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

Davis, Disciplinary Counsel v.
121 Ohio St.3d 84, 2009-Ohio-500. Decided 2/12/2009.
Case Summaries- 59
Respondent failed to provide her client‘s insurer with notice of a settlement with a tortfeasor‘s insurer,
which caused the client‘s insurer to deny the client‘s claim for underinsured-motorist coverage, and then
strung her client along for years without telling him about the denial. In Count I, Ryan Gillette
retained respondent after he was seriously injured in an October 1998 traffic accident. Respondent
submitted Gillette‘s claim for losses caused by the accident under his underinsured-motorist coverage to
his insurer, Grange, in late July 1999. Respondent then settled with the tortfeasor‘s insurance company,
Progressive, for the $25,000 policy limit in early August 1999. Grange denied Gillette‘s claim for
underinsured-motorist coverage because respondent had failed to provide notice of the settlement with
Progressive, which was a requirement under Gillette‘s policy. Respondent never told Gillette that his
claim had been denied. Instead, respondent evaded his inquiries, canceled appointments with Gillette,
fabricated reasons for not keeping those appointments, lied about working with a Cincinnati law firm that
specialized in cases like his, and in September 2004, falsely represented that she had filed a claim on
Gillette‘s behalf in federal court. Gillette wrote to the managing partner at respondent‘s law firm about
her in March 2005. She wrote back, enclosing a letter that she had purportedly sent in May 2000 that
advised him of her opinion that his claim was only worth the $25,000 she had already obtained from
Progressive. Gillette had never seen the letter, and respondent later admitted fabricating it. Gillette did
not actually learn that he would not receive any underinsured- motorist coverage until he retained
another attorney and that attorney made the discovery in January 2006. Gillette‘s new counsel filed a
civil action against respondent in September 2006, which was settled several months later and paid
by respondent‘s former malpractice insurer. Respondent stipulated to her misconduct. As to Count I,
the board adopted the panel‘s findings of violations of DR 1-102(A)(4), 1-102(A)(6), 7-101(A)(1),
7-101(A)(2), and 7-101(A)(3). In Count II, respondent failed to reply to relator‘s January 2007 letter
of inquiry, despite two extensions. Respondent scheduled a meeting with relator in May 2007, only to
cancel on the appointed day. She promised to reschedule, but never did so. Respondent also failed to
appear without notice or explanation at her deposition in mid-July 2007, despite having received the
subpoena weeks before the deposition. Respondent stipulated to her misconduct. As to Count II, the
board found adopted the panel‘s findings of violations of Prof.Cond.R. 8.1(b), 8.4(d), and Gov.Bar R.
V(4)(G). The Supreme Court agreed. Aggravating factors include respondent‘s dishonest motive, her
pattern of misconduct and multiple offenses, and the serious harm she caused. BCGD Proc.Reg.
10(B)(1)(b), (c), (d), and (h). In mitigation, respondent conceded the gravity of her misconduct, was a
recent admittee to the bar, eventually cooperated with the disciplinary process, and the parties stipulated
to her good character and reputation. BCGD Proc.Reg. 10(B)(2)(d). The board recommended a twoyear
suspension with the last 18 months stayed on conditions including monitored probation. The
Supreme Court disagreed and ordered a two year suspension with the second year stayed on the
conditions that she completes one year of monitored probation, complete six hours of Continued Legal
Education in ethics and professionalism, and in applying for reinstatement, explain her plan to comply
with the professional-liability-insurance requirements in Prof.Cond.R. 1.4(c). Citing Manning (2006) the
court noted that it typically imposed a suspension of at least two year for lawyers who have engaged
in a sustained course of conduct to conceal from their clients a failure to competently pursue claims on
their behalf.
Rules Violated: Prof.Cond.R. 8.1(b), 8.4(d); DR 1-102(A)(4), 1-102(A)(6), 7-101(A)(1), 7-101(A)(2),
7-101(A)(3); Gov.Bar R. V(4)(G)
Aggravation: (b), (c), (d), (h)
Mitigation: (d)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Two-year suspension, 12 months stayed