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

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Noel, Disciplinary Counsel v. 126 Ohio St.3d 56, 2010-Ohio-2714. Decided 6/17/2010. Case Summaries- 236 Respondent neglected the legal matters of two clients which resulted in the dismissal of a criminal appeal and the dismissal with prejudice of a civil case, failed to timely deliver a client‘s file, and failed to cooperate in the disciplinary investigation. Respondent gave testimony by deposition, but did not file an answer to relator‘s complaint; a master commissioner made findings of fact and conclusions of law, which the board adopted. The Court noted that because some of the documents submitted in support of the motion for default were neither sworn nor certified as required by Gov.Bar R. V(6)(F)(b) they are not proper evidence in support of the default motion. The court did not consider seven purported affidavits that are photocopies, not the original, signed and notarized documents, and 65 additional exhibits that relator had not provided an investigator‘s affidavit to authenticate. The court considered only the transcripts of respondent‘s deposition testimony and the exhibits admitted during deposition. In Count I, respondent represented a client at trial in a criminal matter, but did not take the steps necessary to perfect an appeal of a criminal conviction in the Sixth Circuit, resulting in the court dismissing the appeal for want of prosecution. At the sentencing hearing, respondent informed the court that his client wanted to appeal; he said that the client was indigent and needed court- appointed counsel. Respondent, unfamiliar with the Sixth Circuit‘s local rules, was unaware that he was bound to be the appellate counsel unless the court specifically relieved him from the representation. Respondent, believing that that the trial court granted his motion to withdraw, failed to file the appeals filing fee, form of appearance, or a transcript purchase order. Respondent was sent letters from the appeals court, but claims that he did not see them until preparing for his deposition in the disciplinary investigation when he found them in the file and he assumed that his secretary thought the case was closed and filed the correspondent without showing him. Respondent admitted that he received calls from the appellate court and agreed to provide documentation of his withdrawal, but failed to provide the requested information. He admitted to receiving two letters from relator about the grievance and failing to respond to them. As to Count I, the board found that respondent violated Prof.Cond.R. 1.3, 8.4(d), 8.1(b), and Gov.Bar R. V(4)(G). In Count II, respondent filed a lawsuit on behalf of a woman who was involved in an accident with a COTA bus. He met her at the courthouse and learned her previous attorney dismissed the case. After talking with her at his office, he took the case and refiled the complaint. Respondent failed to provide materials requested by COTA during discovery; but he blamed his client because she failed to submit to an independent medical examination and failed to submit complete answers to interrogatories. COTA was awarded attorney‘s fees as a sanction for respondent‘s conduct in discovery, but the court never fixed the amount of the sanction. Respondent also failed to respond to COTA‘s motion to dismiss, and the case was dismissed with prejudice for failure to prosecute. Respondent admitted to ignoring the client‘s phone calls, and that his voicemail was often full. He sometimes missed scheduled appointment due to obligations in court. The client asked for her file so that she could re-file the lawsuit with another attorney; respondent told her that he didn‘t think another attorney would take the case because three attorneys had already represented her and that was ―a big red flag‖ that something was wrong, he failed to mention that the case had already been dismissed with prejudice and could not be refiled. Respondent failed to respond to relator‘s letters, claiming that he believed the letters were duplicates from the first grievance. Respondent denied that he missed an appointment to return the client‘s file, claiming he left the file out for the client‘s arrival, but the receptionist had not seen it. He claimed that he had not responded to relator‘s letter because he thought it was a duplicate notice of the grievance underlying Count I. As to Count II, the board found violations of DR 6-101(A)(3), Prof.Cond.R. 1.3, 1.15(d), 3.4(c), 8.1(a), 8.1(b), 8.4(d), and Gov.Bar R. V(4)(G). The Court dismissed Prof.Cond.R. 3.4(c) and 8.1(a) as not supported by sufficient sworn or certified evidence. Furthermore, while the Court agreed with the finding of a violation of Prof.Cond.R. 1.15(d), the Court noted in footnote 1 that Prof.Cond.R. 1.16(d) was more apt under these facts. The multiple offenses, lack of cooperation in the disciplinary process, a refusal to acknowledge the wrongfulness of his conduct, and the vulnerability and resulting harm to the client are aggravating factors. BCGD Proc.Reg. 10(B)(1)(d), (e), (g), and (h). No prior disciplinary record is a mitigating factor. BCGD Proc.Reg. 10(B)(2)(a). The
Case Summaries- 237 Master Commissioner recommended a two-year suspension with six months stayed. The Board agreed with a two-year suspension, but instead recommended 18 months stayed on the conditions of no further misconduct and an additional six hours of CLE training in office management. The court concluded that the misconduct was not as egregious as Kaplan (2010), but that the resulting harm to the clients render the misconduct more serious than Mulbach (1999), and Marosan (2005). The Court, adopted a two-year suspension with six months stayed on the conditions recommended by the board. Justices Pfeifer and O‘Donnell dissented, and would have suspended respondent for two years with 18 months stayed. Rules Violated: Prof.Cond.R. 1.3, 1.15(d), 8.1(b), 8.4(d); DR 6-101(A)(3); Gov.Bar R. V(4)(G) Aggravation: (d), (e), (g), (h) Mitigation: (a) Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO Public Official: NO Sanction: Two-year suspension, 6 months stayed
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The Supreme Court of Ohio Board of
