Cincinnati Bar Ass'n v. Powers

895 N.E.2d 172, 119 Ohio St. 3d 473
CourtOhio Supreme Court
DecidedSeptember 25, 2008
DocketNo. 2008-0396
StatusPublished
Cited by14 cases

This text of 895 N.E.2d 172 (Cincinnati Bar Ass'n v. Powers) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cincinnati Bar Ass'n v. Powers, 895 N.E.2d 172, 119 Ohio St. 3d 473 (Ohio 2008).

Opinion

Per Curiam.

{¶ 1} We must determine in this case the appropriate sanction for a lawyer who (1) as part owner, oversaw operations of a title company that defrauded various financial institutions and (2) then pleaded guilty to two felonies for his part in the scheme. Despite the breadth of the underlying fraudulent conduct, the Board of Commissioners on Grievances and Discipline recommended only the indefinite suspension of the lawyer’s license to practice law. For these egregious violations of the Code of Professional Responsibility, we order his permanent disbarment.

{¶ 2} Respondent, Donald M. Powers Jr. of Cincinnati, Ohio, Attorney Registration No. 0067728, was admitted to the practice of law in Ohio in 1997. On January 27, 2006, we suspended respondent’s license to practice law on an interim basis, pursuant to Gov.Bar R. V(5)(A)(4), upon receiving notice of his felony convictions for making a material false statement in a loan application, a violation of Section 1014, Title 18, U.S.Code, and filing a false income tax return, a [474]*474violation of Section 7206(1), Title 26, U.S.Code. See In re Powers, 108 Ohio St.3d 1424, 2006-Ohio-289, 841 N.E.2d 786. Our decision in this case completes the disciplinary review process.

{¶ 3} Relator, Cincinnati Bar Association, charged respondent with three violations of the Disciplinary Rules: DR 1-102(A)(3) (prohibiting illegal conduct involving moral turpitude), 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(6) (prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law). A panel of the board heard the case, found the cited misconduct, and recommended the indefinite suspension. The board adopted the panel’s findings of misconduct and recommendation.

{¶ 4} Relator has objected to the board’s report, arguing in the main that the board unduly minimized the gravity of respondent’s convictions and the fraudulent conduct that precipitated them. Relator claims that in adopting the panel report, the board relied too much on respondent’s exculpatory testimony and too little on the wrongdoing to which he admitted both in stipulations for the hearing and in pleading guilty to his crimes. We sustain these objections.

Misconduct

{¶ 5} To describe the scope of the fraudulent conspiracy in which respondent engaged, the parties stipulated:

{¶ 6} 1. “Respondent and his wife operated Premier Land Title Agency in Glendale, Ohio, from September 2000 to July 2003.”

{¶ 7} 2. “During this period, Respondent was a participant (along with several others) in a scheme involving ‘flipping’ low value homes in the greater Cincinnati, Ohio area.”

{¶ 8} 3. “The ‘flipping’ scheme involved buying a piece of real estate for a low value, recruiting a buyer for the property who may not otherwise be able to afford property, and creating false documents, including pay stubs, W-2 forms, bank statements and employment verification for the potential buyer. Next, a falsely inflated appraisal of the property would be obtained, and a false loan package would be submitted to the bank or lender in order to obtain a highly inflated loan.”

{¶ 9} 4. “Premier Land Title Agency, of which Respondent was an owner, participated in the closing of 310 loans involved in this scheme. Respondent was aware of some of the fictitious and/or fraudulent appraisals that were submitted to financial institutions in furtherance of this scheme.”

{¶ 10} 5. “Additionally, Respondent and/or Premier Land Title Agency took part in acts which defrauded various federally insured financial institutions in the execution of the ‘flipping’ scheme by knowingly submitting false Housing and [475]*475Urban Development (HUD) forms to the financial institutions in support of a loan application. In signing numerous HUD forms, Respondent falsely certified that the buyer had brought a down payment to the closing, which he knew not to be true.”

{¶ 11} 6. “Respondent further participated by acting as both the title agent and the seller in connection with five properties involved in the ‘flipping’ scheme. Respondent purchased one such property located at 1794 Carll Street in Cincinnati for $37,000 and sold it three months later for $78,000. Also, in furtherance of the conspiracy, Respondent purchased property located at 2283 Loth in Cincinnati for $6,000 and sold it six months later for $110,000. In both of these transactions, Respondent signed HUD statements certifying that the buyers brought over $11,000 to each of the closings as down payments, but in fact, the buyers did not provide any funds as down payments.”

{¶ 12} 7. “Respondent has admitted that due to his and Premier’s fraudulent activity, various financial and lending institutions have suffered an actual or intended loss of $3,492,217.59.”

{¶ 13} 8. “Respondent additionally willfully filed false individual income tax returns with the Internal Revenue Service for the years 2001 and 2002. He failed to report portions of the payments received from the fraudulent loan proceeds and from others involved in the ‘flipping’ scheme.”

{¶ 14} 9. “On February 1, 2005, Respondent pled guilty in United States District Court, Southern District of Ohio, Western Division, to making a material false statement in a loan application in violation of 18 U.S.C. § 1014, and to filing a false income tax return, in violation of 26 U.S.C. § 7206(1).”

{¶ 15} 10. “On October 31, 2005, Respondent was sentenced to imprisonment for 28 months on the first count and 36 months on the second count, to be served concurrently * * *.”

{¶ 16} Respondent was paroled from prison in August 2007. His release allowed him to testify before the hearing panel. At that time, he was living in a halfway house in Cincinnati.

{¶ 17} By overseeing an operation that fabricated closing documents on over 300 loans, causing lenders to lose nearly $3.5 million, and then filing false income tax returns that concealed his profit, respondent unquestionably violated DR 1-102(A)(3), (4), and (6).

Sanction

{¶ 18} Respondent has filed nothing in opposition to relator’s request for permanent disbarment, and the board, in adopting the panel’s report, offered little support for the recommendation to indefinitely suspend. As relator argues, the board largely understated the proportions of respondent’s misconduct, depict[476]*476ing a far less objectionable scenario than the one to which he admitted. Of the entire enterprise, the board summarized:

{¶ 19} “Respondent, along with other persons, did partner in the purchase of two residential properties in Cincinnati. Those homes were purchased for fairly low cost and sold within just a few months at a rather large profit. Respondent failed to accurately report the income obtained from these sales to the Internal Revenue Service.”

{¶ 20} Respondent, as the licensee and part owner of the title company in each transaction, facilitated as many as 310 real estate closings in which agents supplied fictitious appraisals, some of which respondent specifically knew to be fabricated. Pay stubs, W-2 forms, bank statements, and records that verified a buyer’s employment were routinely falsified to close these deals.

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Cite This Page — Counsel Stack

Bluebook (online)
895 N.E.2d 172, 119 Ohio St. 3d 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-bar-assn-v-powers-ohio-2008.