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

Godles, Lorain Cty. Bar Assn. v.128 Ohio St.3d 279, 2010-Ohio-6274. Decided 12/27/2010.Case Summaries- 100Respondent did little work and failed to communicate with a client in a personal-injury case and failed toinform the client he lacked malpractice insurance. In August 2006, a client hired respondent for apersonal injury claim that occurred in 2004. Only five days remained on the statute of limitations.Respondent communicated with opposing counsel about settlement, but the two sides were too far aparton a settlement value. Respondent quickly filed a lawsuit. Respondent did not file a response to theopposing party‘s discovery requests filed in September 2006. Respondent knew that his client was stillreceiving medical treatment and would eventually be seeking a voluntary dismissal without prejudice. InFebruary 2007, the opposing party filed a motion to compel discovery and the court ordered respondentto respond by May 2007. At the end of April 2007, respondent voluntarily dismissed the case, whichgave the client one year to refile the case. According to his testimony, respondent called the client inJanuary 2008 and told him he was discontinuing representation on this matter and explained how longthe client had to refile the case. He testified he sent a confirmation letter in February; but the clientdenied either of these things occurring. Neither respondent nor his client refiled the case. Starting in July2008, the client repeatedly attempted to contact respondent, but he did not respond until October. Duringthe October discussion, the client stated he was unaware of what was happening and had not known thecase had been dismissed. Respondent said he explained everything in previous discussions. A weekafter the October discussion, the client hired another lawyer. Respondent met the client in person onlyonce at the initial meeting. All conversations were by telephone. The only written correspondence wasthe termination letter. He did not send copies of the answer, the discovery request, the motion to compelor the dismissal order. He did not request or obtain the medical records. The parties stipulated thatrespondent did not maintain professional liability insurance and that respondent did not alert his clientof that fact. The board adopted the panel‘s findings that respondent violated Prof.Cond.R. 1.4(a)(1)through (5) and 1.4(b), DR 1-104(A) and Prof.Cond.R. 1.4(c). The board adopted the panel‘srecommendation to dismiss Prof.Cond.R. 1.2(a), 1.3, and 1.16(d) because not proven by clear andconvincing evidence. The court noted that although the panel found neither the respondent nor the clientcompletely credible, it is clear that respondent performed very little work for the client and failed to fullycommunicate about how the case was managed and the status. In mitigation, respondent lacked a priordisciplinary record and had no dishonest or selfish motive. BCGD Proc.Reg. 10(B)(2)(a), (b), and (f).The court disagreed with the board‘s finding as a mitigating factor that respondent had other penaltiesimposed because of a pending malpractice action. The court stated ―[t]he mere fact that a malpracticesuit was pending should not have been considered as a mitigating factor, as the suit itself is not apenalty.‖ The court, citing McCord (2009), did not accept his notice of restitution as a mitigating factoreither, because he settled the malpractice case with no admission of malpractice—he did not admit to themisconduct and is not technically penalized for it. In aggravation, the client was vulnerable due to hislack of sophistication about legal matters and lost the opportunity to purse damages for his injuries.BCGD Proc.Reg. 10(B)(1)(h). The board recommended a public reprimand, rather than the panel‘srecommended sanction of a six-month suspension, all stayed. The court, considering respondent‘s longcareer with no prior discipline and considering the public reprimand in Johnson (2009), agreed with theboard and so ordered a public reprimand.Rules Violated: Prof.Cond.R. 1.4(a)(1), 1.4(a)(2), 1.4(a)(3), 1.4(a)(4), 1.4(a)(5), 1.4(b), 1.4(c); DR 1-104(A)Aggravation: (h)Mitigation: (a), (b), (f)Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NOPublic Official: NO Sanction: Public Reprimand