Summary
In Columbus Bar Assn. v. Nichols (1991), 61 Ohio St.3d 546, 575 N.E.2d 799, we found that a one-year suspended suspension was appropriate where the attorney had failed to timely file two lawsuits.
Summary of this case from Toledo Bar Assn. v. DziennyOpinion
No. 90-1705
Submitted December 12, 1990 —
Decided August 28, 1991.
ON CERTIFIED REPORT of the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-15.
In a complaint filed on February 27, 1990, relator, Columbus Bar Association, charged respondent, LeRoy Alvin Nichols, with eight counts of misconduct, the fifth of which was later withdrawn. Respondent answered the complaint by admitting most of the factual allegations. The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on July 20, 1990.
The panel found violations of the Disciplinary Rules only in connection with Counts Two, Three, Six and Seven of the complaint. With respect to Count Two, the record shows that Phyllis Dixon Jenkins retained respondent early in 1987 to sue for personal injuries she sustained on August 25, 1986. Jenkins paid respondent $45, apparently for filing fees, but respondent did not file the suit before the statute of limitations expired. Respondent's failure to file caused the defendant to withdraw an offer to pay $1,800 for Jenkins' medical bills. As of the date of the hearing, respondent had begun making restitution to Jenkins. The panel found that this conduct violated DR 6-101(A)(3) (neglecting an entrusted legal matter).
With respect to Count Three, the record shows that Mary A. Perry retained respondent in September 1988 to help her administer her father's estate. Perry was later cited by the probate court for respondent's dilatory filings, and she was often unable to contact respondent about his lack of progress. Respondent collected an $800 fee from Perry without probate court approval, although he later refunded it. respondent also failed to appreciate that he had prepared a survivorship deed for certain property, which consequently should not have been included as an estate asset. Without this property, the estate value would have been low enough that a full administration would not have been required. The panel found that this conduct violated DR 6-101(A)(3).
With respect to Count Six, the record shows that Mark Anthony Jones retained respondent in September 1988 after repeated repairs were made to his new car. Jones paid respondent $60, and respondent told Jones that he had used the fee to file a lawsuit. Thereafter, Jones attempted to contact respondent, but learned that respondent's office had been vacated. Respondent finally called Jones in or around March 1989 and said that he thought Jones had reconsidered taking legal action. Jones assured respondent that he had not reconsidered. However, Jones heard nothing more from respondent until he complained to relator. After lodging his complaint, Jones learned that respondent had never filed suit. Jones' car was later repossessed and sold, leaving a deficiency balance of over $5,000. The panel found that this conduct violated DR 6-101(A)(3).
With respect to Count Seven, the record shows that in January 1986, Frank and Virginia Bova retained respondent to represent their son in a federal court action alleging various violations of his civil rights. The Bovas paid respondent $5,200 initially, and, by February 1987, they had paid approximately $1,500 more. Respondent did not file a complaint in the matter until December 1986 and then failed to appear at a pretrial conference. He also repeatedly failed to respond to discovery requests. After a second motion to compel discovery was granted, respondent filed, without consulting the Bovas, a notice of voluntary dismissal on May 16, 1989. The court treated the notice as a motion to dismiss and dismissed the Bovas' case without prejudice. The panel found that respondent's conduct violated DR 6-101(A)(3).
The board adopted the panel's findings on all but Counts Three and Seven. On Count Three, the board found that respondent's conduct "did not rise to a violation of DR 6-101(A)(3)." On Count Seven, the board found no violation based on the difficulty of the litigation, the work respondent did perform, and the unavailability of expert testimony to support the client's claims. In recommending a sanction for respondent's misconduct, the board considered the testimony of several character witnesses and the testimony of respondent's treating physician, who said that respondent was suffering from severe depression from May 1988 until the fall of 1989 while he was representing Jenkins, Perry, Jones and the Bovas. The doctor added that respondent's depression is presently controlled through medication. The board recommended that respondent be suspended from the practice of law for six months and that the suspension be stayed in favor of a one-year probation period.
Frank A. Ray Co., L.P.A., Frank A. Ray and Bruce A. Campbell, for relator.
Donald H. Rathbun, for respondent.
In objections to the board's report, relator argues that the evidence substantiates disciplinary violations in addition to those found by the board. We disagree, and, therefore, hold that respondent violated DR 6-101(A)(3) in connection with Counts Two and Six as found by the board.
Relator also argues that these violations require a more severe sanction than the board recommended. We agree with relator on this point. Accordingly, we order that respondent be suspended from the practice of law in Ohio for a full year. However, this sanction will be suspended on the condition that respondent complete a two-year monitored probation period during which respondent shall not violate any provision of the Code of Professional Responsibility or the Supreme Court Rules for the Government of the Bar of Ohio. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.