The Ohio Supreme Court today suspended two attorneys, who both received two-year suspensions, with one year stayed on conditions.

In separate per curiam decisions, the Supreme Court sanctioned John E. Mahin of Cincinnati and Raymond L. Eichenberger III of Reynoldsburg based on violations of several rules governing Ohio lawyers.

The board considered a “consent-to-discipline agreement” in which Mahin admitted that beginning in 2013 he took about $15,000 of law-firm funds for his own personal use. He also fraudulently endorsed a client’s name on a nearly $271 settlement check and then deposited the proceeds into his personal account. In addition, he admitted signing a settlement document stating he witnessed a client’s signature, when in reality the client died before the document was signed.

Mahin and the disciplinary counsel stipulated that Mahin’s conduct violated several rules including the prohibition on a lawyer committing an illegal act that reflects adversely on the lawyer’s honesty and trustworthiness, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Completed Sentence, Other Factors Considered
The parties presented mitigating factors including that Mahin had no prior discipline, made full restitution to the firm and former client, fully cooperated with the disciplinary process, presented evidence of good character, and completed his felony sentence. The board also noted that Mahin voluntarily entered into a mental health contract with the Ohio Lawyers Assistance Program (OLAP), and was diagnosed with a depressive disorder that his treating psychologist concluded contributed to the misconduct. The doctor indicated Mahin is ready to return to the ethical and professional practice of law.

Aggravating factors presented to the board included Mahin having a dishonest and selfish motive, engaging in a pattern of misconduct, and committing multiple offenses.

The Court adopted the parties’ proposed sanction of a two-year suspension with the second year stayed provided that Mahin continue psychological counseling, comply with his OLAP contract, submit to law-practice management counseling, serve two years of monitored probation upon his reinstatement, and not engage in further misconduct. The Court also granted Mahin credit for time served under his interim suspension.

Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined the opinion.

Chief Justice Maureen O’Connor and Justice Terrence O’Donnell dissented, stating they would remand the case to the board to reconsider granting Mahin credit for time served.

2015-1641. Disciplinary Counsel v. Mahin, Slip Opinion No. 2016-Ohio-3336.

The parties stipulated to facts and mitigating factors that were presented to a board panel, which found Eichenberger violated professional rules including failing to hold client funds in trust accounts separate from his own property, knowingly failing to provide requested information to disciplinary counsel, and engaging in dishonesty, fraud, deceit, or misrepresentation.

Eichenberger objected to the findings and argued that the disciplinary counsel violated his constitutional rights to due process and equal protection by failing to notify him that the office had issued a subpoena for his bank records.

A bank where Eichenberger maintained his client trust account notified the disciplinary counsel of a nearly $1,300 overdraft, and the office sent Eichenberger a letter requesting information about the overdraft and copies of monthly statements around the time of the incident. Eichenberger provided incomplete information to the disciplinary counsel, which then subpoenaed two years of records from the bank. It discovered Eichenberger had issued more than 200 checks and electronic debits that included payments to himself. He also made payments to others such as the landlord of his law office and for personal expenses such as a racing stable he owned, golf trips, income taxes, malpractice insurance, and event tickets.

Eichenberger stated his trust account almost always consisted of retainers that he had earned or quickly would earn and the funds were rightfully payable to him. While he claimed his constitutional rights were violated by the subpoena without notice, the Court noted he did not identify any law or rule that would require the disciplinary counsel to send him notice.

The Court cited a professional conduct procedural rule indicating notice of a subpoena is not required unless there is probable cause of a violation. In Eichenberger’s case, the subpoena was issued during the investigation before any formal complaint was filed or probable cause finding made.

The Court found that Eichenberger improperly commingled personal and client funds, and that he made false statements about the overdraft, which he told the disciplinary counsel was a fraudulent and unauthorized charge when the evidence demonstrated it was an authorized payment on a payday loan. The Court concluded his “misconduct involved not only the inappropriate use of his client trust account, but also his deliberate and systematic attempts to deceive (disciplinary counsel) through noncooperation, deception and fraud.”

The Court suspended Eichenberger for two years, with the second year stayed on the condition that he not engage in further misconduct. Before he may be reinstated to the practice of law, Eichenberger shall be required to complete a continuing legal education course related to law-office financial management, and when reinstated, he shall serve one year of monitored probation.

Justices Pfeifer, O’Donnell, Kennedy, French, and O’Neill joined the opinion.

Chief Justice O’Connor and Justice Lanzinger dissented, stating they would not stay any portion of the suspension.

2015-1315. Disciplinary Counsel v. Eichenberger, Slip Opinion No. 2016-Ohio-3332.

View oral argument video of this case.

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