OFFICE OF DISCIPLINARY COUNSEL V. FOWERBAUGH.


     [Cite as Disciplinary Counsel v. Fowerbaugh (1995), ___ Ohio


St.3d ___.]


When an attorney engages in a course of conduct that violates DR 1-


              102(A)(4), the attorney will be actually suspended from


              the practice of law for an appropriate period of time.


Attorneys at law -- Misconduct -- Misleading or lying to a client

     concerning a legal matter entrusted to the lawyer by a client --When

     an attorney engages in conduct involving dishonesty, fraud, deceit,

     or misrepresentation, the attorney will be actually suspended from

     the practice of law for an appropriate period of time.

     (No. 95-394 -- Submitted September 13, 1995 -- Decided


December 12, 1995.)


     On Certified Report by the Board of Commissioners on


Grievances and Discipline of the Supreme Court, No. 94-25.


     Relator, Office of Disciplinary Counsel, filed a complaint with


the Board of Commissioners on Grievances and Discipline of the


Supreme Court (“board”), charging respondent, Albert E.


Fowerbaugh of Cleveland, Ohio, Attorney Registration No. 0001535,


with violating DR 6-101(A)(2) (handling a legal matter without
preparation adequate in the circumstances), 6-101(A)(3) (neglecting


an entrusted legal matter), 1-102(A)(4) (engaging in conduct


involving dishonesty, fraud, deceit or misrepresentation), and 1-


102(A)(6) (engaging in conduct that adversely reflects upon his


fitness to practice law). Respondent stipulated to all charged


disciplinary violations, as well as many of the allegations in the


complaint. The matter was heard by a panel of the board on January


13, 1995.


      The stipulations and testimony before the hearing panel


establish that in April 1992, Patricia Veale, a resident of Florida,


retained respondent to represent her in obtaining a parentage and


child support order for her minor child. Beginning in May 1992,


respondent conducted negotiations with the attorney for the putative


father concerning a settlement on these issues. By July 1993, Veale


had become concerned with respondent’s representation after


numerous telephone calls to respondent were made without


response. Moreover, respondent had ignored Veale’s requests to




                                    2
have the putative father pay the cost of the blood test used in


determining paternity.


      Apparently in an attempt to placate his client, respondent


misrepresented to Veale that he was proceeding with a paternity


action in Summit County Juvenile Court. In late September 1993,


Veale repeatedly inquired as to the status of her case and requested


copies of court documents that would confirm to her that respondent


had actually filed the paternity action. On September 28, 1993,


Veale received what appeared to be a copy of a complaint filed in


Summit County Juvenile Court. Actually, the document was a fake.


      Respondent testified that shortly after misrepresenting to Veale


about the filing of the case, he attempted to file the complaint with


the juvenile court. The court refused to accept the complaint for filing


as the case should have been filed with the Child Support


Enforcement Agency (“CSEA”). However, the CSEA would not


accept the complaint because of Veale’s non-resident status. In an


effort to stall his client’s inquiries, respondent created a false


document by superimposing an official time stamp from another



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document onto the rejected complaint, adding a fictitious case


number, and “assigning” an actual Summit County judge to the


action. Respondent then faxed the fabricated document to his client.


      After receiving the fraudulent “complaint”, Veale called the


Summit County Juvenile Court to determine if a complaint had been


filed. The clerk informed her that the court was not issuing numbers


in the range of the case number appearing on the “complaint”.


      Respondent perpetuated his dishonest conduct by falsely


indicating to Veale that a hearing on her paternity action had been


scheduled for November 4, 1993. Continuing to mislead his client,


respondent called Veale in late October 1993 to confirm the fictitious


hearing date. Still suspicious, Veale nonetheless purchased an


airline ticket in anticipation of attending the hearing. Further


deceiving his client, respondent prepared and sent to Veale what


appeared to be an official request for production of documents.


