affidavit that Erdman's husband had physically threatened her, a statement that Erdman said she had never made to Bradley. Bradley claimed the affidavit was dietated in Erdman's presence. After this, Erdman discharged Bradley, and he returned the unearned portion of Erdman's fee.
As soon as the investigation of Bradley began, the respondents terminated the practice of taking signatures on blank paper and cooperated with the relator. Sylvan disclosed the two similar affidavits that he had prepared.
The panel concluded that respondents violated DR 1-102 (A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). In view of the respondents' cooperation in the investigation, their good reputation as lawyers, and the fact that their improper notarizations occurred in only a few cases over a long period of time, and all involved emergency situations, the panel recommended that respondents receive a public reprimand. The board adopted the findings, conclusion, and recommendation of the panel.
We adopt the findings and conclusion of the board. In determining a sanction to be imposed, we consider the duty violated, the lawyer's mental state, the injury caused, and the existence of mitigating circumstances. Warren Cty. Bar Assn. v. Bunce (1998), 81 Ohio St.3d 112, 115, 689 N.E.2d 566, 568, and cases cited therein.
We have previously said that "lawyers must not take a cavalier attitude toward their notary responsibilities." Lorain Cty. Bar Assn. v. Papcke (1998), 81 Ohio St.3d 91, 93, 689 N.E.2d 549, 551. Respondents did notarize signatures that were inscribed in their presence, Sylvan did produce accurate renditions of the statements made by the clients over these signatures, and although Bradley failed to accurately reproduce Erdman's statements, Erdman did not suffer any damage. Nonetheless, respondents' actions violated the duties imposed upon notaries by R.C. Chapter 147.
In Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio St.3d 187, 190, 658 N.E.2d 237, 240, and in later opinions, we said that "[w]hen an attorney engages in a course of conduct resulting in a finding that the attorney has violated DR 1-102 (A)(4), the attorney will be actually suspended from the practice of law for an appropriate period of time." See Disciplinary Counsel v. Simecek (1998), 83 Ohio St.3d 320, 699 N.E.2d 933. Respondents, however, took these improper actions in only a few isolated cases that they believed presented emergency situations, and their actions caused no damage to any client. Respondents' actions were but a few isolated incidents in otherwise unblemished legal careers, not a course of conduct. Additionally, respondents cooperated with relator in its investigation.
We therefore adopt the recommendation of the board with respect to respondent Sylvan Reisenfeld. Sylvan Reisenfeld is hereby publicly reprimanded. But in light of the fact that Bradley Reisenfeld inaccurately added a statement — one that Erdman allegedly never made — to Erdman's affidavit, Bradley's conduct warrants a harsher sanction. Bradley Reisenfeld is hereby suspended from the practice of law for six months, with the entire six months suspended. Costs are taxed to respondents.
Judgment accordingly.
MOYER, C.J., RESNICK F.E. SWEENEY PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., concurs in part and dissents in part.
I concur with the majority with regard to the sanction imposed on respondent Sylvan P. Reisenfeld. I dissent as to the sanction imposed on Bradley A. Reisenfeld. I would impose a public reprimand.