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

Thomas, Cleveland Metro. Bar Assn. v.
125 Ohio St.3d 24, 2010-Ohio-1031. Decided 3/24/2010.
Case Summaries- 331
Respondent improperly took a fee in a client‘s bankruptcy case, and in another client‘s action failed to
appear at a hearing and subsequently failed to notify the client that the case was dismissed. Respondent
was hired to represent a client in a bankruptcy proceeding. Respondent filed the bankruptcy petition, but
not the rights-and-responsibilities form which is required to be signed by both the debtor and the
debtor‘s attorney. Without the form, counsel fees are not allowed unless approved by the court, or
provided for in a specific written agreement with the client. The client paid respondent $500 to file the
bankruptcy. Respondent retained $125 a as his fee. The bankruptcy case was later dismissed because
the client did not follow the repayment plan, paying $300 rather than the required $600 monthly
payment. Respondent was paid $200 to file a second bankruptcy petition this time including the rightsand-responsibilities
form. The client contacted the bankruptcy trustee to get a refund of the $300 payment
in the first bankruptcy. Initially, the client was informed that the trustee filed a motion to compel the
respondent to disgorge his fees from the first case for failing to file a rights-and-responsibilities form.
Later, the client was told that in response to the trustee‘s motion to compel, respondent filed the
rights-and-responsibilities form, thus allowing him to collect the $300 from the first filing as fees.
However, respondent‘s staff had simply filed a duplicate copy of the rights-and- responsibilities form
from the second bankruptcy case, with only the case number and dollar amount changed. Upon discovery
of this, respondent was not awarded attorney fees from the first filing and the refund from the first filing
was returned to the client. At the disciplinary hearing, he admitted that he had not returned the $126 fee
and that it should be disgorged. Board adopted the panel‘s findings of violations of Prof.Cond.R.
3.3(a)(1). Another client hired respondent for personal injury representation. Respondent filed a lawsuit
for the client after the client rejected a $1,981 settlement offer. Respondent later told the client the
insurer had offered $6,000 to resolve the claim, which the client agreed to take. Respondent subsequently
found out from the insurance adjuster that the settlement offer was only for $3,000. He told the client
of this mistake. The client said she would settle only for $6,000, but later sent respondent a letter
stating that she did not wish to go to trial and for respondent to ―do what you need to do to resolve and
finalize.‖ The Board concluded that the respondent believed that this letter gave him the authority to
settle, so he accepted the $3000. The client refused to sign the release or negotiate the check.
Respondent did not withdraw from the case. He failed to appear at the final pretrial conference and at
the trial. The case was dismissed without prejudice, which respondent did not timely reveal to his
client. Respondent‘s motions to vacate the judgment and reinstate the case were denied, but the client was
not advised of the denial of these motions. Counsel for respondent in the disciplinary matter informed
the client of the dismissal and that she could refile it within the statute of limitations. Board
adopted the panel‘s findings of violations of Prof.Cond.R. 1.3, 1.4(a)(1), and 1.4(a)(3). There were no
aggravating factors−there was no finding that he acted with selfish motive, he took responsibility for his
actions and staff, he informed the person injury client of the procedure to refile the case. In mitigation,
there was a lack of prior disciplinary record, and full cooperation in the disciplinary proceedings.
BCGD Proc.Reg. 10(B)(2)(a) and (d). Two cases, Henderson (2002) (six-month suspension, all stayed)
Cox (2003) (public reprimand), were considered by the board in making its recommendation. The
Board recommended a six-month suspension, with the suspension conditionally stayed. The Supreme
Court considered the cases cited and the mitigating factors albeit weak. The Supreme Court adopted
the Board‘s findings, conclusions, and recommended sanction and so ordered a suspension for six
months; stayed conditionally on respondent engaging in no further disciplinary misconduct during the
stayed suspension and repaying the $126 to the bankruptcy client within 30 days of this order.
Rules Violated: Prof.Cond.R. 1.3, 1.4(a)(1), 1.4(a)(3), 3.3(a)(1)
Aggravation: NONE
Mitigation: (a), (d)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed