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

Drain, Cuyahoga Cty. Bar Assn. v.
120 Ohio St.3d 288, 2008-Ohio-6141. Decided 12/3/2008.
Case Summaries- 73
Respondent lost his client‘s malpractice claim through neglect and inadequate preparation by missing the
statute of limitations and he failed to inform her of when he canceled his malpractice insurance.
Respondent represented a Robin Keifer in a dental-malpractice case from mid-January 2002 until mid-
February 2006, advising here early of a one-year statute of limitation for filing her claim. On
November 1, 2002, one day before the filing deadline, respondent had an associate hand deliver a
―180-day letter‖ to the dentist, thereby extending the time for filing Keifer‘s complaint by six months.
However, even with this extension respondent did not file the complaint until June 23, 2003, over a
month after the 180-day extension deadline. Respondent consulted his client about the missed deadline,
telling her he would try to salvage the claim. For the rest of 2003 the case remained active on the court‘s
docket. On January 12, 2004, respondent missed another deadline, the court-ordered date for filing the
report of the plaintiff‘s expert. Respondent moved for an extension to file the expert‘s report; the dentist
moved for summary judgment. In March 2004, the trial court denied the motion for the extension as
untimely and denied the summary judgment motion because factual disputes existed. Respondent,
doubting that his client could prevail without an expert witness, voluntarily dismissed Keifer‘s case
without prejudice under Civ.R. 41(A). Respondent refiled the Keifer complaint in early May 2004,
obtaining her expert‘s report long before the court-ordered deadline. Respondent did not inform Keifer
of his dismissal or refilling of her complaint. On January 31, 2005 the dentist moved for summary
judgment asserting the complaint was time-barred. Respondent missed another deadline, failing to timely
oppose this motion. He did untimely file a motion for an extension to respond to the motion for summary
judgment in early March 2005. The trial court denied the extension and granted summary judgment for
the defense and denied his motion to file instanter his brief in opposition to the motion for summary
judgment and for reconsideration. On April 15, 2005, respondent unsuccessfully appealed, trying to
salvage Keifer‘s claim. Further, respondent entered into Chapter 13 bankruptcy on July 15, 2004, and
canceled his malpractice insurance on March 8, 2005 without notifying Keifer. As a result, Keifer lost
her claim for damages, not for lack of merit but for an avoidable failure to file the claim on time, and
now has no recourse against respondent because he has no assets and no insurance. Respondent
acknowledged his mistakes and took responsibility for missing deadlines, but also blamed the
overwhelming task of managing his two law offices. The panel found respondent violated DR 1-
104(A), DR 6-101(A)(2), and DR 6-101(A)(3) and recommended a public reprimand. The board found a
violation of only DR 1-104(A) and adopted the panel‘s recommendation. The Supreme Court disagreed.
The Court found respondent had violated DR 1-104(A), DR 6-101(A)(2) and (3), and DR 7-
101(A)(3). The Court followed its precedent in Norton (2007) after finding this case similar because
of the intentional element of the misconduct and comparable wrongdoing, mitigation, and aggravation.
In mitigation, respondent had no prior disciplinary record, expressed remorse and acknowledged his
wrongdoing, and established his good character and reputation, in part by showing he has been a
dedicated OLAP volunteer for many years. BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). In aggravation,
respondent has made no efforts to compensate Keifer for her loss. BCGD Proc.Reg. 10(B)(1)(i). The
Supreme Court ordered a six-month suspension, all stayed on the conditions that respondent complete
six hours of CLE in law-office and case-file management and commit no further misconduct during
the suspension period.
Rules Violated: DR 1-104(A), 6-101(A)(2), 6-101(A)(3), 7-101(A)(3)
Aggravation: (i)
Mitigation: (a), (d), (e)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed