Columbus Bar Assn. v. Dougherty - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Columbus Bar Assn. v. Dougherty, 105 Ohio St.3d 307, 2005-Ohio-1825.]

COLUMBUS BAR ASSOCIATION v. DOUGHERTY.
[Cite as Columbus Bar Assn. v. Dougherty,
105 Ohio St.3d 307, 2005-Ohio-1825.]
Attorneys at law -- Misconduct -- Mitigation, protracted disciplinary
proceedings, and lack of intent to deceive warrant public reprimand for
violation of DR 1-102(A)(4).
(No. 2002-1460 -- Submitted January 18, 2005 -- Decided May 4, 2005.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 01-82.
__________________

Per Curiam.
{¶1} Respondent, Gina Mary Dougherty of Columbus, Ohio, Attorney
Registration No. 0022195, was admitted to the practice of law in Ohio in 1982.
On October 8, 2001, relator, Columbus Bar Association, charged in a single-count
complaint that respondent had violated the Code of Professional Responsibility,
including DR 1-102(A)(4) (prohibiting conduct involving fraud, deceit,
dishonesty, or misrepresentation) and 1-102(A)(6) (prohibiting conduct that
adversely reflects on a lawyer's fitness to practice law). The Board of
Commissioners on Grievances and Discipline found the cited misconduct based
on respondent's admission that she had notarized an affiant's signature on a
client's liquor-permit application but had not actually witnessed the signature as
required by the notarization jurat. The board recommended that respondent be
publicly reprimanded for this misconduct and that notice of this sanction be
provided to the Ohio Notary Commission.
{¶2} We initially considered the board's findings and recommendation
in Columbus Bar Assn. v. Dougherty, 99 Ohio St.3d 147, 2003-Ohio-2672, 789

SUPREME COURT OF OHIO
N.E.2d 621 ("Dougherty I"). In Dougherty I, we remanded this cause to the board
for further proceedings, including allowance of a proposed amendment to the
complaint. We found that the complaint as originally issued had not sufficiently
apprised respondent of the misconduct that relator argued had been charged in it,
particularly with respect to other reported Disciplinary Rule violations.
{¶3} On remand, relator amended its complaint to include a second
count specifically alleging that respondent had contrived a fraudulent scheme to
circumvent liquor-control laws by "stacking" temporary liquor permits available
to nonprofit organizations for fund-raising events, thereby enabling her client to
sell alcohol in his restaurant while waiting for a regular permit. The board
reconvened the panel that had originally heard the cause, and, with the parties'
agreement, the panel heard evidence only as to the second count.
{¶4} The panel unanimously dismissed the second count of the amended
complaint, and the board reiterated its findings that respondent had violated DR 1-
102(A)(4) and (6) by notarizing an affiant's signature without having actually
witnessed the signature. The board also repeated its previous recommendation
that respondent receive a public reprimand.
{¶5} We summarized in Dougherty I the facts underlying the board's
findings of misconduct:
{¶6} "[A] client asked respondent in late 1999 or early 2000 to secure a
liquor permit in anticipation of the client's opening of a new restaurant. In
addition to her efforts to obtain the type of long-term liquor permit that the client
wanted, respondent provided the client a blank application for an F-2 permit. An
F-2 permit allows nonprofit organizations to sell alcohol during special events for
a period of 48 hours.
{¶7} "The client took the blank application to an investor in the
restaurant who was also a member of a nonprofit religious organization,
apparently for the investor to obtain an appropriate affiant's signature to
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January Term, 2005
authenticate the application on the club's behalf. The investor returned the
application to the client partially completed and with a handwritten authorization
that purported to be the signature of the organization's president. The client then
gave the incomplete application back to respondent, and she filled in the other
required information. Respondent also notarized the signature on the application,
notwithstanding that she did not see the affiant sign it.
{¶8} "Respondent's client was granted an F-2 permit based on this
application. However, the propriety of the permit was later questioned in a
published newspaper article that came to the attention of the actual president of
the nonprofit organization. The president, who had neither signed the application
nor known that his organization had applied for a liquor permit, became
concerned about how the permit had been obtained. After some investigation, the
president learned that the club member/restaurant investor had attempted to
authorize the application on behalf of the organization. The investor had signed
without authority the name of a third club member and erroneously identified that
club member as the organization's president." Dougherty I, 99 Ohio St.3d 147,
2003-Ohio-2672, 789 N.E.2d 621, ¶ 4-6.
{¶9} The panel found and relator concedes that the unanimous dismissal
of Count Two precluded further review of the dismissal either by the board or this
court. See Gov.Bar R. V(6)(H) and (I) and In re Complaint Against Harper
(1996), 77 Ohio St.3d 211, 216, 673 N.E.2d 1253. Thus, today we review only
the board's findings of misconduct and recommendation as to Count One, and we
find that respondent violated DR 1-102(A)(4) and (6). We also agree that a public
reprimand is appropriate and, therefore, overrule relator's objections to this
sanction.
{¶10} Relator argues that a public reprimand is inadequate to censure
respondent's dishonesty and urges us to suspend her license to practice law for 18
months, with the last 12 months stayed. Relator relies on Disciplinary Counsel v.
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Fowerbaugh (1995), 74 Ohio St.3d 187, 658 N.E.2d 237, syllabus, and its
progeny for the proposition that a violation of DR 1-102(A)(4) requires that the
lawyer "be actually suspended from the practice of law for an appropriate period
of time." Most specifically, respondent cites Lorain Cty. Bar Assn. v. Papcke
(1998), 81 Ohio St.3d 91, 689 N.E.2d 549, in which a lawyer twice notarized a
client's signature that had been forged by the lawyer's secretary, misled the client
about the filing date of a divorce case, neglected the client's case, and did not
cooperate in the ensuing disciplinary investigation. In Papcke, even with the
mitigating effect of good character and a contributing mental-health condition, we
imposed the sanction that relator advocates here.
{¶11} Citing Cincinnati Bar Assn. v. Reisenfeld (1998), 84 Ohio St.3d 30,
701 N.E.2d 973, among other cases, respondent rejoins that her misconduct
resulted from a single isolated incident and does not manifest the deceptive course
of conduct for which an actual suspension of her license should result, especially
considering the mitigation evidence she presented. See Disciplinary Counsel v.
Heffter, 98 Ohio St.3d 320, 2003-Ohio-775, 784 N.E.2d 693, in which we
deviated from the rule in Fowerbaugh due to mitigating circumstances, and
Section 10(B) of the Rules and Regulations Governing Procedure on Complaints
and Hearings Before the Board of Commissioners on Grievances and Discipline
("BCGD Proc.Reg."). Respondent emphasizes the fact that four attorneys
testified to her competence and integrity in over 20 years of practice. Respondent
further points out that she has no prior disciplinary record, immediately
acknowledged her misconduct, apologized for it with sincerity, and completely
cooperated in the disciplinary proceedings. Respondent insists that her
transgressions warrant only a public reprimand.
{¶12} We find Disciplinary Counsel v. Simon (1994), 71 Ohio St.3d 437,
644 N.E.2d 309, most analogous to respondent's case. There, we publicly
reprimanded a lawyer who notarized the signatures of two grantors on a deed,
4

