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

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Pfundstein, Disciplinary Counsel v.128 Ohio St.3d 61, 2010-Ohio-6150. Decided 12/21/2010.Case Summaries- 248Respondent‘s misconduct arose from his representation of a client in two matters: collection of a legalmalpracticejudgment and litigation of an employment-discrimination claim against the client‘sformer employer. As to Count I, in 1998, respondent was hired to represent an individual in a legalmalpracticeclaim. He obtained a $3,906.52 judgment in April 2001 and agreed to pursue collection ofthe judgment. By 2007, he had done little to collect on the judgment and it had not been satisfied.Respondent failed to timely respond to the client‘s multiple telephone and email requests as to the statusof the collection effort. He also made false statements and misrepresentations to the client: that he waswaiting to get the attorney into court; that he was waiting on a court date to finish his update; that he waswaiting on the municipal court for a date for a show cause motion; that he was waiting for a showcause date for the attorney‘s failure to appear at a hearing. Respondent and the attorney were neverinvolved in litigation when he made these statements. He falsely told the client he found out where theattorney worked and was trying to garnish her wages. Since 2002, respondent had been suspendedfrom the practice of law. As to Count I, the board adopted the panel‘s findings of violations ofProf.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c), and 8.4(h) and the panel‘s dismissal of the stipulatedviolation of 8.4(d) because not supported by clear and convincing evidence. As to Count II, in late1999 or early 2000, the same client hired respondent for representation in an employmentdiscriminationclaim against a former employer. In May 2000, respondent filed the complaint. The clientfailed to cooperate in discovery and the trial court ordered him to respond or fact sanctions, includingdismissal with prejudice. In February 2001, respondent voluntarily dismissed the case to preserve theclaim. After dismissal of the case, respondent did not perform any other legal work on the matter, but in2008 and 2008 he misrepresented the status, suggesting the claim remained pending. For example, headvised the client by e-mail that the litigation was in a holding pattern; he asked the client about cominginto town for a deposition; he said he was trying to figure out a way to get the deposition without theclient coming into town; he falsely stated by e-mail that he had mailed a copy of the update the clientrequested and would send a second copy. At the hearing, respondent admitted that no legal action waspending and no depositions planed, that he had sent the false e-mails to keep the client from filing agrievance and to buy time to figure out how to deal with the situation. As to Count II, the boardadopted the panel‘s findings of violations of Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c) and 8.4(h), andthe panel‘s conclusions that the stipulated violation of 8.4(d) was not supported by clear and convincingevidence. In aggravation, respondent engaged in a pattern of misconduct and committed multipleoffenses. In mitigation, he had no prior discipline, displayed a cooperative attitude and remorse,submitted over 20 letters attesting to character and reputation and his community and legal servicespanning 18 years of practice. BCGD Proc.Reg. 10(B)(2)(a) and (e). The municipal court judge whoemploys respondent as a part-time magistrate testified to his competence and good character. Anassociate director of OLAP testified that he was complying with a three year OLAP contract and posedno public threat. The boar found that relator did not show that he caused harm to the client. The boardfound that respondent proved he suffers from a mental disability within the meaning of BCGD Proc.Reg.10(B)(2)(g). His psychologist testified that respondent had been diagnosed with dysthymia thatcontributed to cause the misconduct, that he had undergone successful treatment and could return tocompetent ethical professional practice. The court adopted the board‘s findings and conclusions andrecommended sanction of a suspension for 12 months all stayed on conditions. The court rejectedrelator‘s contention that the evidence does not support the board‘s decision to consider respondent‘s metaldisability as mitigating; relator‘s attacks on the credibility of the treating physician‘s determination thatthe dysthymia contributed to the respondent‘s dishonesty; and relator‘s urging that an actual suspensionis necessary because of the pattern of dishonesty. The court noted that mitigating evidence can justifyimposing a lesser sanction, such as in Kimmins (2009), Ellison (2008), and Fumich (2007). The court,citing Heiland (2008), noted that it will defer to the panel‘s credibility determinations in the courts‘independent review unless the record weighs heavily against the determination. The court noted that thepurpose of a disciplinary sanction is to protect the public, not punish the offender and that this purpose is
Case Summaries- 249met by imposing the board‘s sanction. The court ordered a suspension for 12 months, all stayed oncondition that respondent comply with his OLAP contract, accept the treatment recommended byOLAP and his psychologist, serve a period of probation pursuant to Gov.Bar R. V(9) monitored byrelator during the term of three year OLAP contract.Rules Violated: Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c), 8.4(h)Aggravation: (c), (d)Mitigation: (a), (e), (g)Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NOPublic Official: YES Sanction: One-year suspension, stayed
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The Supreme Court of OhioBoard of C
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Drain, Cuyahoga Cty. Bar Assn. v.12
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Horton, Disciplinary Counsel v.124
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Markovich, Akron Bar Assn. v.117 Oh
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Table of Cases- 9Ramos, Cleveland B
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Table of Cases- 11Stuard, Becker, B
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Case SummariesAllerding, Columbus B
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Case Summaries- 15Archer, Northwest
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Case Summaries- 17intermittently ov
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Bartels, Allen Cty. Bar Assn. v.124
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Blair, Disciplinary Counsel v.128 O
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Case Summaries- 23Bowling, Discipli
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Broschak, Disciplinary Counsel v.11
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Brown, Dayton Bar Assn. v.124 Ohio
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Brown, Allen Cty. Bar Assn. v.124 O
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Brueggeman, Disciplinary Counsel v.
