[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Rosenfield, Slip Opinion No. 2016-Ohio-1583.]




                                        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. 2016-OHIO-1583
                     DISCIPLINARY COUNSEL v. ROSENFIELD.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Disciplinary Counsel v. Rosenfield, Slip Opinion
                                 No. 2016-Ohio-1583.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct and the
        former Code of Professional Responsibility —Indefinite suspension.
         (No. 2015-1635—November 17, 2015—Decided April 20, 2016.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                  Discipline of the Supreme Court, No. 2014-111.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, Ronald Lee Rosenfield, formerly of South Euclid, Ohio,
Attorney Registration No. 0021093, was admitted to the practice of law in Ohio in
1970. We suspended Rosenfield’s license on an interim basis, effective August 5,
2014, after he was convicted of a felony for willfully failing to truthfully account
for federal income taxes and Federal Insurance Contributions Act (“FICA”) taxes
                                 SUPREME COURT OF OHIO




that he was statutorily required to withhold from the wages of his employees and
pay to the Internal Revenue Service (“IRS”). In re Rosenfield, 140 Ohio St.3d
1232, 2014-Ohio-3365, 16 N.E.3d 669.
        {¶ 2} In a December 30, 2014 complaint, relator, disciplinary counsel,
charged Rosenfield with multiple ethical violations arising from the conduct that
led to his felony conviction.1 Rosenfield entered into joint stipulations in which he
admitted the facts and misconduct alleged in the complaint and agreed that certain
aggravating and mitigating factors are present. The parties jointly recommended
that Rosenfield be indefinitely suspended from the practice of law in Ohio but that
he be credited for the time served under his interim felony suspension and comply
with certain terms and conditions on his reinstatement to the practice of law.
        {¶ 3} A panel of the Board of Professional Conduct granted the parties’
motion to waive the hearing, noting that there were no unresolved issues and that
compelling Rosenfield’s attendance at a hearing would create a heavy financial
burden since he now resides in California.                The panel adopted the parties’
stipulations and recommended that Rosenfield be indefinitely suspended from the
practice of law with credit for time served under his interim felony suspension.
        {¶ 4} The board adopted the panel’s findings of fact, misconduct, and
aggravating and mitigating factors and recommended that Rosenfield be
indefinitely suspended from the practice of law. But the board also specified that
Rosenfield should not receive credit for the time he has served under his interim
felony suspension.        We adopt the board’s findings and indefinitely suspend
Rosenfield from the practice of law in Ohio with no credit for time served.


1
  Because Rosenfield’s misconduct occurred both prior to and after the adoption of the Rules of
Professional Conduct on February 1, 2007, relator charged respondent under the applicable rules of
both the former Code of Professional Responsibility and the current Rules of Professional Conduct.
However, when both the former and current rules are cited for the same acts, the allegations
comprise a single continuing ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d
330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.




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                                 January Term, 2016




                                     Misconduct
         {¶ 5} According to the parties’ stipulations, Rosenfield was a partner in the
law firm S & R Co., L.P.A. In 1998, the state of Ohio revoked the firm’s corporate
charter for nonpayment of state franchise taxes. Rosenfield did not inform his
partner of this revocation and continued to operate the practice under the corporate
name until approximately 2003. At that time, Rosenfield became the sole owner,
and his former partner insisted that he change the firm name.             Thereafter,
Rosenfield conducted his legal practice under the name Ronald L. Rosenfield Co.,
L.P.A.
         {¶ 6} At all times relevant herein, Rosenfield was responsible for the firm’s
finances. He hired a separate payroll company to provide payroll and employment
tax-return services and funded an S & R Co., L.P.A., payroll account. After he
changed the firm’s name, Rosenfield never obtained a new Employer Identification
Number (“EIN”) or filed any documents with the IRS to establish its existence as a
taxable entity; on the contrary, he continued to use the payroll account and the EIN
associated with the firm’s former name. In early 2008, Rosenfield stopped funding
the payroll account, voided the checks that the payroll company had prepared, and
replaced the checks with checks that he issued from the Ronald L. Rosenfield Co.,
L.P.A., general operating account.
         {¶ 7} On February 12, 2014, Rosenfield pleaded guilty to a bill of
information that charged him with failing to collect, account for, and pay federal
income and FICA taxes for the employees of his law firm from October 2006
through March 2011, a felony in violation of 26 U.S.C. 7202. As part of his plea
agreement, Rosenfield stipulated that from at least 1998 through 2011, he failed to
file any type of corporate or business income-tax return and did not include a
Schedule C on his own personal income-tax return to report the continued
existence, income, and expenses of the law firm. Pursuant to Rosenfield’s plea
agreement, the court sentenced him to six months of home detention and five years




