Monday, June 1, 2020

Ohio Hears Bar Discipline Matters

Two bar discipline matters are scheduled for (remote) oral argument before the Ohio Supreme Court.

For tomorrow

Toledo Bar Association v. Thomas A. Yoder, Case No. 2020-0228
Lucas County

The Board of Professional Conduct suggests a Lucas County attorney receive a two-year suspension, with one year stayed, for several ethical rule violations, including repeatedly calling a juvenile court magistrate a liar, and consistently making disparaging comments about opposing parties.

Thomas A. Yoder of Holland objects to the board’s findings. In a 112-page response to the board’s report to the Ohio Supreme Court, Yoder states that he “categorically” denies that he said or wrote anything false about the magistrate, an opposing attorney, and two women engaged in legal disputes with his clients. He notes that he has a 42-year career in the Toledo legal community with no prior disciplinary record, and asserts the charges against him result from two cases that “turned toxic because of some extremely bizarre circumstances and some very strange people.”

The Toledo Bar Association, which brought the complaint against Yoder, supports the board’s recommendation.  The bar association states that Yoder’s objections and his other submissions in the proceedings “reflect a lack of insight and loss of professional acumen and skills.”

To comply with state directives during the COVID-19 pandemic, the Court will hear the matter via videoconference.

Custody Dispute Leads to Conduct Charges
The bar association charges stem from two matters Yoder handled -- a case involving the custody of three minors and a land contract dispute.

Yoder represented the maternal grandparents who sought custody of the children because their daughter was allegedly suffering from a substance abuse addiction. Codi Dowe, a cousin to the children’s father, and a licensed nurse, also sought custody. Nedal Adya, a Lucas County juvenile court magistrate, presided over the custody dispute. Adya conducted an emergency custody hearing, removed the children from the grandparents’ home, and placed them with Dowe.

Eight of the charges of professional misconduct against Yoder are derived from his written reactions to Adya’s decision and written interactions with Dowe and the birth parents. In one statement, Yoder writes that “rather doing what a normal, competent magistrate would have done, Magistrate Adya then states what I believe to be an absolute lie.” The statement added that Adya “intentionally lied.” Yoder also wrote that he didn’t need to tolerate Adya’s “abuse…taunts, threats, and lectures.”

He also wrote that Dowe “exhibits bizarre visions of paranoia” and “is clearly out of touch with reality.” He sent letters to the Ohio and Michigan nursing boards, requesting they investigate her and consider her ability to function as a registered nurse.

Attorney Assails Opposing Lawyer and Client
In the other legal matter, Steven and Lisa Thomas were purchasing a home through a land installment sale contract that a client of Yoder’s prepared himself using a form he found online. The Thomases were making payments to Yoder’s client, then later to Yoder, who was acting as a trustee for his client. The couple became concerned that their payments weren’t being applied to the mortgage, taxes, and property insurance, and they hired attorney Fan Zhang to assist them.

Yoder’s written interactions with Zhang and the couple led to four more charges of professional misconduct by Yoder. Yoder accused Zhang of prolonging the dispute in order to bill the couple for more fees and told him to stop sending “silly letters” to impress his clients. He suggested that Zhang bring another attorney to mediation because in his “humble opinion” Zhang didn’t understand the lawsuit he filed.

He wrote that Lisa Thomas is a “very ignorant, troubled woman and a liar.” In another statement, he called her an “idiot,” and stated, “I’m still solving the problem created when 3 half wits sat around a kitchen table and filled out a land contract.”

The bar association added complaints about Yoder’s behavior based on the subpoenas he sent to witnesses scheduled to appear at Yoder’s disciplinary hearing. In subpoenas to Dowe’s parents, and the Thomases, he wrote that they would have to testify under oath and would be subject to perjury. He noted that Dowe would have to respond to “intentionally lying” in juvenile court and that the Thomases would have to justify the “lies and allegations” they made to the bar association. In both subpoenas he suggested the couples retain lawyers.

Panel Considered Matter
The three-member board panel that conducted Yoder’s disciplinary hearing reported that Yoder spent a good deal of time arguing his actions in the legal cases were correct. The panel found Yoder wasn’t devoting much time to addressing his conduct and his disparaging statements about the magistrate and other parties in the case.

The panel concluded that Yoder violated eight rules, and dismissed several other charges. Infractions included engaging in undignified and discourteous conduct degrading the magistrate; knowingly making false statements in a legal proceeding about the magistrate and Dowe; and making false statements about Zhang and Lisa Thomas.

The panel found Yoder also broke the rules against professional misconduct to gain advantage in a civil matter when he made unwarranted allegations about Dowe to the nursing boards, and made comments about Dowe “that have no substantial purpose other than to embarrass, harass or burden” her.

Based on the panel findings, the board recommends Yoder be suspended for two years with one year stayed with the condition that he commits no further misconduct. The board suggests that for Yoder to be reinstated, he submit to an evaluation by the Ohio Lawyers Assistance Program and comply with any recommendations from that evaluation.

Lawyer Objects to Charges
Yoder concedes he may have expressed a “bad attitude” toward Adya and the parties in the cases. But he argues he didn’t make any false statements about the matters in which he was involved. He requests that the Court dismiss the case.

In his objections, Yoder provides details on the cases and statements made by individuals in the matters. He argues that his reputation has been tarnished by two simple cases that became very complicated because of errors made by the magistrate and his opponents.

Bar Association Supports Suspension
The bar association asserts that Yoder’s lengthy and disorganized objections don’t comply with Court rules and further reflect that Yoder needs time away from the practice of law to reflect upon his lack of compliance with Court practices.

The bar association maintains the panel went to great length to allow Yoder to argue his case and refute any of the charges of misconduct against him. The panel found the evidence indicates that the other participants in the matter provided more credible versions of the events, and the bar association maintains the charges against Yoder are warranted.

 Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Toledo Bar Association: Robert Bahret, 419.248.2600

Thomas Yoder, representing himself: 419.865.5515

Wednesday

Disciplinary Counsel v. Jason A. Sarver, Case No. 2020-0229
Franklin County

The Board of Professional Conduct recommends that Columbus attorney Jason Sarver be disbarred because he continued to represent a client in a wrongful death claim and an estate matter after the Ohio Supreme Court suspended him in November 2018.

Sarver and the Office of Disciplinary Counsel, which filed the grievance against him, agreed to certain facts as well as a recommended indefinite suspension. However, the professional conduct board concluded that Sarver’s misconduct warrants his permanent removal from the practice of law in Ohio.

To comply with state directives during the COVID-19 pandemic, the Court will hear Sarver’s disciplinary case via videoconference.

Mother Hires Attorney after Daughter Killed in Car Accident
Juanita Mustin was referred to Sarver after Mustin’s daughter was killed in a June 2018 head-on collision on a Cleveland highway. Mustin’s daughter had a 4-year-old son at the time of her death. Mustin signed a contingency fee agreement with Sarver to represent her in a wrongful death claim, and Sarver later agreed to be her attorney for an application for crime victim compensation.

Sarver contacted the other driver’s insurance company, which offered a $50,000 settlement. After a $500 fee and Sarver’s attorney fees, the remainder of the settlement was to go to Mustin’s grandson. Before a settlement could be distributed, Sarver needed to have Mustin appointed as fiduciary of her daughter’s estate and to obtain approval from the Cuyahoga County Probate Court for the settlement.

In October 2018, Sarver went to the probate court to file various documents. After a conversation he claimed he had with a probate court magistrate, he decided he needed to disburse some of the settlement money to others in Mustin’s family, which would lower the settlement amount for the grandson to less than $25,000. He believed this step would eliminate the need for the probate court’s approval of the distributions.

Attorney Suspended in Middle of Handling Wrongful Death and Estate Matters
The Supreme Court suspended Sarver on Nov. 28, 2018, for two years with 18 months stayed because he engaged in sexual activity with a court-appointed client. He was no longer allowed to represent Mustin or the estate, but he didn’t tell Mustin or the probate court about his suspension. However, he filed an affidavit with the Court in December 2018 falsely stating that he had notified them. Sarver also continued to communicate with the insurance company and the Crime Victims Services Section of the Ohio Attorney General’s Office on Mustin’s behalf.

Sarver received the settlement check in December 2018. He signed Mustin’s name to the check and deposited it into his client trust account and began using the funds for himself. He also signed Mustin’s name on a settlement-related release, and personally notarized the release. Without the probate court’s approval, Sarver paid himself attorney’s fees, distributed money to people who weren’t Mustin family members, and disbursed other money, the board’s report states.