      Shortly before the fictitious hearing date, respondent falsely


represented to Veale that the November 4 court date, which had


never been scheduled, had been canceled due to a scheduling error



                                    4
by the court. After this final blatant misrepresentation, respondent


sent a letter to Veale terminating the attorney-client relationship and


returning the retainer fee. Nowhere in the letter did respondent


acknowledge his failure to file the action with the juvenile court or his


subsequent pattern of misrepresentation to her.


      The hearing panel found that despite the testimony of the


complaining witness and respondent’s stipulations that he had


violated all the Disciplinary Rules charged in the complaint, the


evidence supported only a violation of DR 6-101(A)(2) for “handling”


a legal matter without preparation adequate in the circumstances and


a violation of DR 1-102(A)(4) for engaging in conduct involving


dishonesty, fraud, deceit or misrepresentation.


      In recommending a public reprimand for this misconduct, the


hearing panel considered that respondent did not create financial


hardship or pecuniary loss to Veale, that Veale was receiving $450


per month which respondent had negotiated, that he had practiced


for thirty years with no history of disciplinary violations, and that he


had been candid with the panel. The panel also considered that



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respondent had been suffering personal problems and upheaval in


his office, both of which have since been corrected. The board


adopted the panel’s findings and recommended that respondent


receive a public reprimand.


                         -----------------------------


      Geoffrey Stern, Disciplinary Counsel, and Alvin E. Mathews,


Assistant Disciplinary Counsel, for relator.


      Albert E. Fowerbaugh, pro se.


                         -----------------------------


      MOYER, C.J. This disciplinary case presents the court with an


opportunity to provide guidance to certified grievance committees


and the Board of Commissioners on Grievances and Discipline in all


cases where an attorney engages in a pattern of conduct of


misleading or lying to a client concerning a legal matter entrusted to


the lawyer by the client. DR 1-102(A)(4) is straight forward and


unambiguous. It states that a “lawyer shall not *** [e]ngage in


conduct involving dishonesty, fraud, deceit, or misrepresentation.”




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     In discipline cases where an attorney has deceived a client, we


have imposed a varying range of sanctions. In Disciplinary Counsel


v. Gwyn (1994), 71 Ohio St.3d 8, 640 N.E.2d 1141, we publicly


reprimanded an attorney for violating DR 6-101(A)(3) and 1-


102(A)(4). In Gwyn, the respondent told his client that he had filed a


lawsuit when in fact he had not filed the suit. The misrepresentations


continued for two years. The respondent even fabricated pleadings


falsely indicating that the case had been filed and dismissed. During


that time, however, the respondent made other efforts to resolve the


matter, including research into the legal issues involved in the case


and attempts at discovery. Because of respondent’s forthright


testimony and numerous character witnesses, the court adopted the


board’s recommendation that respondent receive only a public


reprimand. Gwyn, 71 Ohio St.3d at 10, 640 N.E.2d at 1142.


     In Toledo Bar Assn. v. Dzienny (1995), 72 Ohio St.3d 173, 648


N.E.2d 499, the respondent failed to file a medical malpractice


lawsuit before the statute of limitations expired. Converting an act of


malpractice into a violation of the Code of Professional



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Responsibility, respondent concealed his malpractice and continually


misled his clients regarding the status of the lawsuit. The Board of


Commissioners on Grievances and Discipline found that the


respondent had violated both the DR 6-102(A) and 1-102(A)(4), and


recommended a six-month suspension that should be stayed. In


rejecting respondent’s plea for a public reprimand the court adopted


the board’s recommendation, stating that “[i]n light of the significant


and lengthy deception of his clients, the respondent’s argument that


he deserves the lightest punishment possible under the rules is


without merit.” Dzienny, 72 Ohio St.3d at 175, 648 N.E.2d at 501,


(Moyer, C.J., dissenting to the stay of the suspension).


      More recently we moved closer to the rule we announce today.


In Lake Cty. Bar Assn. v. Speros (1995), 73 Ohio St.3d 101, 104,


652 N.E.2d 681, 683, we stated that “[d]ishonesty toward a client,


whose interests are the attorney’s duty to protect, is reprehensible.


