Cincinnati Bar Assn. v. Wallace - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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CINCINNATI BAR ASSOCIATION v. WALLACE.
[Cite as Cincinnati Bar Assn. v. Wallace (1998), ___ Ohio St.3d ___.]
Attorneys at law -- Misconduct -- Public reprimand -- Engaging in conduct
adversely reflecting on fitness to practice law.
(No. 98-780 -- Submitted August 19, 1998 -- Decided November 4, 1998.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 96-69.

In a single-count complaint filed on August 12, 1996, relator, Cincinnati Bar
Association, charged respondent, Teri A. Wallace of Cincinnati, Ohio, Attorney
Registration No. 0059464, with violations of DR 1-102(A)(4) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), 7-102(A)(3) (concealing
or knowingly failing to disclose that which by law she was required to reveal), 7-
102(A)(5) (knowingly making a false statement of law or fact), and 7-102(A)(7)
(counseling or assisting her client in conduct she knew to be illegal or fraudulent).
In her answer, respondent admitted some facts alleged in the complaint, denied
others, and denied any disciplinary violations.

On January 9, 1998, a panel of the Board of Commissioners on Grievances
and Discipline of the Supreme Court ("board") held a hearing on the matter. The
complaint, answer, stipulations, and evidence established the following.

Respondent was admitted to the Ohio bar in 1992, and practices in
Cincinnati. In 1995, respondent undertook to represent William Bolin to defend a
post-decree action for contempt for past-due child support initiated by the
Hamilton County Child Support Enforcement Agency. Attorney Jenny
Namanworth represented Christine Daniels, Bolin's ex-wife, in relation to the
contempt action and related matters.

After learning of the contempt action, and prior to May 26, 1995, Bolin
asked respondent whether his ex-wife could place a lien against any real estate he
owned in an effort to collect any past-due child support, and respondent advised
Bolin that such a lien could be filed. Then, Bolin and his wife, Regina Bolin,
insisted that respondent prepare documents to transfer Bolin's one-half interest in
real estate at 5219 Hunter Avenue, Norwood, Ohio, to Regina Bolin, who owned
the other half-interest. Bolin testified that he wanted to avoid problems in the
planned sale of the property, that Regina insisted on the transfer, and because of
marital difficulties with Regina, that Bolin wanted the transfer "so I could be done
with her, more or less." Respondent advised Bolin against such a transfer, but
Bolin insisted.

On or about May 25, 1995, respondent prepared a quitclaim deed for Bolin
to transfer his interest in the Hunter Avenue property to Regina Bolin. On May
26, 1995, attorney Namanworth sent interrogatories to respondent in connection
with the contempt motion, which respondent received on May 30. The eighth
interrogatory stated, "For any real property that you own or in which you have an
interest, state the address of each parcel, the owner or owners, and mortgage on
the property and the amount, and the present market value of the property."

On May 31, respondent met with Bolin, and Bolin signed the Hunter
Avenue quitclaim deed. Respondent then notarized the deed, and the deed was
thereafter recorded on June 7, 1995. On May 31, respondent also gave Bolin a
copy of the Namanworth interrogatories and asked him to answer the questions.
Sometime before July 3, 1995, Bolin returned the interrogatories to respondent
with answers except for the eighth question, which he left blank. On July 3,
respondent reviewed Bolin's answers in a telephone conversation. When
respondent asked Bolin about the eighth question, Bolin said he could answer

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"none." Then, respondent wrote in "none." As written and returned, the
interrogatories did not contain a signature line nor an attestation provision and
were unsworn and unsigned.

On July 7, 1995, respondent returned the interrogatories to Namanworth
with a cover letter. On October 25, 1995, Bolin and Daniels, through counsel,
signed an agreed entry resolving the contempt proceeding and reducing the child
support arrearage to a sum certain, which Bolin was to pay on or before December
27, 1995. Although Bolin did not pay on time, he later paid the agreed sum in full.

In early 1996, after an examination of records at the Hamilton County
Recorder's Office, Namanworth learned of the quitclaim deed. At the same time,
Namanworth learned that in November 10, 1995, the Hunter Avenue property had
been sold, a fact of which respondent was unaware. In fact, Bolin used $1,000,
which Regina gave him from the net proceeds of $2,000 from the sale of the
Hunter Avenue property, to pay towards his obligations under the October 25
agreed entry. Both Namanworth and respondent knew that the Hunter Avenue
property was to be sold and anticipated, after the October 25 entry, that sale
proceeds would be used to pay on the agreed entry. After Namanworth learned of
the earlier quitclaim deed, she contacted relator, who initiated an ensuing ethics
investigation of respondent.

After considering the matter, the panel noted that under "Gov.Bar R. V,
Section 6(J), to support a disciplinary sanction misconduct of an attorney must be
established by clear and convincing evidence." In the panel's view, relator "has
not established by the requisite degree of proof that this otherwise lawful transfer
was a fraudulent conveyance within the meaning of the relevant statute. [R.C.
1336.04/1336.05.] Consequently, this conveyance, in which Respondent
admittedly participated, cannot form the basis for a violation of either DR 1-

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102(A)(4) * * * or DR 7-102(A)(7)[.]" Nor did the panel find any violation of
DR 7-102(A)(3) or 7-102(A)(5).

