Lr ul6 ORIGINAL IN THE SUPREME COURT OF OHIO CLERK OF COURT SUPREME COURT OF OHIO. Disciplinary Counsel, Case No

Transcription

1 IN THE SUPREME COURT OF OHIO ORIGINAL Disciplinary Counsel, Case No Relator: V Edward Royal Bunstine, Respondent. Respondent's Objections to the Findings and / or Recommendations of the Board and to the Entry of a Disciplinary Order or to the confirmation of the report on which the order to show cause was issued BRIEF OF RESPONDENT EDWARD ROYAL BUNSTINE Edward Royal Bunstine, Respondent Supreme Court No South Paint Street Chillicothe, Ohio Telephone (740) Facsimile (740) bunstinelaw a,horizonview.net Counsel for Respondent, Pro Se Jonathan E. Coughlan Supreme Court No Disciplinary counsel 50-CisKCCenter Dr ve,-sraite325- Columbus, Ohio Telephone (614) Facsimile (614) Counselor for Relator, Heather L. Hissom Supreme Court No Lr ul6 MAY CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS Table of Contents (i) Statement of Case / Facts...1 Argument...8 PROPOSITION OF LAW NO. 1: Disciplinary Counsel failed to submit sufficient evidence for the Panel Board to find that by clear and convincing evidence, Respondent engaged in conduct that was prejudicial to the adniinistration of justice in violation of Prof. Cond. R.8.4(d)....8 PROPOSITION OF LAW NO. 2: Disciplinary Counsel failed to submit sufficient evidence for the Panel Board to flnd that by clear and convincing evidence, Respondent engaged in conduct that adversely reflects on a lawyer's fitness to practice law in violation of Prof. Cond. R. 8.4 (h) PROPOSITION OF LAW NO. 3: Respondent contends that the Polygraph Examination / Results of Clinical Forensic Polygraph Examiner Brad Kelly is adniissible evidence. The Panel elected not to allow Brad Kelly to testify PROPOSITION OF LAW NO. 4: The Panel finds as aggravating factors under BCGD Proc. Reg. 10(B)(1): (a) Respondent acted with a selflsh motive; and (b) Respondent refused to acknowledge the wrongful nature of his conduct. The Panel flnds as mitigating factors under BCGD Proc. Reg. 10(B)(2): (a) the absence of a prior disciplinary record; and (b) Respondent has already been sanctioned by virtue of his negotiated nusdemeanor "no contest" plea....25

3 PROPOSITION OF LAW NO. 5: The Board voted to amend the Conclusions of Law to include a violation of Prof. Cond. R. 8.4(c) based on Respondent's dishonest actions, including the offer to destroy evidence...26 Conclusion...27 Proof of Service...28 Appendix...29 Hearing Panel Report Board of Commissioners on Grievances and Discipline Report

4 TABLE OF AUTHORITIES CASES: Henry Filters, Inc. v. Peabody Barnes, Inc. (1992) 82 Ohio App. 3d 255, 611 N.E. 2d Landis v. Hunt (1992) 80 Ohio App. 3d 662, 610 N.E. 2d Office of Disciplinary Counsel v. Furth, 93 Ohio St.Bd. 173, 754, N.E. 2d Sayyah et al v. Cutrell (2001) 143 Ohio App. 3d 102, 757 N.E. 2d State v. Sharma (2007), 143 Ohio Misc. 2d 27, 875 N.E. 2d RULES OF COURT: Evidence Rule Gov. Bar Rule V(6)(k)...26 Prof. Cond. R. 8.4(c)...26 Prof. Cond. R. 8.4 (d)...8, 24 Prof. Cond. R. 8.4 (h)...24 RULES OF BOARD: BCGD Proc. Reg. 10(B)(1)...25 BCGD Proc. Reg. 10(B)(2)...25 ENCYCLOPEDIA: 6 Ohio Jur. 38 Attorneys at Law Section

5 STATEMENTS OF FACTS On September 17, 2007, an incident occurred at the home of Ed and Evonna (Bonnie) Delong. The other parties involved in the incident were Russell Creed and his wife, Natalie Creed. Russell Creed worked for UPS and his wife, Natalie Creed, was employed as a controller for a local business. Respondent met Natalie Creed through Respondent's wife. Respondent and Respondent's wife started a non-profit organization called "Southern Ohio Survivors." Respondent's wife had been given a second cancer diagnosis, being stage four (4) breast cancer, having two concurrent primaries, which is rare. The non-profit organization, "Southern Ohio Survivors" was set up to help cancer patients and their families as they live with, through, and beyond a diagnosis and was comprised entirely of volunteers. Respondent's wife met Natalie Creed when asking her to volunteer to assist with one of the exercise programs set up through "Southern Ohio Survivors" and the Ross County YMCA. At the time of the incident, Ed and Bonnie Delong were married and residing together. However, the Delongs were in the process of dissolving their marriage in the form of a dissolution. Respondent knew Bonnie Delong. When Respondent was a Prosecutor, Respondent prosecuted Ed Delong for domestic violence, with Bonnie Delong being the victim. When Respondent was no longer a Prosecutor, Bonnie Delong was a client of Respondent, although no active case file was open when the September 17, 2007, incident _oc-curred. Romienelong--attended-Ahe same ehurehof_re,spondent's--wife. Respondent attended services at that same church on occasion, but was a member of a local Catholic Church where Respondent attended regularly. Respondent knew who Ed Delong was, but never had a conversation with him. 1

6 Russell Creed and Ed and Bonnie Delong had a close relationship for years. Before working at UPS, Russell Creed worked for Ed Delong. Russell Creed had a key to the Delong home. When the Delongs went on vacation, Russell Creed would take care of their home. Russell Creed and Bonnie Delong would spend time together. Russell Creed would help the Delongs in a variety of ways. When Bonnie Delong had surgery, Russell Creed took her to the hospital and picked her up from the hospital. Russell Creed would take Bonnie in for rehabilitation treatments and medical appointments. Russell Creed would pick, up both Bonnie and Ed's medical prescriptions at the pharmacy. Russell Creed would mow their grass, shovel their snow, etc. On September, 17, 2007, Natalie Creed called Respondent at his home. Natalie Creed called Respondent due to an incident that had occurred at the home of Ed and Bonnie Delong. Natalie Creed was hysterical and crying. Respondent told Natalie Creed that he would contact Ed and Bonnie Delong to inquire about the incident. The next day (September 18, 2007), Respondent contacted the Delongs by phone and they welcomed him to their home to discuss the situation. The Delongs shared with the Respondent the history of their relationship with Russell Creed, the incident that occurred on September 17, 2007, and how they felt about the incident. BRIEF STATEMENT OF THE INCIDENT AS EXPLAINED TO RESPONDENT BY THE DELONGS Ed Delong had a prescription for Hydrocodone pills. On September 17, 2007, he looked at his pill bottle and believed that some of his pills were missing. Bonnie Delong had a prescription or Hydrocodone pills. Ed Delong asked Bonnie if she had taken any of his pills. Bonnie said no. Russell Creed had a prescription for Hydrocodone pills. Bonnie Delong called Russell Creed and asked Russell if he had taken any of Ed's pills. Russell said that he had taken some of Ed's pills. Bonnie Delong told Russell that he needed to bring the pills back because Ed Delong was mad. Russell Creed drove out to the Delong 2

7 home and gave Ed Delong some Hydrocodone pills. Ed Delong accepted the pills, but tells Russell Creed he is still "short" on the number of pills returned. Ed Delong and Russell Creed argue about the number of pills taken. Russell Creed tells Ed Delong he doesn't have any more pills to return to him. Ed Delong tells Russell Creed to bring back the rest of the pills that he took or he was going to call the Sheriff. Russell Creed then leaves the Delong residence. Ed Delong believes that Russell Creed is not coming back, so he calls the Sheriff's Department and requests that a unit be dispatched to the Delong home. Russell Creed returns home from the Delong residence and tells his wife what happened at the Delong home. Russell Creed and Natalie Creed drove out to the Delong home. Russell Creed gives Ed Delong approximately ten (10) more pills and says this is all he had and that he had returned more pills than he took. Ed Delong accepts the pills but tells Russell Creed that he is still "short" on the number of pills taken. The parties argue. Natalie Creed had called the DelonQs approximately six (6) months prior to this incident asking the Delonas to stop sharine their pills with Russell Creed because Natalie felt that her husband was becomina addicted to the pills. Natalie Creed tells the Delon s that if thev report Russell Creed to the authorities then she is aoin to report them as well. Russell and Natalie Creed then leave the Delong home. A short while later a Deputy Sheriff arrives at the Delong home from the initial call made by Ed Delong. Ed and Bonnie Delong speak to the Deputy Sheriff. * END OF BRIEF STATEMENT OF THE INCIDENT * While at the Delong home the day after the incident, the Delongs had shared with Respondent their relationship history regarding Russell Creed and how they now felt about the incident. Ed Delong tells Respondent that he wishes that he had never called the Sheriff, and stated that he was just mad. Bonnie Delong had never agreed with Ed Delong 3

8 calling the Sheriff the previous night. The Delongs asked Respondent whether criminal charges would be filed against Russell Creed. Respondent advised the Delongs that this would be the decision of the Ross County Prosecutor's Office. Ed Delong tells Respondent that he will not show up to testify against Russell Creed if charges are filed. Respondent advises Ed Delong that he cannot do that. Respondent is told by Bonnie Delona that there were prior incidences pertaining to the sharing of pills. Respondent tells Bonnie Delong that sharing narcotic pills is a crime, and not to admit to this act if asked by law enforcement. Bonnie Delone responds by saying, "Well, it's the truth." The preparation of the Voluntary Statements, signed by the Delongs, occurred because they wanted law enforcement to know all of the facts and how they felt about the incident after thinking about it. Respondent advised the Delongs that their desire to submit a Supplemental Statement (oral or written) was not as easy as it sounded. Respondent advised the Delongs that the problem was two-fold. First, law enforcement and prosecutors normally get upset if witnesses or victims modify their original statements. Secondly, the information shared with Respondent by the Delongs resulted in admissions of possible criminal activity by the Delongs. This was a difficult predicament in regard to telling law enforcement "the truth" without consequences to the Delongs. Respondent agreed to prepare the Voluntary Statement of Bonnie Delong (Relator's Exhibit 1) and Ed Delong (Relator's Exhibit 2), with the stipulations agreed upon by Respondent and the Delongs as addressed below. Respondent prepared the Voluntary Statements and took them out to the Delong home on September 19, The contents of the Voluntary Statements were expressly stated to the Respondent by the Delongs regarding their opinion of the incident and their prior experiences with Russell Creed. Respondent advised the Delongs that they could not sign the Voluntary Statements if they 4

