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

Ranke, Cleveland Metro. Bar Assn. v.
127 Ohio St.3d 126, 2010-Ohio-5036. Decided 10/21/2010.
Case Summaries- 264
Respondent failed to get a client‘s permission not to respond to a motion for summary judgment.
Respondent agreed to represent a husband and wife for injuries the husband sustained in April 1999 while
on a business trip. The husband was a passenger in a car, driven by a co-worker, and was left
permanently disabled in a car accident. The co-worker died. The clients‘ original attorney filed an
application for workers‘ compensation benefits, but was later discharged. Respondent was hired to
prosecute all claims arising out of the accident, including uninsured/underinsured-motorist insurance.
Respondent referred the workers‘ compensation claims to another attorney, who after several appeals
prevailed and secured present and future workers‘ compensation benefits in excess of $1.5 million.
Relator alleged that respondent violated ethics rules by failing to prosecute tort claims against the
coworker‘s estate and the employer, a strategy that might have led to greater recovery. However, by
operation of R.C. 4123.741, before pursuing a tort recovery against the coworker, the clients‘ would
have had to withdraw the workers‘ compensation claim that they had initiated before hiring respondent,
and forgo the benefits arising from the claim, at a time when their financial situation was grim. By
operation of R.C. 4123.74, the same would to true regarding pursuing tort recovery against the employer.
Testimony from the attorney who handled the workers‘ compensation claim said it would have been
malpractice to abandon the claim, and that if asked to do so, she would have withdrawn. Respondent
filed two tort actions. The parties stipulated that in the first action respondent 1) named as defendant the
co-worker‘s widow as personal representative of the coworker‘s estate, when no estate had been opened,
2) never conducted any formal discovery, 3) never responded to any formal discovery requests, but
provided relevant medical bills and records, 4) failed to respond to motions to dismiss filed by the
coworker‘s widow and the insurance company, and then voluntarily dismissed claims against them and
the employer‘s insurer, 5) failed to appear at a pretrial conference, and 6) did not oppose the employer‘s
motion for judgment on the pleadings, which the court later granted. The board concluded that none of
these acts constituted neglect. Among other things, the board noted that it is not neglect for an attorney
to voluntarily dismiss a defendant instead of responding to a motion to dismiss, and it is not neglect to
miss a single pretrial when that failure does not cause prejudice. Rejecting allegations of neglect for
taking or not taking actions without her client‘s permission, the board noted that respondent‘s
uncontroverted testimony revealed she discussed every decision with the clients and kept them apprised
of the case status. In October 2004, respondent refiled the clients‘ tort action against the co-worker‘s
surviving spouse as the representative of the co-worker‘s still unopened estate, but did not conduct any
formal discovery, failed to respond to interrogatories and to requests for production of documents and
admissions. But, the board did not find clear and convincing evidence that these action constituted
neglect since once she became aware that she sued the wrong party ―t here was nothing she could do to
salvage the case.‖ The board rejected allegations that respondent neglected her clients by failing to
communicate, and rejected allegations of a violation of DR 7-101(A). The board was impressed with
the degree of selflessness that she exhibited in doing everything she could to help the clients. The
board agreed that the clients should have been advised of benefits and drawbacks of pursing a workers‘
compensation recovery versus pursuing a tort recovery, but the time for that discussion was before filing
the worker‘s compensation claim when they were represented by other counsel. The board rejected
findings of a violation of DR 7-101(A), as there was no intentional attempt to harm her clients, she
actually did all she could to help her clients, and the workers‘ compensation claim may have actually
been the better way to address the client‘s financial needs. The board did accept the stipulation that
respondent failed to get client‘s permission not to respond to a motion for summary judgment filed by
the coworker‘s widow in the second tort action. This violated DR 6-101(A)(3) because respondent had a
duty to obtain her clients‘ consent to allow the motion to go unopposed. But, because the state had not
been opened, the board concluded that the dismissal of the action against the widow, as the purported
representative of his nonexistent estate, did not prejudice the clients. In aggravation, respondent failed
to acknowledge the wrongful nature of her conduct in not seeking her clients‘ permission to allow the
motion to go unopposed. BCGD Proc.Reg. 10(B)(1)(g) In mitigation, there was no prior disciplinary