[Cite as Cincinnati Bar Assn. v. Alsfelder, 138 Ohio St.3d 333, 2014-Ohio-870.]

C INCINNATI B AR A SSOCIATION v . A LSFELDER

. [Cite as Cincinnati Bar Assn. v. Alsfelder, 138 Ohio St.3d 333, 2014-Ohio-870.] Attorney discipline—Failure to cooperate in disciplinary proceeding—Indefinite suspension. (No. 2013-0223—Submitted June 4, 2013—Decided March 13, 2014.)
O N C ERTIFIED R EPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 10-076.

____________________ Per Curiam

. {¶ 1} Respondent, Robert F. Alsfelder Jr . of Cincinnati, Ohio, Attorney Registration No. 0014829, was admitted to th e practice of law in Ohio in 1981. 1 In October 2004, we imposed a one-year suspension, fully stayed on conditions, for Alsfelder’s conduct in accepting employ ment without disclosing that his professional judgment could be affected by his own personal interests, charging a clearly excessive fee, and failing to mainta in complete records of client funds in his possession. Cincinnati Bar Assn. v. Alsfelder , 103 Ohio St.3d 375, 2004- Ohio-5216, 816 N.E.2d 218. {¶ 2} In August 2010, a probable-cause panel of the Board of Commissioners on Grievances and Discip line certified a two-count complaint submitted by relator, Cincinnati Bar Asso ciation. The complaint alleged that
Alsfelder had failed to ma intain records of client funds in his possession, converted client funds to his own use, and failed to provide a full accounting to his client, that he had engaged in dis honesty, fraud, deceit, or misrepresentation

1. Alsfelder testified that he is also licensed to practice law in Kentucky and Florida.S UPREME C OURT OF O HIO

2 by using information obtained in the course of his representation to the client’s disadvantage, and that he had entered into a business relationship with the client
to the client’s detriment. In an ame nded complaint filed in July 2012, relator added two additional counts, alleging that over a five-year period, Alsfelder had failed to report certain income on his stat e and federal income tax returns and that he had failed to cooperate in relator’s investigation of his allege d misconduct. {¶ 3} We found Alsfelder in contem pt of court on May 19, 2011, and ordered him to comply with orders i ssued by the board, including a subpoena duces tecum that required him to appear at a deposition and to produce certain documents relevant to this disciplinary proceeding. Cincinnati Bar Assn. v. Alsfelder , 128 Ohio St.3d 1495, 2011-Ohio-2384, 947 N.E.2d 177. On September 7, 2011, we suspended Alsfelder from the pr actice of law pending proof of his compliance with the prior orders of this court and the board. Cincinnati Bar Assn. v. Alsfelder , 130 Ohio St.3d 1201, 2011-Ohio-5514, 955 N.E.2d 1011. Because Alsfelder has steadfastly refused to comp ly with those orders, that suspension
remains in effect. {¶ 4} On November 2, 2012, the chair of the panel appointed to hear the case issued an entry stating that th e panel had unanimously found that the evidence was insufficient to support the allegations contained in Count Two of the complaint and dismissing that count in its entirety. Later, the panel issued a report, in which it found that Alsfelde r had failed to coope rate in relator’s investigation as charged in Count Four of the complaint, but that there was
insufficient evidence to establish that he committed the misconduct charged in Counts One and Three of the complaint. The panel recommended that Counts
One and Three be dismissed and that Alsf elder be indefinitely suspended for his misconduct. The board adopted the finding s of fact, conclusions of law, and recommendation of the panel.January Term, 2014

3 {¶ 5} The parties object to the board’s findings and its recommended
sanction. Relator contends th at it presented sufficient evidence to support one of the violations alleged in Count One and both of the alleged violations in Count Three of its complaint. Alsfelder argu es that the board improperly found that certain aggravating factors were present, failed to credit him with certain mitigating factors, and recommended a sa nction that is unduly harsh. For the reasons that follow, we overrule their objections, adopt the board’s findings of
fact and conclusions of la w, and indefinitely suspe nd Alsfelder from the practice
of law in Ohio.
Misconduct
Count One—Client Funds and Records {¶ 6} In its amended complaint, relator charged Alsfelder with violations of Prof.Cond.R. 1.15(a) (requiring a lawyer to hold funds belonging to a client or third party in a client trust account separa te from his own property and to maintain certain records regarding the funds held in that account), 1.15(d) (requiring a lawyer to promptly deliver funds or othe r property that the client is entitled to receive), and 8.4(c) (prohibiting a lawy er from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). These charges arose from Alsfelder’s handling of business matters for Eastern Hills Dry Cleaners. Adopting the panel’s recommendation, howev er, the board recommends that this count be dismissed in its entirety based on the insufficiency of the evidence. Relator objects, arguing that it has estab lished, by clear and convincing evidence,
that Alsfelder violat ed Prof.Cond.R. 1.15(d). {¶ 7} Alsfelder was a regular customer of Eastern Dry Cleaners. He entered into an agreement with Joseph Witschger, the sole owner of the business, for himself and his wife—an attorney and an accountant—to “take over the business aspects of the cleaners,” billing th eir legal services at $225 per hour, and their business-related services at $65 pe r hour. He testified that he wouldS UPREME C OURT OF O HIO

