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

Folwell, Disciplinary Counsel v.129 Ohio St.3d 297, 2011-Ohio-3181. Decided 7/6/2011.Case Summaries- 85Respondent neglected legal matters entrusted to him, failed to provide diligent and competentrepresentation, and made misrepresentations to clients. The parties stipulated to all of the findings offact and conclusions of law, and jointly recommended a two-year suspension with the second yearstayed on the conditions of no further misconduct. In Count 1, respondent settled a claim on behalf of aminor without approval of the probate court and delayed eventually getting the probate court‘s approvalof the settlement. Respondent also allowed his trust account balance to dip below the amount of funds hewas holding for the minor, and thus improperly used some of the minor‘s money. This violatedProf.Cond.R. 1.1 (competent representation), 1.3 (reasonable diligence and promptness), 1.15(a)(2)(maintaining separate ledgers for client funds), 1.15(a)(5) (monthly reconciliation of the funds in trustaccount), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h) (conductthat adversely reflects on fitness to practice law). In Count 2, respondent was to file a lawsuit against anindividual‘s estate, but failed to do so before the property was transferred. Respondent did not refundthe client‘s money until 2 years later. This conduct violated Prof.Cond.R. 1.3, 1.16(e) (refund anyunearned fee upon withdrawal of representation), and 8.4(h). In Count 3, respondent was paid to file anaction against a client‘s daughter, but the client later told respondent not to file the action and requesteda refund. Respondent promised to refund a portion of the fee, but failed to do so until almost 4 yearslater. This conduct violated Prof.Cond.R. 1.16(e) and 8.4(h). In Count 4, respondent took over 1 year tofile a client‘s husband‘s estate, even though it could have been done sooner, which violated Prof.Cond.R.1.3. In Count 5, respondent accepted money to do legal work, but then told the client he could not helpher. He said he would refund the money, but failed to timely do so. After the disciplinary investigationbegan, respondent refunded the client‘s money. This conduct violated Prof.Cond.R. 1.16(e) and 8.4(h).In Count 6, respondent was supposed to file a probate case and failed to correct the client‘s belief thatrespondent had, in fact, filed it. The client eventually obtained new counsel to file the estate.Respondent then refunded the client‘s money. This conduct violated Prof.Cond.R. 1.3, 8.4(c), and8.4(h). In Count 7, respondent paid 10% of a legal fee to his secretary, in violation of Prof.Cond.R.5.4(a) (sharing fees with a nonlawyer). In mitigation, respondent had no prior disciplinary record andcooperated with the disciplinary proceedings. BCGD Proc.Reg.10(B)(2)(a) and (d). In aggravation,respondent had engaged in a pattern of misconduct involving multiple offenses and displayed a dishonestor selfish motive. BCGD Proc.Reg. 10(B)(1)(b), (c), and (d). The panel adopted the jointly-recommendedsanction, but added as a condition one year of monitored probation. The board and panel found thesanction consistent with Claflin (2005), and Mishler (2008). The Court adopted the findings of fact,conclusions of law and recommended sanction, and suspended the respondent for two years with oneyear stayed on the conditions of no further misconduct and one year of monitored probation.Rules Violated: Prof.Cond.R. 1.1, 1.3, 1.15(a)(2), 1.15(a)(5), 1.16(e), 5.4(a), 8.4(c), 8.4(h).Aggravation: (b), (c), (d)Mitigation: (a), (d)Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NOPublic Official: NO Sanction: Two-year suspension, one year stayed