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Jan. 14 --A lawyer who continued to work as his company's chief legal officer for six years after he was suspended from the bar for nonpayment of dues will have his license lifted for at least 18 months, the Ohio Supreme Court concluded Jan. 14 (Disciplinary Counsel v. Troller, Ohio, No. 2013-0572, 1/14/14).
This conduct amounted to the unauthorized practice of law and reflected adversely on the lawyer's fitness to practice, the court stated in its per curiam opinion. It decided, however, that in light of the limited nature of the misconduct and several mitigating factors, the lawyer will be spared the usual penalty for practicing law while suspended--permanent disbarment.
Along with several other cases in recent years, the decision highlights the need for inside corporate counsel to stay on top of licensing requirements. See, e.g., In re Gustafson, 986 N.E.2d 377, (Mass. 2013) (in-house corporate counsel who kept working for her employer while her license was on administrative suspension engaged in unauthorized practice, warranting six-month suspension); Hipwell v. Ky. Bar Ass'n, 267 S.E.3d 682, (Ky. 2008) (one-year suspension for lawyer who for years engaged in unauthorized practice in role of general counsel for company after his license was lifted for nonpayment of dues); In re DeBacker, 184 P.3d 506, (Okla. 2008) (lawyer who served as corporate counsel in Ohio for decades after his Oklahoma law license lapsed will be reinstated to the Oklahoma bar only after end of what amounted to one-year suspension and payment of past bar dues).
David E. Troller had his Ohio law license suspended for nonpayment of dues in 2005, and then suspended again the next year for not fulfilling continuing legal education requirements.
During this period and up until early 2012, the court said, Troller served as “chief legal officer” of Clopay Corp. and used that designation on his stationery and business cards, even though he had not cured his licensing woes.
The court found, as Troller stipulated, that although he never signed pleadings or appeared in court while suspended, he held himself out as being authorized to practice law and actually engaged in the practice of law in at least three respects by:
• working with outside counsel on pending litigation matters;
• negotiating and drafting contracts on behalf of the company; and
• advising human-resources personnel about the legal implications of terminating employees.
The court adopted the disciplinary board's finding that Troller's continued practice following the suspension of his license violated two parts of the Ohio Rules of Professional Conduct: Rule 5.5(a) (unauthorized practice of law) and Rule 8.4(g) (conduct that reflects adversely on lawyer's fitness to practice).
This conduct also violated the corresponding disciplinary rules in Ohio's prior ethics code and an Ohio bar governance rule that prohibits a lawyer who has been suspended for a registration violation from practicing law or holding himself out as authorized to practice law, the court said.
In deciding the appropriate sanction for these violations, the court said aggravating factors were Troller's prior disciplinary offense involving his registration lapse, as well as a pattern of misconduct involving multiple offenses.
Mitigating factors included Troller's good faith effort to rectify his conduct by dropping the title “chief legal officer”--and not giving any legal advice or doing any acts that would constitute the practice of law in his work--once the disciplinary investigation was initiated, as well as his full cooperation in the disciplinary process.
The disciplinary board also noted that Troller was an active member of his church and community with a long history of engaging in charitable activities, the court observed.
The board recommended that Troller be suspended for two years, with six months stayed on certain conditions, including payment of all past bar dues. In support of that recommendation, a hearing panel cited several cases in which the supreme court diverged from its normal penalty of permanent disbarment for members of the bar who have continued to practice law during a license suspension.
The court accepted the recommended sanction, concluding that “Troller does not pose a great risk to the public” in light of the “limited nature” of his practice while suspended, his cooperation throughout the disciplinary process, his willingness to stipulate to the misconduct and the other mitigating factors cited by the board.
Chief Justice Maureen O'Connor and Justices Terrence O'Donnell and Judith L. French dissented as to the sanction, calling for a two-year actual suspension from the practice of law.
Assistant Disciplinary Counsel Donald M. Scheetz, Columbus, Ohio, represented his office, along with Robert R. Berger, who at the time was senior assistant disciplinary counsel in the office. Melissa Zujkowski and Isaac Schulz of Ulmer & Berne LLP, Cleveland, represented Troller.
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