Opinion
D.D. No. 76-8
Decided December 15, 1976.
Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Albert Ohralik, respondent, was admitted to the practice of law in Ohio in March 1948. He is 55 years old and resides in Montville, Ohio. His law office is in Cleveland.
Relator, Ohio State Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline against Albert Ohralik, alleging that he solicited the personal injury cases of Carol McClintock and Wanda Lou Holbert in violation of DR 2-103(A) and DR 2-104(A) of the Code of Professional Responsibility.
Most of the material events involved in this complaint occurred on or about February 13, 1974. In the early morning of that day, while at the Montville, Ohio, Post Office, respondent learned from the postmaster's brother that Carol McClintock, of Montville, and Wanda Lou Holbert, of Chardon, had been involved in a serious automobile accident. Neither Carol McClintock nor Wanda Lou Holbert were relatives or former clients of respondent. Both were, if anything, casual acquaintances. Upon learning of the accident, which had occurred on February 2, 1974, respondent telephoned Carol's mother, obtained her consent to visit Carol at the hospital, and, later that day, proceeded to the hospital where Carol was undergoing treatment for the injuries sustained in the accident.
Carol McClintock testified that, until respondent visited her in the hospital on February 13th, she did not know that he was a lawyer. She admitted to a casual acquaintanceship with him, which began with her visits to the Montville Post Office to pick up the family mail, and which was limited to a customary exchange of greetings on such occasions. She also knew that her father had purchased an automobile from respondent a number of years ago. Disputing this testimony, respondent insisted that Carol must have been aware that he was a practicing lawyer because, among other things, he had been a candidate for a political office and the fact was evident from his campaign literature.
After reviewing with Carol the legal merits of her cause and the need for proper representation, respondent obtained Carol's consent to handle the claim. Leaving the hospital, respondent drove to the home of Carol's parents, where he examined their automobile liability policy, discussed the law applicable to passenger guests, and obtained the address and directions to the home of Wanda Lou Holbert, a passenger in the automobile driven by Carol McClintock.
Wanda Lou was then 18 years of age. Respondent, upon being admitted to her home, advised Wanda that he represented Carol McClintock, and that he had a "tip" for her, namely: that she had a substantial legal claim for the injuries she had suffered while riding as a passenger in the automobile driven by her neighborhood friend, Carol. He further informed her he was prepared to supply her with the legal services necessary to capitalize on her claim. Respondent's representations induced Wanda to orally agree to engage him as her attorney in the matter.
The following day, February 14, 1974, respondent telephoned Wanda Lou for purposes of firming the client-attorney relationship begun the preceding day. The phone was answered by Wanda Lou's mother, who unceremoniously advised him that his services were not desired. Respondent retorted by pointing out that it was not she but Wanda Lou, a competent consenting adult, who was his client.
Respondent, in support of his claim that a binding agreement to engage his services had been made with Wanda Lou, introduced in evidence a tape recording of the February 13, 1974, conversation with Wanda Lou. The recording was made on respondent's recorder, hidden at the time of recording under respondent's coat, and made without the knowledge of Wanda Lou. Some of the recorded conversation indicates a consent by Wanda Lou to the utilization of respondent's professional services, but the conversation also demonstrates that this consent was induced and solicited by respondent.
Thereafter, both Carol and Wanda attempted to disengage respondent's services. Wanda's attempt began immediately, and Carol's some time after February 1974. Respondent insisted he had a valid binding agreement with both, which he was determined would be performed. Respondent sued Carol McClintock on her signed agreement for the value of services rendered, and ultimately accepted a settlement in the amount of $4,166.66. He testified that, as to Wanda Lou Holbert, he will abandon his claim against her because of his belief that under the disciplinary rules an ethical question arises "if a contract has its origin in a controversy."
Respondent's answer to the complaint denied violation of the above disciplinary rules and moved to dismiss the complaint, contending that the above provisions of the Code of Professional Responsibility are unconstitutional for repugnancy to the free-speech provision of the First Amendment to the United States Constitution.
After hearings on November 24, 1975, and January 29, 1976, the board found that the respondent did, in fact, solicit the personal injury cases of Carol McClintock, and Wanda Lou Holbert, in violation of DR 2-103(A) and DR 2-104(A), Code of Professional Responsibility.
The board found respondent's defense, that the solicitation of business by an attorney is protected by the First and Fourteenth Amendments to the United States Constitution, to be without merit and overruled respondent's motion to dismiss.
Although not objecting to the findings of fact of the board, respondent renewed his motion to dismiss these proceedings on the ground that DR 2-103(A) and DR2-104(A) are unconstitutional for the reason that they deprive respondent of free speech as guaranteed by the United States and Ohio Constitutions.
This court overruled respondent's renewed motion to dismiss.
Mr. John R. Welch, Mr. Albert L. Bell, Mr. Edward N. Heiser and Mr. James S. Patrick, for relator.
Mr. Walter S. Haffner, for respondent.
DR 2-103(A) of the Code of Professional Responsibility provides:
"A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer."
DR 2-104(A) reads:
"A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that: * * * [exceptions not applicable here]."
A review of the record before us reflects ample, uncontroverted evidence supportive of the finding of the Board of Commissioners on Grievances and Discipline that respondent, Albert Ohralik, violated DR 2-103(A) and DR 2-104(A), set forth above, in soliciting and obtaining agreements from Carol McClintock and Wanda Lou Holbert to represent each of them in their respective claims for damages arising out of the accident of February 2, 1974.
It is the considered judgment of this court that respondent be indefinitely suspended from the practice of law for these unethical violations of the Code of Professional Responsibility.
Judgment accordingly.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.