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

Sayler, Cleveland Metro. Bar Assn. v.125 Ohio St.3d 403, 2010-Ohio-1810. Decided 4/29/2010.Case Summaries- 295In 2002, respondent was suspended for six months, stayed upon condition of no further violation, for failing tokeep clients‘ funds in an identifiable bank account and failing to appropriately account for the funds.Cuyahoga Cty. Bar Assn. v. Sayler, 97 Ohio St.3d 239, 2002-Ohio-5936. In 2006, respondent wassuspended for failing to comply with CLE requirements and has not since been reinstated and has not paidsanctions. His registration status is listed as inactive. In this case, respondent committed various violationsincluding practicing law while under suspension, failing to inform clients of no professional liability insurance,neglecting a legal matter, and failing to cooperate. Respondent did not answer relator‘s complaint andrelator moved for default. A master commissioner made findings, conclusions, and a recommendation thatthe Board adopted. In 2009, respondent raised objections to the Board‘s report and he noted that he ―has ahistory of depression for which he had been under medical care for some 14 years, of which relator is aware,and while there has been no affect on his practice of law, there has been an inability to face and answer tothese disciplinary proceedings.‖ The court granted relator‘s motion to remand to the board ―to consider whateffects, if any, Respondent‘s mental illness may have on his ability to practice law.‖ Relator amended thecomplaint, respondent answered, and a disciplinary hearing was held. As to Count I, respondent was paid $500to represent a client in a divorce case, but he did not inform his client about his May 2006 suspension or thathe did not maintain professional liability insurance. He filed an answer in January 2007, but then did notanswer the client‘s messages for three months. Respondent filed a notice of withdrawal as counsel inApril 2007, two months after he claimed he first learned about the suspension. The case was scheduled fortrial the next day. The client learned of the divorce from his ex-wife. As to Count I, the board foundviolations of DR 1-104(A), DR 3-101(B), Prof.Cond.R. 1.4(a)(3), and Prof.Cond.R. 1.4(a)(4). In Count II,respondent was paid $200 toward a total fee of $500 for representation in a divorce in 2005, but did notinform the client he did not have professional liability insurance. He filed the complaint for divorce inMay 2006. He did not sign for the wife‘s answer that was sent to him by certified mail, did not notify theclient of the wife‘s filing of a motion for temporary support, and did not attend a hearing on the motion. Hewithdrew from the case in April 2007. He told the client he was dropping the case because of otherallegations. He did not tell the client of his license suspension. As to Count II, the Board found violations ofDR 1-104(A) and 6-101(A). As to Count III, the Board found violations of Gov.Bar R. V(4)(G) andV(6)(A)(1), as well as Prof.Cond.R. 8.1(b) for not signing for a certified letter sent by relator requesting hiswritten response to allegation in the grievance and in response to another letter sent by regular mail requestinga response to the grievance, he did not submit one even when granted an extension to do so. Boardrecommended an indefinite suspension. In aggravation, there were previous disciplinary offenses and currentCLE suspension, a pattern of misconduct, multiple offenses, and failure to cooperate. BCGD Proc.Reg.10(B)(1)(a), (c), (d), and (e). There were no mitigating factors. He admitted at the hearing that he was notrelying on any claimed medical or mental deficiency to mitigate the misconduct. ―Iam not coming before thisBoard and pleading any medical or mental deficiency as I had in the prior case. I believe these are myresponsibilities and I will address them. I am under medication for depression I believe it controls mydepression and I want to leave it at that.‖ Citation to Higgins (2008) and cases cited therein where practiceunder suspension and failure to cooperate warrants an indefinite suspension; and to Hoff (2010) where neglectand failure to cooperate generally warrants an indefinite suspension. Like Higgins there are no mitigatingfactors to warrant a lesser sanction. Supreme Court adopted the Board‘s finding, conclusions, andrecommended sanction and so ordered an indefinite suspension.Rules Violated: Prof.Cond.R. 1.4(a)(3), 1.4(a)(4), 8.1(b); DR 1-104(A), 3-101(B), 6-101(A); Gov.BarR. V(4)(G)Aggravation: (a), (c), (d), (e)Mitigation: NONEPrior Discipline: YES Procedure/ Process Issues: NO Criminal Conduct: NOPublic Official: NO Sanction: Indefinite Suspension