City of Cincinnati v. Fourth National Realty LLC, Case No. 2019-0898
First District Court of Appeals (Hamilton County)

Menorah Park Center for Senior Living v. Irene Rolston, Case No. 2019-0939
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio ex rel. Cable News Network et al. v. Bellbrook-Sugarcreek Local Schools et al., Case No. 2019-1433
Second District Court of Appeals (Montgomery County)

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

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Must Attorney General Be Notified of Local Ordinance Challenge at Inception of Case?

City of Cincinnati v. Fourth National Realty LLC, Case No. 2019-0898
First District Court of Appeals (Hamilton County)

ISSUE: In a declaratory judgment claim alleging that a municipal ordinance is unconstitutional, must the Ohio Attorney General be served with a copy of claim at the inception of the case?

BACKGROUND:
Since July 2015, the city of Cincinnati and Fourth National Reality have been engaged in a legal dispute over a large outdoor sign Fourth National posted on a wall adjoining its downtown building. The sign advertises products sold by John Morell Co., Nathan’s Famous Inc.’s hotdogs, and several local sports teams.

The city sought an injunction in Hamilton County Common Pleas Court, asking for removal of the sign because it was in violation of the city’s zoning ordinances. The city argued the sign was prohibited by its “off-site” advertising ban, which doesn’t allow a building to advertise services not sold on premises without the city’s prior approval of the sign. Fourth National filed a counterclaim, arguing, among other things, that the municipal ordinance was an unconstitutional restriction on its free speech rights.

Both sides proceeded to brief the issues raised in the case and conducted discovery for several months. The common pleas court issued an order removing the sign and dismissed Fourth National’s claim, ruling that it did not have legal standing to bring the case.

Fourth National appealed to the First District Court of Appeals, which ruled that the company had standing to argue some of its claims. It remanded the case to the common pleas court.

City Asks Court Not to Consider Company’s Claim
In January 2018, the city asked the court for summary judgment. Part of its argument was that the trial court didn’t have jurisdiction to consider Fourth National’s claim because the company failed to abide by R.C. 2721.12, which required it to serve the Ohio Attorney General’s Office with a copy of its initial 2015 claim that the local law was unconstitutional.

In response, Fourth National sent a copy of its claim to the attorney general, who responded with a letter stating the office was declining to participate in the case. The common pleas court ruled it had sufficient jurisdiction to hear the case because Fourth National’s service to the attorney general was sufficient. However, the common pleas court ruled in favor of the city, noting the city changed its ordinance and the company’s challenge no longer was valid.

Fourth National appealed again to the First District, arguing there was still a provision of the ordinance that  wasn’t changed and that still unconstitutionally impacted its rights. The appeals court agreed and remanded the case to the common pleas court.

The First District’s decision also agreed that the company sufficiently notified the attorney general about the lawsuit. The city appealed the First District’s ruling on the notice requirement to the Supreme Court, which agreed to consider the issue. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference.

Notice Must Be Filed at Onset of Case, City Argues
The city maintains the plain language of R.C. 2721.12 required Fourth National to serve the attorney general a copy of its counterclaim when it filed the motion with the common pleas court. The city noted the applicable section of R.C. 2721.12 states: “In any action or proceeding that involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and, if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general also shall be served with a copy of the complaint in the action or proceeding and shall be heard.”

The city maintains the law sets out two prerequisites to bring a declaratory judgment attacking the constitutionality of a municipal ordinance. First, the city “shall be made a party and shall be heard.” Second, the attorney general “also shall be served” with a copy and “shall be heard.” The city argues these two actions must be taken at the same time, and while Cincinnati was served with the counterclaim in 2015, it was not until 2018 that the attorney general was notified of the case.

The city cites the Ohio Supreme Court’s 2000 Cicco v. Stockmaster decision, which required the service of the claim to the attorney general at the inception of the case. Cincinnati maintains the attorney general adopted the rationale of the Cicco decision by citing the service requirement in a brief the office submitted recently in City of Toledo v. State of Ohio.

State Sufficiently Notified of Case, Company Argues
Fourth National questions the ability of the city to raise the service-to-the-attorney general issue. It noted the city did not raise the issue when the case was filed in 2015, and through two different Ohio Rules of Civil Procedure, the city could have, but didn’t, contest the jurisdiction of the common pleas court to consider Fourth National’s counterclaim.

The company asserts that the city is attempting to insert the words “inception of the case” into the law. The company maintains the law is written to give the attorney general discretion to determine if it wants to participate in a case and that there are no specific timing requirements to notify the attorney general. If there is a dispute about the jurisdiction of the case because of insufficient notice, it is then the right of the attorney general, not the city, to raise that issue with the court, the company maintains. Because the attorney general’s office indicated it didn’t want to be part of the case, the trial court and the First District correctly ruled the matter could proceed, the company argues.

The company maintains the legislature, not the Court, has the power to change R.C. 2721.12 to add a timing component and could easily require that the notice be filed at the inception of the case. But since there is no explicit timing requirement, the company complied with the law, it concludes.

– Dan Trevas

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

Contacts
Representing the City of Cincinnati: Marion Haynes III, 513.352.4894

Representing Fourth National Reality LLC: Eric Holzapfel, 513.248.0026

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Is Lawsuit Alleging Unauthorized Disclosure of Health Information Barred by HIPAA?

Menorah Park Center for Senior Living v. Irene Rolston, Case No. 2019-0939
Eighth District Court of Appeals (Cuyahoga County)

ISSUES:

• Does the Health Insurance Portability & Accountability Act (HIPAA) preempt a claim brought under the Ohio Supreme Court’s decision in Biddle v. Warren Gen. Hospital (1999) for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information to obtain payment?
• Did claimant rely on a HIPAA regulation to determine whether the release of protected health information was “unauthorized” for purposes of pursuing a claim under Biddle, and does that reliance based on HIPAA allow a “private right of action”?

BACKGROUND:
Menorah Park Center for Senior Living filed a small claims complaint in March 2018 against Irene Rolston. Menorah Park wanted to collect $463.53 in unpaid bills for services Rolston received at its facility.

Based on court rules for civil cases, Menorah Park attached two billing statements to the complaint. The statements listed descriptions and dates of the health services; medical procedure codes; charges for the services; and credits and balances on Rolston’s account. No information was redacted.

Rolston responded to the lawsuit and also filed a class-action counterclaim. The counterclaim alleged that the billing statements that were posted on the Shaker Heights Municipal Court’s public docket were an unauthorized, unprivileged disclosure of nonpublic medical information. Rolston also asserted Menorah Park had filed collection claims against many other individuals in that court that also likely disclosed their private medical information.

Healthcare Provider Asks for Dismissal of Patient’s Counterclaim
Menorah Park asked the municipal court to dismiss the counterclaim, arguing that the federal Health Insurance Portability & Accountability Act (HIPAA) allows protected health information to be disclosed in order to obtain payment for medical bills. Rolston responded that her claim was based on the Ohio Supreme Court’s ruling in Biddle v. Warren Gen. Hospital (1999). Biddle concluded that civil lawsuits can be pursued “for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship.”

In July 2018, the municipal court granted Menorah Park’s request and dismissed the case. Rolston appealed to the Eighth District Court of Appeals, which reversed the municipal court’s decision. The Eighth District found that Rolston’s tort claim based on Biddle wasn’t prevented by HIPAA.

Menorah Health appealed to the Ohio Supreme Court, which accepted the case. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference.

Federal Health Privacy Law Generally Preempts Conflicting State Laws
HIPAA states that protected health information may be disclosed for treatment, payment, or healthcare operations. The federal law also states that it generally preempts conflicting state laws. A state law conflicts with HIPAA when it is “impossible for a private party to comply with both state and federal requirements,” or when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of [HIPAA].”

The federal law lists exceptions to this preemption rule, including when “[t]he provision of State law relates to the privacy of individually identifiable health information and is more stringent than a standard, requirement, or implementation specification adopted under [specific HIPAA provisions].”

HIPAA Preempts Lawsuit Based on State Supreme Court Ruling, Center Contends
Menorah Park maintains that HIPAA preempts Biddle on this issue. The center contends that if HIPAA authorizes the release of the medical information in this case for collection purposes, then a common-law claim based on Biddle is preempted by the federal law. If the center violated a HIPAA regulation, then the violation is subject to penalties under federal law – also preventing Rolston from making a claim under the state’s ruling in Biddle, Menorah Park maintains.

Nor does Rolston’s claim under Biddle fit the exception for state laws that are more stringent than HIPAA, because her claim is based on the specific HIPAA privacy standards, the center argues. Menorah Park quotes the HIPAA standard for disclosures:

“When using or disclosing protected health information …, a covered entity or business associate must take reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.”

In the center’s view, if a jury found that Menorah Park took “reasonable efforts” to limit the disclosure of Rolston’s information, then her lawsuit would fail because the disclosure wasn’t unauthorized, as required by Biddle. If a jury found that Menorah Park didn’t take reasonable steps to limit disclosure, then her claim is based on a HIPAA violation that must be reviewed by the U.S. Department of Health and Human Services, not in a lawsuit.

Menorah Park notes that Biddle stated, “In the absence of prior authorization, a physician or hospital is privileged to disclose otherwise confidential medical information in those special situations where disclosure is made in accordance with a statutory mandate or common-law duty, or where disclosure is necessary to protect or further a countervailing interest that outweighs the patient’s interest in confidentiality.”

The center argues that the countervailing interest here is the liability exposure for Ohio healthcare providers under Biddle for attempting to collect payments from patients. Menorah Park asks the Court to rule that the disclosure of information in the billing statements is an authorized or privileged disclosure, to clarify that a Biddle claim can’t be made.

State Lawsuits Are Allowed to Contest Disclosures HIPAA Doesn’t Permit, Patient Argues
Rolston notes that the U.S. Congress in HIPAA didn’t explicitly preclude states from allowing civil recovery for unauthorized disclosures of private health information. Although Congress prohibited federal lawsuits under HIPAA, it said nothing about wanting to prevent similar claims at the state level, Rolston explains.

She maintains that no conflict exists between HIPAA and Biddle. And, she argues, there is nothing “impossible” – as the center argues – about permitting the recovery of civil damages for disclosures that HIPAA doesn’t protect.

Rolston contends that only lawsuits based on state privacy standards less stringent than HIPAA are barred by the federal law. But Biddle provides more stringent privacy protections than HIPAA, which permits stronger privacy protections at the state level, she argues. Her brief states that the Ohio standard in Biddle is “neatly coextensive” with HIPAA.

Rolston notes that Menorah Park made no effort, such as redactions, to limit the disclosure of her health information that was filed publicly with the court. The Eighth District determined that her lawsuit should move forward because it was based on a violation of Ohio law, not HIPAA, Rolston adds. She maintains a jury can decide the factual question whether Menorah Park took “reasonable efforts” to protect her health information and met the “minimum necessary” standard.

Her brief describes Menorah Park’s concern about increased liability for healthcare providers as “feigned,” revealing the center’s preference for a forum in the U.S. Department of Health and Human Services. She states that the center has never explained why it was necessary to divulge dates and medical codes for her treatment to recover on its collection claim. Menorah Park could have avoided the counterclaim – and other healthcare providers can minimize their liability – by simply redacting private medical information, Rolston concludes.

Groups File Friend-of-the-Court Briefs on Center’s Behalf
Amicus curiae briefs supporting Menorah Park’s positions and seeking the Court’s guidance on whether and how HIPAA and Biddle work together were submitted by these organizations:

• Academy of Medicine of Cleveland & Northern Ohio
• Ohio Association of Trial Attorneys
• Ohio Hospital Association, Ohio Osteopathic Association, and Ohio State Medical Association, in a joint brief.

– Kathleen Maloney

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

Contacts
Representing Menorah Park Center for Senior Living: Bret Perry, 216.875.2767

Representing Irene Rolston: Paul Flowers, 216.344.9393

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Are Educational Records of Deceased Former Students Public?

State of Ohio ex rel. Cable News Network et al. v. Bellbrook-Sugarcreek Local Schools et al., Case No. 2019-1433
Second District Court of Appeals (Montgomery County)

ISSUE: Does the federal Family Educational Rights and Privacy Act and the Ohio Student Privacy Act prohibit the release of a student’s educational records after the student turns 18 years old and subsequently dies?

BACKGROUND:
On Aug. 4, 2019, 24-year-old Connor Betts opened fire outside a bar in Dayton’s Oregon District, killing nine and injuring 27 before police shot and killed Betts. The attack became the focus of local, national, and international attention. A debate ensued about what led to the tragedy and what may be done to avoid similar incidents in the future. At the center of the debate was the issue of “red flags,” which are attributes and behaviors of assailants. If red flags are discovered and addressed, tragedies may be prevented, experts assert.

Numerous news media organizations expressed interest in learning more about Betts’ juvenile records, and filed public records requests with the Bellbrook-Sugarcreek Local School District. Betts graduated from Bellbrook High School in 2013. The school superintendent and board of education denied the requests, citing an exception in the Ohio Public Records Act. The district stated that the federal Family Educational Rights and Privacy Act (FERPA) and the Ohio Student Privacy Act, R.C. 3319.321, prohibit the release of a student’s records without a student’s consent. Since Betts didn’t consent to the release of his student records, the district wouldn’t make them available.

Cable News Network (CNN); Cox Media Group, the owners of the Dayton Daily News and WHIO-TV in Dayton; the Associated Press; and several other news organizations sought a writ of mandamus from the Second District Court of Appeals to compel the Bellbrook-Sugarcreek district to hand over Betts’ student records. The Second District denied the request.

The news organizations appealed to the Ohio Supreme Court, which agreed to hear the matter. The Ohio Attorney General’s Office filed an amicus curiae brief in support of the media’s position, and also stated it has the duty to train and guide Ohio public officials on their responsibilities under the state public records act, R.C. 149.43. The Court permitted the media and the attorney general’s office to share oral argument time. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference.

Records Became Public When Former Student Died, Media Asserts
The school district cited R.C. 149.43(A)(1)(v), which states government records aren’t public if the release “is prohibited by state or federal law.” The district maintains that FERPA and the Ohio student privacy law prevent the release. The news media maintain neither law applies to the records of deceased adults.

The media explain that statutes are enacted against a “backdrop of common law,” and that laws passed by Congress and states that remove a common-law rule must explicitly state that is the intention. Under common law, a person’s right to privacy extinguishes when the person dies. Neither FERPA nor the state law, which was enacted to bring Ohio into compliance with FERPA mandates, addresses what happens to student records once the student dies. The media explain that the law was established to protect the rights of minors, and that public-school-district records cannot be released for those younger than 18 without the consent of parents or guardians. Once a student leaves a school district or attends college, the student has the sole right to consent to the release of student records.

The right to consent to the release of Betts’ record rested solely with Betts, the news media states. When he died, his right to privacy in those records ended, and the district must release them, the media maintain.

Court Should Consider Agency’s Interpretation, Media Suggests
The media organizations cite the Supreme Court’s 2012 Lang v. Dir. Ohio Dep’t of Job & Family Servs. decision, which states that when a statute is silent or ambiguous on an issue, the Court should consider the agency’s interpretation of the law. FERPA charges the U.S. Department of Education with enacting the privacy law, and the department established the Family Policy Compliance Office to enforce FERPA. In a 2009 letter seeking the department’s opinion on the release of records of deceased students, the compliance office wrote that the FERPA rights of a student lapse or expire when the student dies. The media note the department has repeatedly pointed to the letter in matters where the release of deceased student records has been questioned.

Given the reliance by schools across the country on the guidance from the agency charged with enforcing FERPA, the Court should give great weight to the interpretation, the media argue. Because the intent of the Ohio student law privacy law is to bring the state into compliance with FERPA, and is also silent on the issue of the records of deceased students, the media assert that neither law should be interpreted as preventing the release of Betts’ student records.

No Authority to Release Records, District Maintains
The school district notes that FERPA threatens the loss of federal funds for any district that doesn’t comply with its policy of forbidding the release of educational records without the consent of a student’s parents. The Ohio law, written to comply with FERPA, states the records can’t be released without written consent of parents or guardians when the child is under 18 or without the consent of a student who is over 18, the district notes. The plain language of the law doesn’t give the district the right to release the records, the district argues, and the laws fit the public records act exception that prohibits release.

The district maintains that by declaring the records public upon the death of the student, the Court would be creating a new law, and would be second-guessing the Ohio General Assembly. The district argues the legislature is best positioned to determine whether and to what extent educational records can be accessed without consent after a student dies. The district’s brief  argues the media’s position is short-sighted and that the ruling they request would apply to all student records, including an 18-year-old who committed suicide, or a 20-year-old special education student “who was abused and killed by a deviant.”

The broad implications of making the student records available after death further demonstrate the need for the General Assembly, not the Court, to decide the issue, the district asserts. The district also disputes the media’s reliance on common law, noting that the public didn’t have wide access to educational records prior to the existence of the public records act, FERPA, or the Ohio student privacy act. The district maintains the media hasn’t presented any legal authority that indicates the public was entitled to public-school records under common law.

Friend-of-the-Court Briefs
In addition to the attorney general’s brief, an amicus brief supporting the media’s position has been submitted by Columbus station WBNS-TV. The news media also are supported by a brief filed jointly by 11 news media-related organizations:

• Brechner Center for Freedom of Information
• Media Institute
• MPA – The Association of Magazine Media
• National Press Club
• National Press Club Journalism Institute
• National Press Photographers Association
• Ohio News Media Association
• Online News Association
• Reporters Committee for Freedom of the Press
• Society of Professional Journalists
• Student Press Law Center

– Dan Trevas

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

Contacts
Representing Cable News Network et al.: Erin Rhinehart, 937.227.3714

Representing Bellbrook-Sugarcreek Local Schools et al.: Nicholas Subashi, 937.427.8800

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Columbus Lawyer Faces Disbarment for Practicing Law While Suspended

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

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