4 typically visit Witschger each day to discuss business issues and collect the mail. He would take the mail to his wife, who would organize the documents and prepare checks to pay Eastern’s bills. Alsfelder would return the documents to Witschger as soon as his wife was through with them, and Witschger—the only authorized signatory on the account—would sign the checks and prepare them for mailing. {¶ 8} It is undisputed that from 2005 to 2008, more than 300 checks, totaling over $152,000, were issued to Alsfelder on Eastern’s account. Two hundred seventy-two of those checks, totaling more than $141,000, contained no
notation on the memo line to describe the purpose of the check. Rather than depositing the checks, Alsfelder cashed them at various Cincinnati banks. {¶ 9} Alsfelder did not keep records of the time spent on Witschger’s business matters or of bills to him for services rendered. He testified that he spent
a minimum of 6 or 7 hours a week and that his wife worked a minimum of 17 to 19 hours per week on Witschger’s business, that the payments they received were made in arrears, and that their fee arrangement did not compensate them for all of the hours they put into the business. Thus, the board found that Alsfelder had never held funds belonging to Witschger. {¶ 10} Although the board expressed concern about the large number of checks written to Alsfelder and his comple te failure to account for them, it noted that Witschger admitted that he ha d never requested an accounting from
Alsfelder. The board also found that re lator had not requested an accounting. Therefore, the board determined that relator had failed to prove the alleged violations of Prof.Cond.R. 1.15(a) or (d), which set forth a lawyer’s duties with respect to the handling of funds belongin g to clients or ot her third parties. {¶ 11} Witschger claimed that he had no knowledge of the payees to whom the checks were issued because Alsfelder concealed the payee line of the checks that he presented for signature. But the board believed that Alsfelder’sJanuary Term, 2014

5 testimony on the issue was more credible and noted that Witschger had access to
all of the information because he received all of the mail and had access to his bank records. Therefore, the board also determined that there was insufficient
evidence to establish that Alsfelder had engaged in dishonesty, fraud, deceit, or misrepresentation in viola tion of Prof.Cond.R. 8.4(c). {¶ 12} Relator objects to the board’s fi ndings of fact and recommendation that Count One be dismissed, arguing th at it has presented clear and convincing
evidence that it requested an accounting of Alsfelder’s work for, charges to, and payments received from Eastern Hills Cleaners, and that Alsfelder failed to comply with its request. Therefore, rela tor contends that it has proven by clear and convincing evidence that Alsf elder violated Prof.Cond.R. 1.15(d). {¶ 13} Relator misapprehends the scope and application of Prof.Cond.R. 1.15(d). The rule provides:

Upon receiving funds or other pr operty in which a client or third person has a lawful interest , a lawyer shall promptly notify the client or third person. For purposes of this rule, the third person’s interest sha ll be one of which the lawyer has actual knowledge and shall be l imited to a statutory lien, a final judgment addressing disposition of the f unds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment from the specific funds or property. Except as stated in this rule or otherwise permitted by law or by agreement with the client or a third pers on, confirmed in writing, a lawyer shall promptly deliver to the clie nt or third person any funds or other property that the client or third person is entitled to receive. Upon request by the client or third person, the lawyer shallS UPREME C OURT OF O HIO

6 promptly render a full accounting regarding such funds or other
property

.