The panel also concluded they were "unable to make factual findings to
support the violations charged * * * with respect to the answers to
interrogatories." When the eighth interrogatory "was answered, the answer given
was technically true." Although respondent advised Bolin to disclose this real-
estate transfer, "when he determined not to do so, she considered herself bound by
the attorney-client privilege not to disclose it herself."

Although the panel found that relator did not meet its burden of proof as to
the charged violations, the panel found that respondent's "conduct was sufficiently
inappropriate, unprofessional, and improper * * * to find a violation of DR 1-
102(A)(6)" (engaging in other conduct which adversely reflects on the lawyer's
fitness to practice law). The panel also noted that several letters from professional
colleagues attested to respondent's integrity and trustworthiness, that she had
shown genuine remorse, and that this appeared to be an isolated incident not likely
to be repeated. The panel noted that respondent received no personal gain from
her conduct, and that while a delay in settlement had occurred, no party suffered
any permanent financial harm. The panel recommended that respondent be
publicly reprimanded.

The board adopted the panel's findings of fact, conclusions of law, and
recommendation. Subsequently, respondent and relator filed objections to the
board's findings and conclusions, and respondent objected to the board's
recommendation.
__________________

Beth Silverman and John B. Pinney, for relator.

John H. Burlew, for respondent.

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__________________

Per Curiam. After review, we concur with the findings, conclusions, and
recommendation of the board, including finding that respondent's conduct "was
sufficiently inappropriate, unprofessional, and improper" to sustain a violation of
DR 1-102(A)(6). We reject the objections filed by both relator and by respondent
to the board's findings, conclusions, and recommendation.

We find that relator did not establish by clear and convincing evidence that
respondent participated in an act intended to "hinder, delay, or defraud" creditors
or otherwise violated R.C. 1336.04. Daniels's enforcement action was for
contempt, not to reduce the arrearage to judgment. Also, Bolin had lived in the
Hunter Avenue property periodically since 1978, a lifelong connection known to
Daniels and his ex-wife, and disclosed in Bolin's answers to the Namanworth
interrogatories. Bolin's ownership in that property was also a matter of public
record, and the transfer to Regina Bolin was done openly and publicly. Moreover,
proceeds from the sale of that real estate were used to pay on the October agreed
entry, as the parties contemplated. Finally, Bolin testified that Regina Bolin
insisted on this transfer, and that he transferred the property to appease his wife.
No evidence was introduced to contradict this claim.

Nor did relator establish by clear and convincing evidence that respondent
acted fraudulently or assisted her client in acting fraudulently by responding
"none" to the interrogatory. Before the interrogatory was received, respondent had
already prepared a deed to transfer the property, and a month before the
interrogatory was returned, the property had been transferred. By analogy, the
United States Supreme Court has found that the federal perjury statute does not
reach a witness's literally true, but unresponsive answer, even if the witness

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intends to mislead the questioner by his answer. See Bronston v. United States
(1973), 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568.

Contrary to respondent's claims, the board accorded her due process and she
had fair notice that her professional conduct in representing Bolin, by preparing a
quitclaim deed and assisting him in answering the interrogatories, had been
challenged. See In re Ruffalo (1968), 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d
117; Toledo Bar Assn. v. Wood (1987), 32 Ohio St.3d 166, 512 N.E.2d 671. The
fact that she was found to have violated DR 1-102(A)(6), in essence an included
offense to the charged violations of DR 1-102(A)(4), 7-102(A)(3), and DR 7-
102(A)(5), was of no consequence.

On the basis of clear and convincing evidence, we find respondent's
conduct to be improper and unprofessional, which adversely reflects on her fitness
to practice law, a violation of DR 1-102(A)(6). "[A]ll attorneys who practice law
in this state are required to maintain the utmost degree of integrity, honesty, and
competence." (Emphasis sic.) Disciplinary Counsel v. Columbro (1993), 66 Ohio
St.3d 195, 197, 611 N.E.2d 302, 304. Respondent knew that her conduct was
improper because she repeatedly warned Bolin, who insisted on the transfer, that
the transfer was "stupid." At one point respondent asserted that she told Bolin this
deed "was a fraudulent conveyance," but she later denied advising Bolin in those
terms. Also, respondent's participation in returning the answered interrogatory,
marked "none," shows a serious lack of the professionalism expected of those
licensed to practice law. Abuses of an attorney's obligations during the discovery
process will not be tolerated. See Cincinnati Bar Assn. v. Marsick (1998), 81
Ohio St.3d 551, 692 N.E.2d 991. Although respondent could not disclose client
confidences, she could have disclosed the publicly recorded deed to opposing
counsel, after advising her client of her intention to do so. For her misconduct in

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violation of DR 1-102(A)(6), respondent is hereby publicly reprimanded. Costs
taxed to respondent.
Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

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