And, as we continue to see such violations of DR 1-102(A)(4), we


recognize that this misconduct may hereafter require more severe




                                    8
discipline than we have previously imposed.” Respondent was


suspended from the practice of law in Ohio for six months.


      We express our growing concern with the increase in the


discipline matters referred to us by the Board of Commissioners on


Grievances and Discipline in which members of the bar of Ohio have


deceived their clients or a court. A lawyer who engages in a material


misrepresentation to a court or a pattern of dishonesty with a client


violates at a minimum, the lawyer’s oath of office that he or she will


not “knowingly employ or countenance any *** deception, falsehood


or fraud.” Gov. Bar R.I(8)(A). Such conduct strikes at the very core


of a lawyer’s relationship with the court and with the client. Respect


for our profession is diminished with every deceitful act of a lawyer.


We cannot expect citizens to trust that lawyers are honest if we have


not yet sanctioned those who are not. Therefore, recognizing that


the sanctions that we have imposed heretofore against lawyers who


have violated DR 1-102(A)(4) are apparently not causing some


lawyers to understand the importance of being honest with courts


and clients, we announce a rule that will be applied to this case and



                                   9
future cases. When 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.


      In the instant case, respondent engaged in a continuing course


of deceit and misrepresentation designed to cover up his inaction on


an entrusted legal matter. After lying to his client about proceeding


with the case, respondent fabricated documents to perpetuate the


fraud until he finally withdrew from the case. Respondent argues that


his cover-up was merely an effort to stall his client’s inquiries, and


that his reliance on misinformation that he received from the juvenile


court necessitated the deception. We find these arguments to be


spurious. Rather than accepting personal responsibility for his


actions, respondent attempts to justify his conduct. Furthermore,


respondent’s protracted deception would not have been uncovered if


his client had not taken it upon herself to verify her own attorney’s


actions.




                                    10
      While we are cognizant of the pressures and demands, both


professional and personal, that attorneys may face, this court “cannot


permit attorneys who lie either to their clients or to the court to


continue practicing law without interruption.” Disciplinary Counsel v.


Greene (1995), 74 Ohio St.3d 13, ___, ___ N.E.2d ___, ___.


Therefore, we hold that when an attorney engages in a course of


conduct that violates DR 1-102(A)(4), the attorney will be actually


suspended from the practice of law for an appropriate period of time.


      In spite of respondent’s stipulation that he violated DR 6-


101(A)(2), 6-101(A)(3), 1-102(A)(4), and 1-102(A)(6), the hearing


panel and the board dismissed both the 6-101(A)(3) and 1-102(A)(6)


charges because they believed these charges had not been proven


by clear and convincing evidence. We defer to the board and will not


disturb that finding. However, we remind the board that an attorney’s


conduct may constitute neglect when the attorney fails “‘to advance a


client matter for which he has been retained. Neglect is different


from negligence and usually requires a pattern of disregarding




                                    11
obligations or repeated omissions by an attorney.’ [Citation omitted].”


Dzienny, 72 Ohio St.3d at 176, 648 N.E.2d at 502.


      For the foregoing reasons, we order that respondent be


suspended from the practice of law in the state of Ohio for six


months. Costs taxed to respondent.


                                                      Judgment accordingly.


      WRIGHT, F.E. SWEENEY and COOK, JJ., concur.


      DOUGLAS and RESNICK, JJ., concur in judgment only.


      PFEIFER, J., dissents and would suspend respondent for six


months, stayed.


      Alice Robie Resnick, J., concurring in judgment. For the reasons set


forth in my dissenting opinion in Disciplinary Counsel v. Greene (1995), 74


Ohio St.3d 13, ___ N.E.2d ___, I concur in judgment only. It is the


responsibility of this court to give guidance as to what conduct constitutes a


violation of the Disciplinary Rules. It is not the province of this court to use


syllabus law to mandate a particular sanction once a violation has been


found. The sanction in each individual’s case should be determined based


upon the unique facts and circumstances of that case.


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DOUGLAS, J., concurs in the foregoing opinion.




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