[Cite as Ohio State Bar Assn. v. Trivers, 134 Ohio St.3d 139, 2012-Ohio-5389.]
OHIO STATE BAR ASSOCIATION v. TRIVERS.
[Cite as Ohio State Bar Assn. v. Trivers, 134 Ohio St.3d 139, 2012-Ohio-5389.]
Attorneys—Misconduct—Multiple violations of the Rules of Professional Conduct
and Disciplinary Rules, including disregarding a standing rule of a
tribunal or a ruling of a tribunal made in the course of a proceeding and
failing to act with reasonable diligence in representing a client—Two-year
suspension, one year stayed on conditions.
(No. 2012-0655—Submitted May 23, 2012—Decided November 27, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-008.
__________________
Per Curiam.
{¶ 1} Respondent, Oscar Trivers of Cleveland, Ohio, Attorney
Registration No. 0019588, was admitted to the practice of law in Ohio in 1960.
On October 13, 2009, we suspended him from the practice of law for one year,
with six months stayed, for abusing his notary power and being present when
another party created a fraudulent document. Ohio State Bar Assn. v. Trivers, 123
Ohio St.3d 436, 2009-Ohio-5285, 917 N.E.2d 261.
{¶ 2} In March 2010, relator, Ohio State Bar Association, filed an
amended complaint charging Trivers with four counts of misconduct and
violations of the Ohio Code of Professional Responsibility and the Rules of
Professional Conduct.1 A panel of the Board of Commissioners on Grievances
1. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the
former and current rules are cited for the same acts, the allegations comprise a single continuing
ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894
N.E.2d 31, ¶ 1, fn. 1.
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and Discipline heard the cause on September 12, 2011, and recommended that the
board adopt the facts and violations of misconduct as stipulated, as well as the
parties’ proposed sanction suspending Trivers from the practice of law for two
years, staying 18 months of the suspension, and imposing a period of monitored
probation during the stayed portion.
{¶ 3} The board adopted the panel’s findings of fact and conclusions of
law but amended the panel’s recommended sanction. The board recommended
that Trivers be suspended from the practice of law for two years, with one year
stayed, and that he serve one year of monitored probation.
{¶ 4} The parties have not objected to the board’s report.
Stipulated Facts and Rule Violations
Count I—Hoyle Matter
{¶ 5} On November 13, 2006, Trivers electronically filed a Chapter 13
bankruptcy petition on behalf of James M. Hoyle. At the time of filing, Hoyle
had been deceased for almost three years. Trivers learned that Hoyle was
deceased shortly after he filed the petition but incorrectly believed that the
petition could be pursued on behalf of Hoyle’s estate.
{¶ 6} The Hoyle bankruptcy petition was dismissed, because Hoyle was
ineligible to be a debtor under Chapter 13 of the Bankruptcy Code. The
bankruptcy court ordered Trivers to disgorge the sum of $400 in attorney fees that
he had received for legal services in connection with the filing. Trivers complied
with the disgorgement order.
Count II—Santos Matter
{¶ 7} On October 27, 2006, Trivers filed a Chapter 13 bankruptcy
petition on behalf of Barbara Santos, but he neglected to timely file the required
debtor’s certificate and a Chapter 13 plan. The bankruptcy court dismissed the
Santos petition, but it retained jurisdiction to consider imposing sanctions on
Trivers.
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January Term, 2012
{¶ 8} On March 16, 2007, the bankruptcy court ordered Trivers to
disgorge the sum of $500 in attorney fees that he had received for legal services in
connection with the Santos filing. When Trivers failed to comply, the court
ordered an additional fine of $15 per day for each day after July 20, 2007, that
Trivers did not comply with the disgorgement order.
{¶ 9} On August 29, 2007, the bankruptcy court entered an order
imposing additional sanctions on Trivers in the Santos matter. That court ordered
Trivers to comply with orders to disgorge fees in several other cases, to undergo a
mental-health examination and other obligations under his contract with the Ohio
Lawyers Assistance Program, and to obtain a determination that he was fit to
practice law. Trivers was prohibited from filing bankruptcy cases until he had
complied with the order.
{¶ 10} On July 23, 2008, the bankruptcy court reinstated Trivers’s filing
privileges but required him to obtain co-counsel for every new petition filed. The
following year, the court restricted Trivers to filing Chapter 7 cases and continued
the requirement that he obtain co-counsel for each new filing.
Count III—Miscellaneous Matters
{¶ 11} Trivers failed to file required documents in numerous other
Chapter 13 bankruptcy cases, resulting in the dismissal of several cases. The
court issued disgorgement orders in at least seven of those cases. In some of the
cases, Trivers failed to appear for bankruptcy hearings due, in part, to his failure
to check his own e-mail for court notices.
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Count IV
{¶ 12} The panel recognized that the bar association presented no
evidence in support of Count IV of the amended complaint and therefore
dismissed the count.2 See Gov.Bar R. V(6)(H).
