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

Noel, Disciplinary Counsel v.126 Ohio St.3d 56, 2010-Ohio-2714. Decided 6/17/2010.Case Summaries- 236Respondent neglected the legal matters of two clients which resulted in the dismissal of a criminal appealand the dismissal with prejudice of a civil case, failed to timely deliver a client‘s file, and failed tocooperate in the disciplinary investigation. Respondent gave testimony by deposition, but did not file ananswer to relator‘s complaint; a master commissioner made findings of fact and conclusions of law,which the board adopted. The Court noted that because some of the documents submitted in support ofthe motion for default were neither sworn nor certified as required by Gov.Bar R. V(6)(F)(b) they are notproper evidence in support of the default motion. The court did not consider seven purported affidavitsthat are photocopies, not the original, signed and notarized documents, and 65 additional exhibits thatrelator had not provided an investigator‘s affidavit to authenticate. The court considered only thetranscripts of respondent‘s deposition testimony and the exhibits admitted during deposition. In CountI, respondent represented a client at trial in a criminal matter, but did not take the steps necessary toperfect an appeal of a criminal conviction in the Sixth Circuit, resulting in the court dismissing the appealfor want of prosecution. At the sentencing hearing, respondent informed the court that his client wantedto appeal; he said that the client was indigent and needed court- appointed counsel. Respondent,unfamiliar with the Sixth Circuit‘s local rules, was unaware that he was bound to be the appellatecounsel unless the court specifically relieved him from the representation. Respondent, believing that thatthe trial court granted his motion to withdraw, failed to file the appeals filing fee, form of appearance, ora transcript purchase order. Respondent was sent letters from the appeals court, but claims that he did notsee them until preparing for his deposition in the disciplinary investigation when he found them in the fileand he assumed that his secretary thought the case was closed and filed the correspondent withoutshowing him. Respondent admitted that he received calls from the appellate court and agreed toprovide documentation of his withdrawal, but failed to provide the requested information. Headmitted to receiving two letters from relator about the grievance and failing to respond to them. As toCount I, the board found that respondent violated Prof.Cond.R. 1.3, 8.4(d), 8.1(b), and Gov.Bar R.V(4)(G). In Count II, respondent filed a lawsuit on behalf of a woman who was involved in an accidentwith a COTA bus. He met her at the courthouse and learned her previous attorney dismissed the case.After talking with her at his office, he took the case and refiled the complaint. Respondent failed toprovide materials requested by COTA during discovery; but he blamed his client because she failed tosubmit to an independent medical examination and failed to submit complete answers to interrogatories.COTA was awarded attorney‘s fees as a sanction for respondent‘s conduct in discovery, but the courtnever fixed the amount of the sanction. Respondent also failed to respond to COTA‘s motion todismiss, and the case was dismissed with prejudice for failure to prosecute. Respondent admitted toignoring the client‘s phone calls, and that his voicemail was often full. He sometimes missedscheduled appointment due to obligations in court. The client asked for her file so that she could re-filethe lawsuit with another attorney; respondent told her that he didn‘t think another attorney would takethe case because three attorneys had already represented her and that was ―a big red flag‖ that somethingwas wrong, he failed to mention that the case had already been dismissed with prejudice and could not berefiled. Respondent failed to respond to relator‘s letters, claiming that he believed the letters wereduplicates from the first grievance. Respondent denied that he missed an appointment to return theclient‘s file, claiming he left the file out for the client‘s arrival, but the receptionist had not seen it. Heclaimed that he had not responded to relator‘s letter because he thought it was a duplicate notice of thegrievance underlying Count I. As to Count II, the board found violations of DR 6-101(A)(3),Prof.Cond.R. 1.3, 1.15(d), 3.4(c), 8.1(a), 8.1(b), 8.4(d), and Gov.Bar R. V(4)(G). The Court dismissedProf.Cond.R. 3.4(c) and 8.1(a) as not supported by sufficient sworn or certified evidence. Furthermore,while the Court agreed with the finding of a violation of Prof.Cond.R. 1.15(d), the Court noted infootnote 1 that Prof.Cond.R. 1.16(d) was more apt under these facts. The multiple offenses, lack ofcooperation in the disciplinary process, a refusal to acknowledge the wrongfulness of his conduct, and thevulnerability and resulting harm to the client are aggravating factors. BCGD Proc.Reg. 10(B)(1)(d),(e), (g), and (h). No prior disciplinary record is a mitigating factor. BCGD Proc.Reg. 10(B)(2)(a). The