Disciplinary Counsel v. Rich - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Office of Disciplinary Counsel v. Rich.
[Cite as Disciplinary Counsel v. Rich (1994), Ohio St.
3d .]
Attorneys at law -- Misconduct -- Public reprimand -- Handling
paternity action for a plaintiff without disclosing to her
that the defendant was his client.
(No. 93-2517 -- Submitted March 22, 1994 -- Decided June
22, 1994.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 92-28.
On April 22, 1992, relator, Office of Disciplinary
Counsel, filed a complaint against respondent, Gary R. Rich of
Warren, Ohio, Attorney Registration No. 0000115, alleging among
other things that respondent had committed misconduct by
handling a paternity action for Katie Henninger without
disclosing to her that the defendant, Dr. Robert Sabatini, was
his client. The complaint charged eleven violations of the
Code of Professional Responsibility.
On May 14, 1992, respondent filed an answer denying the
material allegations of the complaint. On June 4, 1993, the
parties filed agreed stipulations and exhibits. The
stipulations varied the allegations of the original complaint
and reduced to three the alleged violations of the code: DR
1-102(A)(5) (conduct prejudicial to the administration of
justice), 1-102(A)(6) (conduct that adversely reflects on
fitness to practice law), and 7-104(A)(2), (giving advice,
other than to secure counsel, to a person not represented by a
lawyer where the person's interests and the lawyer's client's
interest have a reasonable possibility of being in conflict).
The matter was heard before a panel of the Board of
Commissioners on Grievances and Discipline of the Supreme Court
on June 7, 1993.
The parties stipulated to the following facts as the basis
for the alleged violations:
"1. Respondent, Gary Robert Rich, an attorney at law, was
admitted to practice law in the State of Ohio on November 6,
1981. Respondent is subject to the Supreme Court Rules for the
Government of the Bar.

"2. In December of 1987 or January of 1988, Kathryn Lynn
(Halasyn) Henninger (aka Katie Henninger) meet [sic] with the
Respondent concerning a parentage action against his client,
Dr. Robert E. Sabatini.
"3. On August 11, 1985, Ms. Henninger gave birth to Erica
Anne Halasyn.
"4. Respondent became acquainted with Dr. Robert E.
Sabatini in approximately 1983. Dr. Sabatini was a partner and
principal investor in B&R Realty, which held numerous
corporations, including among others, Anthony Land Corp.,
Ponderosa Park, Eastern Resort, and Damon's Clay Park.
Starting in about 1985, Respondent began doing some of the
legal work for various business enterprises of Dr. Sabatini,
besides handling some of Dr. Sabatini's personal legal matters.
"5. Since their initial acquaintance in 1983, Respondent
and Dr. Robert Sabatini maintained a close business and social
relationship. Respondent said of Dr. Sabatini: 'He's my friend
and my client.'
"6. Dr. Sabatini was a friend and a client of the
Respondent's, when Katie Henninger came into the Respondent's
office.
"7. Just prior to her first appointment with Respondent,
Ms. Henninger discussed her case with Respondent's wife, who
was his receptionist at that time. Respondent was advised of
reason [sic] for Ms. Henninger's visit.
"8. Approximately one (1) week after her first visit, Ms.
Henninger returned for another meeting with Respondent. During
this meeting, Respondent dictated parentage papers in the
presence of Ms. Henninger.
"9. On January 14, 1988, a third meeting was held at the
Respondent's office with Katie Henninger and her mother-in-law,
Marie Henninger. They were presented with five (5) documents
to sign, including: 1.) a Complaint for parentage; 2.)
Request for Appointment of Guardian Ad Litem; 3.) Motion to
Appoint a Guardian Ad Litem; 4.) Judgment Entry Appointing
Guardian Ad Litem; and 5.) Judgment Entry finding Dr. Sabatini
not to be the father of the child and dismissing the case.
"10. On January 15, 1988, at 9:34 a.m., Respondent filed
seven (7) documents in the Juvenile Division of the Domestic
Relations Court of Trumull County:
1.) Complaint to establish the parentage of Erica Ann
Halasyn and to set child support;
"2.) Request for the appointment of Marie Henninger as
Guardian ad Litem of Erica Ann[e] Halasyn;
"3.) Motion to Appoint Guardian ad Litem;
"4.) Judgment Entry Appointing Marie Henninger as
Guardian ad Litem for Erica Halasyn;
"5.) Notice of Representation that Gary R. Rich was the
attorney for Robert E. Sabatini;
"6.) Answer of Defendant, Robert E. Sabatini; and
"7.) Judgment Entry Dismissing the matter with prejudice.
"11. Items 1-4 (as noted above in paragraph 9) were
prepared and filed on plain legal paper, whereas Items 5-7 were
prepared on legal paper with the Respondent's name, address and
phone number.
"12. During his deposition on January 6, 1992, Respondent
stated that his letterhead legal paper is used only for clients