(Emphasis added.) {¶ 14} The third person discussed thro ughout Prof.Cond.R. 1.15(d) is not

any third person, but the third person who has a lawful interest in funds or other property in the lawyer’s possession. To in terpret the rule otherwise would permit any third person to request—and be en titled to receive—an account of funds or property held by a lawyer. Here, the fa cts that relator subpoenaed Alsfelder’s
account records and that Alsfelder failed to comply are simply not relevant in the context of an alleged vi olation of Prof.Cond.R. 1.15(d) . They are, however, relevant to the alleged viol ation of Gov.Bar R. V(4)(G) in Count Four of relator’s complaint. Count Three—Alleged Tax Improprieties {¶ 15} Count Three of the amended comp laint alleges that Alsfelder received and cashed checks from Witschge r and/or Eastern Hills Dry Cleaners from 2004 through 2009 but failed to report those funds as gross income on his corresponding state and federal tax return s. Relator alleges that this conduct violates Prof.Cond.R. 8.4(b) (prohibitin g a lawyer from committing an illegal act that reflects adversely on the lawyer’s hone sty or trustworthiness) and 8.4(c). But the only evidence that relator adduced in support of these allegations was a set of requests for admission that the panel deemed admitted after Alsfelder failed to
answer them. {¶ 16} Those facts deemed admitted, as stated in the panel’s order and the request for admissions, are as follows:

1. Respondent filed Federal and State of Ohio Income Tax
Returns in 2004.January Term, 2014

7 2. Respondent filed Federal and State of Ohio Income Tax
Returns in 2005.
3. Respondent filed Federal and State of Ohio Income Tax
Returns in 2006.
4. Respondent filed Federal and State of Ohio Income Tax
Returns in 2007.
5. Respondent filed Federal and State of Ohio Income Tax
Returns in 2008.
6. Respondent received checks from Joseph Witschger and/or Eastern Hills Dry Cleaners made payable to Robert F.
Alsfelder and/or Robert Alsfelder for legal and business services.
7. Checks were made payable to Robert Alsfelder from Eastern Hills Dry Cleaners and/or Joseph Witschger which were cashed but the money was not reporte d as gross income either on Respondent’s Ohio and/or Federa l Income Tax Returns from the years 2004 through 2009.

{¶ 17} The board recommended that this count be dismissed because these admissions were insufficient to prove that Alsfelder had engaged in tax evasion as alleged in the complaint. They did not establish that the checks he received for legal and business services a nd subsequently cashed were the same checks that he failed to report as gross inco me. Indeed, the board found that at least one of the
checks Alsfelder had received from Ea stern was a $447.30 reimbursement for slacks that Eastern had damaged in the cleaning process—funds that would not be considered as income for tax purposes. {¶ 18} Relator objects to the board’s reco mmendation that Count Three of its complaint be dismissed, arguing that that the facts deemed admitted by theS UPREME C OURT OF O HIO

8 board clearly and convincingly prove that Alsfelder violated Prof.Cond.R. 8.4(b) and (c). We disagree. {¶ 19} The facts deemed admitted do not establish that the checks Alsfelder received as payment for services rendered are also the checks that he failed to report on his tax returns. Not only did Alsfelder testify about the check he received for clothing damaged durin g the cleaning process, relator also submitted copies of at least 40 other checks that Alsfelder identified as reimbursements for various expenses that he had advanced on behalf of Eastern Dry Cleaners. While Alsfelder testifie d that those amounts might qualify as business expenses to be deducted from Ea stern’s gross income, relator has offered
no evidence that those reimbursements would constitute taxable income to Alsfelder. Therefore, we overrule rea ltor’s objection, adopt the board’s findings of fact, and dismiss Count Three of relator’s complaint. Count Four—Failure to Cooperate {¶ 20} The board’s sole finding of misconduc t against Alsfelder is that he failed to cooperate in re lator’s investigation and the resulting disciplinary proceeding in violation of Gov.Bar R. V(4)(G). {¶ 21} The board found that Alsfelder faile d to comply with a November 2010 subpoena to appear for a deposition and produce certain documents, including a copy of his account-balance document showing a running account of charges for services rendered to and m oney received from Witschger and copies of his federal tax returns for the years 2004 through 2009. {¶ 22} In response to relator’s motion to compel discovery, on January 19, 2011, the panel chair ordered Alsfelder to produce the documents in accordance with the subpoena, but he failed to do so. We found Alsfelder in contempt on May 19, 2011, and ordered him to comply with board orders, including the November 2010 subpoena. Cincinnati Bar Assn. v. Alsfelder , 128 Ohio St.3d 1495, 2011-Ohio-2384, 947 N.E.2d 177.January Term, 2014

