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

Davis, Cleveland Bar Assn. v.
121 Ohio St.3d 337, 2009-Ohio-764. Decided 3/18/2009.
Case Summaries- 58
Respondent neglected cases, failed to seek his clients‘ objectives, failed to carryout employment contracts for
four clients, and failed to return the clients‘ unearned fees and files. Respondent did not answer the 18-count
complaint. So relator moved for default under Gov.Bar R. V(6)(F). The board appointed a master
commissioner, who made findings of fact, conclusions of law, and recommended an indefinite suspension. In
the Jones and Serra Grievance, Jones and Serra paid respondent $1,000 to file a quiet title action to a piece
of land, which he explained should take about six months. Six months later, they were unable to contact
respondent. After two months of trying, they retained new counsel, who informed them that no one had made
an attempt to quiet title to the property. Their new counsel requested respondent refund their $1,000 retainer,
which respondent never returned. In the Scales Grievances, Scales paid respondent $500 to represent his
daughter-in-law in a juvenile court matter. Prior to the court date, Scales learned that respondent had
suffered a stroke and would be unable to represent his daughter-in-law. Respondent agreed to return $400
of the retainer, keeping $100 for his initial meeting, but never returned any money. In the Seymour Grievance,
Seymour paid respondent $2,500 to represent her in two matters: one against her insurance company, which he
assured her she had a good case, and the other for replevin of her impounded car that he supposedly filed.
Seymour does not know if respondent did any work on her behalf. She attempted to contact respondent
after his stroke, but to no avail. Seymour requested respondent return her fees and files. Respondent has yet
to comply. In the Johnson Grievance, respondent received Johnson‘s personal injury case file in 2002, after
her original attorney‘s resignation from the practice of law. He told her that she needed to complete physical
therapy in order for her case to proceed. Upon completing the physical therapy in June 2005, Johnson made
several unsuccessful attempts to reach respondent. She tried to recover possession of her file from
respondent‘s office, but was unable to do so. After she filed her grievance, Johnson learned that a lawsuit
had been filed on her behalf in 2002, but had been voluntarily dismissed by respondent on July 5, 2003.
Respondent did not inform Johnson that the case had been filed or dismissed. Further, for more than a year
relator sent a series of letters to respondent. The letters sent by regular mail were never returned. Others
sent by certified mail were either delivered or returned as undeliverable. Respondent did not respond to
these letters. In July 2007, respondent appeared in relator‘s office and informed the general counsel that he
had suffered a stroke that paralyzed the right side of his body in June 2006. He explained that he intended
to refund the money to Jones and Scales and that he would work with the other clients to resolve their
grievances. But, respondent failed to provide a written response, produce his clients‘ files, or make any kind of
restitution. In agreement with the master commissioner, the board found violations of DR 1-102(A)(6), 6-
101(A)(3), 7-101(A)(1), 7-101(A)(2), 9-102(B)(4), Prof.Cond.R. 1.4(a)(4), 1.15(d),8.1(b), 8.4(h), and
Gov.Bar R. V(4)(G). Mitigating evidence includes a prior disciplinary record of attorney-registration noncompliance
(suspension from December 2007 to February 2008 for failing to timely register for the 2007-
2009 attorney registration biennium) and respondent‘s stroke. While respondent did inform relator of his
stroke, his failure to cooperate with the investigation prevented the board from determining the extent to
which the stroke affected his ability to practice law. Additionally, the conduct resulting in the grievances took
place before June 2006, prior to respondent‘s stroke. Aggravating factors include a pattern of misconduct,
multiple offenses, lack of cooperation in the disciplinary process, refusal to acknowledge the wrongful nature
of his conduct, the vulnerability and resulting harm to his victims, and his failure to make restitution. BCGD
Proc.Reg 10(B)(1)(c), (d), (e), (g), (h), and (i). In agreement with the master commissioner‘s recommendation,
the board recommended an indefinite suspension. The Supreme Court agreed with the Board‘s findings
and recommended sanctions and so ordered an indefinite suspension. The court cited Verbiski (1999) and noted
―[a] lawyer‘s neglect of legal matters and failure to cooperate in the ensuing disciplinary investigation generally
warrants an indefinite suspension.‖
Rules Violated: Prof.Cond.R. 1.4(a)(4), 1.15(d), 8.1(b), 8.4(h); DR 1-102(A)(6), 6-101(A)(3), 7-101(A)(1),
7-101(A)(2), 9-102(B)(4); Gov.Bar R. V(4)(G)
Aggravation: (c), (d), (e), (g), (h), (i)
Mitigation: NONE
Prior Discipline: YES Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Indefinite Suspension