MOUNT VERNON — A local attorney could find himself jumping hurdles for the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio after filing a lawsuit against a couple who voiced their opinion on the care of horses he owned.
In December 2009, attorney Phillip Lehmkuhl filed a civil lawsuit against Joseph and Amanda Erb on behalf of he and his wife, Carolynne, and Arlene and Timothy J. McAfee. The suit was filed in Morrow County and was the result of a television interview given by Joseph and Jill Erb which said the Lehmkuhls and McAfees failed to provide adequate shelter and care for the animals. The McAfees owned the pasture where the horses were kept.
The civil lawsuit alleged the Erbs, Joseph and Amanda, “made their remarks with careless disregard as to whether they were true and that they intended to defame” the Lehmkuhls and McAfees.
Amanda Erb, however, was a student at Mount Vernon Nazarene University at the time of the interview, and is the daughter of Joseph and Jill Erb. According to the complaint against Lehmkuhl, he “refused to either amend the complaint to include Jill Erb instead of Amanda Erb or to dismiss Amanda Erb as a party.”
In his answer, Lehmkuhl denies that allegation and stated he filed an amended complaint that substituted Jill Erb for Amanda Erb.
Joseph Erb filed a grievance against Lehmkuhl on March 23, 2010, which was dismissed several weeks later because the case was still in litigation. According to Supreme Court documents, Lehmkuhl tried to make his dismissal of the civil case conditional on the fact that Erb would not refile his grievance once the civil case was closed. Erb refiled on April 20, 2011.
Lehmkuhl denies he tried to make a deal with Erb, but did discuss the issue with opposing council.
“[Lehmkuhl] was advised that in the opinion of opposing counsel, such a demand would be unethical conduct,” Lehmkuhl states in his answer. “Not wishing to run afoul of ethical rules, [Lehmkuhl] settled the case without any limitation on Joseph Erb’s vis-a-vis the Disciplinary Counsel.”
According to the complaint filed in December by the board, Lehmkuhl refused to respond to two pieces of certified mail and failed to show up for a scheduled deposition, which was part of the board’s investigation into the allegations of misconduct.
Lehmkuhl argues that he did request, and receive, an extension to respond to the first letter, but does not maintain that he followed through with a response. He admits he did not respond to the second letter or the subpoena.
The complaint alleges Lehmkuhl violated the Ohio Rules of Professional Conduct relating to eight counts including sections that state lawyers must provide “competent representation”; that the attorney will not defend a proceeding unless there is “a basis in law or fact for doing so that is not frivolous”; should not engage in conduct that is prejudicial to the administration of justice or conduct that affects an attorney’s fitness to practice law; and that a lawyer should not refuse to testify in an investigation or hearing.
In the conclusion of his answer, Lehmkuhl denies that he violated rules of conduct and stipulated he did not reply to a letter because of the death of his father-in-law and did not show up for the deposition because of a “calendar snafu within his office.”
“[I] acknowledge that a probable cause exists to charge [me] with misconduct,” Lehmkuhl said.
Lehmkuhl has been practicing law in the state of Ohio since 1978.
Lehmkuhl’s case was heard June 4 by a three-member panel of the board. The panel will construct a confidential report with a recommendation to the full disciplinary board. The full board, which consists of 28 members, meets every other month.
A written recommendation be provided to the Ohio Supreme Court which will make the final conclusion.