Opinion
D.D. No. 26
Decided April 18, 1962.
Attorneys at law — Misconduct — Disciplinary action — Indefinite suspension from practice — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
On November 10, 1961, the Board of Commissioners on Grievances and Discipline filed in this court the following findings of fact, conclusions of law, and recommendation, pursuant to a complaint of the Dayton Bar Association and a hearing duly had thereon:
"The board, being fully advised in the premises, makes the following findings of fact:
"1. That the respondent, H.J.T. Herzog, at all times referred to in the complaint was an attorney at law duly admitted to practice by the Supreme Court of Ohio, being admitted to practice in Ohio on March 30, 1050.
"2. That the respondent at the time of the hearing was 40 years old, and at the times herein complained of was engaged in the general practice of law in Dayton, Ohio.
"3. That during the year 1960 the respondent was employed as Deputy Administrator of the Bureau of Workmen's Compensation of the State of Ohio at Dayton, Ohio, and in such capacity had supervision and control of the records pertaining to claims filed with the Bureau of Workmen's Compensation assigned to that office.
"4. That the respondent left the employment of the Bureau of Workmen's Compensation on or about October 31, 1960, and returned to the private practice of law at Dayton, Ohio.
"5. That shortly after the respondent returned to the private practice of law he, either by his own act or through an agent or employee, mailed a form letter to persons having filed claims for workmen's compensation benefits with the Bureau of Workmen's Compensation of the State of Ohio, enclosing with said form letter a form to be signed and returned by the claimant authorizing the respondent to represent said claimant before the Bureau of Workmen's Compensation of the State of Ohio and the Industrial Commission of Ohio in the further processing of his claim.
"6. That the respondent directly solicited authority from claimants of workmen's compensation benefits to take charge of, and represent such claimants in respect of, claims filed with the Industrial Commission of Ohio.
"7. That the respondent solicited professional employment as an attorney at law by his conduct herein above described, all in violation of Rule XXVIII of the Supreme Court of Ohio.
"It is the determination of the board of commissioners from the foregoing findings of fact that the respondent is guilty of misconduct as defined in Section 5 of Rule XXVII of the Supreme Court of Ohio, in that he has violated Canon 32 in that he violated Section 4123.88 of the Revised Code of Ohio by soliciting authority to take charge of or represent claimants in respect to a claim or claims pending before the Bureau of Workmen's Compensation and in that he has violated Canon XXVII of the Canons of Professional Ethics as adopted by the Supreme Court of Ohio by soliciting professional employment by personal communications not warranted by personal relations.
"It is the opinion of the majority of the Board of Commissioners on Grievances and Discipline that the respondent, H.J.T. Herzog, should be suspended from the practice of law for an indefinite period subject only to reinstatement as provided by Rule XXVII."
The matter is now before the court for consideration of the board's recommendation.
Mr. Paul Ziegler and Mr. James J. Gilvary, for relator.
Mr. Lloyd O'Hara, for respondent.
The respondent presents two objections to the board's recommendation.
The first is that "the record clearly discloses that the solicitation was without knowledge of respondent and was unintentional."
However, a careful study of the record fails to sustain this contention of the respondent. He asks this court to believe that the solicitation was unintentional and without his knowledge. Yet he failed to avail himself of the important opportunity to take the witness chair and testify under oath to that effect or to say a word in his own defense. He asks this court to assume the duty of finding a fact which he himself refused to assert at the hearing accorded him. The carefully planned scheme is not denied, but, instead of candidly admitting his complicity in the obvious misconduct, he now asks this court to believe and find that the numerous steps taken in his own office — such as the use of printed forms, self-addressed cards, letters over his own signature, etc. — were perpetrated not only without his consent but even without his knowledge. To so believe and so find would necessitate an excessive drain on this court's credulity.
The respondent's second objection to the board's recommendation is that the proposed indefinite suspension from the practice of law in this state is unjustified. In support of this contention this court is now asked to accept the proffer of certain statements of various individuals expressing their opinions concerning the respondent's character and reputation. These are inadmissible at this time inasmuch as the court is considering the matter on the record made at the hearing before the panel.
Based on the record before it, this court concludes that in justice to the public and to the profession it is the court's unpleasant but clear duty to overrule the respondent's objections and to approve the board's recommendation that the respondent be suspended indefinitely from the practice of law in this state.
Judgment accordingly.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and DOYLE, JJ., concur.
O'NEILL, J., not participating.
DOYLE, J., of the Ninth Appellate District, sitting by designation in the place and stead of HERBERT, J.