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

Mamich, Disciplinary Counsel v.
125 Ohio St.3d 369, 2010-Ohio-1044. Decided 3/25/2010.
Case Summaries- 191
Respondent represented a client‘s daughter in a legal matter without the daughter‘s knowledge or consent. In
November 2003, client of respondent applied for and was issued a bank credit card in his daughter‘s name
without her knowledge or consent. Three years later, the bank sold the debt to John Soliday Financial Group,
LLC (creditor). In February 2007, the creditor filed a lawsuit against the daughter, seeking $1420 on the
card and additional interest at a rate of 16% per year; the father was not named as a party to the lawsuit.
The daughter never filed an answer and the creditor moved for default judgment. At this point, the
client/father contacted respondent and asked him to enter an appearance for the daughter at the hearing on the
default motion and to defend his daughter in this case. Client told respondent he got the card in his name and
added his daughter as an authorized user; respondent did not learn that the card had been issued solely in the
daughter‘s name until disciplinary proceedings had been brought against him. The father/client further told
respondent that the debt was his, and that his daughter knew nothing about the card or the proceedings.
Respondent advised the father to contact his daughter so that she could defend her case. The father falsely told
respondent that his daughter was on a trip and he did not want to alarm her; in truth, she was living in Central
Ohio during the entirety of these proceedings. Despite respondent knowing that the daughter was not aware of
the card and that the father did not want to notify the daughter, he agreed to appear on daughter‘s behalf at the
hearing and to defend her in the case. The father authorized him to offer $300 to settle the case. Respondent
offered the settlement, appeared at the default-judgment hearing and at a case management hearing, filed an
answer to the complaint and a response to a motion for summary judgment. Respondent wrote a motion in
opposition to the creditor‘s motion for summary judgment and attached an affidavit from the father, stating
that the debt was his and not his daughter‘s. The father agreed to personally file the response, but unknown
to respondent until the disciplinary proceedings commenced, he did so without the affidavit attached. In
December 2007, the court granted summary judgment against the daughter. Respondent notified the father of
this decision, but did not notify the daughter. The daughter soon received notice from her employer that
her wages were being withheld to satisfy a judgment against her. The daughter, with the help of her
own attorney, was able to get the previous judgment vacated and the garnishments removed, but only after
more than $1000 had been garnished. When respondent learned of the daughter‘s motion to vacate the
judgment, he contacted her attorney and told her the entire story and agreed to testify as witness on her behalf.
Respondent testified at the new trial to the entire story and the daughter‘s lack of knowledge or consent to
his representation. The court ordered that all garnished wages be returned to the daughter. Respondent
received no compensation from the father for the respondent‘s services. The respondent admitted to violating
Prof.Cond.R. 1.7(a)(2), 1.16(a)(1), 5.4(c), and 8.4(d) and the board adopted the panel‘s findings of these
violations and the Supreme Court of Ohio agreed. The respondent also admitted to violating Prof.Cond.R.
1.2(a), 1.4(a)(1), and 1.4(a)(3), but the Board did not find these charges and the court dismissed them. The
court agreed with the board that these charges require the formation of an attorney-client relationship, which
was not present between respondent and the daughter in this case. There was no implied relationship.
Citation to Hardiman (2003). The Board found no factors in aggravation, but did find in mitigation that
respondent: had no prior disciplinary record in his 35 year career, lacked a dishonest or selfish motive, and
cooperated fully in the investigation. BCGD Proc.Reg. 10(B)(2)(a), (b), and (d). Respondent could have
relied on his client‘s claimed power of attorney from the daughter, but he was concerned that his client had
falsified, it. He admitted it was not the basis of his representation of the daughter. Additionally in
mitigation, respondent testified on daughter‘s behalf after learning of the father‘s deception. The parties
stipulated to a 12-month suspension, stayed on the condition of no further misconduct. But, in comparable
cases, Ita (2008) and Mangan (2009), the court imposed a lesser sanction. Board adopted the panel‘s
recommendation of a six-month stayed suspension. The Court adopted the board‘s findings of facts,
conclusions of law and recommended sanction, and so ordered a six-month suspension, stayed on condition of
no further misconduct.
Rules Violated: Prof.Cond.R. 1.7(a)(2), 1.16(a)(1), 5.4(c), 8.4(d)
Aggravation: NONE
Mitigation: (a), (b), (d)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed