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

Emerson, Cincinnati Bar Assn. v.
122 Ohio St.3d 176, 2006-Ohio-2883. Decided 6/25/2009.
Case Summaries- 77
On March 19, 2009, respondent received two reciprocal disciplines based on discipline in Kentucky. He
was suspended for 61 days in Disciplinary Counsel v. Emerson, 121 Ohio St.3d 1226, 2009-Ohio-1541
and for 181 days in Disciplinary Counsel v. Emerson, 121 Ohio St.3d 1226, 2009-Ohio-1541.
Respondent neglected clients‘ cases and otherwise failed to carry out professional responsibilities
including failing to cooperate. Board accepted panel‘s findings of violations. As to Count I, in August
2005, respondent agreed to pursue a civil rights action for a client who advanced $1,200 for costs.
Respondent filed an amended complaint in federal court, but failed to respond to discovery requests
and did not appear at two depositions. In October 2006, the court ordered respondent to file a notice
of withdrawal or continue as counsel, but respondent did not withdraw and continued to fail to assist the
client. Respondent conceded abandoning his client, leaving her to file motions to preserve her claim, and
failing to honor requests for the file and an itemized billing. Respondent failed to respond to relator‘s
letters of inquiry even after promising during a deposition to respond in writing. Board found a
violation of DR 6-101(A)(3), 7-101(A)(1), (2), (3), 7-106(A), 9-102(B)(3), 9-102(B)(4), and Gov.Bar
R. V(4)(G). As to Count II, in December 2005, a client paid $2,500 for respondent‘s representation,
along with another attorney, in a property dispute with the client‘s ex-husband. During litigation, the
court ordered the client to convey certain property rights to the ex-husband as part of the divorce decree.
The client refused to sign the necessary papers. The client discharged respondent and reclaimed file and
demanded a refund. Respondent believed he had earned the entire fee. He did not provide as the client
requested an itemized billing. He explained that he had not documented the hours and he had given the
client everything from which he might have reconstructed time. He failed to respond to relator‘s
investigation. Board found a violation of DR 9-102(B)(3) and Gov.Bar R.V(4)(G). As to Count III, in
March 2006, respondent was hired by a client who sustained injuries in a traffic accident. Respondent
failed to obtain the client‘s file from a previous lawyer, did not review court records of past proceedings,
and failed to appear in court. The court dismissed the case for want of prosecution. Respondent did not
inform the lawyer, did not return the file upon request, and failed to reply to relator‘s investigative letters.
Board found violations of DR 6-101(A)(3), 7-101(A)(1), (2), (3), 9-102(B)(4), and Gov.Bar R. V(4)(G).
As to Count IV, respondent received reciprocal discipline of a public reprimand based upon discipline by
the Supreme Court of Kentucky for misconduct committed when he represented an Ohio resident in
Kentucky during July 2006 when he accepted a $2,500 fee from the client and his family, later withdrew
as counsel without returning any portion of the fee, and then failed to respond to the disciplinary
charges. See Disciplinary Counsel v. Emerson, 120 Ohio St.3d 1206, 2008-Ohio-6352. During inquires
regarding the Kentucky case, he failed to respond to letters from relator, forcing relation to subpoena him
for deposition, and then he failed to present a written response that he promised in his deposition to
provide. Board found a violation of Gov.Bar R. V(4)(G). Board did not accept panel‘s recommended
sanction of an indefinite suspension, but recommended a two-year suspension, one-year stayed. The
Supreme Court of Ohio agreed with the Board‘s findings of violation, but ordered an indefinite
suspension. The court noted that it consistently imposed an indefinite suspension for lawyers who
repeatedly neglect their client‘s interests and fail to cooperate. The court noted that in view of
respondent‘s past discipline and the lack of mitigating factors, an indefinite suspension is appropriate.
Rules Violated: DR 6-101(A)(3), 7-101(A)(1), 7-101(2), 7-101(3), 7-106(A), 9-102(B)(3), 9-
102(B)(4); Gov.Bar R. V(4)(G)
Aggravation: NONE
Mitigation: NONE
Prior Discipline: YES Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Indefinite Suspension