9 'were not true and accurate. The Delongs signed each of their statements acknowledging the truth of the contents. More importantly, the Delongs and the Respondent had a long discussion on how, or even if, these Voluntary Statements would be released to law enforcement. Certain conditions were agreed upon by the Respondent and the Delongs pertaining to the Voluntary Statements. Respondent advised the Delongs that he intended to contact the Sheriff the following afternoon to determine where the investigation was in regard to Russell Creed. If the Sheriff was not going to be available that day, then Respondent would try to speak with the Sheriff the following day, etc. At this point in time, the Respondent and the Delongs had no idea where the investigation was. As far as the Respondent and the Delongs knew, charges could have already been filed against Russell Creed. If charges had already been filed against Russell Creed, then it was agreed that the Voluntary Statements would have been destroyed allowing the case to proceed through the system. Just as importantly, had either of the Delongs contacted the Respondent at any time and requested that his / her voluntary Statement be destroyed, then Respondent would have destroyed that Voluntary Statement. Were the Voluntary Statements of Ed Delong or Bonnie Delong ever going to be released to law enforcement? Not without their consent, and not without insuring that the Voluntary Statements would not put the Delongs in any type of jeopardy. On the afternoon of September 20, 2007, Respondent walked down to the Sheriff s Department and met with the Sheriff. Respondent asks the Sheriff if he is aware of an incident involving the Delongs and Russell Creed. Respondent is referred to Detective Bowers. 5

10 Detective Bowers informs Respondent that Ed Delong had come into his office earlier in the morning and indicated to Detective Bowers that he signed a Voluntary Statement that was not true. Respondent had a conversation with Detective Bowers and Detective Bowers asks Respondent for the Voluntary Statements signed by Ed and Bonnie Delong. Respondent refused to release the Voluntary Statements to Detective Bowers and Detective Bowers threatens Respondent with incarceration. Respondent advises Detective Bowers that he can only release the Voluntary Statements with the consent of Ed and Bonnie Delong. Detective Bowers calls the Delongs on the speaker phone and the Delongs consent to the release of the Voluntary Statements. On October 1, 2007, Bonnie Delong signed an Affidavit prepared by Respondent for the sole purpose of re-confirming what Respondent had been reporting to law enforcement (Relator Exhibit 3). The Affidavit re-confirmed that the Voluntary Statements were prepared by Respondent at the request of both Ed and Bonnie Delong. The Affidavit reconfirmed that it was agreed between Respondent and the Delongs that the Voluntary Statements would not be released to anyone without authorization and, further, that Respondent was authorized to destroy the Voluntary Statements if Respondent felt that this would be in the best interest of the Delongs. That was the agreement of Respondent and the Delongs. Respondent offered to submit to a Polygraph Examination to be conducted by the Bureau of Criniinal Investigation (BCI) for the purpose of proving the truth. Respondent's offer was turned down by the prosecutor investigating this case. Respondent submitted voluntarily to a polygraph examination conducted on two (2) separate days with Clinical Forensic Polygraph Examiner Brad Kelly, a retired law enforcement officer, who has an office in Delaware, Ohio. Respondent had never met 6

11 Polygraph Examiner Brad Kelly. Respondent passed both of the Polygraph Examinations. The Polygraph results were sent to law enforcement and the Prosecutor's Office. Thereafter, Respondent was charged with Tampering with Evidence and Obstruction of Justice. The first set of charges were dismissed. The second set of charges were filed. The second set of charges were dismissed. Then a third set of charges were filed. The Prosecutor offered to dismiss the charges if Respondent would enter a "no contest plea" to minor misdemeanor charge(s) of disorderly conduct. Respondent consents. Disciplinary Counsel sends of Letter of Inquiry to Respondent in November, The file is closed by Disciplinary Counsel. Disciplinary Counsel re-opens the file in October, 2009, resulting in a Disciplinary Complaint being filed against Respondent in August, Respondent appeared before the three (3) member Hearing Panel in January, The Panel issued a Report finding Respondent guilty of misconduct. 7

12 ARGUMENT PROPOSITION OF LAW NO. 1: Disciplinary Counsel failed to submit sufficient evidence for the Panel Board to find that by clear and convincing evidence, Respondent engaged in conduct that was prejudicial to the administration of justice in violation of Prof. Cond. R.8.4(d). What is the definition of conduct that is prejudicial to the administration of justice? Respondent would define this phrase to mean that Respondent exhibited conduct which was biased toward sound principles of justice. Respondent believes that you cannot have justice without the truth. The truth involving the incident between the Delongs and Russell Creed was unique. Six (6) months before this incident occurred, Natalie Creed called the Delongs and asked them to please refrain from sharing their prescription medication with her husband, Russell Creed. On the night of the incident, Bonnie Delong called Russell Creed and asked him if he took some of Ed Delong's pills. He said that he had. Instead of calling the Sheriff, the Delongs tell Russell Creed to bring back the pills. Russell Creed brings back some pills and Ed Delong accepts the pills. Russell Creed returns a second time and brings back more pills and Ed Delong accepts the pills. Do individuals share medication? Many do. This does not make it right, but it happens all the time. It is clear that the Panel and the Board of Commissioners on Grievances and Discipline believe that Respondent should not have been involved in this matter. In retrospect, they are correct. The fact is that no one asked Respondent to go out and speak to the Delongs. 8

13 At the Panel Hearing, all of the key testimony was from Respondent and Bonnie Delong. The only other witness who testified that had anything material to say was Detective Bower, and Respondent will get to his testimony later. The evidence has always been that the entire contents of the Voluntary Statement signed by the Delongs constituted their opinion and belief. If the Delongs had not requested that Respondent prepare the Voluntary Statements then those statements would not exist. The only two (2) witnesses that testified at the Panel Hearing pertaining to the Voluntary Statements were Bonnie Delong and the Respondent. People get scared to the extent that sometimes the truth is lost. Bonnie Delong was not scared. The truth was more important to her than the threat of criminal prosecution. Detective Bower threatened Bonnie Delong on at least five (5) occasions telling her that she could be charged with sharing prescription pills with Russell Creed. Detective Bower even went to the extent of appearing unannounced at Bonnie Delongs home in Columbus to reiterate this point and to scare her. The Panel has made certain Findings in their report. Respondent would state, for the record, that if those Findings are true, Respondent should be disciplined. Those Findings start in paragraph twelve (12) of the Panel Report. Panel Board Finding Twelve (12) reads as follows: "Respondent engaged in a pattern of conduct subsequent to (after) the signing of the Voluntary Statements designed to protect himself from criminal prosecution and to conceal certain facts regarding his earlier role." 9

14 Respondent has to assume that the "pattern of conduct" referred to by the Panel Board must be based upon Findings Thirteen (13) through Finding Twenty One (21). To determine whether Respondent engaged in a pattern of conduct to protect him self from criminal prosecution and to conceal certain facts regarding his earlier role, Respondent must address the Findings. Panel Board Finding Thirteen (13) reads as follows: "On September 20, 2007, Respondent went to the Sheriff's Office and asked to speak with the Sheriff... He did not in this conversation state that he was representing the Delongs." Respondent would agree with this Finding - with one notation. Respondent has always denied that he was representing Russell Creed. The Respondent's motivation for going out and speaking with the Delongs was based upon a phone call made to the Respondent's home by Natalie Creed. The motivation for the preparation of the Voluntary Statements was based upon the conversation Respondent had with the Delongs. Additionally, Respondent has always denied that he was representing the Delongs, except for the preparation of the Voluntary Statements. Respondent has always stated that the Voluntary Statements were prepared under a Client / Attorney relationship. Landis v. Hunt (1992) 80 Ohio App. 3d 662, 610 N.E. 2d 554. Sayyah et al v. Cutrell (2001) 143 Ohio App. 3d 102, 757 N.E. 2d 779. Henry Filters, Inc. v. Peabody Barnes, Inc. (1992) 82 Ohio App. 3d 255, 611 N.E. 2d

15 Panel Board Finding (14) reads as follows: "At the end of the interview, Detective Bower asked Respondent to turnover the voluntary Statements that Respondent had drafted for the Delong's signatures. Respondent refused. Bower threatened to arrest Respondent if he did not had over the documents. Respondent then said that he would hand over the documents only if the Delongs agreed. A telephone call was placed to the Delongs, who agreed that the Voluntary Statements could be given to Bower. (Ex. 3.)" Respondent would agree with Finding Fourteen (14). Panel Board Finding Fifteen (15) reads as follows: "The reason given by Respondent for his initial refusal to turn over the documents to Detective Bower was that "this is my work and unless you've got a subpoena, you're not taking my file." In later interviews with investigators and in written statements and at the disciplinary hearing, Respondent attempted to justify this action on the grounds of attorney / client privilege and, further, that he had assured the Delongs that he would not turn over the Voluntary Statement to law enforcement without their permission. However, this testimony is flatly contradicted by the Voluntary Statements themselves, which Respondent had the Delongs sign under 11

16 oath, and stated that the Delongs had asked Respondent to draft the document and to take them to the Sheriff's Department." Respondent would indicate that he did tell Detective Bower that he was not taking Respondent's file. Respondent had no obligation to give Detective Bower his file. In regard to the Voluntary Statements, Respondent advised Detective Bowers that the only way that Respondent would release the Voluntary Statements would be with the consent of the Delongs. Respondent believed at that time, and still believes, that the Voluntary Statements were subject to an attorney / client privilege. Frankly, respondent did make an error. Respondent should have had the Delongs sign an Attorney - Client contract pertaining to the Voluntary Statements. The Delongs would have gladly signed the Contract. Confusion seems to occur regarding this issue. Respondent has been asked repeatedly whether he represented Russell Creed. Respondent has said that he never represented Russell Creed. In fact, the prosecution was so convinced that Respondent represented Russell Creed that the prosecution a2reed to arant Russell Creed immunity from prosecution if Russell would answer their guestions. Russell Creed was granted immunity and the first question asked by the Prosecutor to Russell Creed was "Did you hire the Respondent?" Russell Creed's response was "No". The Board Panel states that Respondent's testimony about the usage of the Voluntary Statements is flatly contradicted by the Voluntary Statements themselves. The evidence does not support this Finding. The Voluntary Statements were not going to be released to anyone without the consent of the Delongs. Just because that wording is not within the Voluntary Statements does not mean that the wording / agreement did not exist. At the Panel Hearing, both 12

