[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cincinnati Bar Assn. v. Mahin, Slip Opinion No. 2020-Ohio-4098.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2020-OHIO-4098
                    CINCINNATI BAR ASSOCIATION v. MAHIN.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Cincinnati Bar Assn. v. Mahin, Slip Opinion No.
                                   2020-Ohio-4098.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
        year suspension with second year conditionally stayed.
     (No. 2020-0469—Submitted May 13, 2020—Decided August 19, 2020.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2019-004.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, John Edward Mahin, of Cincinnati, Ohio, Attorney
Registration No. 0011253, was admitted to the practice of law in Ohio in 1977. In
June 2016, we suspended his license for two years, with the second year stayed on
conditions, for misconduct that included converting over $15,000 of law-firm funds
for his personal use, a crime for which he had been convicted of a fifth-degree
                            SUPREME COURT OF OHIO




felony, and fraudulently indorsing a client’s name on a settlement check.
Disciplinary Counsel v. Mahin, 146 Ohio St.3d 312, 2016-Ohio-3336, 55 N.E.3d
1108. Because we granted him credit for the time he had served under his interim
felony suspension, Mahin was reinstated to the practice of law in November 2016.
At that time, he began serving a two-year period of monitored probation, which was
a condition of the stay on the second year of his suspension. 147 Ohio St.3d 1266,
2016-Ohio-7717, 66 N.E.3d 758. His probation period has ended, but Mahin has
not yet applied for termination of probation.
        {¶ 2} In an August 2019 amended complaint, relator, Cincinnati Bar
Association, charged Mahin with violating the Rules of Professional Conduct in
two separate client matters. Although Mahin stipulated to two rule violations, he
denied most of the charges against him, and the matter proceeded to a hearing
before a three-member panel of the Board of Professional Conduct. The panel
unanimously dismissed half of the alleged rule violations, found that Mahin had
engaged in the remaining charged misconduct, and recommended that he be
required to serve another two-year suspension, with one year conditionally stayed.
The board issued a report adopting the panel’s findings of misconduct and
recommended sanction. Neither party has objected to the board’s report.
        {¶ 3} Based on our review of the record, we agree with the board’s
misconduct findings and recommended sanction.
                                   Misconduct
                           Taiesha Molden’s grievance
        {¶ 4} In May 2017, Taiesha Molden retained Mahin to represent her and her
minor daughter in a personal-injury lawsuit. In November 2017, Mahin conveyed
a settlement offer to Molden, but they agreed that the offer was too low and that
Mahin should start preparing a complaint. Molden thereafter gave Mahin $325 for
the filing fee.




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                                   January Term, 2020




           {¶ 5} According to Molden, Mahin told her in January 2018 that he had
filed the complaint. Mahin, however, denied telling Molden at that time that he had
filed the complaint. The hearing panel found Molden’s testimony more credible
and to support its finding, cited a subsequent e-mail that Molden sent to Mahin
inquiring whether he had heard from the opposing side in response to their “filing
a suit.”
           {¶ 6} Mahin did not file Molden’s complaint until June 4, 2018. The
following day, Molden sent him an e-mail accusing him of lying to her in January
about filing the complaint, alleging that he had filed her complaint only after
learning that she was seeking new counsel, and terminating him as her counsel. She
also requested a refund of her $325. Mahin insisted that he had filed the complaint
before Molden terminated him, and the board ultimately found no affirmative
evidence proving otherwise.
           {¶ 7} Mahin later sent a letter to the defendant’s insurer placing a “lien” on
Molden’s claims to ensure that he received a fee for his work in the case. Molden
filed a grievance against Mahin. Mahin thereafter met with Molden’s new counsel
to discuss the case and the grievance, and after that meeting, Mahin sent the
attorney an e-mail proposing a deal in which he would refund Molden’s $325 and
withdraw his lien in exchange for her withdrawing her grievance. Although Mahin
refunded Molden’s money and withdrew the lien and Molden attempted to
withdraw her grievance, relator continued its investigation.
           {¶ 8} The board found that by misrepresenting to Molden that he had filed
her complaint—when it had not yet been filed—Mahin violated Prof.Cond.R.
8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation). The board also found that by attempting to obtain
dismissal of Molden’s grievance in exchange for refunding her money and dropping
his attorney-fee claim, he violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from
engaging in conduct that is prejudicial to the administration of justice).




