Cleveland Bar Ass'n v. McMahon

114 Ohio St. 3d 331
CourtOhio Supreme Court
DecidedJuly 25, 2007
DocketNo. 2006-2260
StatusPublished
Cited by5 cases

This text of 114 Ohio St. 3d 331 (Cleveland Bar Ass'n v. McMahon) 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
Cleveland Bar Ass'n v. McMahon, 114 Ohio St. 3d 331 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} This court admitted respondent, Carl G. McMahon of Bay Village, Ohio, Attorney Registration No. 0001304, to the practice of law in Ohio in 1975.

{¶ 2} The Board of Commissioners on Grievances and Discipline recommends that we now suspend respondent’s license to practice for six months and conditionally stay the suspension based on findings that he fabricated information in correspondence to an insurance company while representing a client in a personal-injury claim. Respondent objects to the recommended sanction, argu[332]*332ing that a public reprimand is appropriate based on mitigating factors and precedent. On review, we agree that respondent violated the Code of Professional Responsibility as found by the board, and we overrule his objections as to the recommended sanction. Moreover, because respondent intentionally invented evidence to deceive an adversary, we hold that the recommended six-month stayed suspension is too lenient and order respondent to serve a six-month actual suspension from the practice of law.

{¶ 3} Relator, Cleveland Bar Association, charged respondent with, among other misconduct not found by the board, violations of DR 1 — 102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 7-102(A)(5) (prohibiting a lawyer from knowingly making a false statement of fact), and 7-102(A)(8) (prohibiting a lawyer from engaging in other illegal conduct or conduct contrary to a Disciplinary Rule). Respondent admitted these violations. A three-member panel of the board heard the cause, found the cited misconduct, and recommended a public reprimand. The board found only the violations of DR 1-102(A)(4) and 7-102(A)(5), dismissing the DR 7-102(A)(8) violation as redundant, and recommended the six-month suspension and that the suspension be stayed on the condition that respondent commit no further misconduct.

Misconduct

{¶ 4} Respondent has practiced law for over 30 years, primarily in civil cases, and has represented over 3,000 clients, many in personal-injury claims. The charges of misconduct arose out of a personal-injury case in which respondent represented a passenger who had sustained minor injuries in a two-car accident. The accident took place on July 1, 2004, in Shaker Heights, Ohio, when Jerri Marrs, the driver of the second car, collided with the car in which respondent’s client was riding. Police cited Marrs for improperly changing lanes.

{¶ 5} Respondent insisted that the accident was Marrs’s fault, but State Auto Mutual Insurance Company (“State Auto”), Marrs’s insurer, initially disputed liability. To persuade State Auto to enter into settlement negotiations, respondent sent a letter to the insurance carrier on August 20, 2004. That letter is at the heart of the charges against respondent.

{¶ 6} In the August 20 letter, respondent fabricated testimony that he identified as being verbatim from a nonexistent transcript ostensibly from a “Shaker Heights Court — July, 2004” proceeding. Respondent represented that this colloquy had occurred:

{¶ 7} “Judge: Ms. Jerri Lynn Marrs — How do you plead on the charge of improper lane change at Fairmont Circle in Shaker Heights, Ohio?

{¶ 8} “Ms. Marrs: No contest, your Honor.

[333]*333{¶ 9} “Judge: Do you have any thing to say in your defense?

{¶ 10} “Ms. Marrs: I was unfortunately in the wrong lane for proceeding straight in the intersection and by mistake, hit the other car in its lane.

{¶ 11} “Judge: I assume that since you are not contesting the traffic charge that you were at fault for this accident?

{¶ 12} “Ms. Marrs: Yes, your Honor. The accident was my fault.

{¶ 13} “Judge: Then I find you guilty on the charge of improper lane change, causing an accident, and you are fined $100.00, plus court costs.

{¶ 14} “Ms. Marrs: I’m sorry for causing this accident, your Honor, but I have auto insurance to pay for the other car’s damages and their injuries.

{¶ 15} “Judge: Please drive more carefully in the future, Ms. Marrs.

{¶ 16} “Ms. Marrs: Yes, your Honor.”

{¶ 17} Respondent’s letter to State Auto concluded:

{¶ 18} “Based upon Ms. Marrs court appearance where the Court officially found her guilty of the traffic charge, Ms. Marrs is solely liable for causing this accident. Once I obtain all of [respondent’s client’s] medical records and expenses, these documents will be forwarded to you for the purpose of your settling this liability case.”

{¶ 19} In fact, Marrs had failed to appear in court to answer to the charge of improperly changing lanes, she had never admitted fault on the record, and she had never been “officially found * * * guilty” of this traffic offense. Respondent’s August 20 letter thus contained demonstrably false information about Marrs and, by implication, about whether State Auto had any responsibility to indemnify those injured in the July 2004 auto accident.

{¶ 20} In a September 21, 2004 letter, a State Auto claims representative informed respondent that Marrs had not appeared in court and that State Auto still denied liability. On October 12, 2004, respondent replied, acknowledging that court records confirmed Marrs’s failure to appear, adding that “the court has issued a warrant for her arrest for failing to appear in court.” He also continued to aggressively assert Marrs’s responsibility for the collision, promising State Auto that he would conduct depositions of its insured, even “in her cell.”

{¶ 21} State Auto ultimately settled with respondent’s client in June 2005 for $8,500. In the course of settlement negotiations, respondent wrote to the claims representative on June 20, 2005, and vaguely apologized for remarks made in his August 20 and October 12 letters. State Auto apparently never relied on the false information that respondent had provided initially.

{¶ 22} Respondent has no reliable explanation for why he fabricated facts in his August 20 letter. During relator’s investigation, he stated that he may have [334]*334simply assumed that Marrs had appeared in court, as usually occurs after a traffic citation, and that she had been found guilty. And at the panel hearing, respondent claimed that he actually did not recall composing and sending the August 20 letter and that he had been “stunned” when confronted with his misstatements. He also suggested that he might have been trying to figuratively depict the likely outcome of Marrs’s traffic citation. In the end, however, he described the correspondence as “senseless” and basically inexplicable.

{¶ 23} Respondent admits that he knowingly made a false statement of fact and acted dishonestly in fabricating information for the August 20 letter to State Auto. We therefore adopt the board’s findings that he violated DR 1-102(A)(4) and 7-102(A)(5).

Sanction

{¶ 24} When imposing sanctions for attorney misconduct, we consider the duties violated, the actual or potential injury caused, the attorney’s mental state, and sanctions imposed in similar cases. Disciplinary Counsel v. Brown (1999), 87 Ohio St.3d 316, 318, 720 N.E.2d 525. See, also, Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16.

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Related

Disciplinary Counsel v. Brockler
2016 Ohio 657 (Ohio Supreme Court, 2016)
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2011 Ohio 4185 (Ohio Supreme Court, 2011)
Cincinnati Bar Ass'n v. Farrell
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Cleveland Bar Ass'n v. McMahon
882 N.E.2d 919 (Ohio Supreme Court, 2008)

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Bluebook (online)
114 Ohio St. 3d 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-bar-assn-v-mcmahon-ohio-2007.