Two Attorneys Suspended from Practice of Law
The Ohio Supreme Court today suspended two attorneys, who both received two-year suspensions, with one year stayed on conditions.
Mahin Convicted of Felony Theft
In 2015, the Court suspended Mahin on an interim basis after receiving notice that he was convicted of fifth-degree felony theft for misappropriating funds from his former law firm. The Hamilton County Common Pleas Court sentenced him to one year of community control, and ordered him to perform 80 days of community service. The Office of Disciplinary Counsel filed a complaint against him with the Board of Professional Conduct based on the conviction.
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.
Eichenberger Fails to Cooperate with Client Fund Inquiry
The disciplinary counsel charged Eichenberger with professional misconduct in 2014 for his actions arising from an overdraft of his client trust account, using his client trust accounts as a personal bank account, and failing to cooperate during the resulting disciplinary investigation.
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.
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.
PDF files may be viewed, printed, and searched using the free Acrobat® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.