Stark County Bar Assn.
v.
Lukens

Supreme Court of OhioDec 15, 1976
48 Ohio St. 2d 187 (Ohio 1976)
48 Ohio St. 2d 187357 N.E.2d 1083

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    …The recently published Annotated Code of Professional Responsibility (American Bar Foundation, 1979) contains…

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  • owing to disabling illness, the lawyer lacked diligence in representing his clients

    Summary of this case from Matter of Haupt

D.D. No. 76-12

Decided December 15, 1976.

Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.

Respondent, Donald F. Lukens, an attorney at law duly admitted to the practice of law in the state of Ohio, was formally charged in a complaint and certificate filed under Gov. R.V by the Stark County Bar Association, alleging 14 counts of professional misconduct.

Hearings were held in Canton, Ohio, on January 19, 20 and on May 18, 1976. Respondent was present at all times in the conduct of the hearing before the Board of Commissioners on Grievances and Discipline and was represented by his own counsel. The hearings were public.

Prior to the presentation of evidence, the relator and the respondent entered into certain stipulations. Counts 1, 4, 6, and 7 were admitted as set forth in the complaint (respondent reserved the right to offer evidence in mitigation). As to count 8, it was agreed that the deposition offered would be part of the record without the necessity of reading same; respondent reserved the right to offer evidence in mitigation. A stipulation regarding count 9 was admitted. Count 11, paragraphs 1, 2, 3, 5, 7 and 9 were admitted. Count 12, paragraphs 1, 2, 3, 4, 5, 7 and 9 were admitted. Count 13, paragraphs 1, 2, 8 and 9 were admitted. Count 14, paragraphs 1 and 7 were admitted.

At the conclusion of relator's case, the panel dismissed counts 2, 3, 5, 10 and 12 because relator failed to meet the requisite burden of proof.

The counts admitted to be true charged as follows:

"COUNT ONE

"1) In December 1971 Helen Rettburg employed respondent to arrange for the adoption of a new born baby by the said Helen Rettburg and her husband, Robert L. Rettburg.

"2) In December 1971 the said Helen Rettburg paid respondent one hundred dollars ($100.00) as a retainer fee toward the services to be rendered in connection with said adoption.

"3) At said time the natural mother of the adoptive child signed a consent to the adoption in the office of respondent.

"4) Respondent stated to Helen Rettburg that he would file the adoption petition within several weeks.

"5) Respondent failed to file said petition during approximately one year thereafter. Respondent, however, informed Helen Rettburg that he had filed the adoption petition when in fact he had not done so.

"6) After approximately an additional one-year period of time Robert L. Rettburg signed the petition for adoption at the office of respondent and at said time respondent requested Robert L. Rettburg to do furnace work for respondent. Robert I. Rettburg performed said work in order to expedite respondent's filing of the petition for adoption.

"7) Shortly thereafter respondent informed Helen and Robert Rettburg that they would receive the final adoption papers within two weeks.

"8) Respondent never filed the petition for adoption nor arranged for an adoption hearing at any time.

"9) Helen and Robert Rettburg retained other counsel who filed for adoption which was completed in December 1974. Said successive counsel was unable to obtain from respondent the natural mother's consent or other papers pertaining to the adoption.

"10) Upon request and after approximately three and one-half years, respondent paid to the successive counsel the sum of one hundred ($100) dollars originally paid as a retainer, which sum was credited to the account of Helen and Robert Rettburg by said successive attorney.

"11) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 6, Disciplinary Rule 6-101(A)(2) in neglecting a legal matter entrusted to him.

"12) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 7, Disciplinary Rule 7-101(A)(2) in failing to carry out a contract of employment entered into with a client for professional services."

Count 4 reads:

"1) In May, 1975, respondent was employed by Susan Hoover to file for a dissolution of marriage.

"2) A complete agreement has been reached by the said Susan Hoover and her husband.

"3) Respondent stated that he would reduce said agreement to writing, phone within two days to arrange for the execution of the agreement, and would then file the dissolution action.

"4) At said time respondent was paid the sum of three hundred dollars ($300.00) as a retainer fee.

"5) Respondent had not prepared said agreement or filed said action as of September 12, 1975, and no papers were filed in court.

"6) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 6, Disciplinary Rule 6-101(A)(3) in neglecting a legal matter entrusted to him.

"7) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 7, Disciplinary Rule 7-101(A)(2), in failing to carry out a contract of employment entered into with a client for professional services."

Counts 6 and 7 allege that:

"COUNT SIX

"1) On or about October 29, 1974, respondent was employed by Antoinette Soletz to represent her in the administration of the estate of her deceased husband, Alex Soletz.

"2) On or about said date, the said Antoinette Soletz paid respondent the sum of $250.00 towards estate costs and fees for services to be rendered in connection with the administration of said estate.

"3) Said estate proceedings were not filed by respondent until January 16, 1975, the same being in the Probate Court of Stark County, Ohio, Case No. 97934.

