Wednesday, December 2, 2020

Practice While Suspended Draws Ohio Disbarment

Dan Trevas has a summary of a bar discipline decision of the Ohio Supreme Court

The Ohio Supreme Court today disbarred a Columbus attorney for practicing law while under suspension and lying to the Supreme Court, his clients, and disciplinary officials about his activities.

The Supreme Court disbarred Jason A. Sarver, stating that the Court “can only assume that Sarver’s ‘pants are charred’ from the number of falsehoods” he told throughout his prior and present disciplinary proceedings. Writing for the Court majority, Justice Patrick F. Fischer stated that Sarver manipulated vulnerable clients and “has a pattern of breaching his clients’ trust to pursue his own objectives” rather than acting in his clients’ interests.

Chief Justice Maureen O’Connor and Justices Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the majority opinion. Justice Sharon L. Kennedy concurred in judgment only.

Attorney Pursues Wrongful Death Case
Sarver was hired by Juanita Mustin to pursue a wrongful-death claim in 2018 while his disciplinary proceedings were pending before the Supreme Court but before he was suspended from the practice of law. Martin’s daughter, Jessica, was killed by a vehicle traveling in the wrong direction on a highway in Cleveland.

Mustin signed a contingent-fee agreement in which she agreed to pay Sarver 33 percent of any settlement obtained without filing a lawsuit . Sarver then agreed to help her pursue a claim with the Ohio Victims of Crime Compensation Program (OVCCP).  

Sarver reached a $50,000 settlement agreement with Allstate Insurance Company, which represented the wrong-way driver. Sarver informed Mustin of the offer and told her that all proceeds of the settlement, less his attorney fees and costs, would be held in trust for Jessica’s minor son. He advised Mustin that he would need to complete some paperwork for the probate court before any of the proceeds could be distributed.

Lawyer Falsifies Documents
In September 2018, Sarver accepted the settlement. He prepared and obtained Mustin’s signature on various probate documents and took the documents to the Cuyahoga County Probate Court in October 2018, but filed only one document: the application for authority to administer the estate. During his most recent disciplinary investigation, Sarver acknowledged he did not file the other necessary paperwork at that time so he could begin to distribute proceeds from the settlement earlier than the court process would allow.

On Nov. 26, 2018, Sarver posted a $10,000 bond required for an estate administrator on Mustin’s behalf, and the probate court appointed Mustin as the fiduciary of Jessica’s estate and issued her letters of authority.

Two days later, the Court suspended Sarver from the practice of law for two years, with 18 months conditionally stayed, for engaging in a sexual relationship with a different client, who was indigent, lying about that relationship to the judge who was presiding over the client’s criminal case, and engaging in illegal activity by advising the client to turn off her phone’s GPS while there was an outstanding warrant for her arrest. (See – Court-Appointed Counsel Representing Indigent Defendant Suspended for Sex with Client.)

Two days after his suspension, Sarver wrote a letter to the OVCCP on his law-office letterhead, which identified him as an attorney, and indicated he would be working on Mustin’s claim. That same day, he signed Mustin’s name to a settlement release, falsely notarized her signature, and sent the document to Allstate. During this time, he did not notify Mustin of his suspension.

Sarver received the settlement check, signed Mustin’s name to it, and deposited it into his client trust account. He began to distribute the settlement proceeds without the probate court’s approval. He immediately began paying personal financial obligations directly from his client trust account with what he had calculated to be his earned fee.

Lawyer Lies about Compliance with Suspension Order
In December 2018, Sarver filed an affidavit of compliance with the Supreme Court, stating he had complied with the Court’s suspension order and had notified his clients and the courts in which he had pending cases of his suspension. During the disciplinary proceedings, he acknowledged he did not notify Mustin, the probate court, Allstate, or the OVCCP of his suspension.

Mustin learned of Sarver’s suspension in February 2019, when an OVCCP representative called her to discuss her case and informed her that he no longer could work with Sarver because Sarver’s law license had been suspended. 

Mustin stated that not only had Sarver failed to tell her about the suspension, she never gave him permission to sign her name on any documents or the settlement check.

The Office of the Disciplinary Counsel filed a complaint in June 2019 with the Board of Professional Conduct, charging Sarver with several violations of the rules governing the conduct of Ohio attorneys. The disciplinary counsel maintained that Sarver filed a false affidavit of compliance with the Supreme Court, failed to notify relevant parties of his suspension, practiced law while under suspension, and committed other violations while practicing law under suspension.

Supreme Court Considered Sanction
Sarver and the disciplinary counsel recommended to the board that Sarver receive an indefinite suspension. The board recommended Sarver be permanently disbarred. Sarver objected to the recommended sanction of disbarment. The disciplinary counsel stood by its recommendation of indefinite suspension, but told the Court that permanent disbarment is not unwarranted because Sarver’s misconduct in Mustin’s case occurred while he was suspended from practicing law.

Justice Fischer wrote that the “recency and severity of Sarver’s disciplinary history cannot be overlooked.” 

The majority opinion stated that Sarver, in his first disciplinary matter, labeled Sarver 1 by the Court, “committed some of the most egregious and disturbing violations of attorney misconduct, short of a violent felony offense — violating and abusing the attorney-client relationship and deceiving members of the judiciary.”

The Court believed that Sarver was trying to “wait out” the six months of actual time not practicing under the suspension by securing and using the Mustin settlement funds during his suspension. His plan was to then resume his representation after his suspension was over, “clearly thinking that no one would be the wiser,” the Court said.

The opinion noted the two-year suspension with 18 months stayed imposed in Sarver 1 was intended to protect the public and give Sarver the opportunity to be reinstated to the practice of law with the shortest suspension that could be imposed under the circumstances. Despite this sanction, Sarver immediately proceeded to violate the professional conduct rules by engaging in “a pattern of deceit and misrepresentation involving a grieving and vulnerable mother,” the opinion stated. 

“Integrity is a necessary characteristic for an attorney practicing law in Ohio, and Sarver does not possess this qualification,” the opinion stated.

The Court concluded that disbarment was necessary to protect the public from future harm.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/12/dan-has-a-summary-of-a-bar-discipline-decision-of-th-e-ohio-supreme-court-the-ohio-supreme-court-today-disbarred-a-columbus.html

Bar Discipline & Process | Permalink

Comments

Post a comment