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Table of Cases Table of Cases- 1 [F
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Drain, Cuyahoga Cty. Bar Assn. v. 1
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Horton, Disciplinary Counsel v. 124
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Markovich, Akron Bar Assn. v. 117 O
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Table of Cases- 9 Ramos, Cleveland
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Table of Cases- 11 Stuard, Becker,
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Case Summaries Allerding, Columbus
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Case Summaries- 15 Archer, Northwes
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Case Summaries- 17 intermittently o
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Bartels, Allen Cty. Bar Assn. v. 12
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Blair, Disciplinary Counsel v. 128
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Case Summaries- 23 Bowling, Discipl
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Broschak, Disciplinary Counsel v. 1
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Brown, Dayton Bar Assn. v. 124 Ohio
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Brown, Allen Cty. Bar Assn. v. 124
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Brueggeman, Disciplinary Counsel v.
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Bunstine, Disciplinary Counsel v. 1
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Bursey, Disciplinary Counsel v. 124
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Butler, Disciplinary Counsel v. 128
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Campbell, Disciplinary Counsel v. 1
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Cantrell, Disciplinary Counsel v. 1
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Cantrell, Disciplinary Counsel v. 1
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Case Summaries- 45 abuse impede his
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Case Summaries- 47 respondent‘s d
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Case Summaries- 49 with a client if
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Case Summaries- 51 not DR 1-102(A)(
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Clovis, Columbus Bar Assn. v. 125 O
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Corrigan, Geauga Cty. Bar Assn. v.
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Cunningham, Butler Cty. Bar Assn. v
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Davis, Disciplinary Counsel v. 121
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Dawson, Cleveland Metropolitan Bar
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DeLoach, Akron Bar Assn. v. 130 Ohi
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Detweiler, Disciplinary Counsel v.
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DiCato, Akron Bar Assn. v. 130 Ohio
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DiMartino, Mahoning Cty. Bar Assn.
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Doellman, Disciplinary Counsel v. 1
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Drain, Cuyahoga Cty. Bar Assn. v. 1
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Ellis, Columbus Bar Assn. v. 120 Oh
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Emerson, Cincinnati Bar Assn. v. 12
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Farah, Toledo Bar Assn. v. 125 Ohio
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Farrell, Cincinnati Bar Assn. v. 12
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Fink, Akron Bar Assn. v. 131 Ohio S
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Folwell, Disciplinary Counsel v. 12
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Freedman, Akron Bar Assn. v. 128 Oh
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Freeman, Disciplinary Counsel v. 12
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Freeman, Disciplinary Counsel v. 11
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Frost, Disciplinary Counsel v. 122
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Case Summaries- 95 his goal of gain
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Gibson, Akron Bar Assn. v. 128 Ohio
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Glaeser, Cuyahoga Cty. Bar Assn. v.
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Goldblatt, Disciplinary Counsel v.
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Gottehrer, Cleveland Metro. Bar Ass
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Case Summaries- 105 disgorgement of
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Grote, Cincinnati Bar Assn. v. 127
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Hackett, Cincinnati Bar Assn. v. 12
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Case Summaries- 111 presented evide
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Hanni, Mahoning Cty. Bar Assn. v. 1
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Hauck, Cincinnati Bar Assn. v. 129
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Heiland, Disciplinary Counsel v. 11
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Heisler, Cincinnati Bar Assn. v. 11
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Henry, Disciplinary Counsel v. 127
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Hickman, Toledo Bar Assn. v. 119 Oh
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Hildebrand, Cleveland Metro. Bar As
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Holda, Akron Bar Assn. v. 125 Ohio
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Horan, Disciplinary Counsel v. 123
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Hoskins, Disciplinary Counsel v. 11
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Howard, Disciplinary Counsel v. 123
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Hunter, Columbus Bar Assn. v. 130 O
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Jackel, Ohio State Bar Assn. v. 118
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Jackson, Disciplinary Counsel v. 12
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Jaffe, Cleveland Metro Bar Assn. v.
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Johnson, Toledo Bar Assn. v. 121 Oh
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Johnson, Cuyahoga Cty. Bar Assn. v.
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Johnston, Disciplinary Counsel v. 1
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Jones, Mahoning Cty. Bar Assn. v. 1
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Kaplan, Cleveland Metro. Bar Assn.
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Kealy, Cleveland Metro. Bar Assn. v
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Kellogg-Martin, Disciplinary Counse
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Kelly, Disciplinary Counsel. v. 121
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Case Summaries- 159 other assets in
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Case Summaries- 161 none of the mon
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Case Summaries- 163 Although the un
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Kubyn, Lake Cty. Bar Assn. v. 121 O
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Landis, Disciplinary Counsel v. 124
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Lapine, Disciplinary Counsel v. 128
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Larkin, Columbus Bar Assn. v. 128 O
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Case Summaries- 173 Board‘s findi
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Lawson, Cincinnati Bar Assn. v. 119
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Lawson, Cincinnati Bar Assn. v. 130
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Lentes, Disciplinary Counsel v. 120
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Lewis, Medina Cty. Bar Assn. v. 121
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Case Summaries- 183 and blame the w
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Page 191 and 192: Case Summaries- 189 8.4(h) by his a
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Page 219 and 220: Case Summaries- 217 represent his c
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Page 245 and 246: Case Summaries- 243 conditions that
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Page 251 and 252: Case Summaries- 249 met by imposing
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Page 263 and 264: Case Summaries- 261 disqualificatio
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Page 267 and 268: Case Summaries- 265 history, no dis
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Sabol, Disciplinary Counsel v. 118
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Case Summaries- 289 condition of th
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Sanz, Cincinnati Bar Assn. v. 128 O
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Saunders, Greene Cty. Bar Assn. v.
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Sayler, Cleveland Metro. Bar Assn.
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Case Summaries- 297 1.5(a), 1.16(d)
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Schram, Dayton Bar Assn. v. 122 Ohi
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Scott, Toledo Bar Assn. v. 129 Ohio
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Shaw, Disciplinary Counsel v. 126 O
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Shea, Columbus Bar Assn. v. 117 Ohi
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Shuler, Disciplinary Counsel v. 129
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Siewert, Disciplinary Counsel. v. 1
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Simon, Disciplinary Counsel v. 128
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Smith, Disciplinary Counsel v. 124
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Smith, Disciplinary Counsel v. 128
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Smithern, Akron Bar Assn. v. 125 Oh
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Squire, Disciplinary Counsel v. 130
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Stafford, Disciplinary Counsel v. 1
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Stoll, Erie-Huron Grievance Commt.
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Stuard, Becker, and Bailey, Discipl
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Taylor, Disciplinary Counsel v. 120
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Theisler, Mahoning Cty. Bar Assn. v
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Thomas, Cleveland Metro. Bar Assn.
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Case Summaries- 333 court entered a
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Trainor, Cincinnati Bar Assn. v. 12
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Troxell, Columbus Bar Assn. v. 129
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Troy, Lake Cty. Bar Assn. v. 130 Oh
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Case Summaries- 341 professionals i
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Vivyan, Disciplinary Counsel v. 125
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Case Summaries- 345 offenses, there
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Walker, Disciplinary Counsel v. 119
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Case Summaries- 351 Chandlers to di
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Williams, Disciplinary Counsel v. 1
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Williamson, Butler Cty. Bar Assn. v
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Wineman, Disciplinary Counsel v. 12
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Wittbrod, Akron Bar Assn. v. 130 Oh
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Yeager, Disciplinary Counsel v. 123
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Zaffiro, Cleveland Metro. Bar Assn.
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Zigan, Disciplinary Counsel v. 118
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Bennett (2/4/2010) (unlawfully stru
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Clovis (5/5/2010) (as required by G
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on inactive status and while under
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suspension, and remanded to board t
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violations for attempt to dismiss a
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Wineman (5/6/2009) Wolanin (4/1/200
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Willette (3/20/2008) DR 2-103(C) (r
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Patterson (12/2/2009) Ryan (8/27/20
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DR 7-102(A)(5) (knowingly making fa
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DR 9-102(B)(4) (failure to promptly
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Dearfield (10/19/2011) DeLoach (8/3
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McNerney (5/28/2009)(term suspensio
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Hoppel (6/8/2011) Hunter (11/15/201
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Rule 1.5(a) (charging or collecting
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Gottehrer (3/17/2010) Gresley (12/2
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Marshall (2/12/2009) Martin (12/15/
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Meade (12/22/2010) Medley (1/27/201
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