By Dan Trevas
The Supreme Court of Ohio today suspended a Cuyahoga County lawyer for asking a judge to refer an opposing attorney for mental health screening to pressure that attorney into dismissing a contentious case.
In a unanimous decision, the Supreme Court suspended Douglas Whipple of University Heights for one year, with six months stayed. The Court found Whipple violated ethical rules by making threats of filing criminal charges or professional misconduct charges for the sole purpose of gaining an advantage in a civil matter.
In 2019, Whipple filed a motion requesting that the trial judge refer attorney Roger Synenberg to the Ohio Lawyers Assistance Program (OLAP). Whipple stated in court that he would drop the request if Synenberg and the other opposing attorneys agreed to dismiss a prolonged estate-planning case.
In a per curiam opinion, the Court stated that Whipple damaged not only Synenberg’s reputation with the allegations of mental health issues, but also the reputation of the legal profession by “reinforcing one of the worst stereotypes of attorneys – that they will abuse the legal process to gain an unfair advantage for their clients.”
Estate Dispute Leads to Prolonged Court Case
Glenn Seeley was a retired attorney and friend of Whipple’s. In
2010, Seeley granted his wife, Kristina, power of attorney to manage
his finances and health care. He also designated his wife as a
co-trustee of a trust in his name. By early 2015, Glenn was diagnosed
with Alzheimer’s disease and moved into a facility for those suffering
from dementia.
In February 2016, Glenn signed a second durable power of attorney, giving his son, Gregory, and his grandson, Matthew, (both attorneys), power to manage his finances. Whipple also alleged that Glenn amended his trust to make Gregory the co-trustee of his trust, replacing Kristina.
In November 2016, Kristina, who is Gregory’s stepmother, hired Whipple to challenge the validity of the documents signed early in the year. In January 2017, Whipple filed a lawsuit on behalf of Glenn and Kristina Seeley against Gregory and another attorney. Synenberg and two other attorneys were hired to represent Gregory and the other lawyer.
After nearly two years of contentious litigation, the parties agreed to a settlement in December 2018. The next month, the trial court determined the settlement was reasonable and directed the parties to complete their remaining obligations, including submitting a filing to the court to formally dismiss the case.
Settlement Dispute Prompts Controversial Request from Judge
About two months after agreeing to the settlement, Synenberg
questioned whether Kristina was mentally competent to sign the
settlement agreement. Whipple asserted she was. The trial court
attempted to have the parties confirm the settlement and set a hearing for a Monday morning in June 2019.
Late on the Friday before the hearing, Whipple filed a motion requesting that the judge refer Synenberg to OLAP. In this motion, Whipple alleged Synenberg’s “performance as a lawyer was impaired by a mental or emotional condition or some other condition.” He maintained Synenberg was making unfounded attacks on Kristina’s mental capacity and needlessly delaying the case’s dismissal.
In his motion, Whipple referred to an unrelated high-profile case involving Synenberg. Based on media reports of the unrelated case, Whipple accused Synenberg of retaliating against a witness who testified against one of Synenberg’s clients. Retaliating against a witness is a third-degree felony. Whipple also made other claims against Synenberg, including that he made misrepresentations to the court and defamed Whipple’s paralegal, who is also Whipple’s wife.
At the Monday hearing, Synenberg and his colleagues objected to the motion, claiming it was frivolous. Whipple told the trial judge that he expected Synenberg and the other attorneys to sign the agreement to dismiss the case. If not, he wanted to proceed with the motion to have Synenberg referred to OLAP.
The trial judge did not act on the motion, and later raised the issue of whether Whipple’s request violated the professional conduct rule that prohibits threatening to charge an opposing attorney with a crime or professional misconduct solely to gain an advantage in a civil matter.
The Seeley case was dismissed, but based on the motion, the Cleveland Metropolitan Bar Association filed a complaint against Whipple with the Board of Professional Conduct.
Board Found Rule Violations
The trial judge in the Seeley matter testified
at Whipple’s disciplinary hearing. The judge told a three-member panel
that Whipple was expressing his anger with the court for the delays and
his frustration with Synenberg. The judge indicated the motion, which
is a public record, was intended to pressure Synenberg and the other
attorneys to end the questioning of Kristina’s competency and settle
the case.
Whipple maintained he did not commit any ethical violations and was expressing a true concern for Synenberg’s mental health. The board disagreed and recommended the Supreme Court suspend Whipple for one year, with six months stayed.
Whipple objected to the board recommendation, suggesting his conduct at most warranted a public reprimand. The objection triggered oral arguments before the Court.
Supreme Court Examined Allegations
The opinion stated the Court’s independent review of the record provides overwhelming evidence
that the sole purpose of Whipple’s motion was to force Synenberg to
stop questioning Kristina’s capacity and agree to dismiss the case. The
Court noted Whipple’s own actions at the hearing refute his claims that
he had sincere concern for the opposing attorney. Whipple only agreed
to withdraw the motion if Synenberg agreed to settle.
The Court noted that by implying Synenberg was committing the crime of witness retaliation, Whipple was also alleging that Synenberg engaged in professional misconduct. The claims violate the rule of alleging a crime or professional misconduct to gain a legal advantage, the Court concluded.
Whipple also said that his comments did not harm Synenberg’s reputation, and that Synenberg had downplayed the significance of Whipple’s accusations. The opinion stated an attorney’s “most valuable asset is his or her professional reputation for competence, honesty, and integrity.”
The Court stated that Whipple went far beyond citing the publicized unrelated case regarding potential witness retaliation by claiming Synenberg’s actions “were adversely affected by some unidentified condition.” Those allegations in a public filing caused some harm to Synenberg’s reputation, the opinion stated.
“In addition to the harm Whipple’s allegations inflected on Synenberg’s reputation, his conduct also caused immeasurable harm to the public perception of the legal profession. On these facts, Whipple’s conduct warrants a sanction greater than the public reprimand that he seeks,” the Court concluded.
The six-month stay of Whipple’s one-year suspension is conditioned on not committing further misconduct. He was also ordered to pay the costs of the disciplinary proceedings.
2021-0229. Cleveland Metro Bar Assn. v. Whipple, Slip Opinion No. 2022-Ohio-510.
View oral argument video of this case.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.
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