[Cite as Disciplinary Counsel v. Schuler, 138 Ohio St.3d 346, 2014-Ohio-1127.]




                         DISCIPLINARY COUNSEL v. SCHULER.
           [Cite as Disciplinary Counsel v. Schuler, 138 Ohio St.3d 346,
                                     2014-Ohio-1127.]
Attorneys—Misconduct—Engaging in conduct involving dishonesty, fraud, deceit,
        or misrepresentation and in conduct adversely reflecting on fitness to
        practice law—Indefinite suspension, with credit for time served under an
        interim felony suspension.
    (No. 2012-1714—Submitted October 9, 2013—Decided March 26, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 12-018.
                                 ____________________
        Per Curiam.
        {¶ 1} Respondent, Robert Carl Schuler of Dublin, Ohio, Attorney
Registration No. 0053140, was admitted to the practice of law in Ohio in 1991.
On October 6, 2011, we suspended Schuler’s license to practice law on an interim
basis following his September 20, 2011 felony conviction for filing a false tax
return. In re Schuler, Case No. 2011-1678, 2011-Ohio-5139.
        {¶ 2} In April 2012, relator, disciplinary counsel, filed a complaint
charging Schuler with two violations of the Code of Professional Responsibility
arising from the conduct that resulted in his felony conviction.1 In accordance
with BCGD Proc.Reg. 11, the parties submitted a consent-to-discipline agreement
containing a recommendation that Schuler be suspended for 18 months with credit
for time served under the interim suspension. On the recommendation of a panel
of its members, the Board of Commissioners on Grievances and Discipline

1. Relator charged Schuler with misconduct under the Disciplinary Rules of the Code of
Professional Responsibility for acts occurring before February 1, 2007, the effective date of the
Rules of Professional Conduct.
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recommended that we adopt the consent-to-discipline agreement, but we rejected
the parties’ recommended sanction and remanded the matter to the board for
further proceedings. Disciplinary Counsel v. Schuler, 134 Ohio St.3d 1463, 2013-
Ohio-502, 983 N.E.2d 364.
       {¶ 3} On remand, the parties submitted stipulations of fact, misconduct,
and aggravating and mitigating factors and recommended that Schuler serve a
two-year suspension with credit for time served under his interim felony
suspension. A panel of the board conducted a hearing and adopted the parties’
stipulations of fact and misconduct, but the panel determined that Schuler’s
misconduct warranted an indefinite suspension with credit for time served. The
board adopted the panel’s report in its entirety, and no objections have been filed.
       {¶ 4} Having reviewed the record, we accept the board’s findings of fact
and misconduct and agree that an indefinite suspension with credit for time served
is the appropriate sanction in this case.
                                     Misconduct
       {¶ 5} In March 2011, Schuler pled guilty to one felony count of filing a
false tax return in violation of 26 U.S.C. 7206(1) in the United States District
Court for the Southern District of Ohio. As part of his plea agreement, Schuler
admitted that he knowingly and willfully made and subscribed to a tax return for
calendar year 2002 that he did not believe to be true and correct. Specifically,
Schuler’s 2002 tax return reported a total adjusted gross income of $1,162,087,
but Schuler knew that he had received an additional $360,000 in business income
that he did not include on the return. The United States dismissed two other
counts against Schuler—a count for conspiracy to commit mail and wire fraud
and a count for false declarations before a grand jury.
       {¶ 6} On September 20, 2011, the federal court sentenced Schuler to one
year of probation in a home-confinement program and assessed him a $50,000
fine. The court and probation authorities ordered Schuler to pay the fine in




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installments of $1,000 per month, and the judge waived the requirement that he
pay interest.
       {¶ 7} At the May 2013 panel hearing, Schuler testified that he had
completed his probation in September 2012 and was current on the installment
payments for his fine. Schuler also testified that in 2009, during the course of the
federal investigation, he had sent the Internal Revenue Service (“IRS”) a check
for approximately $80,000, which was the amount of taxes that his accountant had
determined he should have paid on the unreported $360,000 in income.
According to Schuler, the IRS accepted his check, although he acknowledged that
the agency has authority to issue other civil penalties for late payment.
       {¶ 8} Based on this record, the board found that Schuler’s conduct
violated DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation) and (A)(6) (prohibiting
a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness
to practice law). We agree with the board’s findings of misconduct.
                                     Sanction
       {¶ 9} When imposing sanctions for attorney misconduct, we consider
several 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.           However, because each
disciplinary case is unique, we are not limited to the factors specified in BCGD
Proc.Reg. 10(B) and may take into account all relevant factors in determining
which sanction to impose.




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                         Aggravating and mitigating factors
        {¶ 10} In aggravation, the parties have stipulated and the board has found
that Schuler acted with a dishonest motive. See BCGD Proc.Reg. 10(B)(1)(b).
Mitigating factors include the absence of a prior disciplinary record, cooperation
in the disciplinary process, and imposition of other penalties or sanctions—
namely, Schuler’s conviction, sentence, and fine.         See BCGD Proc.Reg.
10(B)(2)(a), (d), and (f).
        {¶ 11} The panel also addressed whether Schuler had fully acknowledged
the wrongful nature of his conduct.       See BCGD Proc.Reg. 10(B)(1)(g).       In
explaining the circumstance leading to his conviction, Schuler testified that the
“genesis” of his crime was a bookkeeping oversight. According to Schuler, he
was part owner of a radio-telecommunications business that had been sold at
some point in or prior to 2002. As part of the sale agreement, Schuler was to
receive three payments for his share of the business. Schuler claims that he set up
a system with his bookkeeper so that she would receive each payment and
coordinate with Schuler’s accountant to ensure proper tax treatment of the sale
proceeds.
        {¶ 12} Schuler testified that at the time the second payment was due, an
officer of his company indicated that the payment would be wired and requested
instructions for doing so. Schuler e-mailed his bank for wiring instructions and
then forwarded the bank’s e-mailed instructions to the payer. The instructions,
however, directed that the money be wired into Schuler’s personal bank account,
and therefore the $360,000 second payment was deposited into that account rather
than sent to Schuler’s bookkeeper. According to Schuler, because the second
payment “didn’t get into [his] system” with the bookkeeper, it was not reported on
his tax return. Schuler also testified that he had met with his accountant once a
quarter and that the accountant knew about Schuler’s sale of the business and had
considered the tax consequences for him.       Nevertheless, because the second




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payment was deposited in Schuler’s personal bank account, Schuler claimed that
the second payment “just got missed.”
       {¶ 13} In its report and recommendation, the panel acknowledged that
Schuler took responsibility for signing the false tax return, but the panel
nonetheless concluded that Schuler “seemed to blame the error on others.” For
example, the board noted that Schuler testified that one of the greatest lessons he
had learned from the matter was that his choice of associates was “critically
important.” We accept the panel’s credibility determination regarding whether
Schuler fully appreciated the wrongfulness of his 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.
                               Applicable precedent
       {¶ 14} In support of its recommended sanction, the board cites three
recent cases in which we imposed indefinite suspensions for similar disciplinary-
rule violations involving felony tax-evasion convictions.         See Disciplinary
Counsel v. Bennett, 124 Ohio St.3d 314, 2010-Ohio-313, 921 N.E.2d 1064
(indefinitely suspending an attorney, with credit for time served under an interim
felony suspension, for illegally structuring financial transactions in the amount of
$124,300 to evade federal currency-reporting requirements); Disciplinary Counsel
v. Smith, 128 Ohio St.3d 390, 2011-Ohio-957, 944 N.E.2d 1166 (indefinitely
suspending an attorney, with credit for time served under an interim felony
suspension, convicted of making false tax returns, conspiring to defraud the IRS,
and corruptly endeavoring to obstruct and impede an IRS investigation); and
Columbus Bar Assn. v. Hunter, 130 Ohio St.3d 355, 2011-Ohio-5788, 958 N.E.2d
567 (indefinitely suspending an attorney convicted of failing to report a cash




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payment of more than $10,000; the attorney also neglected two client matters and
failed to properly account for funds in his client trust account).
       {¶ 15} Following this precedent, we agree with the board that an
indefinite suspension with credit for time served is warranted here. As the board
concluded, there is no compelling reason to decline Schuler credit for the time he
has served under his interim felony suspension, which has been in place since
October 6, 2011.
                                     Conclusion
       {¶ 16} Having reviewed the record, weighed the aggravating and
mitigating factors, and considered the sanctions imposed for comparable conduct,
we adopt the board’s recommended sanction. Accordingly, Robert Carl Schuler
is indefinitely suspended from the practice of law in Ohio, with credit for time
served under the interim felony suspension imposed on October 6, 2011. Costs
are taxed to Schuler.
                                                              Judgment accordingly.
       PFEIFER, O’DONNELL, LANZINGER, KLATT, and O’NEILL, JJ., concur.
       O’CONNOR, C.J., and FRENCH, J., concur with the sanction but would not
give credit for time served under the interim suspension.
       WILLIAM A. KLATT, J., of the Tenth Appellate District, sitting for
KENNEDY, J.
                              ____________________
       Scott Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant
Disciplinary Counsel, for relator.
       Kegler, Brown, Hill & Ritter, Geoffrey Stern, and Jason Beehler, for
respondent.
                          _________________________




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