that he represented.
"13. Respondent took the papers to the courthouse for
filing in the Trumbull County Common Pleas Court, Domestic
Relations and Juvenile Division. On the same day, Judge
Panagis dismissed the case, without the scheduling of any
hearing or a discussion with the Plaintiff, Katie Henninger.
"14. Upon the filing of the documents, Respondent
received a receipt from the clerk (Receipt No. 28996),
reflecting that Sixty Dollars ($60.00) had been received for
filing fees from Katie Henninger. Katie Henninger did not pay
the fees, even though the receipt was made out to her.
Respondent paid the filing costs.
"15. Even though Judge Panagis signed the final judgment
entry dismissing the parentage case on the same day it was
filed, Respondent thereafter on January 20, 1988 filed a Waiver
of Service of Summons on the Defendant.
"16. Section 3111.19 of the Ohio Revised Code, reads as
follows:
"'After an action has been brought and before judgment,
the alleged father and the mother may, subject to the approval
of the court, compromise the action by an agreement in which
the parent and child relationship is not determined but in
which a specific economic obligation is undertaken by the
alleged parent in favor of the child. In reviewing the
obligation undertaken by the alleged parent, the court shall
consider the interest of the child, the factors set forth in
division (E) of section 3111.13 of the Revised Code, and the
probability of establishing the existence of a parent and child
relationship in a trial.'
"The Judgment Entry prepared by the Respondent did in fact
determine the father/child relationship. Respondent was aware
of the contents of this regulation, prior to the drafting of
the court papers.
"17. On January 29, 1990, the Trumbull County Prosecuting
Attorney's Office filed a parentage Complaint on behalf of the
minor child, Erica Ann[e] Halasyn, in the Trumbull County
Common Pleas Court, Domestic Relations Division, Juvenile
Department. On February 6, 1990, Respondent filed Notice of
Representation, on behalf of the Defendant, Robert E. Sabatini,
along with a Motion to Dismiss Res Judicata and proposed
Judgment Entry. When Respondent took his papers to court for
filing, he obtained the case from a Clerk and personally gave
it to Judge Panagis. Three (3) days later on February 9, 1990,
without a hearing, Judge Panagis signed a Judgment Entry
drafted by the Respondent dismissing the action.
"18. The Trumbull County Prosecutor's Office appealed
both cases to the Court of Appeals, Eleventh District, Trumbull
County, Ohio, in Case Nos. 90-T-4369 and 90-T-4394. On
February 11, 1991, the Court reversed the trial court's order
to the [sic] dismiss the second parentage action based upon
res judicata. The case was remanded back to the trial court
for further proceedings consistent with the appellate
decision. To date, this matter remains unresolved. Respondent
no longer represents Dr. Sabatini."
There was conflicting evidence whether respondent had
informed Katie Henninger that he represented Dr. Sabatini's
interests in the paternity proceedings. Henninger testified

that respondent did not disclose to her that he represented Dr.
Sabatini and that she felt throughout the proceedings that
respondent was her lawyer. On the other hand, John A.
Leopardi, a lawyer Henninger had engaged to try to settle the
paternity matter before she contacted respondent, testified
that he had informed Henninger that respondent was Dr.
Sabatini's lawyer. Respondent also testified that he told
Henninger when she first came to his office that he represented
Dr. Sabatini. The panel apparently accepted respondent's
evidence on this matter, as it stated:
"Ms. Henninger testified categorically that she did not
know Gary Rich represented Dr. Sabatini; however, there was
some indication that she knew that there was a relationship
between Rich and Sabatini. It was not crystal clear if she
understood the subtle differences between a business
relationship or friendship and that of attorney[-]client."
However, even so finding, the panel concluded that
respondent violated DR 7-104(A)(2), as well as DR 1-102(A)(5)
and 1-102(A)(6). The panel recommended that respondent be
given a suspension for one year. The board adopted the
findings of fact, conclusions of law, and recommendation of the
panel, and also recommended that costs be taxed to respondent.

Geoffrey Stern, Disciplinary Counsel, and Sally Anne
Steuk, Assistant Disciplinary Counsel, for relator.
Charles W. Kettlewell, for respondent.

Per Curiam. Respondent filed objections to the findings
of fact, conclusions of law and recommendations of the board,
arguing that the facts do not warrant a finding of a violation
of DR 7-104(A)(2), which states:
"(A) During the course of his representation of a client
a lawyer shall not:
"* * *
"(2) Give advice to a person who is not represented by a
lawyer, other than advice to secure counsel, if the interests
of such person are or have a reasonable possibility of being in
conflict with the interests of his client."
We find that by preparing and submitting the legal
documents on behalf of Katie Henninger and her child,
respondent, in effect, gave advice to those persons whose
interests were in conflict with his client, Dr. Sabatini. In
particular, respondent arranged for the appointment of Marie
Henninger and for the signing of the consent judgment entry by
her on behalf of the child. Therefore, we adopt the findings
and fact and conclusions of law of the board. Nevertheless, we
find the discipline recommended to be too severe under all the
facts and circumstances of the case. We therefore reduce the
discipline to a public reprimand.
Costs taxed to respondent.
Judgment accordingly.
A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.
Moyer, C.J., dissents, adopts the recommendations, and
would suspend respondent from the practice of law for one year.