Stark County Bar Ass'n v. Ake

111 Ohio St. 3d 266
CourtOhio Supreme Court
DecidedNovember 15, 2006
DocketNo. 2006-0729
StatusPublished
Cited by27 cases

This text of 111 Ohio St. 3d 266 (Stark County Bar Ass'n v. Ake) 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
Stark County Bar Ass'n v. Ake, 111 Ohio St. 3d 266 (Ohio 2006).

Opinions

Per Curiam.

{¶ 1} Respondent, David S. Ake of Canton, Ohio, Attorney Registration No. 0000103, was admitted to the practice of law in Ohio in 1972. On October 11, 2004, relator, the Stark County Bar Association, charged respondent with five counts of professional misconduct all related to contumacious conduct that he committed during proceedings to dissolve his marriage. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and made findings of fact, conclusions of law, and a recommendation, which the board adopted.

Misconduct

{¶ 2} Respondent, a successful practitioner in personal-injury and domestic-relations law, and his wife, Janet, filed for dissolution of their marriage in January 2001. The case, which became protracted and acrimonious, was assigned for some postdecree proceedings to visiting Judge Thomas D. White. Janet was represented by counsel throughout the proceedings; however, respondent initially represented himself, committing much of the charged misconduct while acting as his own attorney. Judge White eventually found respondent in contempt for his conduct as alleged in Counts I through V; however, these findings were later dismissed as part of the comprehensive resolution to the couple’s litigation.

Count I — Withdrawal of Funds in Violation of Court Order

{¶ 3} On August 26, 2002, Judge White issued an order temporarily restraining respondent from withdrawing funds from a FirstMerit Bank account until further order of the court. Respondent opposed the restraining order and filed several motions to vacate the order over the next few weeks. On October 31, 2002, Judge White overruled respondent’s motion to vacate.

{¶ 4} After Judge White’s ruling on October 31, respondent consciously violated the temporary restraining order by writing a check on the bank account to his secretary for $94,000. One week later, the funds were wire-transferred to Naples, Florida, to pay for a condominium that respondent had agreed to buy.

{¶ 5} At the panel hearing, respondent explained why he had disregarded Judge White’s order. His frustration with the court’s ruling was particularly apparent from this exchange with the panel chairperson:

{¶ 6} “Q. All right. So you got this August 26 order on August the 26th, and it says you can’t take any money out of that account.
[268]*268{¶ 7} “Did you take money out of that account?
{¶ 8} “A. In October.
{¶ 9} “Q. In violation of the court order?
{¶ 10} “A. Yes, sir.
{¶ 11} “Q. Knowing that you’re in violation of the court order?
{¶ 12} “A. Yes, sir.
{¶ 13} “Q. What did you do with it?
{¶ 14} “A. I had two obligations that I had incurred prior to.
{¶ 15} “Q. No. Not why did you take it out. WTiat did you do with it?
{¶ 16} “A. I gave it to — I transferred it to my secretary, so that when I knew that I had to wire it to Florida on — I think within a few days after that, and so that it could be wired directly down and pay the obligation.
{¶ 17} “Q. Mr. Ake, when you took this money out of this account, you knew that was going to put you in contempt of court, didn’t you?
{¶ 18} “A. I — Yes, I knew. The short answer, yes.
{¶ 19} “Q. I mean, you thought about it, realized, T’m in contempt of court but I’m going to do it anyway’; is that what you’re telling me?
{¶ 20} “A. I believed I had no choice.
{¶ 21} “Q. Well, you could have complied with the Court’s order; that would have been a choice, wouldn’t it?
{¶ 22} “A. And then I would — I don’t know whether you want me to explain or try to explain or not. I mean, yes, I knew. I mean, the short answer, if you’re cross-examining me, yes, I knew I was in violation of the Court order.
{¶ 23} “Q. Well, the real answer is, you had some obligation, you felt you needed this money to do it to meet your obligations, and you decided to take the money out and take your chances and be in contempt as opposed to letting somebody in Florida sue you for breach of contract. That’s about it, isn’t it?
{¶ 24} “A. Plus, I also believed that the Court order was not — wouldn’t have been upheld on appeal and I believe that to this day.
{¶ 25} “Q. Do you not see an ethical violation in deliberately, as an attorney violating the Court order?
{¶ 26} “A. Yes, sir. I do. I also see ethical violations in breaching contracts with people, putting people into situations where they are personally harmed by my actions. And, in this case, no one — no one other than the written word of the Court order, no one was harmed. My wife received every dime that she was entitled to receive. At the time that I took the money out, my wife owed me money.
[269]*269{¶ 27} “Q. Is it your thinking that somebody has to be financially harmed for there to be an ethical violation—
{¶ 28} “A. No, sir.
{¶ 29} “Q. — when you deliberately ignore a Court order?
{¶ 30} “A. If the restraining order goes to holding my personal funds for some reason, there should be a reason, and if I don’t owe anybody any money to hold those funds. I am perfectly — I believe and had I known we’d be here today, I would have appealed it.
{¶ 31} “Had I taken this to the Fifth District Court of Appeals, that I believe the Court of Appeals would have vacated the restraining order as overbroad, a prior restraint on my — on my account, and having nothing to do with the facts and issues of this case. That’s my belief.”

Count II — Encumbrance of Marital Residence in Violation of Court Order

{¶ 32} Also during the dissolution proceedings, respondent and Janet agreed and Judge White ordered that “neither party shall incur any debt using the marital real estate as collateral, or in any other way encumber the marital real estate.” On April 1, 2002, respondent consciously violated this order by using his one-half interest in the property to secure a $400,000 line of credit that he individually obtained. Respondent claimed that Janet had consented to this transaction at a time when they were considering reconciliation and that he saw this consent as an oral modification of the dissolution agreement on which Judge White’s order was based.

Count III — Violation of the Court’s Order on Pet Care

{¶ 33} Respondent and his wife agreed and the court ordered that respondent keep and care for the couple’s very large dogs and allow Janet to visit them. Respondent admitted that he violated the court’s custody order. Without telling Janet, respondent gave up one dog to the local humane society, falsely claiming that his mother-in-law was unable to take care of the animal. Respondent later tried to recover the dog at Janet’s request, but by that time the dog had been given to someone else.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Erie-Huron Cty. Bar Assn. v. Bailey and Bailey (Slip Opinion)
2020 Ohio 3701 (Ohio Supreme Court, 2020)
Disciplinary Counsel v. Gorby
2015 Ohio 476 (Ohio Supreme Court, 2015)
Rowell v. Smith
2012 Ohio 4313 (Ohio Supreme Court, 2012)
Disciplinary Counsel v. Stafford
2012 Ohio 909 (Ohio Supreme Court, 2012)
Disciplinary Counsel v. Doellman
2010 Ohio 5990 (Ohio Supreme Court, 2010)
Cleveland Metropolitan Bar Ass'n v. Kealy
2010 Ohio 1554 (Ohio Supreme Court, 2010)
Disciplinary Counsel v. Rohrer
2009 Ohio 5930 (Ohio Supreme Court, 2009)
Disciplinary Counsel v. Ridenbaugh
2009 Ohio 4091 (Ohio Supreme Court, 2009)
Akron Bar Ass'n v. Catanzarite
119 Ohio St. 3d 313 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Goldblatt
888 N.E.2d 1091 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Broschak
887 N.E.2d 1176 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Zigan
118 Ohio St. 3d 180 (Ohio Supreme Court, 2008)
Butler County Bar Ass'n v. Cunningham
118 Ohio St. 3d 188 (Ohio Supreme Court, 2008)
Cleveland Bar Ass'n v. Mishler
118 Ohio St. 3d 109 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Tomlan
118 Ohio St. 3d 1 (Ohio Supreme Court, 2008)
Akron Bar Ass'n v. Markovich
883 N.E.2d 1046 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Roberts
881 N.E.2d 1236 (Ohio Supreme Court, 2008)
Cuyahoga County Bar Ass'n v. Leneghan
881 N.E.2d 1241 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Bubna
878 N.E.2d 632 (Ohio Supreme Court, 2007)
Cleveland Bar Ass'n v. Kraus
116 Ohio St. 3d 302 (Ohio Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
111 Ohio St. 3d 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stark-county-bar-assn-v-ake-ohio-2006.