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

Freeman, Cleveland Metro. Bar Assn. v.
128 Ohio St.3d 416, 2011-Ohio-1447. Decided 3/31/2011.
Case Summaries- 90
In 2002, respondent previously received a public reprimand for neglecting a client‘s case, handling
another case without adequate preparation, and initially failing to cooperate in the disciplinary
investigation. Here, respondent neglected two foreclosure matters and failed to keep his clients
reasonably informed of the status of their matters. The matter was deemed to have been submitted in
writing without a hearing pursuant to BCGD Proc.Reg. 3(C). In Count One, respondent was retained
by a husband and wife to help resolve an issue with a mortgage lender. When the lender filed a
foreclosure action, respondent failed to file a timely answer or move for an extension until the bank filed
a motion for default judgment—then respondent filed an objection to the motion and filed an answer.
The motion was denied by the court, but the court permitted the late answer. The lender filed an
amended complaint, which went unanswered. When the lender filed another motion for default
judgment, respondent asserted that he had not been properly served and obtained leave to file an answer to
the amended complaint. The court again permitted respondent to answer. Respondent failed to timely
respond to lender‘s discovery requests. The court granted lender‘s motion for those requests for
admission deemed admitted. Respondent failed to appear at the final pretrial hearing, told his clients
they did not need to attend, and ignored the court‘s order to file trial brief and exhibits. The court
ordered that the home in dispute be sold at a sheriff‘s sale. The homeowners obtained new counsel and,
although respondent failed to return the client file, the clients were able to work out a payment plan and
avoid the sale of their home. The panel and board found violations of Prof.Cond.R. 1.3, 1.4(a)(2),
1.4(a)(3), and 1.4(a)(4), which the court accepted. In Count Two, a couple retained respondent to help
finance their home and assist in a pending foreclosure action. Respondent filed timely answers to the
complaint and amended complaint and engaged in discovery. The couple tried to contact respondent in
April 2007 regarding the status of their case, but he did not return their calls until May 2007. Respondent
also failed to respond to a motion for summary judgment as he decided, without discussing with the
clients, that they had no defense. The panel and board found violations of Prof.Cond.R. 1.3, 1.4(a)(4),
and 7.3(c)(3). The Court adopted the findings of Prof.Cond.R. 1.3 and 1.4(a)(4), but dismissed the
finding of Prof.Cond.R. 7.3(c)(3) which requires ―ADVERTISING MATERIAL‖ or
―ADVERTISEMENT ONLY‖ on solicitation letters . The Court noted that respondent had a prior
relationship with the clients in this case, and thus, even though he stipulated to violating Prof.Cond.R.
7.3(c)(3), he fit within an exception to the rule and thus did not violate it. See Gov.Bar R. V(6)(J), Reid
(1999), and Donlin (1996) (respondent not bound by a stipulation when stipulated facts and evidence at
hearing demonstrate that conduct did not constitute a violation.) In aggravation, respondent had a prior
disciplinary record and engaged in multiple offenses. BCGD Proc.Reg. 10(B)(1)(a) and (d). In
mitigation, respondent did not act with a dishonest or selfish motive, and cooperated in the disciplinary
investigation and disciplinary proceeding. BCGD Proc.Reg. 10(B)(2)(b) and (d). Relying on Holda
(2010), the parties stipulated to a one year suspension, all stayed on the conditions of no further
misconduct and the completion of an additional 12 hours of CLE in law-office management. The panel
and board adopted this sanction with an additional condition that 6 hours of the CLE be completed within
the first 6 months of the stayed suspension; this was not opposed by either party. The Court considered
Holda (2010) and Pfundstein (2010). The court agreed with the board‘s recommended sanction and so
ordered a one-year suspension, all stayed on conditions of completing at least 12 hours law-office
management in addition to at least six hours of CLE within the first six months of the stayed suspension
and commit no further misconduct.
Rules Violated: Prof.Cond.R. 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(a)(4)
Aggravation: (a), (d)
Mitigation: (b), (d)
Prior Discipline: YES Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: One-year suspension, stayed