Opinion
No. 90-1704
Submitted November 14, 1990 —
Decided March 6, 1991.
Attorneys at law — Misconduct — One-year suspension — Failure to communicate dissatisfaction with a reaffirmation agreement to client's creditor or its attorney and not communicating changes made to the agreement until after it was filed with the bankruptcy court.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-22.
On June 19, 1989, relator, Toledo Bar Association, filed a complaint against respondent, Joseph W. Westmeyer, Jr., alleging five violations of the Code of Professional Responsibility in two unrelated counts. Count I charged respondent with violations of DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(5) (conduct prejudicial to the administration of justice). In his answer, respondent denied violating the Code of Professional Responsibility. A hearing was conducted by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on January 12, 1990.
In Count I, relator charged that respondent represented Raymond B. Lee in a bankruptcy matter and that respondent developed a reaffirmation agreement with representatives of Signal Finance of Ohio, one of Lee's creditors, requiring Lee to repay a portion of the debt. Relator further alleged that after the agreement was prepared it was forwarded to respondent for Lee's signature and for filing. However, relator alleged that respondent then deleted two paragraphs from the agreement, without notifying the other parties or receiving their approval to make the changes, and then filed the altered agreement with the bankruptcy court. The deleted paragraphs would have made the debtor responsible for the entire amount of the loan if he missed a payment under the reaffirmation agreement. Respondent stated at his hearing that at no time did the parties agree that his client would be liable for the entire amount of the debt if he missed one monthly payment. Respondent further stated that after receiving the final agreement he contacted the opposing attorney who told respondent to delete whatever was not part of the verbal agreement.
Respondent argued further that the case pivoted on the issue of which party to the agreement was telling the truth and proffered the testimony of two polygraph examiners into evidence to demonstrate his veracity. First, he filed a motion in limine, and later, a motion under Civ. R. 7(B). The panel denied respondent's motion in limine, but conditionally sustained his Civ. R. 7(B) motion if any of the following events occurred prior to the hearing before the panel: (1) this court orders the evidence admitted; (2) this court overrules State v. Souel (1978), 53 Ohio St.2d 123, 7 O.O. 3d 207, 372 N.E.2d 1318; or (3) relator stipulates to admitting the polygraph test results as evidence. However, none of these contingencies occurred.
Count II involved respondent's conduct in relation to a malpractice action and a paternity action against the same physician. The complaint charged that respondent falsely represented to the clients that he was a malpractice expert, that he submitted bills to the clients for services on the malpractice action despite having taken that case on a contingent fee basis, and that when the malpractice action was dismissed in the court of appeals for untimely filing, he did not tell the clients why it was dismissed, all in violation of DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The complaint further alleged that respondent thus neglected a legal matter entrusted to him in violation of DR 6-101(A)(3), that he failed to carry out a contract for professional services in violation of DR 7-101(A)(2), and that by failing to disclose the basis for the dismissal of the malpractice action, respondent attempted to exonerate himself or limit his liability to his clients in violation of DR 6-102(A).
The panel, noting that the clients' testimony conflicted with respondent's testimony on nearly every major issue, found that relator failed to establish by clear and convincing evidence any violation charged in Count II, and, therefore, sua sponte, dismissed that count. However, with respect to Count I, the panel found that respondent failed to communicate his dissatisfaction with the reaffirmation agreement to Signal Finance of Ohio or its attorney and failed to communicate the changes he made to the agreement until after he had filed it. The panel recommended that respondent be suspended from the practice of law for one year.
The board adopted the panel's findings and recommendations and further recommended that costs of the disciplinary action be taxed to the respondent.
Respondent filed objections to the board's findings and recommendations, arguing, inter alia, that the polygraph evidence should have been admitted and that the panel erred by considering the circumstances of a prior disciplinary action against him.
James E. Brazeau, for relator.
Kolb, Kolb Kolb and Matt Kolb, for respondent.
We adopt the findings of fact and recommendations of the board. Additionally, we find that the panel did not err in refusing to admit the results of the polygraph examinations. Relator did not agree to their admission as required by Souel, supra. See, also, State v. Jamison (1990), 49 Ohio St.3d 182, 190, 552 N.E.2d 180, 188. Moreover, we neither ordered the evidence admitted nor have we overruled Souel. We also reject respondent's contention that the panel and board inappropriately considered respondent's prior misconduct reported at Toledo Bar Assn. v. Westmeyer (1988), 35 Ohio St.3d 261, 520 N.E.2d 223. The prior misconduct was considered only in relation to consideration of an appropriate sanction. Moreover, the panel and board only recommend what this court's order should be. Therefore, we conclude that respondent's prior misconduct, based on similar charges, is relevant to the choice of sanction.
Respondent is hereby suspended from the practice of law in Ohio for one year. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., HOLMES, WRIGHT, H. BROWN and CACIOPPO, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
MARY CACIOPPO, J., of the Ninth Appellate District, sitting for RESNICK, J.