disciplinary handbook: volume v - Supreme Court - State of Ohio

Hayes, Columbus Bar Assn. v.
118 Ohio St.3d 336, 2008-Ohio-2466. Decided 5/29/2008.
Case Summaries- 116
Respondent voluntarily ceased practicing on 12/21/2006 and is not currently registered. As to Count I,
respondent was appointed to represent a criminal defendant in an appeal of a conviction in a kidnapping case of
great public interest, but he did not appear at the oral argument. The court took the case under advisement
without any argument on the defendant‘s behalf. Later, respondent appeared in the court room during the argument
of another scheduled case. He claimed he was unable to drive because of a recent car accident and that his driver
had been late, but he could not explain why he had not attempted to contact the court to say he would be late. He
filed a motion for rehearing, but the appeals court denied the motion and affirmed the conviction. Respondent failed
to file an appeal with the Supreme Court of Ohio. As to Count I, the court adopted the Board‘s findings of
violations of DR 1-102(A)(5), 1-102(A)(6), 6-101(A)(1), 6-101(A)(3), 7-107(A)(1) [sic 7-101(A)(1)], 7-
101(A)(3). As to Count II, respondent was paid $1,000 to represent a juvenile on a charge of driving with a
suspended license. The court sent respondent a notice of the hearing but he did not see the notice and did not
inform the client or the client‘s mother of the hearing. The court issued a warrant for arrest. The mother found
respondent‘s home phone number and called him. He said he would move to have the warrant set aside, but it
was withdrawn only when the mother persuaded the judge to withdraw it. Respondent did not return the
retainer. As to Count II, the court adopted the Board‘s findings of violations of DR 1-102(A)(4), 1-102(A)(5), 1-
102(A)(6), 6-101(A)(1), 6-101(A)(3), 7-101(A)(1), 7-101(A)(3), 9-102(B)(4). As to Count III, He accepted $400
of a quoted $750 attorney fees to restore a man‘s driving privileges after a probation violation. Respondent
addresses a probation issue, but not the restoration of the driving privileges. The client was unable to contact him
when he received a summons and a felony indictment. Respondent did not appear at the court, so the client
became afraid and left, causing the court to issue a warrant for arrest. Respondent called the client that evening
claiming he did not attend because he ―had something else to do.‖ Later respondent demanded a new retainer but
missed several appointments to pick up the payment. He eventually went to the client‘s house and accepted $500
in cash but gave no receipt. He failed to take care of the warrant. He demanded further payment and when the
client and the client‘s mother would not pay, he was belligerent and directed obscenities at the mother.‖ As to
Count III, the court adopted the board‘s findings of violations of DR 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-
101(A)(1), and 9-102(B)(4). As to Count IV, respondent was paid a $10,000 retainer in a case involving felony
criminal charges, but the family made the judge aware that they had difficulty communicating with him. The family
learned from the prosecutor that respondent failed to inform them of a plea offer. He arrived later for trial and asked
for a continuance. He was discharged. He told the judge he would refund a portion of his retainer, but he did
not. As to Count IV, the court adopted the board‘s findings of violations of DR 1-102(A)(5), 1-102(A)(6), 6-
101(A)(1), 6-101(A)(2), 6-101(A)(3), 7-101(A)(1), and 9-102(B)(4) and the court also found a violation of DR 1-
102(A)(4). As to Count VI, he received notice from relator in May 2006, but did not respond until subpoened.
Respondent became addicted to Percocet and Vicodin in 2005, then became addicted to Suboxone after being
prescribed the drug for relief for withdrawal symptoms and began to use it illegally. He also used crack cocaine.
He represented clients and accepted court appointment through this period of illegal drug use. In the summer of
2006, he was failing to take care of clients‘ cases. He recently entered outpatient treatment, signed an OLAP
contract, and received inpatient treatment. The aggravating factors under BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (h),
and (i) were weighed with the mitigation of absence of prior record, full and free disclosure, cooperative attitude,
and chemical dependency successfully treated. BCGD Proc.Reg. 10(B)(2)(a), (d), and (g). There was testimony
that his chemical dependency contributed to his misconduct. There was also testimony as to his attention-deficit
hyperactivity disorder, dysthymia, and anxiety disorder. The court adopted the board‘s recommended sanction and
so ordered. Respondent is suspension for two years, with six months stayed upon conditions that he continue to
comply with OLAP contract, provide a current report from a psychologist or psychiatrist, pay full restitution by or
behalf of client who filed the grievance with the bar association the Client Security Fund, pay cost of the
proceeding and commit no further violations; and serve a three year probation period subject to similar conditions.
Rules Violated: DR 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 6-101(A)(1), 6-101(A)(2), 6-101(A)(3), 7-
101(A)(1), 7-101(A)(3), 9-102(B)(4)
Aggravation: (b), (c), (d), (h), (i)
Mitigation: (a), (d), (g)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Two-year suspension, 6 months stayed