A crime victims services representative contacted Mustin in February 2019. The representative told Mustin the office could no longer work with Sarver because he was suspended from practicing law. This was the first time Mustin heard of the suspension. She called Sarver, who confirmed the suspension, but indicated he would be able to practice law again in a few months. He didn’t tell her to contact another lawyer and didn’t return her legal file to her. Mustin hired another lawyer for the cases.

Mother Testifies to Board about Attorney’s Actions
The board report notes that Mustin’s testimony at the disciplinary hearing contradicts Sarver’s assertions that he had her permission to sign the check and the release. And Sarver offered no evidence to support his claim. In December 2018, Sarver also gave Mustin a $4,700 check – which he called an “early Christmas present” – and gave a $2,000 check to Mustin’s daughter’s boyfriend. Mustin testified, though, that she never asked for any settlement money because it was for her grandson. She said she accepted the check because Sarver told her she was entitled to it and she trusted him as her lawyer.

The probate court magistrate that Sarver said he talked to submitted an affidavit in the disciplinary case. She stated that she didn’t advise him to disburse funds without probate court approval or to “streamline” the probate court process by reducing the grandson’s part of the settlement to less than $25,000.

Sarver stipulated that he violated six of the rules governing the conduct of attorneys in Ohio. Among them, Sarver failed to return file materials to Mustin once he was suspended; didn’t notify her of his suspension as required by the Supreme Court’s order; paid himself attorney fees out of the settlement without probate court approval; practiced law in violation of a legal profession regulation; and knowingly made false statements in the disciplinary investigation about receiving advice from the magistrate. He disagreed with the allegation that he violated the rule requiring lawyers to inform clients about decisions and circumstances that need client consent.

The board found several aggravating circumstances, including harm to the Mustin estate, and found no mitigating factors. Although the disciplinary counsel and Sarver suggested an indefinite suspension, the board concluded that Sarver should be disbarred. The board stated that the recommendation is based on Sarver’s failure to fully take responsibility for his misconduct, the presence of multiple aggravating factors, and the absence of any mitigating circumstances.

Attorney Objects to Certain Rule Violations and Suggested Disbarment
In his objections, Sarver disputes the board’s conclusion that he violated the informed-consent rule. The board stated that Mustin needed to know about Sarver’s suspension so she could find a new lawyer or prepare for the delay in the cases. She also needed to protect herself from a potential breach of her duties as the estate’s fiduciary if funds were disbursed without probate court approval. Sarver counters that Mustin’s “informed consent” about his suspension wasn’t needed, nor does the rule deal with a lawyer’s failure to obtain a local court’s approval in a settlement.

Sarver also stepped back from his stipulation to another rule violation involving his failure to tell Mustin about his suspension. He now maintains that the rule addresses misconduct only in litigation contexts.

He argues that his attempt to make restitution to Mustin before the disciplinary hearing should be considered a mitigating factor, and he points to prior cases that support a sanction of indefinite suspension, rather than disbarment, in his case.

Disciplinary Counsel Describes Attorney’s Rule Violations
The disciplinary counsel in its response agrees with the board that Sarver was obligated to tell Mustin of his suspension so she could make an informed decision about the next steps to take. The board also found that Sarver violated the informed-consent rule when he disbursed the funds without discussing it first with Mustin, obtaining her approval, and clearing it with the probate court, the disciplinary counsel notes.

Sarver’s claim that another rule applies only in litigation isn’t valid, according to the disciplinary counsel. The office maintains he was mandated to comply with the directives in the Supreme Court’s November 2018 order suspending him.

Although Sarver sent checks to Mustin’s new attorney to reimburse her, the disciplinary counsel notes they were sent one week before the disciplinary hearing. The office argues the attempt wasn’t “timely” restitution that would qualify as a mitigating factor, and notes it was partial repayment. While the office stands by its recommendation of an indefinite suspension, its brief maintains that disbarment “is certainly not unwarranted.”

 Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Jason A. Sarver: Philip King, 614.610.4545

Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.461.0256

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/06/two-bar-discipline-matters-are-scheduled-for-remote-oral-argument-before-the-ohio-supreme-court-for-tomorrow-toledo-bar.html

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