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

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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
Case Summaries- 249 met by imposing the board‘s sanction. The court ordered a suspension for 12 months, all stayed on condition that respondent comply with his OLAP contract, accept the treatment recommended by OLAP and his psychologist, serve a period of probation pursuant to Gov.Bar R. V(9) monitored by relator during the term of three year OLAP contract. Rules Violated: Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c), 8.4(h) Aggravation: (c), (d) Mitigation: (a), (e), (g) Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO Public Official: YES Sanction: One-year suspension, 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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Longino, Disciplinary Counsel v. 12
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Lowden, Toledo Bar Assn. v. 117 Ohi
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Case Summaries- 189 8.4(h) by his a
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Mamich, Disciplinary Counsel v. 125
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Manning, Disciplinary Counsel v. 11
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Marosan, Stark Cty. Bar Assn. v. 11
Page 199 and 200: Martin, Toledo Bar Assn. v. 131 Ohi
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Page 205 and 206: McCord, Disciplinary Counsel v. 121
Page 207 and 208: McFaul, Cleveland Metro. Bar Assn.
Page 209 and 210: Case Summaries- 207 withdrawal. Res
Page 211 and 212: Case Summaries- 209 that he is comp
Page 213 and 214: Meade, Disciplinary Counsel v. 127
Page 215 and 216: Miller, Disciplinary Counsel v. 126
Page 217 and 218: Minamyer, Butler Cty. Bar Assn. v.
Page 219 and 220: Case Summaries- 217 represent his c
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Page 223 and 224: Mitchell, Disciplinary Counsel v. 1
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Page 233 and 234: Newman, Cincinnati Bar Assn. v. 124
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Page 239 and 240: Case Summaries- 237 Master Commissi
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Page 243 and 244: O’Malley, Disciplinary Counsel v.
Page 245 and 246: Case Summaries- 243 conditions that
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Page 253 and 254: Plough, Disciplinary Counsel v. 126
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Page 259 and 260: Potter, Disciplinary Counsel v. 126
Page 261 and 262: Pullins, Disciplinary Counsel v. 12
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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Page 271 and 272: Resnick, Ohio State Bar Assn. v. 12
Page 273 and 274: Ricketts, Disciplinary Counsel v. 1
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Page 277 and 278: Ritson, Toledo Bar Assn. v. 127 Ohi
Page 279 and 280: Roberts, Disciplinary Counsel v. 11
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Page 285 and 286: Rozanc, Lake Cty. Bar Assn. v. 123
Page 287 and 288: Rust, Toledo Bar Assn. v. 124 Ohio
Page 289 and 290: Sabol, Disciplinary Counsel v. 118
Page 291 and 292: Case Summaries- 289 condition of th
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Page 295 and 296: Saunders, Greene Cty. Bar Assn. v.
Page 297 and 298: Sayler, Cleveland Metro. Bar Assn.
Page 299 and 300: 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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Weisberg, Toledo Bar Assn. v. 124 O
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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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