• Ohio attorney suspended for lying to cops after traffic accident
• Drunk girlfriend was driving, but lawyer said unidentified black man was behind wheel
• Lawyer violated several ethics rules, but not “catchall” provision for “egregious” conduct not covered by specific rule
A lawyer who lied to police—falsely stating that an unknown black man was driving his car when it wrecked—was suspended from practice for two years by the Ohio Supreme Court on May 30.
The sanctioned lawyer, Kenneth J. Lewis, admitted violating several ethics rules when he made the false statement to police.
Lewis said he lied to protect his then-girlfriend, attorney Heather Wilsey, who was actually behind the wheel during the accident.
Bar authorities filed a separate disciplinary case against Wilsey, but it was dismissed when she died in 2017 of an apparent drug overdose.
A disciplinary board recommended suspending Lewis’s license for two years, with the final six months stayed on conditions that included substance abuse counseling.
The court adopted that recommendation. The sanction demonstrates “that deceitful conduct—even in the context of an attorney’s personal affairs—will not be tolerated,” the justices said in a per curiam opinion.
In June 2016, Lewis and Wilsey were involved in a car accident after leaving a bar where they had been drinking.
Wilsey was driving Lewis’s car, and she lost control of the vehicle and hit a utility pole. A police officer saw Lewis and Wilsey walking away from the scene and stopped them for questioning.
The couple told the officer that the driver was an unknown African American man they had met at a bar. But police obtained video that showed Lewis and Wilsey leaving the bar by themselves.
When Lewis repeated his story in a written statement, he was arrested for obstructing the police probe, a second-degree misdemeanor. He was found guilty of the charge and served a 10-day jail sentence.
Lewis said he lied to protect Wilsey, who had prior DUI arrests.
Wrangling Over ‘Catchall’ Rule
Lewis admitted violating Ohio Rules of Professional Conduct 8.4(b) (illegal act that reflects adversely on lawyer’s trustworthiness), 8.4(c) (conduct involving dishonesty), and 8.4(d) (conduct prejudicial to the administration of justice).
But he contested a claim that he violated Rule 8.4(h)—a catchall rule, not included in the ABA Model Rules, that penalizes “any other conduct that adversely reflects on the lawyer’s fitness to practice.”
In a brief, Lewis pointed to a 2013 Ohio Supreme Court opinion that said Rule 8.4(h) should “be used in just two circumstances”:
• (1) to conduct that is not covered by a specific rule, but adversely reflects on the lawyer’s fitness; or
• (2) to conduct that is covered by a specific rule, but is “so egregious” as to warrant an additional finding that it adversely reflects on the lawyer’s fitness.
Lewis said his conduct was covered by specific rules—and, while “certainly wrongful,” did not rise to the level of egregiousness required under Rule 8.4(h).
Bar counsel countered with a list of cases that sustained Rule 8.4(h) charges, including:
▸Cincinnati Bar Ass’n v. Ball, 57 N.E.3d 1101, 2016 BL 63921 (Ohio 2016) (lawyer fled traffic stop and concealed fact that he had a suspended license and was using stolen license plates);
▸Disciplinary Counsel v. Hillman, 50 N.E.3d 539, 2016 BL 90749 (Ohio 2016) (failure to file federal tax returns)
▸Lake Cnty. Bar Ass’n v. Mismas, 11 N.E.3d 1180, (Ohio 2014) (tying job offer to law school student to demands for sexual favors);
▸Disciplinary Counsel v. Hillis, 11 N.E.3d 1156 (Ohio 2014) (lawyer found with “known prostitute in his parked car on private property”).
Bar counsel said those cases show that Rule 8.4(h) encompasses “a broad spectrum of misconduct,” and was appropriately charged here.
The disciplinary board sided with Lewis. It said his conduct “clearly violates specific rules,” and that although he “exercised terrible judgment,” his actions were “not so egregious as to give rise to a separate violation” of Rule 8.4(h).
Checkered Discipline History
The court said Lewis’s conduct was aggravated by his prior discipline: a 2009 suspension for forging a judge’s signature on a time-stamped document.
Lewis’s alcohol dependency was not a mitigating factor because there was “no evidence that [his] addiction caused him to give the false written statement to the police,” the court said.
The court said a two-year suspension with six months stayed would show that deceitful conduct—even in personal affairs—won’t be tolerated.
“However, the sanction also gives Lewis the opportunity to practice law again if he continues with treatment for his alcohol addiction and avoids additional misconduct,” the per curiam opinion said.
Gallagher Sharp LLP represented Lewis. The bar was represented by Stephenson & Dattilo P.L.L., and Wickens, Herzer, Panza, Cook & Batista Co.
The case is Lorain Cty. Bar Ass’n v. Lewis, Ohio, 2017-1419, 5/30/18.
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