                    CINCINNATI BAR ASSOCIATION v. NIENABER.

      [Cite as Cincinnati Bar Assn. v. Nienaber (1997), 80 Ohio St.3d 534.]

Attorneys at law — Misconduct — Indefinite suspension — Making affirmative

      representations to courts which were untrue and by silence allowing

      courts to make unwarranted inferences — Suspended for six months

      previously.

     (No. 97-874 — Submitted July 7, 1997 — Decided December 31,1997.)

    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

                    Discipline of the Supreme Court, No. 96-49.

      On June 17, 1996, relator, Cincinnati Bar Association, filed a complaint

charging that respondent, Joseph W. Nienaber of Cincinnati, Ohio, Attorney

Registration No. 0032085, in representing a criminal defendant in the Hamilton

County Municipal Court, violated DR 7-102(A)(5) (knowingly making a false

statement of law or fact in the representation of a client), (7) (counseling or

assisting a client in conduct that the lawyer knows to be illegal or fraudulent), and

1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation) and (5) (engaging in conduct that is prejudicial to the

administration of justice). Respondent filed an answer, and a panel of the Board

of Commissioners on Grievances and Discipline of the Supreme Court (“board”)

heard the matter on December 12, 1996.

      In January 1995 and again in September 1995, Carolyn S. Joyce was cited

for driving under the influence. In both cases respondent represented Joyce in the

Hamilton County Municipal Court. Because a witness failed to appear, the case

on the January citation was dismissed and was later refiled.          According to

respondent, the trial on the refiled case began on November 8, 1995 before Judge

Timothy S. Black and was continued for appearance of a witness.
      Both the case on the September citation and the continued case on the

January citation were then heard on the same day, December 20, 1995, before two

different judges in the Hamilton County Municipal Court. A hearing before Judge

Dennis S. Helmick began on the September offense, and Joyce entered a plea of no

contest. Prior to sentencing, respondent said to Judge Helmick, “It’s obvious my

client has a drinking problem and she recognizes that. She hasn’t had any trouble

since ’88.” When Judge Helmick, referring to the January 1995 citation, asked,

“Why was the ’95 DUI charge dismissed?” respondent replied, “WP [want of

prosecution], I believe, Judge * * *. The officer didn’t show up and the civilian

witness didn’t show up, Judge.” Respondent did not disclose to the court that the

case based on the January 1995 citation, previously dismissed, had been refiled,

and that trial on the January offense had already begun. Judge Helmick sentenced

Joyce on the September 1995 citation as a first offender to the minimum

mandatory sentence, three days in jail and participation in the driver intervention

program in Cincinnati.

      The respondent and Joyce then proceeded to Judge Black’s courtroom for

the continued trial on the January citation. After a prosecution witness testified,

Joyce entered a plea of no contest. When Judge Black asked, “This is charged as a

first offense?” respondent replied, “Yes, it is a first offense. She’s had three DUIs

back in 1980. She got this one in January of ’95, and then it was dismissed for

want of prosecution, and then it was refiled.” The court then asked, “First in

five[?]” inquiring whether the case before him was Joyce’s first DUI charge within

the last five years. Respondent replied, “First within five.” Respondent did not

tell the court that Joyce had been convicted earlier that morning for the September

offense.   Judge Black found Joyce guilty on the January 1995 offense and




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sentenced her to the minimum sentence for a first offender, three days in jail and

probation in the driver intervention program.

      At a subsequent hearing on January 3, 1996, Judge Helmick, after having

been contacted by the probation department about the anomaly of two first

offender sentences, resentenced Joyce on the charge before him as a second

offender.

      On the basis of these facts the panel concluded that respondent knowingly

made false statements to each judge in violation of DR 7-102(A)(5), and that with

respect to all of his conduct on December 20, 1995, respondent violated DR 1-

102(A)(4) and (5). The panel did not find a violation of DR 7-102(A)(7). After

accepting the panel’s findings and conclusions, the board recommended that

respondent be suspended from the practice of law for two years.

                               __________________

      Thomas M. Tepe, Carolyn A. Taggart and Gates T. Richards, for relator.

      John H. Burlew, for respondent.

                               __________________

      Per Curiam. In Disciplinary Counsel v. Greene (1995), 74 Ohio St. 3d 13,

16, 655 N.E.2d 1299, 1301, we said, “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.           * * * [T]he

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.”



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      Here, in each case, respondent not only made affirmative representations to

the courts which were untrue, but by his silence he allowed each court to make

unwarranted inferences.      In the case before Judge Helmick, knowing that a

continued case on a previously charged DUI would commence within a few

minutes, respondent affirmatively stated that his client had not been in trouble

since 1988. Also before Judge Helmick, respondent, by his silence, led the court

to believe that the January DUI case had been dismissed and not refiled, when, in

fact, trial was soon to continue on that January offense before Judge Black. In the

case before Judge Black, respondent was asked, “First in five[?]” meaning “Is this

the first charge with no convictions during the previous five years?” Knowing

that Joyce had been convicted on a DUI charge only minutes earlier, respondent

replied, “First within five,” thus affirmatively misleading the court. Also, when

asked whether “This is charged as a first offense?” respondent told the court,

“Yes, this is a first offense.”     By his silence about the events that had just

occurred, respondent misled the court.

      Respondent contends that he did not misrepresent the facts to either Judge

Helmick or Judge Black.        He claims that in Judge Helmick’s courtroom he

correctly answered that Joyce had not had a DUI conviction in the past five years.

Because he was not specifically asked the question, respondent did not believe

that he was required to tell the judge that the January citation had been refiled and

that a trial on that charge was actually in progress. Respondent claims that in

Judge Black’s courtroom, he was not asked about convictions within the preceding

five years; rather, the judge asked whether the case was “charged as a first

offense,” and respondent replied in the affirmative, because it was, in fact,

“charged” as a first offense. Moreover, having occurred before the September

offense, the January offense was, in fact, the first offense in five years.



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      Respondent also claims to have relied on advice he received at an American

Bar Association seminar on criminal law that there is no duty for an advocate to

disclose his client’s record unless specifically asked. Respondent directs our

attention to a discussion in ABA/BNA Lawyer’s Manual on Professional Conduct

901:102 et seq., wherein various provisions of ABA Comm. on Professional

Ethics and Grievances (1953), Formal Op. 287, are discussed. Most pertinent is

the lawyer’s duty prior to sentencing when the “judge asks the defendant’s lawyer

whether his client has a criminal record.” The ABA’s discussion states that

“Formal Opinion 287 concluded that * * * the lawyer is [not] permitted to disclose

to the court the information he has concerning the client’s actual criminal record.”

      We reject both defenses raised by respondent.          First, DR 7-102(A)(5)

specifically prohibits a lawyer from making a false statement of law or fact. In

Judge Helmick’s court respondent made affirmatively false statements. Moreover,

by his silence, respondent led both judges to a false appreciation of the situation.

      Second, Formal Op. 287, relied upon by respondent, applies only to

confidential information obtained from the client. As to the language in the

Lawyer’s Manual on Professional Conduct cited by respondent, the opinion states,

“If the fact of the client’s criminal record was learned by the lawyer without

communication, confidential or otherwise, from his client, or on his behalf, Canon

37 would not be applicable.” (Emphasis added.) Formal Op. 287 concludes, “The

indignation of the court * * * on learning that the lawyer had deliberately

permitted him, where no privileged communication is involved, to rely on what

the lawyer knew to be a misapprehension of the true facts, would be something

that the lawyer could not appease on the basis of loyalty to the client. No client

may demand or expect of his lawyer, in the furtherance of his cause, disloyalty to

the law whose minister he is (Canon 32), or ‘any manner of fraud or chicane’



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(Canon 15.)” In this instance respondent’s knowledge of the pending cases did

not depend upon confidential communications from his client, and Formal Op. 287

does not apply.

      We require complete candor with courts. We agree with the Supreme Court

of Nebraska, which sixty years ago said, “An attorney owes his first duty to the

court. He assumed his obligations toward it before he ever had a client. His oath

requires him to be absolutely honest even though his client’s interests may seem to

require a contrary course. The [lawyer] cannot serve two masters; and the one [he

has] undertaken to serve primarily is the court.” In re Integration of Nebraska

State Bar Assn. (1937), 133 Neb. 283, 289, 275 N.W. 265, 268.

      We are particularly concerned that the instant matter arose on the criminal

docket of one of our municipal courts which handles an extremely heavy caseload.

Judges, especially those who must process heavy caseloads, must be able to rely

on the representations of the attorneys who appear before them.

      Section 6.12 of the ABA Standards for Imposing Lawyer Discipline

provides, “Suspension is generally appropriate when a lawyer knows that false

statements or documents are being submitted to the court or that material

information is improperly being withheld, and takes no remedial action, and

causes injury or potential injury to a party to the legal proceeding, or causes an

adverse or potentially adverse effect on the legal proceeding.” Respondent was

previously suspended for six months in Cincinnati Bar Assn. v. Nienaber (1994),

68 Ohio St.3d 459, 628 N.E. 2d 1340. On these charges respondent is hereby

indefinitely suspended from the practice of law in Ohio.          Costs taxed to

respondent.

                                                            Judgment accordingly.




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     MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.




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