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Bunstine, Disciplinary Counsel v.12
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Bursey, Disciplinary Counsel v.124
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Butler, Disciplinary Counsel v.128
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Campbell, Disciplinary Counsel v.12
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Cantrell, Disciplinary Counsel v.12
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Cantrell, Disciplinary Counsel v.13
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Case Summaries- 45abuse impede his
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Case Summaries- 47respondent‘s de
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Case Summaries- 49with a client if
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Case Summaries- 51not DR 1-102(A)(5
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Clovis, Columbus Bar Assn. v.125 Oh
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Corrigan, Geauga Cty. Bar Assn. v.1
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Cunningham, Butler Cty. Bar Assn. v
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Davis, Disciplinary Counsel v.121 O
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Dawson, Cleveland Metropolitan Bar
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DeLoach, Akron Bar Assn. v.130 Ohio
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Detweiler, Disciplinary Counsel v.1
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DiCato, Akron Bar Assn. v.130 Ohio
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DiMartino, Mahoning Cty. Bar Assn.
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Doellman, Disciplinary Counsel v.12
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Drain, Cuyahoga Cty. Bar Assn. v.12
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Ellis, Columbus Bar Assn. v.120 Ohi
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Emerson, Cincinnati Bar Assn. v.122
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Farah, Toledo Bar Assn. v.125 Ohio
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Farrell, Cincinnati Bar Assn. v.129
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Fink, Akron Bar Assn. v.131 Ohio St
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Folwell, Disciplinary Counsel v.129
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Freedman, Akron Bar Assn. v.128 Ohi
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Freeman, Disciplinary Counsel v.126
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Freeman, Disciplinary Counsel v.119
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Frost, Disciplinary Counsel v.122 O
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Case Summaries- 95his goal of gaini
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Gibson, Akron Bar Assn. v.128 Ohio
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Glaeser, Cuyahoga Cty. Bar Assn. v.
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Goldblatt, Disciplinary Counsel v.1
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Gottehrer, Cleveland Metro. Bar Ass
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Case Summaries- 105disgorgement of
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Grote, Cincinnati Bar Assn. v.127 O
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Hackett, Cincinnati Bar Assn. v.129
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Case Summaries- 111presented eviden
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Hanni, Mahoning Cty. Bar Assn. v.12
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Hauck, Cincinnati Bar Assn. v.129 O
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Heiland, Disciplinary Counsel v.116
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Heisler, Cincinnati Bar Assn. v.119
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Henry, Disciplinary Counsel v.127 O
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Hickman, Toledo Bar Assn. v.119 Ohi
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Hildebrand, Cleveland Metro. Bar As
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Holda, Akron Bar Assn. v.125 Ohio S
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Horan, Disciplinary Counsel v.123 O
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Hoskins, Disciplinary Counsel v.119
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Howard, Disciplinary Counsel v.123
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Hunter, Columbus Bar Assn. v.130 Oh
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Jackel, Ohio State Bar Assn. v.118
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Jackson, Disciplinary Counsel v.127
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Jaffe, Cleveland Metro Bar Assn. v.
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Johnson, Toledo Bar Assn. v.121 Ohi
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Johnson, Cuyahoga Cty. Bar Assn. v.
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Johnston, Disciplinary Counsel v.12
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Jones, Mahoning Cty. Bar Assn. v.12
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Kaplan, Cleveland Metro. Bar Assn.
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Kealy, Cleveland Metro. Bar Assn. v
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Kellogg-Martin, Disciplinary Counse
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Kelly, Disciplinary Counsel. v.121
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Case Summaries- 159other assets in
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Case Summaries- 161none of the mone
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Case Summaries- 163Although the uns
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Kubyn, Lake Cty. Bar Assn. v.121 Oh
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Landis, Disciplinary Counsel v.124
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Lapine, Disciplinary Counsel v.128
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Larkin, Columbus Bar Assn. v.128 Oh
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Case Summaries- 173Board‘s findin
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Lawson, Cincinnati Bar Assn. v.119
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Lawson, Cincinnati Bar Assn. v.130
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Lentes, Disciplinary Counsel v.120
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Lewis, Medina Cty. Bar Assn. v.121
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Case Summaries- 183and blame the wo
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Longino, Disciplinary Counsel v.128
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Lowden, Toledo Bar Assn. v.117 Ohio
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Case Summaries- 1898.4(h) by his ac
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Mamich, Disciplinary Counsel v.125
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Manning, Disciplinary Counsel v.119
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Marosan, Stark Cty. Bar Assn. v.119
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Page 209 and 210: Case Summaries- 207withdrawal. Resp
Page 211 and 212: Case Summaries- 209that he is compe
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Page 215 and 216: Miller, Disciplinary Counsel v.126
Page 217 and 218: Minamyer, Butler Cty. Bar Assn. v.1
Page 219 and 220: Case Summaries- 217represent his cl
Page 221 and 222: Case Summaries- 219became effective
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Page 239 and 240: Case Summaries- 237Master Commissio
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Page 245 and 246: Case Summaries- 243conditions that
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Page 263 and 264: Case Summaries- 261disqualification
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Page 267 and 268: Case Summaries- 265history, no dish
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Page 277 and 278: Ritson, Toledo Bar Assn. v.127 Ohio
Page 279 and 280: Roberts, Disciplinary Counsel v.117
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Page 283 and 284: Rohrer, Disciplinary Counsel v.124
Page 285 and 286: Rozanc, Lake Cty. Bar Assn. v.123 O
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Page 291 and 292: Case Summaries- 289condition of the
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Schram, Dayton Bar Assn. v.122 Ohio
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Scott, Toledo Bar Assn. v.129 Ohio
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Shaw, Disciplinary Counsel v.126 Oh
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Shea, Columbus Bar Assn. v.117 Ohio
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Shuler, Disciplinary Counsel v.129
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Siewert, Disciplinary Counsel. v.13
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Simon, Disciplinary Counsel v.128 O
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Smith, Disciplinary Counsel v.124 O
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Smith, Disciplinary Counsel v.128 O
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Smithern, Akron Bar Assn. v.125 Ohi
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Squire, Disciplinary Counsel v.130
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Stafford, Disciplinary Counsel v.12
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Stoll, Erie-Huron Grievance Commt.
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Stuard, Becker, and Bailey, Discipl
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Taylor, Disciplinary Counsel v.120
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Theisler, Mahoning Cty. Bar Assn. v
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Thomas, Cleveland Metro. Bar Assn.
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Case Summaries- 333court entered an
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Trainor, Cincinnati Bar Assn. v.129
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Troxell, Columbus Bar Assn. v.129 O
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Troy, Lake Cty. Bar Assn. v.130 Ohi
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Case Summaries- 341professionals in
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Vivyan, Disciplinary Counsel v.125
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Case Summaries- 345offenses, there
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Walker, Disciplinary Counsel v.119
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Weisberg, Toledo Bar Assn. v.124 Oh
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Case Summaries- 351Chandlers to dis
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Williams, Disciplinary Counsel v.13
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Williamson, Butler Cty. Bar Assn. v
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Wineman, Disciplinary Counsel v.121
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Wittbrod, Akron Bar Assn. v.130 Ohi
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Yeager, Disciplinary Counsel v.123
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Zaffiro, Cleveland Metro. Bar Assn.
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Zigan, Disciplinary Counsel v.118 O
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Bennett (2/4/2010) (unlawfullystruc
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Clovis (5/5/2010) (as required by G
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on inactive status and while under
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suspension, and remanded to board t
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violations for attempt to dismiss a
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Wineman (5/6/2009)Wolanin (4/1/2009
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Willette (3/20/2008)DR 2-103(C) (re
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Patterson (12/2/2009)Ryan (8/27/200
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DR 7-102(A)(5) (knowingly making fa
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DR 9-102(B)(4) (failure to promptly
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Dearfield (10/19/2011)DeLoach (8/31
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McNerney (5/28/2009)(term suspensio
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Hoppel (6/8/2011)Hunter (11/15/2011
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Rule 1.5(a) (charging or collecting
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Gottehrer (3/17/2010)Gresley (12/22
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Marshall (2/12/2009)Martin (12/15/2
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Meade (12/22/2010)Medley (1/27/2011
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