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

Higgins, Disciplinary Counsel v.117 Ohio St.3d 473, 2008-Ohio-1509. Decided 4/3/2008.Case Summaries- 124As of April 8, 2005 respondent was suspended for failure to comply with CLE requirements of Gov.BarR. X in In re Higgins, 105 Ohio St.3d 1490, 2005-Ohio1647. As of December 5, 2005, respondent wassuspended for failure to comply with registration requirements of Gov.Bar R. VI in In re Higgins, 107Ohio St.3d 1431, 2005- Ohio-6408. Upon granting relator‘s motion for default, a master commissionermade findings and conclusions which the Board adopted. Respondent undertook representation of a clientin divorce and child-custody cases after his license had been suspended. Respondent did not reveal thathis license had been suspended. The client paid a $500 retainer and agreed to pay an hourly rate of$75. Respondent billed the client $300 in June 2005 and the client paid the invoice. The clientreceived a second bill in August 2005 for $525 and paid it in $50 installments. The client received athird bill in October 2005 for approximately $550 and paid $250 in $50 installments toward thebalance. In June 2005, respondent filed the divorce complaint while under suspension. Respondent didnot attend the December 14, 2005 scheduled trial in the custody dispute, but the client obtained custody inrespondent‘s absence. Respondent did not appear at the February 1, 2006 pretrial hearing in the divorceaction. He called the client the day before and told the client not to go. The client went anyway andlearned from the bailiff that respondent had advised the court that neither he nor the client wouldappear. Respondent did not appear at a March 6, 2006 trial in the divorce case. Another attorney(Kuntz) apparently appeared on respondent‘s request. The court rescheduled the trial. Later in March,the client asked in an e-mail for a refund of his retainer and for the return of the file within a week. Theclient received nothing. The client eventually learned of the suspension and tried to meet withrespondent but plans fell through. Respondent eventually e-mailed copies of some of the file documents.A few days before the rescheduled 5/10/2006 trial date, Kuntz told the client that respondent did notintend to appear. By e-mail, the client demanded a refund of the retainer and respondent replied that theclient owed an outstanding balance. The client e-mailed back and demanded return of all the fees hepaid. When the client threatened to file a grievance and insisted that respondent was not entitled to anymoney for services while under suspension, the respondent agreed to determine how much the clientpaid during suspension. The client never received any refund. The day before the divorce trial theclient retained counsel. Respondent did not appear at the trial, but the new counsel did appear. Boardadopted master commissioner‘s findings of a violation of DR 1-102(A)(4), 1-102(A)(6), 3-101(B), 6-101(A)(3), 7-101(A)(1), and 7-101(A)(2). Board adopted master commissioners findings of a violation ofGov.Bar R. V(4)(G) for respondent‘s failure to respond to relator‘s investigative efforts. Board adoptedmaster commissioner‘s recommended sanction of an indefinite suspension. The court noted that anindefinite suspension is warranted when a lawyer practices while under suspension and then fails tocooperate. Citations to Crandall (2003), Barron (1999), Christensen (1996). There was nomitigation. The court adopted the findings and recommended sanction and so ordered an indefinitesuspension. One justice dissented in favor of permanent disbarment.Rules Violated: DR 1-102(A)(4), 1-102(A)(6), 3-101(B), 6-101(A)(3), 7-101(A)(1), 7-101(A)(2)Aggravation: (a)Mitigation: NONEPrior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NOPublic Official: NO Sanction: Indefinite Suspension