Conclusions of Law
{¶ 13} The parties stipulated that Trivers violated the following rules of
ethical conduct: DR 1-102(A)(5) and Prof.Cond.R 8.4(d) (prohibiting a lawyer
from engaging in conduct that is prejudicial to the administration of justice), DR
1-102(A)(6) and Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law), DR 6-
101(A)(3) (prohibiting neglect of an entrusted legal matter), 7-101(A)(2)
(prohibiting a lawyer from intentionally failing to carry out a contract of
employment for legal services), and 7-106(A) (prohibiting a lawyer from
disregarding a standing rule of a tribunal or a ruling of a tribunal made in the
course of a proceeding) and Prof.Cond.R. 1.1 (requiring a lawyer to provide
competent representation to a client), 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client), 3.1 (prohibiting a lawyer from
bringing or defending a proceeding that is unsupported by law or lacks a good-
faith argument for an extension, modification, or reversal of existing law), and
8.4(a) (prohibiting a lawyer from violating or attempting to violate the Ohio Rules
of Professional Conduct).
{¶ 14} The panel concluded that the stipulated violations were supported
by clear and convincing evidence offered in support of Counts I, II, and III of the
amended complaint. The board adopted the panel’s findings of fact and
conclusions of law.
2. Although the panel did not provide written notice of an intent to dismiss Count IV, as required
in Gov.Bar R. V(6)(H), we will treat the failure to present evidence as to that count as a
recommendation to dismiss.
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January Term, 2012
Sanction
{¶ 15} The panel agreed with the parties’ proposed sanction to suspend
Trivers from the practice of law for two years, with 18 months stayed on the
condition that Trivers work with a monitor.
{¶ 16} The panel also weighed the existence of aggravating and
mitigating factors. The parties stipulated that mitigating factors included that
Trivers had cooperated in the proceedings, had demonstrated no selfish motive,
and had received additional sanctions from the bankruptcy court. See BCGD
Proc.Reg. 10(B)(2)(b), (d), and (f). The panel also took into account four
character letters that described Trivers as an individual of good character and an
active member of his community and church. See BCGD Proc.Reg. 10(B)(2)(e).
In addition, the panel acknowledged a psychiatric evaluation performed in 2008
that indicated that Trivers was fit and competent to practice law and Trivers’s
own testimony that he would work with a monitor, use co-counsel when
necessary, and discontinue handling bankruptcy matters.
{¶ 17} The panel also found that certain aggravating factors existed,
including Trivers’s prior disciplinary action, a pattern of misconduct based on his
repeated failure to comply with the bankruptcy court’s orders, and the existence
of multiple offenses. See BCGD Proc.Reg. 10(B)(1)(a), (c), and (d).
{¶ 18} The panel also considered the sanctions imposed in a similar case
that involved ethical violations resulting from repeated failures to comply with
filing requirements in bankruptcy court, to appear as ordered, and to comply with
orders to disgorge fees and pay assessed fines. Cleveland Metro. Bar Assn. v.
Nance, 124 Ohio St.3d 57, 2009-Ohio-5957, 918 N.E.2d 1000. In that case, the
respondent likewise had committed multiple offenses and had been sanctioned in
a prior disciplinary matter. Id. at ¶ 12. We suspended the respondent from the
practice of law for one year, with the last six months stayed on conditions.
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{¶ 19} But the panel concluded that Trivers warranted the sanction
stipulated by the parties, which was greater than the sanction in Nance, because
even though he had acknowledged his wrongdoing, he continued to place a
majority of blame on his failure to receive notices rather than on his failure to stay
current on court proceedings or to become familiar with electronic filings. The
panel stated that Trivers’s misconduct was more widespread than Nance’s and
involved more cases and was due to carelessness and lack of attention similar to
his previous disciplinary action. See Cincinnati Bar Assn. v. Trainor, 129 Ohio
St.3d 100, 2011-Ohio-2645, 950 N.E.2d 524, ¶ 10-11.
{¶ 20} The board, however, increased the sanction on its review,
recommending that Trivers be suspended from the practice of law for two years,
with one year stayed, conditioned on Trivers’s (1) completing six hours of
continuing legal education on law-office management, (2) completing one year of
monitored probation in accordance with Gov.Bar R. V(9)(B), during which the
monitor should ensure that Trivers practices only in those areas in which he is
competent, and (3) engaging in no further misconduct.
{¶ 21} Neither party has objected to the board’s recommendation of a
greater sanction.
{¶ 22} Having examined the evidence presented, the parties’ stipulations,
and the aggravating and mitigating factors, we agree with the board that the more
appropriate sanction is a two-year suspension with one year stayed on conditions.
Accordingly, we suspend Trivers from the practice of law for two years, with one
year stayed, conditioned on Trivers’s (1) completing six hours of continuing legal
education on law-office management, in addition to the general requirements of
Gov.Bar R. X(3)(G), (2) completing one year of monitored probation in
accordance with Gov.Bar R. V(9)(B), during which the monitor should ensure
that Trivers practice only in those areas in which he is competent, and (3)
engaging in no further misconduct.
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January Term, 2012
{¶ 23} Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Plunkett Cooney and Amelia A. Bower; and Eugene Whetzel, for relator.
James E. Arnold & Associates, L.P.A., and Alvin E. Mathews Jr., for
respondent.
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