The Ohio Supreme Court today disbarred a Delaware attorney primarily for misappropriating client funds then lying about his actions during disciplinary hearings.

In a unanimous per curiam opinion, the Supreme Court permanently disbarred Brian W. Harter. The Board of Professional Conduct found Harter committed 26 violations of the rules governing the conduct of Ohio lawyers and recommended his disbarment. Harter did not object to the recommendation.

Multiple Clients Complain About Representation
The Office of Disciplinary Counsel filed a complaint against Harter with the board in November 2017 based on rule violations it believed Harter committed while representing five clients.

Harter represented Jesse Williams in a workers’ compensation claim in 2014. Harter went to the Ohio Bureau of Workers’ Compensation (BWC) to pick up a settlement check for about $5,600 that was issued to Williams. Harter did not inform Williams that he picked up the check and Harter had it cashed by another client who owned a convenience store.

Williams discovered online that the check had been issued and when he asked Harter about the money, Harter provided multiple excuses for why he had not paid his client.

Williams eventually received $4,000 and filed a grievance against Harter. Harter repeatedly failed to respond to the disciplinary counsel’s request for information. In a deposition during the investigation, Harter denied having misused or stolen Williams’ funds.

“Ultimately, Harter admitted that he had misappropriated Williams’s funds in order to pay his child support and other personal expenses,” the Court’s opinion stated.

Harter engaged in a similar pattern when representing Clarence Davis. The attorney obtained a $4,251 BWC check in Davis’ name, had it cashed at the other client’s convenience store, and did not provide Davis his full share of the funds. Although Harter retained part of the settlement to pay Davis’ medical bills, he did not pay them.  Nor did he return phone calls from Davis, who explained that his doctor refused to treat him until his bill was paid. Davis eventually retained another attorney who was able to persuade his doctor to resume treatment.

Other Client Cases Mishandled
Harter engaged in ethical misconduct in three other client matters:

• He accepted money from a client to file a divorce and claimed that he put the money on a pre-paid debit card that to pay the divorce filing fee. The Court was not persuaded that he put the money on the card, and Harter ultimately admitted he owed the client $500.
• He represented a client in a criminal matter, taking over for a court-appointed lawyer. He asserted to the client and the appointed lawyer that he received a 90-day continuance of the case from the court bailiff. The bailiff testified the conversation never took place.
• He settled a personal injury claim for a client for $6,500 and agreed to settle or pay about $4,000 in medical bills for the client. He did not attempt to settle the bills according to the agreement with his client, but eventually reduced one of them to $1,500. The Court found he owed the client about $1,200 that remained from the settlement.

Court Considers Sanction
When considering a proposed sanction, the Court examines aggravating circumstances that could increase the punishment for a lawyer and mitigating factors, which could lead to a reduced penalty.

The Court noted Harter had been previously suspended for five days in 2013 for defaulting on a child-support order. The opinion also stated the “record is replete with evidence of his dishonest and selfish motive.” The Court determined Harter harmed vulnerable clients, including Davis, who went without medical treatment for months while waiting for Harter to pay his doctor from the BWC settlement check.

“He lied repeatedly throughout his depositions and the hearing, and he admitted that he kept his clients’ money ‘because [he] needed it,’ used it to cover his personal expenses, and failed to make full restitution to all of the affected clients,” the opinion stated.

The Court also noted that Harter was indicted in Franklin County Common Pleas Court in 2014 for trafficking and possession of drugs, all-fifth-degree felonies. He received intervention in lieu of conviction from the court. Harter claimed he had an opioid addiction, but did not link his addiction to the professional misconduct he committed. And the opinion noted that more than two years after receiving intervention in lieu of conviction, he had not sought or obtained court-ordered psychological or opioid-specific treatment.

The only mitigating factor accepted by the board was a single letter from his best friend, an assistant U.S. attorney, who attested to his good character.

After weighing the factors, the Court concluded that “the only appropriate sanction for Harter’s misconduct is permanent disbarment.”

2018-0249. Disciplinary Counsel v. Harter, Slip Opinion No. 2018-Ohio-3899.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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