17 Respondent and Bonnie Delong testified to this fact. There was no evidence offered to rebut the testimony of Respondent and Bonnie Delong. More importantly, Bonnie Delong signed two (2) Affidavits, one prepared by Respondent (Relator Exhibit 3) and one prepared by another attorney (Respondent's Exhibit D) attesting to this fact. Panel Board Finding Sixteen (16) reads as follows: "Respondent testified at the hearing that in his opinion, he was representing the Delongs in drafting the Voluntary Statements, even though they never asked him to be their attorney and he did not discuss representative with either of them. His reasoning was that he applied his legal skills in an attempt to avoid putting the Delongs at risk of criminal prosecution by admitting that they had traded presc ription drugs, which may have been illegal. He testified that he was concerned that the information could expose Bonnie Delong to a criminal investigation, but later testified that this was not a concern because "the cat was out of the bag". (Tr ; ) He further testified that he advised Mrs. Delong about these matters and that if she was questioned about the exchange of pills, she should "take the fifth and not to answer the question from law enforcement." (Tr. 105) Yet, Respondent included information about trading prescription pills in the Voluntary Statements and informed Detective Bower of that in his first meeting on September 20"', even before Bower had seen the Voluntary Statements. (Rel. Ex. 3, p. 7)." 13

18 Respondent has always contended that the preparation (drafting) of the Voluntary Statements were done so on an Attorney - Client relationship. The Attorney - Client relationship occurred based upon a number of factors. First, the Delongs asked Respondent to prepare the Voluntary Statements. Secondly, the Respondent provided legal advice to the Delongs. Thirdly, the Delongs and Respondent had detailed discussions and planning on the use, if any, of the Voluntary Statements, Attorney - Client relationships can be created by express or implied conduct of the parties. Many courts have held that an Attorney - Client relationship may be created by implication based upon the conduct of the parties. My reasoning for having this opinion (the existence of the Attorney - Client relationship) had nothing to do with applying any legal skills. Has Respondent prepared Voluntary Statements for witnesses to sign that would not have been prepared under an Attorney - Client relationship? Absolutely! For example, Affidavits have been prepared for witnesses to sign on temporary custody issues, contract issues, etc. Certainly those types of Affidavits are not prepared under any type of Attorney - Client relationship with those witnesses. Did the Delongs ask Respondent to represent them? Not in those words. Did the Delongs and Respondent discuss representation? No, the issue was never addressed. When Respondent prepared the Voluntary Statements, he believed that an Attorney - Client relationship existed between the Delon2s and Respondent re2ardine the preparation and the usaee of the Voluntary Statements. This is why the Respondent would not release the Voluntary Statements to the Sheriff without the consent of the Delongs. This was the testimony of both Respondent and Bonnie Delong at the Panel Hearing, which was not rebutted. The testimony of Respondent, that he applied his legal skills in preparing the Voluntary Statements to avoid putting the Delongs at risk of criminal prosecution is true. However, the Board Panel Finding that the Voluntary Statements contain an admission that Russell Creed and the Delongs were trading 14

19 prescription drugs is not true. The Voluntary Statement signed by Bonnie Delong states in part: "In the past, Russell has given me his own pills until I could get to the pharmacy..... " Certainly, Respondent could have used the phrase "Hydrocodone pills" in her Voluntary Statement. The term "pills" was used for the sole purpose of avoiding putting Bonnie Delong at risk of criminal prosecution. To continue, the Voluntary Statement signed by Ed Delong states in part: "After investigating this matter, I have learned that there have been times when nty wife could not get in town to till our prescriptions, so Russell Creed had come out and given us his Hydrocodone pills until we could get our prescriptions fiiled." The wording of this Voluntary Statement implies that Ed Delong, after investigating this matter, learned that Russell Creed had shared his pills in the past. It means that Ed Delong found this out after the incident. Again, this wording could not put Ed Delong at risk of criminal prosecution. The Panel states that Respondent testified about the concern that certain information could expose Bonnie Delong to criminal investigation and charges, but later testifies that this was not a concern because "the cat was out of the bag." Respondent's testimony does not support this interpretation. Respondent was always concerned about the information shared by the Delongs to the Respondent. The phrase used by Respondent 15

20 that "the cat was out of the bag" was an understatement. "The cat was not only out of the bag, it was now sitting up in the tree". Bonnie Delong is a truthful person. The information was going to come out, was already out. Respondent absolutely told Bonnie Delong that if she was questioned about the exchange of pills, she should not answer the question because her answer could expose her to criminal charges. Additionally, the Panel makes reference wherein Respondent included information about trading pills in the Voluntary Statements and informed Detective Bower of that in the first meeting on September 20, 2007, even before Bower had seen the Voluntary Statements. Again, the Voluntary Statements do acknowledge information about trading pills, however precise wording was used both in the Voluntary Statements and the interview that Respondent had with Detective Bower which reads in pertinent part: "... There have been times that Bonnie had called Russell and asked Russell whether he had any pills because Bonnie has run our or not been able to get to the pharmacist..."(page 7 of transcript conversation between Respondent and Detective Bower." Clearly, the term prescription pills have a variety of definitions. Panel Board Finding Seventeen (17) reads as follows: ""Bonnie Delong's testimony did not support the testimony of Respondent that he was acting as her attorney. (Tr ) She testified that Respondent was not acting as her attorney. She does not recall whether he mentioned that the Voluntary 16