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of probation. The court also ordered him to pay restitution of $523,253.33 to the
IRS.2 United States v. Rosenfield, N.D. Ohio No. 1:14cr34 (July 10, 2014).
          {¶ 8} The parties stipulated that Rosenfield’s conduct violated DR 1-
102(A)(3) (prohibiting a lawyer from engaging in illegal conduct involving moral
turpitude), DR 1-102(A)(4) and Prof.Cond.R. 8.4(c) (both prohibiting a lawyer
from      engaging      in    conduct      involving      dishonesty,       fraud,    deceit,     or
misrepresentation), Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an
illegal act that reflects adversely on the lawyer’s honesty or trustworthiness), and
DR 1-102(A)(5) and Prof.Cond.R. 8.4(d) (both prohibiting a lawyer from engaging
in conduct that is prejudicial to the administration of justice). The panel adopted
the parties’ stipulations of fact and agreed that Rosenfield’s misconduct violated
DR 1-102(A)(3), DR 1-102(A)(4) and Prof.Cond.R. 8.4(c), and Prof.Cond.R.
8.4(b).     Having found that Rosenfield’s misconduct did not prejudice the
administration of justice, however, the panel unanimously dismissed the alleged
violation of DR 1-102(A)(5) and Prof.Cond.R. 8.4(d). See Gov.Bar R. V(12)(G).
The board adopted the panel’s findings of fact and misconduct. We adopt the
board’s findings of fact and misconduct.
                                            Sanction
          {¶ 9} 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,




2
  The amount of restitution included the approximately $200,000 in withholdings that Rosenfield
failed to submit to the IRS from the fourth quarter of 2006 through the first quarter of 2011 (which
formed the basis of the criminal charges against him), over $300,000 in additional withholdings that
he failed to submit to the IRS from the fourth quarter of 2001 through the third quarter of 2006 (for
which the statute of limitations for criminal charges had expired), and $10,933.86 in unreported
federal unemployment taxes.




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                                 January Term, 2016




we also weigh evidence of the aggravating and mitigating factors set forth in
Gov.Bar R. V(13).
       {¶ 10} The parties stipulated to just one aggravating factor—that
Rosenfield engaged in a pattern of misconduct over approximately ten years. See
Gov.Bar R. V(13)(B)(3). The panel and board also found that Rosenfield acted
with a selfish or dishonest motive because he failed to pay taxes and kept the money
for himself. See Gov.Bar R. V(13)(B)(2). As mitigating factors, the panel and
board adopted the parties’ stipulations that Rosenfield (1) did not have a prior
disciplinary record, (2) made a full and free disclosure to the board and
demonstrated a cooperative attitude toward the disciplinary proceedings, (3)
submitted 19 letters attesting to his good character and competence as an attorney,
(4) had other criminal penalties imposed for his misconduct, including a period of
home detention and an order that he make restitution of $523,253.33 to the IRS, (5)
cooperated with the underlying criminal investigation and admitted his
wrongdoing, and (6) did not cause harm to his clients or employees. See Gov.Bar
R. V(13)(C)(1), (3), (4), (5), and (6).
       {¶ 11} The panel adopted the parties’ joint recommendation that Rosenfield
be indefinitely suspended from the practice of law and receive credit for the time
served under his interim felony suspension, which commenced on August 5, 2014.
The panel also agreed that Rosenfield should be required to (1) comply with the
terms of his criminal probation, (2) make timely restitution in the amounts that the
IRS determines to be appropriate in light of his income, and (3) serve a three-year
period of monitored probation upon his reinstatement to the practice of law to
ensure that he not only makes timely restitution payments to the IRS but also
properly files and pays all employment and unemployment taxes for his practice
going forward.
       {¶ 12} The board adopted the panel’s findings regarding the applicable
aggravating and mitigating factors and recommended that Rosenfield be




