Attorney Mike Rasor, in the thick of a tight race for the Ohio house, has been slapped with a heavy fine for alleged unethical behavior in his imprisoned former client's fraud case.
It all began with missing medical devices.
Kinetic Concept Inc. (KCI) made the suction machines that apply pressure to bleeding wounds. Nursing homes bought them up. And the San Antonio manufacturer, proud of its product, kept a close eye on its inventory and the competition.
In 2013, KCI noticed an uncanny resemblance in the units sold by Brecksville-based Healthcare Essentials, which was operated by Ryan Tennebar. So, KCI sued Healthcare Essentials for infringing on its business. And Mike Rasor — an eager attorney and already the youngest at-large councilman in the history of Stow — jumped at the opportunity to defend a small-time, local businessman from an accusatory, out-of-state corporation.
Five years later, in the midst of a tight race for the Ohio House, Rasor is the one who needs a lawyer. Tennebar turned out to be a crook. He bought the devices used from eBay and other auction websites. With inside help, Tennebar swapped them out with new units stolen from a KCI warehouse.
In April 2017, the FBI raided Tennebar’s home. He told them he kept no records of his business. As agents began the search, Tennebar drove to a hardware store, bought bolt cutters, broke into a storage unit and moved boxes full of evidence, according to a court filing.
Having lost an appeal in June, Tennebar is doing four years in a Michigan prison for trying to hide the evidence of his crime. The fraud case against him was huge, resulting in a $645 million judgment for KCI.
Rasor now fights in the court of public opinion, and before an appellate judge, to redeem his name as an honest and trustworthy attorney. He and two associates at Cavitch Familo & Durkin Inc., which represented Tennebar until March 2016, have drawn $2.4 million in sanctions from a federal judge known for her principled defense of the legal process. The fines are the first for alleged unethical behavior, including fabricating evidence and misleading the courts, ever levied against the Cleveland firm, which was founded in 1886.
Beyond the magnitude of the legal sanctions of $365,200 sought from Rasor and the $2.4 million from his firm and Tennebar, legal experts consulted on this case, some of whom could not comment about the particulars because they know the local attorneys accused of unethical behavior, say the claims are serious.
“The allegations to me seem quite substantial,” said Arthur Greenbaum, an Ohio State University law professor who reviewed federal Judge Benita Pearson's criticism of how Cavitch handled the infringement case. "I mean, that is not normal for you to create false evidence. That’s not ethical behavior by any stretch of the imagination."
Politically, the accusations of misleading a federal court by withholding evidence or wittingly passing bad information have given Democrats fodder to fire at Republican Rasor’s campaign for the 37th House District, which includes northeastern Summit County.
“Having read Judge Pearson’s entire order, I think this behavior is sadly representative of the culture of corruption that Ohioans have had to settle for from politicians in Columbus. The residents of District 37 are ready for new leadership, and they deserve to have a representative they can trust,” said Casey Weinstein of Hudson, another young councilman running against Rasor for the open House seat.
But Rasor isn’t accepting the judge’s final decision last week that he played any part in impeding justice. He calculates that the alleged activities amount to only $700,000 in extra cost for KCI’s attorneys — half of which his former client would pay. But he said his firm has agreed to appeal, vowing to pay nothing.
“We’re taking settlement off the table. We’re not paying a dime,” Rasor said. “And we’re not going to rest until these allegations are disproved.”
In court briefs, Rasor’s firm has argued that it could not disclose Tennebar’s illegal activity without breaching attorney-client confidentiality. Plus, Tennebar has a Fifth Amendment right to avoid self-incriminating statements.
But Greenbaum said Rasor’s conduct may not be protected by the sacred pact between lawyers and clients. A duty of candor, to inform the court of illegal activity and to avoid aiding clients in fraudulent or illegal conduct, takes precedence.
"To the extent that that’s the argument, and I haven’t read the argument, I think that’s completely wrong," Greenbaum said.
The Ohio Rules of Professional Conduct, which define ethical standards for any attorney practicing in the state, states that a lawyer "who knows that a person, including the client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable measures to remedy the situation, including, if necessary, disclosure to the [court]."
The rules continue: "In the course of representing a client a lawyer shall not knowingly ... fail to disclose a material fact when disclosure is necessary to avoid assisting an illegal or fraudulent act by a client."
But Rasor pointed to a third rule that says he cannot be compelled to disclose his client's illegal activity as a duty to confidentiality.
Case law also favors disclosure, legal experts said. In a criminal matter that reached the Ohio Supreme Court in 2000, a Toledo area attorney could not keep private a letter documenting his client's crimes. "In essence, the confidentiality rules do not give an attorney the right to withhold evidence,” the high court ruled.
But this is a complicated case. And it’s not clear if Rasor and his associates were accomplices or victims in their client’s deceit.
On March 15, 2015, attorneys dogged by unfilled records requests asked the court to sanction Tennebar and his attorneys at Cavitch for “a pattern of blatant and continuous discovery abuses.”
Another year would pass before Cavitch quit the case. The Cleveland firm began to recognize that documents detailing Tennebar’s business didn’t match what he’d been telling them, Rasor said. So Cavitch hired a costly forensic investigator to capture a mirror image of Tennebar’s computer.
On March 31, 2016, the probe uncovered an email confirming the discrepancies, which turned out to be falsified or fabricated serial numbers and inventory lists for the stolen medical devices.
“Before that point, we just thought he was bad at keeping records,” Rasor said, noting that his firm was fired two days later after confronting Tennebar. Within the next few months, Rasor said the case blew open Tennebar’s operation of buying used vacuum machines on eBay and Alibaba, then having an inside guy at KCI swap them out for new machines. Tennebar then marketed the machines to nursing homes and other agencies as his own premium product.
“He’d been lying to us,” Rasor said, stressing that the revelation came at the end of his contractual obligation to his client.
Rasor and his colleagues withdrew as counsel on the case, but they did not disclose Tennebar’s actions for another three months, according to lawyers for KCI who persuaded Judge Pearson to sanction Cavitch for costing them time and money.
Rasor, who said the appeal will be filed by Monday, contends that he and his firm were always upfront with the judge, who denied them a hearing to make their case. “We were dealing with a bad guy,” Rasor said.
Reach Doug Livingston at 330-996-3792 or firstname.lastname@example.org. Follow him @ABJDoug on Twitter or www.facebook.com/doug.livingston.92 on Facebook.