9 {¶ 23} On July 8, 2011, the panel recommended that we once again find Alsfelder in contempt—this time based on his failure to comply with an order to sign a standard Internal Revenue Service waiver that would allow relator to obtain copies of his tax returns. {¶ 24} On September 22, 2011, we granted relator’s motion to impose sanctions and suspended Al sfelder from the practice of law in Ohio pending a filing of proof that he has obeyed th is court’s May 19, 2011 order and complied with the subpoena duces tecum previously served on him by the board. Cincinnati Bar Assn. v. Alsfelder , 130 Ohio St.3d 1201, 2011-Ohio-5514, 955
N.E.2d 1011. {¶ 25} We found Alsfelder in contempt a second time on March 30, 2012, and ordered him to pay a fine of $500. 131 Ohio St.3d 1492, 2012-Ohio-1368,
964 N.E.2d 434. While our order does not state what conduct resulted in this finding of contempt, it grants relator’s motion for contempt, which alleged that Alsfelder continued to disobey previous orde rs of the board and this court and that he filed a false affidavit of compliance following his suspension. {¶ 26} In light of this conduct, the board concluded that Al sfelder violated Gov.Bar R. V(4)(G). We adopt the board ’s findings of fact and misconduct with respect to Count Four of the complaint.
Sanction {¶ 27} When imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties that the lawyer violated and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli , 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.S UPREME C OURT OF O HIO

10 Aggravating and Mitigating Factors {¶ 28} The board found that four of the nine aggravating factors set forth in BCGD Proc.Reg. 10(B)(1) are present. Alsfelder has served a one-year stayed suspension and made restitution of $30,000 for misconduct that occurred from
1998 to 2001. See BCGD Proc.Reg. 10(B)(1)(a); Cincinnati Bar Assn. v. Alsfelder , 103 Ohio St.3d 375, 2004-Ohio-5216, 816 N.E.2d 218. The board also found that he engaged in a pattern of mis conduct and failed to cooperate in the disciplinary process by failing to comply with orders of the board and this court and that he submitted false evidence, made false statements, or engaged in other deceptive practices during the disciplinary process by being “very guarded in his testimony.” See BCGD Proc.Reg. 10(B)(1)(c), (e), and (f). However, the board found that none of the mitigating factors enumerated in BCGD Proc.Reg. 10(B)(2) are present. {¶ 29} Alsfelder disputes the board’s findings with respect to the applicable aggravating factors and also contends that the board failed to recognize that a number of mitigating factors are present. {¶ 30} Alsfelder challenges the board’s finding that he engaged in a pattern of misconduct, arguing that his conduct consists of one act—failing to provide the requested tax records or a wa iver so that relator could obtain them directly from the IRS. Even if Alsfelde r’s misconduct arose only from his failure to produce his tax returns as he suggests , it is his continued failure to provide
those documents in defiance of no less than five board orders and three orders of this court over a period of more than three years that demonstrates the pattern of
misconduct in this case. {¶ 31} Alsfelder also challenges the board’s finding that he submitted false evidence or false statements or engaged in other deceptive practices during the disciplinary proceeding and that, pur suant to BCGD Proc.Reg. 10(B)(1)(f), this factor weighs in favor of a more se vere sanction. He notes that in support ofJanuary Term, 2014

11 its finding, the board states only, “At the hearing, Respondent was very guarded in his testimony. Respondent has not b een forthcoming.” But the very act of withholding the requested tax record s under the guise of preserving the confidentiality of his wife’s information and claims of their irrelevance—despite having been ordered numerous time to produc e them or execute a waiver for their release—is, itself, a deceptive practice. Furthermore, we find that Alsfelder’s
continued recalcitrance in the face of mu ltiple orders to turn over the requested
documents demonstrates that he has refu sed to acknowledge the wrongful nature of his conduct—an aggravating factor pur suant to BCGD Proc.Reg. 10(B)(1)(g). {¶ 32} In addition to challenging the aggravating factors found by the board, Alsfelder contends that it s hould have found a number of mitigating factors, including the absence of a dishone st or selfish motive, the absence of any violations of the disciplinary rules relative to the underlying grievance, the absence of harm to the grievant, his pro bono work, and the imposition of other penalties or sanctions for his contempt of this court’s orders. See BCGD Proc.Reg. 10(B)(2)(a), (b), (e), and (f ). These claims are without merit. {¶ 33} We find that relator’s failure to prove the underlying misconduct has no mitigating effect on the misconduct that has been established by clear and convincing evidence—namely, Alsfelder’s fa ilure to cooperate in the disciplinary investigation and proceedings before this court. And on the record before us, we
cannot find that there has been no harm to the grievant or that Alsfelder acted
without a selfish or dishonest motive b ecause the evidence plainly shows that Alsfelder received more than $141,000 over a period of four years for little more than the payment of routine bills and the negotiation of payment plans with creditors. Neither relator’s failure to carry its burden of proof with regard to the underlying allegations of mis conduct, nor the client’s admitted failure to request an accounting is sufficient to establish that Alsfelder’s motives were pure or that the grievant suffered no harm at his hand.S UPREME C OURT OF O HIO

