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

Case Summaries- 219became effective. As to Count Three, the court agreed with the board‘s recommendation to dismissallegations of violating DR 9-102(B)(3) and 9-102(E) because not proven by clear and convincingevidence. Count Four involved respondent‘s misconduct when hired to handle litigation on behalf of aclient whose pension benefits were decreased after the Pension Benefit Guaranty Corporation took overafter the client‘s former employer went bankrupt. There was no written fee agreement. Respondent toldthe client that an administrative appeal would be a ―waste of time‖ and encouraged him to file a lawsuit.The bankruptcy court granted respondent a relief from the bankruptcy stay to proceed with a lawsuit. Theguaranty corporation, without explanation, increased the client‘s pension checks. Respondent convincedthe client that if he accepted the increase he would forfeit to the right to file a lawsuit. Respondent hadthe client endorse the checks to respondent and then he would write a check to the client for the loweramount. He told the client he would put the difference into his IOLTA pending resolution of the lawsuit.This occurred every month from July 2003 to September 2008. Respondent filed the lawsuit in 2006 andincluded other plaintiffs without disclosing this to the client. The federal court dismissed the casewithout prejudice for failure to exhaust administrative remedies, but the respondent did not inform theclient. Respondent appealed the case. When the client learned of the appeal he told respondent to notpursue any further appeal because he could not afford it. Respondent continued the appeal which waslater dismissed by the court as bordering on ―the frivolous and sanctionable‖ and the brief was ―largelynonsensical.‖ He never informed the client of the decision and he did not tell the client his license topractice law had been suspended effective April 23, 2008. The client later discovered these facts. Theclient has not received the estimated $36,783.01 from the check-exchange scheme. In Count IV, thecourt accepted the board‘s findings of violations of DR 1-102(A)(4), (5), and (6); 6-101(A)(3); 7-101(A)(3), 9-102(B)(3) and (4) and Prof.Cond.R. 1.1, 1.3, 1.4(a)(3), 1.5(a) and (b), and 8.4(c), (d), (h).The court accepted the recommendation to dismiss DR 1-102(A)(1) and Prof.Cond.R. 8.4(a) becauseredundant and not proven by clear and convincing evidence; to dismiss the alleged violation ofProf.Cond.R. 1.15(a)(2) because the violation was a continuation of misconduct already punished underthe Code of Professional Responsibility; and to dismiss the alleged violations of DR 1-102(A)(1) andProf.Cond.R. 8.4(a) and 1.15(a)(2). As to Count Five, the court adopted the panel‘s and board‘sconclusion that the conduct violated Prof.Cond.R. 1.5(a) and (b), 1.15(a)(2), and 8.4(a), (c), (d), and (h)and the recommendation to dismiss 1.4(a)(3) and Gov.Bar R. V(9) as not proven by clear and convincingevidence. Respondent was hired by a client and paid what the client understood to be a flat fee of$2,500, but which respondent later characterized as a retainer. After the suit was filed, the client paid anadditional $5,500 related to depositions. Respondent never performed the services. Respondent notifiedthe client he had been suspended and would send an itemized statement and account with the case file.He did not provide the account and did not return the $5,500. In Count Six, respondent was retained topursue a medical malpractice action. There was no written fee agreement and the client assumed it wouldbe one-third. He filed the suit and settled it and the clients signed a settlement agreement. They laterlearned he falsely represented to the probate court in an application to settle the minor‘s claim that part ofthe money was to pay for unpaid medical expenses. He did not forward to them the $5000 approved bythe court as payment for the unpaid medical expenses and he did not advise the clients about $1,000 thecourt ordered to be set aside until the child reached the age of majority. He withdrew the money and theinterest. He claimed attorney fees of $3,500 from the settlement and the client only received $1,000 of$10,500 settlement. He has not returned any of the $6,000 to the client. As to Count Six, the courtagree with the board the conduct violated DR 1-102(A)(4), (A)(5), and (6), 6-101(A)(3), 7-102(A)(3),(A)(5), 9-102(B)(1), (3), (4), and Prof.Cond.R. 1.1, 1.3, 1.4(a)(3), and 8.4(c), (d), and (h). The courtagreed with the board‘s recommendation to dismiss alleged violations of DR 7-102(A)(4) and (7) andProf.Cond.R. 8.4(a) because redundant and not proven by clear and convincing evidence, and to dismissthe allegation of a violation of Prof.Cond.R. 1.15(a)(2) because a continuation of misconduct alreadypunished. As to Count Seven, the court adopted the board‘s findings of Prof.Cond.R.1.5(b) and (c),and the recommendations to dismiss the allegations of 1.5(a), 8.1(a), 8.4(c) and 8.4(h) because notproven by clear and convincing evidence. Respondent in 2007, filed an employment-discrimination suitin federal court for a husband and wife. In 2008, the wife called the presiding judge to express concernsabout case and that respondent might settle for less than the $15,000 they paid him. After the judge