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indefinitely suspended from the practice of law and agreed that his reinstatement
should be conditioned as recommended by the panel. But the board determined
that Rosenfield should not receive any credit for the time served under his interim
felony suspension.
       {¶ 13} In support of these recommendations, the panel and board
considered several cases but found our decision in Disciplinary Counsel v. Smith,
128 Ohio St.3d 390, 2011-Ohio-957, 944 N.E.2d 1166, to be most instructive.
Smith admitted that he engaged in a course of conduct designed to conceal the true
value and source of the compensation he received for services provided to the
Catholic Diocese of Cleveland, that he failed to accurately report his income to the
IRS, and that during an IRS audit, his agent falsely stated that all of his sources of
income were reported on his tax return. Id. at ¶ 4-6. He was convicted of one count
of conspiracy to defraud the IRS, four counts of making false tax returns, and one
count of corruptly endeavoring to obstruct and impede an IRS investigation. Id. at
¶ 5. For these offenses, Smith was sentenced to one year and one day in federal
prison and ordered to perform 150 hours of community service and pay restitution
of almost $400,000 to the IRS. Id. at ¶ 5, 7.
       {¶ 14} We found that Smith’s conduct violated DR 1-102(A)(3), 1-
102(A)(4), 1-102(A)(5), and 1-102(A)(6) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law) and
indefinitely suspended him from the practice of law. Id. at ¶ 8, 16. Although we
credited Smith for the time served under his interim felony suspension, we also
conditioned his reinstatement on the completion of his federal supervised release
and the execution of a final agreement for payment of restitution. Id. at ¶ 16. While
Smith and Rosenfield engaged in comparable tax-evasion schemes, depriving the
federal government of significant tax revenue, we find that Rosenfield’s scheme
was more egregious in that it involved both his personal and business tax
obligations and occurred over a period of more than ten years.




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                                January Term, 2016




       {¶ 15} Having considered Rosenfield’s misconduct, the applicable
aggravating and mitigating factors, and the sanctions imposed for comparable
misconduct, we agree that the appropriate sanction in this case is an indefinite
suspension. However, we decline to credit Rosenfield for the time served under his
interim felony suspension.
       {¶ 16} Accordingly, Ronald Lee Rosenfield is indefinitely suspended from
the practice of law in Ohio and shall not receive credit for the time served under his
interim felony suspension. Any future reinstatement of his license to practice law
in this state shall be conditioned upon his compliance with the terms of his criminal
probation and his full compliance with the terms of a payment plan approved by
the IRS for the satisfaction of his restitution obligation. Upon reinstatement,
Rosenfield shall serve a three-year period of monitored probation in accordance
with Gov.Bar R. V(21) to ensure that he complies with his IRS-approved restitution
plan and properly files and pays all employment and unemployment taxes for his
practice going forward. Costs are taxed to Rosenfield.
                                                              Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
FRENCH, JJ., concur.
       O’NEILL, J., dissents and would grant the respondent credit for time served
under interim felony suspension.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, for relator.
       Bender, Alexander & Broome Co., L.P.A., and J. Timothy Bender, for
respondent.
                               _________________




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