21 Statements would expose her to a criniinal investigation. (Tr. 209) She does not remember him telling her not to talk to law enforcement about giving pills to Creed. (Tr. 207) Respondent did not ever tell her that she should take the Fifth Amendment." Id. The Respondent disagrees with this Finding. As it relates to the preparation and usage of the Voluntary Statement of Bonnie Delong, there is no question that an Attorney - Client relationship existed. It is true that outside the preparation and possible usage of the Voluntary Statements, the Respondent did not have an Attorney - Client relationship with Ed or Bonnie Delong. However, the entire intent and purpose of going over and talking to the Sheriff was to inquire about the incident on behalf of Bonnie and Ed Delong. This was the agreement of the parties. It is understandable that Bonnie Delong does not recall or remember certain conversations with Respondent. The conversations that Respondent had with Bonnie Delong occurred more than three (3) years previous to the hearing. This does not mean that the conversations did not occur. Bonnie Delong was sixty-eight (68) years of age when she testified in front of the Panel Board. Respondent absolutely advised Bonnie Delong that the true facts involving the incident and previous acts involving "pills" could expose her to criminal charges. Furthermore, Respondent advised Bonnie Delong not to talk to law enforcement about sharing pills. Panel Board Finding Eighteen (18) reads as follows: "Thereafter, Respondent asked Detective Bower to return to him the Respondent's Voluntary Statements so that Respondent could destroy them. (Tr. 168) Respondent 17

22 admitted during his own cross-examination of Bower that Respondent recommended to Bower to let Respondent destroy the documents because, "Hey, if you want to prosecute Russell Creed, you don't want these statements. (Tr. 174)" Although the Panel Board Findings in paragraph eighteen (18) are somewhat accurate, they are taken out of order and context. First, Respondent did tell Detective Bower that if it was his intent to file theft charges against Russell Creed, then he certainly did not want to see, or take possession of, the Voluntary Statements. This a true statement. Secondly, Detective Bower testified that "Respondent asked Detective Bower to return the Voluntary Statements so Respondent could destroy them." Ironically, there is no tape recording of this alleged conversation. Additionally, on cross examination, Detective Bower could not recall the exact context in which the statement was made. In fact, after Respondent left the Sheriff's Department, Respondent called Ed Delong and asked him why he just did not call Respondent and advise Respondent to destroy his Voluntary Statement because, evidently, he was uncomfortable with what he signed. Ed Delona's response was that he did not think about that. Third, Respondent did not ask Detective Bower for the return of the Voluntary Statement of Bonnie Delong. Fourth, Respondent did tell Detective Bower that he should return the Voluntary Statement of Ed Delong to the Respondent. And, if Ed Delong was unhappy with the contents of his Voluntary Statement, then his Voluntary Statement should be destroyed. Respondent prepared the Voluntary Statement at the request of Ed Delong with conditions that were discussed in detail by Respondent and Ed Delong. 18

23 Panel Board Finding Number (19) reads as follows: "Respondent tried to justify his proposed attempt to destroy evidence material to the investigation by arguing that he had been authorized to do so by the Delongs. To support this argument, he had Bonnie Delong come to his office on October 1, 2007, to sign a second affidavit which, among other things, stated that the Delongs had authorized Respondent to destroy the Voluntary Statements if he felt that this would be "in the best interest of me and my husband." (Ex. 4, Tr ) He did not ask Ed Delong for such an affidavit. Bonnie Delong acknowledged at the hearing that she had signed Exhibit 4 and that its contents were true. However, she was not asked any questions at the hearing about this particular sentence of Exhibit 4. (Tr. 199)" The Panel evidently believes that Respondent tried to justify his proposed attempt to destroy evidence material to the investigation by arguing that he had been authorized to do so by the Delongs. The Panel found in support of this Finding, that Respondent had Bonnie Delong come in and sign the second Affidavit (Relator Exhibit 4). Again, at the Panel Hearing, the only testimony in regard to this Finding came from Bonnie Delong and Respondent. No testimony was offered to rebut the testimony of Bonnie Delong and Respondent. Additionally, Bonnie Delong signed a third Affidavit, prepared by another attorney that confirmed the truthfulness of her original Voluntary Statement and of the Affidavit that she signed October 1, 2007 (Respondents Exhibit D). 19

24 Respondent did not attempt to destroy evidence. Respondent had a detailed conversation with the Delongs pertaining to the usage of the Voluntary Statements. If, in fact, charges had already been filed against Russell Creed, then the Voluntary Statements would have been destroyed. That was the agreement. If either of the Delongs had wanted his / her Voluntary Statement destroyed, then that Voluntary Statement would have been destroyed. That was the agreement. If, at any time, Respondent concluded that it would be in the best interest of the Delongs to destroy the Voluntary Statements, then Respondent had authority to do so. That was the agreement. Certainly, these agreements were not stated in the original Voluntary Statements. Why would these agreements be contained in the original Voluntary Statements? This would not make any sense. These agreements were "agreed upon conditions" regarding Respondent preparing the voluntary Statements. Again, Respondent believes that the Voluntary Statements were prepared under the belief that an that an Attorney - Client relationship existed in regard to the preparation and usage, if any, of the Voluntary Statements. If Respondent did not believe that the Voluntary Statements were protected under the Attorney - Client relationship, then the Statements would not have been prepared at a11. It is true that Respondent did not ask Ed Delong for a similar Affidavit. Ed Delong had just lied to law enforcement about his Voluntary Statement and about Respondent preparing the Voluntary Statement. Bonnie Delong testified that the contents of the Affidavit was true and re-affirmed in a third Affidavit prepared by a different attorney. Panel Board Finding Twenty (20) reads as follows: "Respondent claims that he was not representing Creed. However, Creed was the one who benefited from Respondent's 20

