Office of Disciplinary Counsel v. Greene

Moyer, C.J. This disciplinary case presents the court with an opportunity to state a clear test that should be consistently applied in all cases where an officer of the court intentionally misrepresents a crucial fact to the court in order to effect a desired result to benefit a party. In discipline cases involving deception by an attorney, we have consistently imposed a suspension or a stayed suspension. In Disciplinary Counsel v. Jones (1993), 66 Ohio St.3d 369, 613 N.E.2d 178, we held that an assistant prosecuting attorney who failed to disclose to the court and defense counsel the location of important defense exhibits that he had previously found during a court recess deserved a six-month suspension. In Lorain Cty. Bar Assn. v. Motsch (1993), 66 Ohio St.3d 56, 607 N.E.2d 1069, we similarly held that a suspended six-month suspension was appropriate for an attorney who failed to file a suit on a client’s behalf and then deceived the clients about the status of their case. See, also, Toledo Bar Assn. v. Dzienny (1995), 72 Ohio St.3d 173, 648 N.E.2d 499. [16] In this case, an assistant prosecuting attorney knowingly lied to the court in order to intentionally mislead the acting judge into granting a dismissal of the charges. Disregarding the indisputable fact that the issuing officer’s written citation clearly indicated that the defendant “was clocked at 31 m.p.h. in a 20 m.p.h. school zone * * * lights were flashing * * * kids were crossing * * *,” respondent falsely stated in his dismissal entry to the judge that the twenty m.p.h. speed limit for the school zone was not in effect at the time of the offense. Thus, respondent not only violated his obligations as an officer of the court, but also his public responsibility as assistant prosecutor to protect the rights of all citizens: in this instance, children to be protected from vehicles moving through school crosswalks at dangerous speeds. As a government lawyer, respondent has a duty on behalf of his client to obtain a conviction of the charged offense. Instead, respondent corrupted the system and lied to the court in order to achieve a dismissal adverse to his client’s interests. Moreover, respondent did not voluntarily come forward after a chance to reflect upon his actions. Indeed, respondent’s deception would never have been uncovered if Judge Evans had not reviewed the ticket several days after the incident occurred. It is true that the vigorous and effective representation of a client is the responsibility of all attorneys. This duty, however, does not exist in isolation from the other obligations imposed upon an attorney through our Disciplinary Rules. In addition to the commitment to a client, a lawyer’s responsibilities include a devotion to the public good and to the maintenance and improvement of the administration of justice. While an attorney, as a zealous advocate, may characterize facts favorably to the attorney’s client, the attorney’s duty, as an officer of the court, is to uphold the legal process and demonstrate respect for the legal system by at all times being truthful with a court and refraining from knowingly making statements of fact or law that are not true. Respect for the law and our legal system, through both an attorney’s words and actions, should be more than a platitude. The obligations of professional responsibility may not be overshadowed by either a desire to win a case or as a favor to any person. Respondent’s actions clearly were outside the realm of zealous representation of a client and amounted to a deliberate misrepresentation to a court. We cannot permit attorneys who lie either to their clients or to the court to continue practicing law without interruption. “If we truly desire to maintain trust in our profession and in our legal system, this court cannot continue to order sanctions for lawyer misconduct that amount to little more than a slap on the wrist when that conduct involves a continuing breach of trust.” Toledo Bar Assn. v. Pommeranz (1995), 72 Ohio St.3d 274, 278, 649 N.E.2d 179, 182 (Moyer, C.J., dissenting). Therefore, we hold that when a lawyer intentionally misrepresents a crucial fact to a court in order to effect a desired result to benefit a party, the [17] lawyer will be suspended from the practice of law in Ohio for an appropriate period of time. The board’s recommendation of a public reprimand is clearly inappropriate, regardless of the mitigating factors. Likewise, the panel’s recommendation of one-month actual suspension is insufficient given respondent’s conduct and the nature of the suspension process. When an attorney is suspended from the practice of law, he or she must do more than immediately cease and desist from the practice of law. During the thirty days following the effective date of the suspension order, the suspended attorney must, among other things, surrender to the Clerk of the Supreme Court his or her certificate of admission to practice, notify all clients represented in pending matters of the suspension, deliver to all clients being represented any papers or other property pertaining to the client, notify opposing counsel or the adverse parties of the disqualification to act as attorney, and file a notice of disqualification with the court or agency before which any litigation is pending for inclusion in the respective file. See Gov.Bar R. V(8)(E). Even for an assistant prosecuting attorney, whose only client may be the county, an actual suspension of one month is not practical. If a respondent is actually suspended for only one month, the actual suspension would be no longer than the thirty days within which the respondent is required to meet the procedural requirements of suspension. This would result in nothing more than “revolving door” discipline. Accordingly, we reject the inadequate sanctions recommended by the panel and the board, and order that the respondent be suspended from the practice of law for one year, with ten months stayed on the condition that during this one-year period no disciplinary complaints against respondent are certified to the board by a probable cause panel. Judgment accordingly. Wright, F.E. Sweeney and Cook, JJ., concur. Douglas and Resnick, JJ., dissent. Pfeifer, J., dissents and would publicly reprimand respondent.