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

Poole, Cuyahoga Cty. Bar Assn. v.
120 Ohio St.3d 361, 2008-Ohio-6203. Decided 12/4/2008.
Case Summaries- 254
Respondent failed to provide promised legal services to two clients, failed to return unearned fees, and
failed to cooperate in relator‘s investigation. As to Count I, respondent agreed to file a motion seeking
judicial release of Delores Crawford‘s grandson. Respondent accepted $200 in payment, but failed to do
the work. The client discharged him and asked for a refund. He did not repay her until after she filed a
grievance. Board adopted panel‘s findings of violations of DR 6-101(A)(3), 7-101(A)(1), 7-101(A)(2),
and 9-102(B)(4). As to Count II, respondent agreed to pursue a predatory- lending claim on behalf of
Nicole Thompson who paid him $1,000. He deposited the money into his client trust account. When
the client discharged him for lack of communication asked for a refund, he told her had researched
her claim and would refund half of the money. He refunded the $1,000, but not until after she filed a
grievance. Board adopted panel‘s findings of violations of DR 6-101(A)(3) and 9-102(B)(4). As to
Count III, he repeatedly failed to respond to relator‘s inquiries. Board adopted panel‘s findings as to a
violation of Gov.Bar R. V(4)(G). Board adopted panel‘s recommendation of a two-year suspension and
conditional 18-month stay. The court adopted the findings of violations as to all three counts, but
disagreed with the recommended sanction. In determining the appropriate sanction, the court like the
board accorded little weight to a delinquent registration filing in 2007 which respondent filed within the
90 day grace period and paid a late fee. However, the court agreed with respondent‘s objection to the
board‘s assignment of dishonest or selfish motive to his misconduct as aggravating factors, BCGD
Proc.Reg 10(B)(1)(b). The board had treated its findings of violations of DR 1-102(A)(4) and 9-102(A)
as aggravating factors because the charges were dismissed by stipulation of the relator and respondent.
The court agreed with respondent that relator did not prove dishonesty or commingling. The court
noted that when the client asked for a refund and the $1,000 was not in the trust account it was not proper
but it was not commingling. The following were aggravating factors: misconduct in more than one case,
delayed participation in the disciplinary process, and neglect of vulnerable clients. BCGD Proc.REg.
10(B)(1)(d), (e), (h). In mitigation, respondent practiced for many years with no record of discipline,
expressed remorse, and made restitution to the two clients.. BCGD Proc.Reg. 10(B)(2)(a), (c). He also
offered evidence of significant health and personal problems during the time of the misconduct. As to the
appropriate sanction, the court found Sebree (2002) instructive. The court ordered a six-month
suspension, stayed on condition of a one-year monitored probation in which respondent must consult
with OLAP and comply with recommendation for treatment; complete a one-year monitored probation
with a monitor appointed by relator overseeing the law practice; comply with other requirements of
Gov.Bar R. V(9); and commit no further misconduct. Three justices dissenting in favor of adopting the
board‘s recommended sanction.
Rules Violated: DR 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), 9-102(B)(4); Gov.Bar R. V(4)(G)
Aggravation: (d), (e), (h)
Mitigation: (a), (c)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed