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

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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compensation claim said it would have been malpractice to abandon the claim, and that if asked to do so, she would have withdrawn.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
Case Summaries- 265 history, no dishonest or selfish motive, full and free disclosure, and a cooperative attitude, letters from two judges and two lawyers attesting to her good character and reputation, and the settlement of a related malpractice action with her clients for $419,235.45. BCGD Proc.Reg. 10(B)(2)(a), (b), (d), (e), and (f). Relator sought a one-year suspension with six months stayed; respondent asked for a dismissal of all charges. The board recommended a public reprimand. Citations to Watterson (2004), and Kerek (2004). The court adopted the board‘s findings of fact, conclusions of law, and recommended sanction, and so ordered a public reprimand. Rules Violated: DR 6-101(A)(3) Aggravation: (g) Mitigation: (a), (b), (d), (e), (f) Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO Public Official: NO Sanction: Public Reprimand
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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
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Martin, Toledo Bar Assn. v. 131 Ohi
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Mason, Toledo Bar Assn. v. 118 Ohio
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McAuliffe, Disciplinary Counsel v.
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McCord, Disciplinary Counsel v. 121
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McFaul, Cleveland Metro. Bar Assn.
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Case Summaries- 207 withdrawal. Res
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Case Summaries- 209 that he is comp
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Meade, Disciplinary Counsel v. 127
Page 215 and 216: Miller, Disciplinary Counsel v. 126
Page 217 and 218: Minamyer, Butler Cty. Bar Assn. v.
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Page 231 and 232: Newcomer, Disciplinary Counsel v. 1
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 249 and 250: Peskin, Ohio State Bar Assn. v. 125
Page 251 and 252: Case Summaries- 249 met by imposing
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Page 255 and 256: Podor, Cleveland Metro. Bar Assn. v
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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 269 and 270: Raso, Disciplinary Counsel v. 129 O
Page 271 and 272: Resnick, Ohio State Bar Assn. v. 12
Page 273 and 274: Ricketts, Disciplinary Counsel v. 1
Page 275 and 276: Ridenbaugh, Disciplinary Counsel v.
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 283 and 284: Rohrer, Disciplinary Counsel v. 124
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)
Page 301 and 302: Schram, Dayton Bar Assn. v. 122 Ohi
Page 303 and 304: Scott, Toledo Bar Assn. v. 129 Ohio
Page 305 and 306: Shaw, Disciplinary Counsel v. 126 O
Page 307 and 308: Shea, Columbus Bar Assn. v. 117 Ohi
Page 309 and 310: Shuler, Disciplinary Counsel v. 129
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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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