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

Pfundstein, Disciplinary Counsel v.
128 Ohio St.3d 61, 2010-Ohio-6150. Decided 12/21/2010.
Case Summaries- 248
Respondent‘s misconduct arose from his representation of a client in two matters: collection of a legalmalpractice
judgment and litigation of an employment-discrimination claim against the client‘s
former employer. As to Count I, in 1998, respondent was hired to represent an individual in a legalmalpractice
claim. He obtained a $3,906.52 judgment in April 2001 and agreed to pursue collection of
the judgment. By 2007, he had done little to collect on the judgment and it had not been satisfied.
Respondent failed to timely respond to the client‘s multiple telephone and email requests as to the status
of the collection effort. He also made false statements and misrepresentations to the client: that he was
waiting to get the attorney into court; that he was waiting on a court date to finish his update; that he was
waiting on the municipal court for a date for a show cause motion; that he was waiting for a show
cause date for the attorney‘s failure to appear at a hearing. Respondent and the attorney were never
involved in litigation when he made these statements. He falsely told the client he found out where the
attorney worked and was trying to garnish her wages. Since 2002, respondent had been suspended
from the practice of law. As to Count I, the board adopted the panel‘s findings of violations of
Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c), and 8.4(h) and the panel‘s dismissal of the stipulated
violation of 8.4(d) because not supported by clear and convincing evidence. As to Count II, in late
1999 or early 2000, the same client hired respondent for representation in an employmentdiscrimination
claim against a former employer. In May 2000, respondent filed the complaint. The client
failed to cooperate in discovery and the trial court ordered him to respond or fact sanctions, including
dismissal with prejudice. In February 2001, respondent voluntarily dismissed the case to preserve the
claim. After dismissal of the case, respondent did not perform any other legal work on the matter, but in
2008 and 2008 he misrepresented the status, suggesting the claim remained pending. For example, he
advised the client by e-mail that the litigation was in a holding pattern; he asked the client about coming
into town for a deposition; he said he was trying to figure out a way to get the deposition without the
client coming into town; he falsely stated by e-mail that he had mailed a copy of the update the client
requested and would send a second copy. At the hearing, respondent admitted that no legal action was
pending and no depositions planed, that he had sent the false e-mails to keep the client from filing a
grievance and to buy time to figure out how to deal with the situation. As to Count II, the board
adopted the panel‘s findings of violations of Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c) and 8.4(h), and
the panel‘s conclusions that the stipulated violation of 8.4(d) was not supported by clear and convincing
evidence. In aggravation, respondent engaged in a pattern of misconduct and committed multiple
offenses. In mitigation, he had no prior discipline, displayed a cooperative attitude and remorse,
submitted over 20 letters attesting to character and reputation and his community and legal service
spanning 18 years of practice. BCGD Proc.Reg. 10(B)(2)(a) and (e). The municipal court judge who
employs respondent as a part-time magistrate testified to his competence and good character. An
associate director of OLAP testified that he was complying with a three year OLAP contract and posed
no public threat. The boar found that relator did not show that he caused harm to the client. The board
found that respondent proved he suffers from a mental disability within the meaning of BCGD Proc.Reg.
10(B)(2)(g). His psychologist testified that respondent had been diagnosed with dysthymia that
contributed to cause the misconduct, that he had undergone successful treatment and could return to
competent ethical professional practice. The court adopted the board‘s findings and conclusions and
recommended sanction of a suspension for 12 months all stayed on conditions. The court rejected
relator‘s contention that the evidence does not support the board‘s decision to consider respondent‘s metal
disability as mitigating; relator‘s attacks on the credibility of the treating physician‘s determination that
the dysthymia contributed to the respondent‘s dishonesty; and relator‘s urging that an actual suspension
is necessary because of the pattern of dishonesty. The court noted that mitigating evidence can justify
imposing a lesser sanction, such as in Kimmins (2009), Ellison (2008), and Fumich (2007). The court,
citing Heiland (2008), noted that it will defer to the panel‘s credibility determinations in the courts‘
independent review unless the record weighs heavily against the determination. The court noted that the
purpose of a disciplinary sanction is to protect the public, not punish the offender and that this purpose is