25 conduct. After the Delongs changed their story, Creed became less of a focus of the investigation than before. Shortly after Respondent drafted the voluntary Statements for the Delongs' signatures, Creed offered to pay Respondent for his services. Respondent initially refused to accept any money, but Creed nevertheless handed Respondent an envelope containing ten one hundred dollar bills ($1,000). Respondent held onto that envelope for approximately eight months before turning it over to the prosecuting authorities. When asked at the hearing how it came about that he finally decided to turn this money over to the authorities..." Respondent testified that he was not representing Creed. This is true and verified by Russell Creed. The Panel states that Creed was the one who benefited from Respondent's conduct. There is no doubt that the Voluntary Statements benefited Russell Creed. Did the Voluntary Statements benefit anyone else? When Respondent spoke to the Delongs it became apparent that there were multiple issues that existed, not only involving Russell Creed, but the Delongs as well. Issues that had already come out with more to follow. How should those issues be handled? Respondent could have left them alone and hoped that they would not come up. The probability that this would occur was very low. The issues could be addressed now instead of later, when matters would have gotten worse. The Delongs wanted to make Supplemental Statements and the Respondent agreed, even though this was a difficult course of action that had to be carefully handled. Talking with the Sheriff was the starting point. Releasing the Voluntary Statements to the Sheriff was 21

26 the ending point if it could be done without jeopardizing the Delongs. If this could have been accomplished, then the Voluntary Statements benefited the Delongs as well. The Panel states in their Findings that Creed offered to pay Respondent for his services. This is not supported by testimony. Again, the only testimony on this issue came from the Respondent. After Respondent became a focus of the investigation, Russell Creed came into Respondent's office and laid a Huntington Bank envelope on Respondent's desk. Respondent asked Creed what the envelope was for. Creed said it was for Respondent. Respondent advised Creed that he could not accept any money (assuming that the envelope contained money) from Creed, picked up the envelope and handed it back to Creed. Creed then exited the Respondent's office. Thereafter, Creed came back into Respondent's office, dropped the envelope a second time on Respondent's desk and said, "If you don't want it, then throw it away." Respondent kept the envelope and the contents until they were released to law enforcement. When Respondent was asked whether Creed dropped off an envelope containing money at his office, Respondent responded in the affirmative. When asked where the envelope and the contents were located, Respondent stated that the envelope and contents were still in Respondent's office. When law enforcement asked for the envelope and money, Respondent released the envelope and contents to law enforcement. Panel Board Finding Twenty-One (21) reads as follows: "Respondent's decision not to inform the investigating authorities that Creed had offered to pay him for his services and that Respondent had accepted an envelope containing cash was arguably inconsistent with his prior representations to law 22

27 enforcement that he had not been acting for or representing Creed in connection with the Voluntary Statements. In any event, this information was material to the investigation. Respondent withheld this information until it became known by the investigating authorities through Creed." Again, there is no evidence to support this Finding. It is true that Respondent did not inform the investigating authorities that Creed had come into his office unannounced and laid a Huntington Bank envelope containing One Thousand Dollars ($1,000.00) on his desk. The reason is clear. Creed did not offer to pay Respondent for any service and Respondent provided no service to Creed. Secondly, Respondent did not accept the envelope. In fact, he gave it back to Creed, only to have it dropped back on his desk with instructions to throw it away if Respondent didn't want it. Certainly, Respondent was not going to throw an envelope containing One Thousand Dollars ($1,000.00) in the trash. Respondent did not deposit the funds into his Trust Account because it did not belong in his Trust Account. It was not the Respondent's money and Respondent had no Attorney - Client relationship with Creed. Respondent believes that Creed brought the envelope to the Respondent's office and laid it on Respondent's desk because he felt bad that Respondent was now under investigation. Respondent did not volunteer this information to law enforcement, but Respondent was not asked whether anyone tried to pay Respondent money. When they did ask, Respondent responded truthfully. Respondent did not volunteer the information because Respondent was under investigation and believed that law enforcement would argue that Respondent was hired by Russell Creed which was not the truth. 23

28 PROPOSITION OF LAW NO. 2 Disciplinary Counsel failed to submit sufficient evidence for the Panel Board to find that by clear and convincing evidence, Respondent engaged in conduct that adversely reflects on a lawyer's fitness to practice law in violation of Prof. Cond. R. 8.4 (h). To be quite honest, it is difficult to determine which Findings relate to a violation of Prof. Cond. R. 8.4(d) and R. 8.4 (h). Respondent would have the same arguments regarding a violation of Prof. Cond. R. 8.4(h). The arguments would be the same as stated in Proposition of Law No. 1. It would seem that the Panel does not agree with Respondent that the Voluntary Statements signed by Ed and Bonnie Delong were subject to the Attorney - Client privilege. Respondent has always contended that when he prepared the Voluntary Statements, the Voluntary Statements were prepared in accordance with a Attorney - Client relationship. If Respondent is wrong, then Respondent accepts full responsibility and accountability for his conduct. Respondent believes that he had analyzed the issue correctly. The agreements that Respondent and the Delongs entered into, pertaining to the usage of the voluntary Statements, were made to protect the Delongs. If Ed or Bonnie Delong had told the Respondent to destroy his / her Voluntary Statement, then Respondent would have done this. 24

