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

Freeman, Cleveland Metro. Bar Assn. v.128 Ohio St.3d 416, 2011-Ohio-1447. Decided 3/31/2011.Case Summaries- 90In 2002, respondent previously received a public reprimand for neglecting a client‘s case, handlinganother case without adequate preparation, and initially failing to cooperate in the disciplinaryinvestigation. Here, respondent neglected two foreclosure matters and failed to keep his clientsreasonably informed of the status of their matters. The matter was deemed to have been submitted inwriting without a hearing pursuant to BCGD Proc.Reg. 3(C). In Count One, respondent was retainedby a husband and wife to help resolve an issue with a mortgage lender. When the lender filed aforeclosure action, respondent failed to file a timely answer or move for an extension until the bank fileda motion for default judgment—then respondent filed an objection to the motion and filed an answer.The motion was denied by the court, but the court permitted the late answer. The lender filed anamended complaint, which went unanswered. When the lender filed another motion for defaultjudgment, respondent asserted that he had not been properly served and obtained leave to file an answer tothe amended complaint. The court again permitted respondent to answer. Respondent failed to timelyrespond to lender‘s discovery requests. The court granted lender‘s motion for those requests foradmission deemed admitted. Respondent failed to appear at the final pretrial hearing, told his clientsthey did not need to attend, and ignored the court‘s order to file trial brief and exhibits. The courtordered that the home in dispute be sold at a sheriff‘s sale. The homeowners obtained new counsel and,although respondent failed to return the client file, the clients were able to work out a payment plan andavoid the sale of their home. The panel and board found violations of Prof.Cond.R. 1.3, 1.4(a)(2),1.4(a)(3), and 1.4(a)(4), which the court accepted. In Count Two, a couple retained respondent to helpfinance their home and assist in a pending foreclosure action. Respondent filed timely answers to thecomplaint and amended complaint and engaged in discovery. The couple tried to contact respondent inApril 2007 regarding the status of their case, but he did not return their calls until May 2007. Respondentalso failed to respond to a motion for summary judgment as he decided, without discussing with theclients, that they had no defense. The panel and board found violations of Prof.Cond.R. 1.3, 1.4(a)(4),and 7.3(c)(3). The Court adopted the findings of Prof.Cond.R. 1.3 and 1.4(a)(4), but dismissed thefinding of Prof.Cond.R. 7.3(c)(3) which requires ―ADVERTISING MATERIAL‖ or―ADVERTISEMENT ONLY‖ on solicitation letters . The Court noted that respondent had a priorrelationship with the clients in this case, and thus, even though he stipulated to violating Prof.Cond.R.7.3(c)(3), he fit within an exception to the rule and thus did not violate it. See Gov.Bar R. V(6)(J), Reid(1999), and Donlin (1996) (respondent not bound by a stipulation when stipulated facts and evidence athearing demonstrate that conduct did not constitute a violation.) In aggravation, respondent had a priordisciplinary record and engaged in multiple offenses. BCGD Proc.Reg. 10(B)(1)(a) and (d). Inmitigation, respondent did not act with a dishonest or selfish motive, and cooperated in the disciplinaryinvestigation and disciplinary proceeding. BCGD Proc.Reg. 10(B)(2)(b) and (d). Relying on Holda(2010), the parties stipulated to a one year suspension, all stayed on the conditions of no furthermisconduct and the completion of an additional 12 hours of CLE in law-office management. The paneland board adopted this sanction with an additional condition that 6 hours of the CLE be completed withinthe first 6 months of the stayed suspension; this was not opposed by either party. The Court consideredHolda (2010) and Pfundstein (2010). The court agreed with the board‘s recommended sanction and soordered a one-year suspension, all stayed on conditions of completing at least 12 hours law-officemanagement in addition to at least six hours of CLE within the first six months of the stayed suspensionand commit no further misconduct.Rules Violated: Prof.Cond.R. 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(a)(4)Aggravation: (a), (d)Mitigation: (b), (d)Prior Discipline: YES Procedure/ Process Issues: YES Criminal Conduct: NOPublic Official: NO Sanction: One-year suspension, stayed