12 {¶ 34} Alsfelder’s unsubstantiated cla im that he has provided pro bono services that warrant mitigating effect is likewise without merit. See, e.g.,
Cleveland Metro. Bar Assn. v. Berk , 132 Ohio St.3d 82, 2012-Ohio-2167, 969 N.E.2d 256, ¶ 25-28 (evidence that attorney had accepted well over 200 referrals from the Cleveland Legal Aid Soci ety and provided additional pro bono
assistance to numerous other clients referred by the Consumer Protection Association since the early 1970s r ecognized as a mitigating factor); Cleveland Metro. Bar Assn. v. Kealy , 125 Ohio St.3d 238, 2010-Ohio-1554, 927 N.E.2d 591, ¶ 13, 19 (finding that 25 years of involvement with the legal aid society, a “staggering amount” of pro bono work, and a long history of volunteerism qualify as a mitigating factor); Cincinnati Bar Assn. v. Lawson , 119 Ohio St.3d 58, 2008- Ohio-3340, 891 N.E.2d 749, ¶ 67 (evidence that attorney routinely took criminal cases pro bono to defend basic rights of the accused considered as a mitigating factor). {¶ 35} We also reject Alsfelder’s claim that the suspension he is currently serving for his failure to purge his contem pt of our previous orders is another penalty or sanction for the same conduct that should be considered as a mitigating factor pursuant to BCGD Proc.Reg. 10(B)(2)(f). That suspension was not intended to punish Alsfelder for viola ting the Rules of Pr ofessional Conduct; it was intended as a remedial or coercive sanction to compel his compliance with
the lawful orders of the board and this court. See, e.g., Liming v. Damos , 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 12. Alsfelder could have avoided the sanction entirely and has held the keys to his reinstatement during the duration of that suspension—all he had to do was comply with our previous order.
Id. at ¶ 17. Therefore, we accord no mitigating effect to this sanction. Proposed Sanction {¶ 36} Relator recommended that Alsfelde r be permanently disbarred for his misconduct, but that recommendation is based in part on alleged misconductJanuary Term, 2014

13 that has not been proven by clear and c onvincing evidence. Alsfelder urged the board to dismiss the entire complaint, ar guing that his failure to cooperate had already been dealt with by this court in the contempt proceeding. The board concluded, however, that Alsfelder’s on going failure to cooperate in this disciplinary proceeding warrants an i ndefinite suspension from the practice of
law. {¶ 37} “ ‘One of the fundamental tenets of the professional responsibility of a lawyer is that he should maintain a degree of personal and professional integrity that meets the highest standard. The integrity of the profession can be maintained only if the conduct of the indi vidual attorney is a bove reproach. He should refrain from any illegal conduct. Anything short of this lessens public confidence in the legal profession—because obedience to the law exemplifies respect for the law.’ ” Cincinnati Bar Assn. v. Hennekes , 110 Ohio St.3d 108, 2006-Ohio-3669, 850 N.E.2d 1201, ¶ 13, quoting Cleveland Bar Assn. v. Stein , 29 Ohio St.2d 77, 81, 278 N.E.2d 670 (1972). {¶ 38} Here, Alsfelder’s misconduct goes fa r beyond the typical failure to cooperate in a disciplinary investiga tion. It encompasses a complete and contumacious disregard of this court’s orders over a period of years. Alsfelder’s recalcitrance flies in the face of his oath of office, his duties to this court, and his duties to the legal profession as a whole. If he is unable or unwilling to conduct himself with dignity, civility, and respec t in the conduct of hi s own legal affairs, we cannot expect him to competently, et hically, or professionally represent the
clients who entrust him with their most im portant affairs. Therefore, we adopt the
board’s recommendation that he be indefi nitely suspended from the practice of law. However, that suspension shall not commence until Alsfelder has purged his contempt of the prior orders of this court. {¶ 39} Accordingly, Robert F. Alsfelder Jr. is indefinitely suspended from the practice of law in Ohio; however, that indefinite suspension will not go intoS UPREME C OURT OF O HIO

14 effect until Alsfelder purges his contempt of this court’s prior orders in case No.
2011-0625. Costs are taxed to Alsfelder. Judgment accordingly.
O’C ONNOR , C.J., and P FEIFER , O’D ONNELL , L ANZINGER , K ENNEDY , F RENCH , and O’N EILL , JJ., concur.

____________________ Michael P. Foley, Stephen M. Neche mias, and Edwin W. Patterson III, for
relator. Richard C. Alkire, for respondent.

_________________________