29 PROPOSITION OF LAW NO. 3: Respondent contends that the Polygraph Examination / Results of Clinical Forensic Polygraph Examiner Brad Kelly is admissible evidence. The Panel elected not to allow Brad Kelly to testify. Pursuant to evidence Rule 702, Respondent would argue that the Polygraph Examination / Results and the testimony of Clinical Forensic Polygraph Examiner Brad Kelly should have been permitted. State v. Sharma (2007), 143 Ohio Misc. 2d 27, 875 N.E.2d The Polygraph test results would have supported the testimony of Respondent as to the truth of what occurred in this matter. PROPOSITION OF LAW NO. 4: The Panel finds as aggravating factors under BCGD Proc. Reg. 10(B)(1): (a) Respondent acted with a selfish motive; and (b) Respondent refused to acknowledge the wrongful nature of his conduct. The Panel finds as mitigating factors under BCGD Proc. Reg. 10(B)(2): (a) the absence of a prior disciplinary record; and (b) Respondent has already been sanctioned by virtue of his negotiated misdemeanor "no contest" plea. Each case of professional conduct must be decided on the unique facts and circumstances presented. 6 Ohio Jar. 3d Attorneys at Law Section 34. The Panel believes that Respondent acted with a selfish motive. A"selfish motive" for who? There is no question that the Respondent was trying to protect the interest of Bonnie Delong. 25

30 The Panel states that Respondent refused to acknowledge the wrongful nature of his conduct. Respondent has stated that if he acted wrong, then he accepts full responsibility and accountability for his conduct. However, Respondent contends that this was a difficult matter with unique facts and circumstances. Up until recently, Respondent was still concerned about the welfare of Bonnie Delong because criminal charges could still have been filed against her. PROPOSITION OF LAW NO. 5: The Board voted to amend the Conclusions of Law to include a violation of Prof. Cond. R. 8.4(c) based on Respondent's dishonest actions, including the offer to destroy evidence. The offer to destroy evidence has already been discussed by Respondent. It is true that Respondent told Detective Bower that the Voluntary Statement of Ed Delong should be destroyed if, in fact, it was not true. However, the statement is taken out of context. Nevertheless, Respondent must admit that he would have destroyed the Voluntary Statement of Ed Delong at the request of Ed Delong. This statement constitutes the truth. All of the other statements made by Respondent were recorded. Why was this statement NOT recorded? Certainly, Respondent acknowledges that the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio has the right to review the Panel Report. Gov. Bar Rule V(6)(k). Respondent contends that the Board Panel who heard the testimony and saw the demeanor of the witnesses is in a better position to determine whether Respondent violated Prof. Cond. R. 8.4(c). The Board Panel did not find a violation of Prof. Cond. R. 8.4(c). 26

31 CONCLUSION In Disciplinary Proceedings, the Board of Commissioners on Grievances and Discipline of the Supreme Court bears the burden of proving, by clear and convincing evidence, the facts necessary to establish a violation. Clear and convincing evidence is that measure, or degree of proof, which is more than a mere preponderance of the evidence. Office ofdisciplinary Counsel v. Furth, 93 Ohio St. 3d 173, 754 N.E. 2d 219. The evidence consists of the testimony of witnesses and admitted Exhibits. In this case, there were only two (2) primary witnesses, which were the Respondent and Bonnie Delong. Bonnie Delong testified that the Voluntary Statements prepared by Respondent contained statements that were completely true. Bonnie Delong testified that the Affidavit that she signed, prepared by Respondent, was completely true. Bonnie Delong testified that the third Affidavit, prepared by another attorney re-confirming the contents of the original Voluntary Statement and the first Affidavit prepared by Respondent, was completely true. Attorney - Client relationships exist when an attorney advises others as to their legal rights, the method to pursue their legal rights, the forum in which to pursue their legal rights, and the plan and / or practice to enforce their legal rights. Attorney - Client relationships can be created by express or implied conduct of the parties. Respondent believes that the Voluntary Statements, and the usage thereof, were based upon an Attorney - Client relationship. Besp4ndentc-ontends_thatthere Qxisted-insufficient evidence to establish, by_ clear and convincing evidence, the facts necessary to establish that a disciplinary violation occurred in this case. Respondent would respectfully request this Court to overrule and to vacate the Findings of Fact, Conclusions of Law, and Recommendations of the Board of 27

32 Commissioners on Grievances and Discipline of the Supreme Court of Ohio, for the reasons stated herein. WARD ROYAL N INE Attorney at Law Supreme Court No. 0030` South Paint Street Chillicothe, Ohio (740) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was delivered to Jonathan W. Marshall, Secretary, Board of Commissions on Grievances and Discipline of The Supreme Court of Ohio, 65 South Front Street, 5`h Floor, Columbus, Ohio , and Heather L. Hissom, Assistant Disciplinary Counsel, 250 Civic Center Drive, Suite 325, Columbus, Ohio , by regular mail or personal delivery upon this 31st day of May DWARD ROMAL BUNSTINE Attorney at La Supreme Court No

33 BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT OF OHIO In Re: Complaint against Edward R. Bunstine Attorney Reg. No Respondent Disciplinary Counsel Case No Findings of Fact, Conclusions of Law and Recommendation of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio Relator This matter was heard on January 21, 2011, before a Panel consisting of Judge Joseph J. Vukovich, Alvin R. Bell and Lawrence R. Elleman, Chair. None of the Panel Members is from the appellate district from which the complaint arose or served on the probable cause panel in this matter. Relator was represented by Heather L. Hissom. Respondent represented himself. OVERVIEW I. This case involves Respondent's voluntarily injecting himself into a criminal investigation concerning an acquaintance of Respondent. Respondent drafted svrorn witness statements (Voluntary Statements) for the signatures of the two complaining witnesses, which were intended to demonstrate that the crime under investigation had not been committed. Th`reaJ'±er-,one-o-f t.he-co- mplai-nfng-wit-nesses -had-second tk oughts about the Voluntary Statement that he had signed and reported to the Sheriffs investigator that his Voluntary Statement was inaccurate. As a result, Respondent became the focus of a criminal investigation for allegedly tampering with evidence and obstructing justice.