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

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[Cite as Disciplinary Counsel v. Wallace, 94 Ohio St.3d 414, 2002-Ohio-1240.]

OFFICE OF DISCIPLINARY COUNSEL v. WALLACE.
[Cite as Disciplinary Counsel v. Wallace (2002), 94 Ohio St.3d 414.]
Attorneys at law Complaint charging attorney with practicing law while under
suspension dismissed, when.
(No. 01-1136 -- Submitted August 28, 2001 -- Decided March 6, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-96.
__________________

LUNDBERG STRATTON, J. On May 31, 2000, we suspended respondent,
Paul Wallace of Columbus, Ohio, Attorney Registration No. 0010369, from the
practice of law for six months. Disciplinary Counsel v. Wallace (2000), 89 Ohio
St.3d 113, 729 N.E.2d 343. On December 4, 2000, relator, Disciplinary Counsel,
filed a complaint charging that in June 2000, while he was under the order of
suspension, respondent not only engaged in certain actions that constituted the
practice of law but also failed to inform opposing counsel of his suspension.
Respondent answered and admitted that he had taken the actions as alleged.
However, respondent claimed that they were ministerial, did not involve the
practice of law, and that the counsel who were not informed of his suspension
were not opposing counsel. The matter was submitted to a panel of the Board of
Commissioners on Grievances and Discipline ("board").

The stipulations and the board's findings reveal the following facts. In
1999, respondent began representing Gerald Ioannides by negotiating Ioannides's
purchase of Crossridge, Inc., a company that had operated a landfill. As part of
the deal, Crossridge was to assign its permit to operate the landfill to Ioannides.
However, before the permit could be assigned to Ioannides, the Environmental
Protection Agency required Ioannides to pass a background check with the

SUPREME COURT OF OHIO
Environmental Background Investigative Unit of the Ohio Attorney General's
Office ("EBIU"). Accordingly, respondent prepared the background investigation
documents and submitted them to the EBIU on March 8, 2000.

Pursuant to a May 31, 2000 order from this court, respondent began
notifying clients (including Ioannides), courts, and opposing counsel of his
suspension from the practice of law. Consequently, Ioannides made arrangements
with Peter Precario to represent him in the acquisition of Crossridge and the
transfer of the permit. However, Precario did not take over representation until
July 17, 2000. On June 7, 2000, Assistant Attorney General Ann Wood notified
respondent by phone that the EBIU had not received all the documents needed to
complete its investigation of Ioannides. In response, on June 9, 2000, respondent
faxed a copy of the assignment of purchase agreement to the EBIU. In July 2000,
respondent received a message from Wood that again sought certain
documentation for the Ioannides investigation. Respondent attempted to contact
Wood to determine what documentation was still missing. However, Wood was
not in the office, so respondent left a voice mail inquiring as to the status of
Ioannides's file. During these contacts, respondent never informed Wood or the
EBIU that he was suspended from practicing law.

The panel found that respondent's communication to Wood in June 2000
that he would again supply the documents that he had previously furnished to the
EBIU and his voice mail message to Wood asking her whether she had the
"complete package," together with the use of his letterhead as a cover for
transmitting documents to the EBIU by ordinary mail, were not the practice of
law.

The panel then concluded that by not informing Wood and the EBIU of
his suspension in his various communications with them, respondent technically
violated DR 1-102(A)(6) (a lawyer shall not engage in conduct adversely
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January Term, 2002
reflecting on the lawyer's fitness to practice law). The panel recommended that
respondent receive a public reprimand.

The board adopted the findings, conclusion, and recommendation of the
panel.

We adopt the board's findings and conclusion that Wallace was not
practicing law when he provided documentation to the EBIU. However, we do
not adopt the board's conclusion and recommendation that Wallace violated DR
1-102(A)(6) by not informing Wood or the EBIU of his suspension.

This court's order suspending respondent required that he do the
following:
"1.
Notify
all
clients being represented in pending matters * * * of his
suspension * * * and * * * notify clients to seek legal service elsewhere * * *;

"* * *

"4. Notify opposing counsel in pending litigation or, in the absence of
counsel, the adverse parties, of his disqualification to act as an attorney after the
effective date of this order * * *." (Emphasis added.)

Upon notification of his suspension, respondent began complying with the
order by notifying his clients, including Ioannides, of his suspension. However,
this order did not require Wallace to notify either Wood or the EBIU of his
suspension because respondent was not involved in litigation on behalf of his
client with either Wood or the EBIU. The process of providing documents to the
EBIU so that it could complete its background check was not litigation and
merely involved resubmitting background investigation documents on behalf of
Ioannides to the EBIU, which was a ministerial act. As the board found,
respondent's submission of additional documents to the EBIU was not even the
practice of law.

Therefore, because the respondent's actions herein were not litigation,
Wood was not an opposing counsel, the EBIU was not an opposing party, and
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SUPREME COURT OF OHIO
merely providing missing documentation to the EBIU was not practicing law, we
find that the respondent was under no obligation to notify either Wood or the
EBIU of his suspension pursuant to this court's order. As a result, we find that
respondent did not violate DR 1-102(A)(6). Accordingly, we dismiss the charges
against respondent.
Cause dismissed.

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

COOK, J., concurs in judgment.
__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Kenneth R. Donchatz,
Assistant Disciplinary Counsel, for relator.

Nelson E. Genshaft and Benson A. Wolman, for respondent.
__________________
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