January Term, 2005
both of which his client had represented to be genuine, though neither signature
had been affixed in the lawyer's presence. The two signatures in Simon belonged
to the client's parents, but these situations are otherwise essentially the same
because both attorneys ignored their duties as notaries public.
{¶13} In Lorain Cty. Bar Assn. v. Kennedy (2002), 95 Ohio St.3d 116,
766 N.E.2d 151, a case in which we enjoined a notary from practicing law
without a license, we observed the importance of the notary's duty under R.C.
147.07 to administer oaths and take and certify acknowledgements of documents.
Quoting Papcke, 81 Ohio St.3d at 93, 689 N.E.2d 549, we explained:
{¶14} " `Documents acknowledged by [a notary] are self-authenticating.
Evid.R. 902(8); Fed.R.Evid. 902(8). A notary who certifies to the affidavit of a
person without administering the oath or affirmation to that person as required by
R.C. 147.14 is subject to a fine of up to $100 or imprisonment of up to thirty days,
or both. R.C. 147.99(B).' " Kennedy at 117, 766 N.E.2d 151.
{¶15} For that reason, we admonished that notaries " `must not take a
cavalier attitude toward their notary responsibilities and acknowledge the
signatures of persons who have not appeared before them.' " Id., quoting Papcke,
81 Ohio St.3d at 93, 689 N.E.2d 549. In this regard, respondent and the lawyer in
Simon failed completely. Neither lawyer, however, forged a signature, knew of a
forgery, or engaged in deceit or other misconduct beyond failing to witness
signatures as required.
{¶16} As respondent points out, these more egregious infractions
distinguish her case and Simon from others in which we have imposed
suspensions, actual or stayed, for notary-related misconduct. See, e.g.,
Disciplinary Counsel v. Bandy (1998), 81 Ohio St.3d 291, 690 N.E.2d 1280
(lawyer suspended for two years, with 18 months conditionally stayed, for falsely
authenticating a will that named him as beneficiary); Disciplinary Counsel v.
Shaffer, 98 Ohio St.3d 342, 2003-Ohio-1008, 785 N.E.2d 429 (lawyer suspended
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SUPREME COURT OF OHIO
for one year, with six months conditionally stayed, for helping client sell an
incapacitated relative's home by advising client to sign power of attorney for the
relative, signing as a witness to authenticate the forged relative's signature,
notarizing the forged signature, backdating the jurat, and instructing his secretary
to sign the power of attorney as second witness to the forged signature); Akron
Bar Assn. v. Coombs (1999), 85 Ohio St.3d 391, 709 N.E.2d 108 (lawyer
suspended for six months, all conditionally stayed with probation, for representing
client shortly before admission to bar and failing to properly witness signatures on
two leases); and Heffter, 98 Ohio St.3d 320, 2003-Ohio-775, 784 N.E.2d 693
(lawyer suspended for six months, all conditionally stayed, for notarizing without
having actually witnessed the signatures of two minor heirs on limited powers of
attorney).
{¶17} This distinction, coupled with mitigation and lack of any evidence
establishing a course of conduct designed to deceive, permits a less onerous
sanction for respondent's violation of DR 1-102(A)(4). Thus, for respondent's
violation of DR 1-102(A)(4) and consequent violation of DR 1-102(A)(6), she is
hereby publicly reprimanded.. Costs are taxed to respondent.
Judgment accordingly.

RESNICK, PFEIFER, LUNDBERG STRATTON and O'DONNELL, JJ., concur.

MOYER, C.J., O'CONNOR and LANZINGER, JJ., dissent.
__________________

MOYER, C.J., dissenting.
{¶18} I respectfully dissent from the majority opinion with respect to the
sanction imposed on respondent.
{¶19} In Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio St. 3d
187, 658 N.E.2d 237, syllabus, we held that when an attorney engages in
dishonest or fraudulent conduct, "the attorney will be actually suspended from the
practice of law for an appropriate period of time."
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January Term, 2005
{¶20} In disciplinary cases decided since Fowerbaugh, we have
consistently held lawyers to a high standard of honesty and trust and have
suspended lawyers who have failed to adhere to that standard. We have also held
lawyers acting in the capacity of a notary to this high standard. See Lorain Cty.
Bar Assn. v. Papcke (1998), 81 Ohio St.3d 91, 689 N.E.2d 549. As we stated in
Papcke, "lawyers must not take a cavalier attitude toward their notary
responsibilities and acknowledge the signatures of persons who have not appeared
before them." Id. at 93, 689 N.E.2d 549. Such an attitude, we reasoned, "breeds
disrespect for the law and for the legal profession." Id. at 93-94, 689 N.E.2d 549.
{¶21} In this case, respondent admitted that she had notarized the liquor-
permit application outside the presence of the purported affiant. She then
submitted the application to the Ohio Division of Liquor Control. Despite her
knowledge that the application form would be the basis for granting or denying
the application, respondent failed to alert the division to the dubious
circumstances surrounding the application.
{¶22} Chief Legal Counsel for the division testified that the notarized
signature on the application is "[v]ery material" in the determination as to whether
to grant or deny an application for a temporary liquor permit. He further stated
that if the person notarizing the applicant's signature is an attorney, division
personnel "then rely on the fact that the attorney has reviewed [the application]
and is in agreement that there are no errors or misrepresentations." The division
unwittingly relied on the notarial affirmation submitted by respondent and granted
the application.
{¶23} Respondent's actions had adverse consequences beyond inducing
the division's reliance. An article published in the Columbus Dispatch generated
public awareness of the alleged involvement of the Congregation Tifereth Israel
Men's Club in assisting the Shanghai Lily Restaurant in obtaining a temporary
liquor permit. Members of the synagogue's congregation contacted the
7

SUPREME COURT OF OHIO
synagogue to express concern over its apparent sponsorship of an event at the
nonkosher restaurant. The president of the synagogue and the synagogue's board
of trustees were required to respond to this publicity. They did so by sending a
letter to each congregant, explaining that the synagogue's men's club had not
applied for the permit.
{¶24} The majority notes that respondent "failed completely" to adhere
to our admonishment in Papcke that notaries must not take a casual attitude
toward their notary responsibilities by notarizing an affiant's signature outside the
affiant's presence. Despite this acknowledgment, the majority sanctions
respondent by publicly reprimanding her.
{¶25} In my view, pursuant to the precedent established in Fowerbaugh
and Papcke, respondent should not receive such a lenient sanction. In light of her
casual attitude toward her notary responsibilities and the adverse consequences of
her misconduct, respondent should be suspended from the practice of law for six
months, with no stay of the suspension.
O'CONNOR and LANZINGER, JJ., concur in the foregoing dissenting
opinion.
__________________

David K. Greer, Bruce Campbell, Bar Counsel, and Jill Snitcher McQuain,
Assistant Bar Counsel, for relator.

Kegler, Brown, Hill & Ritter, Christopher J. Weber and Geoffrey Stern,
for respondent.
______________________
8