[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Wexler, Slip Opinion No. 2014-Ohio-2952.]




                                        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. 2014-OHIO-2952
                       DISCIPLINARY COUNSEL v. WEXLER.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                it may be cited as Disciplinary Counsel v. Wexler,
                         Slip Opinion No. 2014-Ohio-2952.]
Attorneys—Misconduct—Knowingly making a false statement of material fact in a
        disciplinary matter—Six-month suspension stayed on condition.
      (No. 2013-1250—Submitted October 9, 2013—Decided July 9, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                  Discipline of the Supreme Court, No. 2012-085.
                               ____________________
        Per Curiam.
        {¶ 1} Respondent,      Ilan   Wexler     of   Youngstown,       Ohio,    Attorney
Registration No. 0005859, was admitted to the practice of law in Ohio in 1980.
        {¶ 2} In a complaint certified to the Board of Commissioners on
Grievances and Discipline on December 6, 2012, relator, disciplinary counsel,
alleged that Wexler violated the Disciplinary Rules of the Code of Professional
                                 SUPREME COURT OF OHIO




Responsibility and the Rules of Professional Conduct by engaging in a sexual
relationship with a client, providing her with gifts and financial assistance, and
making false and misleading statements during the course of relator’s disciplinary
investigation.1
        {¶ 3} A panel of the board conducted a hearing and, at the conclusion of
relator’s evidence, unanimously voted to dismiss alleged violations of DR 1-
102(A)(5) (prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), 5-101(A)(1) (prohibiting a lawyer from accepting
employment if the exercise of the lawyer’s professional judgment will be or
reasonably may be affected by the lawyer’s personal interests), and 5-103(B) and
Prof.Cond.R. 1.8(e) (both prohibiting a lawyer from providing financial assistance
to a client for expenses other than litigation costs) and 8.4(c) (prohibiting a lawyer
from     engaging      in   conduct      involving      dishonesty,      fraud,    deceit,    or
misrepresentation), based on relator’s failure to prove by clear and convincing
evidence that Wexler’s conduct violated these rules.
        {¶ 4} At the conclusion of the hearing, the panel also voted to dismiss
alleged violations of DR 1-102(A)(6) and Prof.Cond.R. 8.4(h) (both prohibiting a
lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law) and an alleged violation of Prof.Cond.R. 1.8(j) (prohibiting a lawyer
from soliciting or engaging in sexual activity with a client unless a consensual
sexual relationship existed prior to the client-lawyer relationship), again based on
relator’s failure to prove them by clear and convincing evidence.
        {¶ 5} Thus the only allegation remaining is that Wexler made false
statements of material fact in connection with relator’s investigation of the
underlying grievance, in violation of Prof.Cond.R. 8.1(a) (prohibiting knowingly
1
  Relator charged respondent with misconduct under applicable rules for acts occurring before and
after February 1, 2007, the effective date of the Rules of Professional Conduct, which supersede
the Disciplinary Rules of the Code of Professional Responsibility.




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making a false statement of material fact in connection with a disciplinary
matter). The panel found by clear and convincing evidence that Wexler had
violated Prof.Cond.R. 8.1(a) by making a false and misleading statement to
relator regarding a December 2010 hotel bill and recommended that he be
publicly reprimanded for that conduct.
       {¶ 6} The board adopted the panel’s findings of fact and conclusions of
law but recommended that Wexler be suspended from the practice of law for six
months, all stayed on the condition that he commit no further misconduct.
Neither party has objected to the board’s report.
       {¶ 7} We adopt the board’s findings of fact and conclusions of law and
suspend Wexler from the practice of law in Ohio for six months, all stayed on the
condition that he engage in no further misconduct.
                                   Misconduct
       {¶ 8} The board found that Wexler had represented Kietsa Moore-Brown
in four legal matters from March 1994 through April 2011: three personal-injury
matters from approximately March 1994 through March 1996, May 1997 through
April 2000, and April 2006 through April 2011, and a collection matter from
approximately March 2009 through August 2009.
       {¶ 9} In her November 2011 grievance, Moore-Brown alleged that she
began to have an affair with Wexler before he resolved her first personal-injury
matter in March 1996. In support of this allegation, she submitted copies of
phone records and hotel receipts, including a receipt for a December 23, 2010 stay
at a Holiday Inn Express in Newton Falls, Ohio, that indicated that the room had
been booked in Wexler’s name.
       {¶ 10} In his January 27, 2012 written response to the grievance, Wexler
did not answer the allegation that he had had an affair with Moore-Brown, though
he later consistently and adamantly denied that allegation. Instead, he suggested
that the December 23, 2010 hotel receipt was fraudulent, stating, “With respect to



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the hotel bill that allegedly has my name on it * * * it is interesting to note that
my first name is misspelled on the alleged bill. Furthermore, the address given is
not my home address, rather it is my brother’s address.” And during a May 8,
2012 interview with relator, Wexler failed to identify the credit card that had been
used to pay for the hotel stay as his card and suggested that his card had been
subject to fraudulent use in the past. Relator, however, subpoenaed additional
documents from the hotel and discovered that Wexler had personally signed and
initialed the registration paperwork for the December 23, 2010 stay.
       {¶ 11} At his July 24, 2012 deposition, Wexler admitted that his written
response to Moore-Brown’s grievance was not accurate and was misleading. He
testified that his name was on the hotel bill because he had paid for the room and
that he had provided his brother’s address to the hotel clerk in an effort to hide the
transaction from his wife. He also admitted that he had “skirt[ed] around the
issue” of whether his credit card had been used to pay for the hotel stay despite
“knowing that it was [his] credit card.”
       {¶ 12} The board found that these facts clearly and convincingly
demonstrate that Wexler knowingly made a false statement of material fact in
connection with a disciplinary matter, in violation of Prof.Cond.R. 8.1(a).
                                      Sanction
       {¶ 13} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16.                In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
       {¶ 14} As aggravating factors, the board found that Wexler acted with a
dishonest motive or a selfish motive, engaged in a pattern of misconduct




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involving multiple lies on two separate occasions, and submitted false statements
or engaged in other deceptive practices during the disciplinary process. See
BCGD Proc.Reg. 10(B)(1)(b), (c), and (f). In mitigation, the board found that
Wexler did not have a prior disciplinary record and that he presented evidence of
his good character and reputation apart from this misconduct.           See BCGD
Proc.Reg. 10(B)(2)(a) and (e). The board also attributed mitigating effect to
Wexler’s full and free disclosure to the board beginning with his July 24, 2012
deposition. See BCGD Proc.Reg. 10(B)(2)(d). In support of its recommended
sanction of a public reprimand, the panel cited Cleveland Metro. Bar Assn. v.
Zaffiro, 127 Ohio St.3d 5, 2010-Ohio-4830, 935 N.E.2d 836. Zaffiro failed to
inform a client that he did not carry professional liability insurance and then
falsely led relator to believe that he did carry such insurance. Id. at ¶ 2, 8. In
addition to a violation of Prof.Cond.R. 8.1(a), Zaffiro also stipulated that his
conduct violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(4)(G) (both requiring a
lawyer to cooperate with a disciplinary investigation) and DR 1-104(A) (requiring
a lawyer to disclose to the client that the lawyer lacks professional liability
insurance). The parties stipulated that a six-month stayed suspension was the
appropriate sanction.   Id. at ¶ 4, 9.    But after recognizing that Zaffiro had
acknowledged his misconduct, promptly assumed responsibility for the
consequences of his alleged malpractice in a small-claims matter, and rectified his
initial failure to cooperate with the relator’s investigation, we adopted the board’s
recommendation that he be publicly reprimanded for his misconduct. Id. at ¶ 10-
11.
       {¶ 15} The board cited Akron Bar Assn. v. DeLoach, 130 Ohio St.3d 153,
2011-Ohio-4201, 956 N.E.2d 811, in support of its recommendation that we
impose a six-month fully stayed suspension for Wexler’s misconduct. DeLoach
violated Prof.Cond.R. 8.4(c) by submitting re-creations of letters that she had
purportedly sent to her client without disclosing to relator that they were not



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copies of the originals. Id. at ¶ 6. She told relator that she had found hard copies
of the original letters but that she retyped them to get them to the investigator
more quickly.     Id.     After metadata revealed that DeLoach had created the
documents on the same day that she had submitted them to relator, she admitted
that she had re-created the documents because she had been unable to locate the
original documents. Id. at ¶ 6-7. She later submitted the original documents to
the relator, who confirmed that the re-creations were substantively the same as the
originals. Id. at ¶ 13. Thus, DeLoach did not mislead the investigator and did not
gain any unfair advantage as a result of her actions. Id.
       {¶ 16} In considering the appropriate sanction for DeLoach’s misconduct,
we   recognized    that     conduct   involving   dishonesty,   fraud,   deceit,   or
misrepresentation typically results in an actual suspension from the practice of
law. Id. at ¶ 12. Finding, however, that DeLoach did not have a prior disciplinary
record, had shown remorse for her actions, and had taken steps to improve her
organizational system, we imposed a six-month suspension, all stayed on the
condition that she serve two years of monitored probation. Id. at ¶ 11-15.
       {¶ 17} We find that Wexler’s affirmative misrepresentations to relator
during the course of his investigation and his subsequent efforts to acknowledge
and correct those false or misleading statements are most comparable to the
misconduct at issue in DeLoach. And because he has no prior disciplinary record,
has presented evidence of his good character and reputation apart from this
misconduct, has made a full and free disclosure to the board, and has caused no
harm to any client as a result of this conduct, we agree that a six-month
suspension, all stayed on the condition that he engage in no further misconduct, is
the appropriate sanction here.
       {¶ 18} Accordingly, Ilan Wexler is suspended from the practice of law in
Ohio for six months, all stayed on the condition that he engage in no further




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                                January Term, 2014




misconduct. If he fails to comply with the condition of the stay, the stay will be
lifted and he will serve the full six-month suspension. Costs are taxed to Wexler.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                             ____________________
       Scott J. Drexel, Disciplinary Counsel, and Catherine M. Russo, Assistant
Disciplinary Counsel, for relator.
       Monica A. Sansalone and Jamie A. Price, for respondent.
                          _________________________




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