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                             SUPREME COURT OF OHIO




       {¶ 9} We agree with the board’s findings of misconduct. “Unless the record
weighs heavily against a hearing panel’s findings, we defer to the panel’s credibility
determinations, inasmuch as the panel members saw and heard the witnesses
firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550,
842 N.E.2d 35, ¶ 24. Further, we have previously found that an attorney violates
Prof.Cond.R. 8.4(d) by attempting to condition a client’s refund on the withdrawal
of a disciplinary grievance. See, e.g., Cincinnati Bar Assn. v. Dearfield, 130 Ohio
St.3d 363, 2011-Ohio-5295, 958 N.E.2d 910, ¶ 6-9.
                            Judge Bunning’s grievance
       {¶ 10} In March 2017, Mahin filed a personal-injury complaint on behalf of
two clients in the United States District Court for the Eastern District of Kentucky.
Under that court’s local rules, an attorney could apply for admission to the bar of
that court if he or she had been admitted to practice before the Supreme Court of
Kentucky. If the attorney had not been admitted in Kentucky, the attorney could
apply to appear in a particular case, provided that the attorney complied with the
procedure for obtaining pro hac vice admission.
       {¶ 11} Mahin was not admitted to practice in Kentucky and failed to request
pro hac vice admission when he filed the complaint. And although the federal court
required attorneys to use the court’s electronic case-filing system when filing
pleadings, Mahin filed a paper complaint in person at the federal courthouse.
       {¶ 12} The clerk thereafter sent Mahin a notice to the address listed on his
complaint. The notice indicated that Mahin was not admitted to practice in the
Eastern District of Kentucky and provided him with an application for admission
and copies of the local rule regarding attorney admissions. Although the clerk
requested that Mahin complete the application within 30 days, he failed to do so.
The clerk also notified Mahin that his check for filing fees had been returned for
insufficient funds.




                                          4
                                January Term, 2020




       {¶ 13} In August 2017, United States District Judge David L. Bunning
ordered Mahin to file a status report regarding service of the complaint—which
Mahin had not yet initiated—and to show cause why the complaint should not be
dismissed for his failure to comply with the federal service-of-process rule. After
Mahin failed to file a response, Judge Bunning dismissed the complaint without
prejudice.
       {¶ 14} At his disciplinary hearing, Mahin testified that he had not received
the notices and orders from the court and had learned of the complaint’s dismissal
two months after the judge’s order. He also testified that after filing the complaint,
he had relocated his office and failed to update his address with the court, failed
register for the court’s electronic case-filing system, and failed to otherwise check
the online docket to determine the status of the case.
       {¶ 15} In September 2018, Mahin refiled the complaint, which listed his
new office address. Judge Bunning issued an order requiring the plaintiffs to show
cause why their case should not be dismissed as untimely under the applicable
Kentucky statute of limitations. The court’s order, however, was returned as
undeliverable because the clerk had sent it to Mahin’s prior office address. Judge
Bunning then issued an order requiring Mahin to show cause for his failure to apply
for pro hac vice admission and provide a valid mailing address. After Mahin failed
to respond, the judge held a show-cause hearing—for which Mahin failed to
appear—and later dismissed the refiled complaint as untimely. The judge also
prohibited Mahin from practicing law in the Eastern District of Kentucky for two
years and forwarded the decision to disciplinary counsel.
       {¶ 16} According to Mahin, he did not receive the court’s notices and orders
after he refiled the complaint—although again, he also acknowledged that he had
failed to file a change-of-address form as required by the court’s local rules, failed
to register for the court’s electronic case-filing system, and failed to check the




                                          5
                              SUPREME COURT OF OHIO




online docket. He also testified that his misconduct was unintentional and that he
had had little experience practicing in federal court.
        {¶ 17} The board concluded that Mahin’s lack of federal-court experience
was not an excuse and that by filing and refiling the complaint in federal court
without admission to that court or knowledge of the court’s procedures and by
knowingly disobeying that court’s local rules, he violated Prof.Cond.R. 1.1
(requiring a lawyer to provide competent representation to a client), 3.4(c)
(prohibiting a lawyer from knowingly disobeying an obligation under the rules of
a tribunal), and 5.5 (prohibiting a person from practicing law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction).
        {¶ 18} We agree with the board’s findings of misconduct.
                                       Sanction
        {¶ 19} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
        {¶ 20} As for aggravating factors, the board found that Mahin has prior
disciplinary offenses, had engaged in a pattern of misconduct, and had committed
multiple offenses. See Gov.Bar R. V(13)(B)(1), (3), and (4). The board found only
one mitigating factor—that Mahin had a cooperative attitude toward the
disciplinary proceedings. See Gov.Bar R. V(13)(C)(4).
        {¶ 21} After reviewing relevant case law, the board noted that it had found
no cases involving all the same rule violations as this case but that it had found
several cases with some of the same violations. For example, the board cited
Disciplinary Counsel v. Rohrer, 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d
180, in which an attorney violated Prof.Cond.R. 3.4(c), 8.4(c), and 8.4(d) by
deliberately disobeying a court order and then lying to the court and misleading an
administrative agency about his actions. Because an actual suspension is generally




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                                January Term, 2020




appropriate for an attorney who engages in a course of dishonest conduct toward a
court or a client—and because we found no significant mitigating factors
warranting a departure from that principle—we suspended the attorney in Rohrer
for six months. Id. at ¶ 54; see also Disciplinary Counsel v. Stollings, 111 Ohio
St.3d 155, 2006-Ohio-5345, 855 N.E.2d 479, ¶ 13 (“an actual suspension is
particularly appropriate when an attorney’s dishonesty has been directed toward a
client”).
        {¶ 22} Here, Mahin engaged in an isolated incident of misrepresentation.
Although we have “occasionally imposed fully stayed suspensions in cases when
an attorney’s misconduct involved isolated incidents of dishonesty and the attorney
presented significant mitigating evidence,” Disciplinary Counsel v. Adelstein, ___
Ohio St.3d ___, 2020-Ohio-3000, ___ N.E.3d ___, ¶ 26, the board correctly noted
that the sole mitigating factor here does not justify departing from the typical
sanction for misleading a client.
        {¶ 23} The board also reviewed Toledo Bar Assn. v. Hickman, 119 Ohio
St.3d 102, 2008-Ohio-3837, 892 N.E.2d 437, in which an attorney continued
practicing law after we had suspended him, lied to multiple clients, neglected their
cases, charged an excessive fee, failed to return unearned fees, and committed other
misconduct. Because we had twice disciplined the attorney for similar misconduct,
we permanently disbarred him. Id. at ¶ 19. The board concluded that the same
sanction is not warranted here, and we agree. Although Mahin engaged in some of
the same misconduct as that in Hickman—such as practicing law in a jurisdiction
in violation of the regulation of a profession in that jurisdiction and lying to a
client—overall, Mahin’s misconduct was much less egregious.
        {¶ 24} Finally, the board reviewed cases involving attorneys who
improperly attempted to “settle” grievances filed against them, noting that many of
those cases resulted in fully stayed suspensions despite additional misconduct. See,
e.g., Dearfield, 130 Ohio St.3d 363, 2011-Ohio-5295, 958 N.E.2d 910;




                                         7
                             SUPREME COURT OF OHIO




Disciplinary Counsel v. Chambers, 125 Ohio St.3d 414, 2010-Ohio-1809, 928
N.E.2d 1061; Disciplinary Counsel v. Bruce, 158 Ohio St.3d 382, 2020-Ohio-85,
143 N.E.3d 501.
       {¶ 25} Based on this precedent—and considering that relator failed to prove
many of the charges against Mahin and that Mahin ultimately stipulated to the
violations of Prof.Cond.R. 3.4(c) and 5.5 and cooperated in the disciplinary
process—the board recommends that we suspend Mahin for two years, with one
year stayed on the condition that he engage in no further misconduct. We agree
with the board’s conclusion that the facts here do not fit neatly into our established
precedent regarding attorney-discipline sanctions, but we are nonetheless guided
by the principle that the “the goal of disciplinary proceedings is not to punish the
errant lawyer, but to protect the public,” Toledo Bar Assn. v. Hales, 120 Ohio St.3d
340, 2008-Ohio-6201, 899 N.E.2d 130, ¶ 21. With that purpose in mind, we adopt
the board’s recommendation.
                                    Conclusion
       {¶ 26} John Edward Mahin is hereby suspended from the practice of law in
Ohio for two years, with the second year of the suspension stayed on the condition
that he refrain from further misconduct. If Mahin fails to comply with the condition
of the stay, the stay will be lifted and he will serve the entire two-year suspension.
Costs are taxed to Mahin.
                                                              Judgment accordingly.
       O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
       KENNEDY, J., concurs in judgment only.
                               _________________
       Edwin W. Patterson III, Bar Counsel; Taft, Stettinius & Hollister, L.L.P.,
and Julia B. Meister; and Garvey, Shearer, Nordstrom, P.S.C., and Jennifer K.
Nordstrom, for relator.




                                          8
                            January Term, 2020




       Montgomery Jonson, L.L.P., George D. Jonson, and Lisa M. Zaring, for
respondent.
                           _________________




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