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

Folwell, Disciplinary Counsel v.
129 Ohio St.3d 297, 2011-Ohio-3181. Decided 7/6/2011.
Case Summaries- 85
Respondent neglected legal matters entrusted to him, failed to provide diligent and competent
representation, and made misrepresentations to clients. The parties stipulated to all of the findings of
fact and conclusions of law, and jointly recommended a two-year suspension with the second year
stayed on the conditions of no further misconduct. In Count 1, respondent settled a claim on behalf of a
minor without approval of the probate court and delayed eventually getting the probate court‘s approval
of the settlement. Respondent also allowed his trust account balance to dip below the amount of funds he
was holding for the minor, and thus improperly used some of the minor‘s money. This violated
Prof.Cond.R. 1.1 (competent representation), 1.3 (reasonable diligence and promptness), 1.15(a)(2)
(maintaining separate ledgers for client funds), 1.15(a)(5) (monthly reconciliation of the funds in trust
account), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h) (conduct
that adversely reflects on fitness to practice law). In Count 2, respondent was to file a lawsuit against an
individual‘s estate, but failed to do so before the property was transferred. Respondent did not refund
the client‘s money until 2 years later. This conduct violated Prof.Cond.R. 1.3, 1.16(e) (refund any
unearned fee upon withdrawal of representation), and 8.4(h). In Count 3, respondent was paid to file an
action against a client‘s daughter, but the client later told respondent not to file the action and requested
a refund. Respondent promised to refund a portion of the fee, but failed to do so until almost 4 years
later. This conduct violated Prof.Cond.R. 1.16(e) and 8.4(h). In Count 4, respondent took over 1 year to
file a client‘s husband‘s estate, even though it could have been done sooner, which violated Prof.Cond.R.
1.3. In Count 5, respondent accepted money to do legal work, but then told the client he could not help
her. He said he would refund the money, but failed to timely do so. After the disciplinary investigation
began, respondent refunded the client‘s money. This conduct violated Prof.Cond.R. 1.16(e) and 8.4(h).
In Count 6, respondent was supposed to file a probate case and failed to correct the client‘s belief that
respondent had, in fact, filed it. The client eventually obtained new counsel to file the estate.
Respondent then refunded the client‘s money. This conduct violated Prof.Cond.R. 1.3, 8.4(c), and
8.4(h). In Count 7, respondent paid 10% of a legal fee to his secretary, in violation of Prof.Cond.R.
5.4(a) (sharing fees with a nonlawyer). In mitigation, respondent had no prior disciplinary record and
cooperated with the disciplinary proceedings. BCGD Proc.Reg.10(B)(2)(a) and (d). In aggravation,
respondent had engaged in a pattern of misconduct involving multiple offenses and displayed a dishonest
or selfish motive. BCGD Proc.Reg. 10(B)(1)(b), (c), and (d). The panel adopted the jointly-recommended
sanction, but added as a condition one year of monitored probation. The board and panel found the
sanction consistent with Claflin (2005), and Mishler (2008). The Court adopted the findings of fact,
conclusions of law and recommended sanction, and suspended the respondent for two years with one
year stayed on the conditions of no further misconduct and one year of monitored probation.
Rules Violated: Prof.Cond.R. 1.1, 1.3, 1.15(a)(2), 1.15(a)(5), 1.16(e), 5.4(a), 8.4(c), 8.4(h).
Aggravation: (b), (c), (d)
Mitigation: (a), (d)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Two-year suspension, one year stayed