"4) Approximately 4 or 5 months transpired and no further action was taken by respondent in the processing of said estate.

"5) Repeated requests by said Antoinette Soletz for information about the estate and for appointments to discuss the estate at Mr. Lukens' office with his office staff and through his office were ignored and appointments made were not kept.

"6) Thereafter, upon request, respondent delivered the estate papers to other counsel for completion of the administration of the estate.

"7) No part of the fees advanced by Antoinette Soletz to respondent have been returned by the respondent.

"8) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 6, Disciplinary Rule 6-101(A)(3) neglecting a legal matter entrusted to him.

"9) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 7, Disciplinary Rule 7-101(A)(2) failing to carry out a contract of employment entered into with a client for professional services.

"COUNT SEVEN

"1) On or about October 29, 1973, Mary Adler employed respondent to file divorce proceedings against her husband.

"2) In October, 1973, Mary Adler paid to respondent the sum of $140.00.

"3) The said Mary Adler, after repeated efforts to contact respondent, was told by respondent that he had filed the complaint and that a hearing date would be scheduled.

"4) Respondent in fact had not filed a complaint and did not do so until April 30, 1974.

"5) Approximately eight months after employing respondent, other counsel completed the case and respondent then paid said $140.00 to said other counsel.

"6) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 6, Disciplinary Rule 6-101(A)(3) in neglecting a legal matter entrusted to him.

"7) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 7, Disciplinary Rule 7-101(A)(2) in failing to carry out a contract of employment entered into with a client for professional services."

Count 8 is as follows:

"1) In September, 1974, respondent went to the business office of one Wilbur Stewart doing business as Aluminum Sales Company and ordered an aluminum awning and railing to be installed at respondent's home.

"2) At said time or shortly thereafter, respondent was employed by the said Wilbur Stewart to collect a business account against a customer of the said Wilbur Stewart.

"3) Respondent stated that he would write a letter to the customer but that in the event of failure to collect through such procedure, would file suit and that the fee charged would be the regular and accepted collection fee.

"4) At said time the said Wilbur Stewart delivered to respondent bills, the contract, and all other papers in his possession pertaining to the customer involved.

"5) Thereafter, the said Wilbur Stewart was unable to contact respondent with regard to the collection account in spite of numerous calls to respondent's office.

"6) After numerous calls to respondent's office, the said Wilbur Stewart left word at respondent's office that he wished to have his papers in connection with said collection account returned to him in order to retain other counsel.

"7) In spite of numerous requests at respondent's office, the said Wilbur Stewart has been unable to obtain the return of his papers.

"8) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 6, Disciplinary Rule 6-101(A)(3) in neglecting a legal matter entrusted to him.

"9) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 7, Disciplinary Rule 7-101(A)(2) in failing to carry out a contract of employment entered into with a client for professional services.

"10) Relator says that respondent violated the Code of Professional Responsibility of the Supreme Court of Ohio, specifically Canon 9, Disciplinary Rule 9-102(B)(4) in failing to deliver to the client as requested by the client properties in the possession of respondent which the client was entitled to receive."

The admitted parts of count 11 charged:

"1) On or about November 20, 1974, respondent was employed by Douglas Davenport and Mark Brady to represent each as a co-defendant in Stark County Common Pleas Court, Case No. 74-4509, in which case each was charged by the state of Ohio with breaking and entering, grand theft and possession of burglary tools.

"2) At said time, Mark Brady paid respondent a retainer of one hundred dollars toward a fee of seven hundred fifty dollars and Douglas Davenport paid respondent seventy-five dollars as a retainer towards a fee of seven hundred fifty dollars.

"3) During the course of said pending criminal case, respondent failed to appear at several scheduled court hearings resulting in both criminal defendants being reprimanded by the presiding judge, William A. Morris.

"5) Shortly thereafter Douglas Davenport, from an insurance settlement check, paid to respondent thirteen hundred twenty-five dollars ($1,325), being the balance of the stated fee for both defendants.

"7) Thereafter co-defendants Douglas Davenport and Mark Brady withdrew their former pleas of `not guilty' on all counts, each pleaded guilty to the charge of breaking and entering, and the other counts were dismissed. Imposition of sentence was deferred to each pending probation hearings for both co-defendants.

"9) At a subsequent probation hearing, each defendant was sentenced to one-half to five years on the charge of breaking and entering (felony 4), execution of sentence was suspended, each defendant placed on probation for three years, but each was sentenced to serve sixty days in the Stark County Jail."

The paragraphs of count 12, admitted, were:

"1) Some time in the month of June, 1974, respondent was employed by John Joseph Zovath to represent him in the filing of a divorce action against his wife, Denise L. Zovath.

"2) On or about June 10, 1974, a petition for divorce was filed in Stark County Court of Common Pleas by respondent on behalf of John Joseph Zovath and on said date respondent was paid one hundred forty dollars ($140.00) and the said John Joseph Zovath was advised that the balance due would be two hundred fifty dollars ($250.00).

"3) In the month of September, 1974, a preliminary hearing (motion) was held.

"4) Throughout the time from filing the action for divorce until the time of the hearing on the motion, said John Joseph Zovath had extreme difficulty in getting in touch with respondent but on one occasion, which was successful, Mr. Zovath was informed by respondent that the case would soon be coming up.

"5) Some time in the month of February, 1975, said John Joseph Zovath talked to respondent who informed him that it would take approximately two years for the case to be heard unless an affidavit was filed which would cost an additional fifty dollars ($50.00).

"7) Respondent reported to said John Joseph Zovath that he had spoken to the judge and the case would soon be scheduled.

"9) Said John Joseph Zovath attempted to secure respondent's discharge but was unable to reach him and later was advised by respondent that he could have his file for a fee even though to that date respondent had been paid a total of four hundred forty dollars ($440.00)."

As to count 13, the following paragraphs were admitted:

"1) On or about the 19th day of May, 1973, the respondent was employed by Joel D. Baughman to represent him in the preparation and the filing of a petition for bankruptcy.

"2) On or about said date respondent was given the sum of fifty dollars ($50.00) for court costs and on the following day, said Joel D. Baughman paid respondent the sum of two hundred fifty dollars ($250) as a retainer fee for services to be rendered in connection with the filing of a petition for voluntary bankruptcy.

"8) Said Joel D. Baughman contacted the Stark County Bar Association and shortly thereafter other counsel contacted the said Joel D. Baughman reporting that he would handle the bankruptcy as a favor to respondent.

"9) On or about September 27, 1973, said other counsel filed the voluntary bankruptcy petition for which services no fees were charged by said other counsel."

These paragraphs of count 14 were admitted:

"1) In April, 1975, respondent was employed by Gary Walker to prepare a deed, record the same, bring to date an abstract of title and render a title opinion.

"7) In August, 1975, the office associate attorney of respondent contacted the said Gary Walker and thereafter delivered to him the executed deed for the property in question."

With respect to the above charges, the board of commissioners found that, based on the stipulations, testimony and other evidence, respondent violated the Code of Professional Responsibility, Canon 6, DR 6-101(A)(3) and Canon 7, DR 7-101(A)(2) and Canon 9, DR 9-102(B)(4). The board of commissioners recommended that Donald F. Lukens be indefinitely suspended from the practice of law.

Mr. Donald E. Fiely, Mr. Eugene Andrews and Mr. Ray L. Marchbank, for relator.

Mr. Harry W. Schmuck, for respondent.


In reviewing the record before us in this matter, it is manifest that there is a continuing and shocking lack of diligence by respondent in carrying out his responsibility as an attorney in representing his clients.

Count 1 was admitted by respondent. He testified that the file was somehow placed in his "dead files when he moved offices." The $100 that he had received was eventually forwarded to another attorney who completed the case.

Count 4, also admitted, involved a failure to file a petition for dissolution of marriage. Respondent claimed that he was in an automobile accident later that day; and that he still has the $300 retainer and is able and willing to make restitution.

Count 6, also admitted, occurred due to respondent's being in the hospital, and this was followed by his being absent from the office due to health problems. He retained the $250 deposit for court costs, for work completed, and for anticipated duties.

Count 7, also admitted, could not be recalled by respondent, except that the file was misplaced. Respondent did not dispute that Raymond Marchbank, one of the counsel for relator, took over and completed the case. Respondent indicated his willingness to reimburse the client.

Count 8, admitted, indicated that the respondent never returned the file to his client, although he claimed it was always available. The client felt that respondent should have mailed or delivered the file to him. Respondent maintained that the contract upon which he was to file suit was signed only by the wife, that she was deceased, and that he could not pursue the matter.

Count 9 involved the handling of a sizeable estate. Immediately upon being employed as attorney, respondent without any authorization secured $2,000 as part of his fee. Respondent claimed to have done considerable work on the estate and intimated further that he was always available for consultation. Mr. White, the son of the administratrix, disputed this claim and testified that 61 telephone calls and a number of visits were made to respondent's office without success. In any event, White eventually secured other counsel to complete the estate, specifically to file the fiduciary income tax return, the federal estate tax return, and the final account. Respondent alleged that the tax returns were in the process of being done by him. The estate paid the second attorney $1,200 to complete the estate. During the course of the administration of the estate, respondent received an additional $700 for his fees. Relator and respondent stipulated that the allowable attorney fee in this size estate would have been $2,746. The respondent was employed from on or about December 10, 1970, until June of 1972 when the file was obtained by White and turned over to the second attorney. The final account was eventually approved on July 23, 1973. There was no evidence of mishandling of funds by respondent.

Count 11 concerned respondent's representation of two defendants charged with breaking and entering, grand theft, and possession of burglary tools. Respondent was charged with failing to appear at several hearings, resulting in his clients being reprimanded by the judge. Eventually, a negotiated plea was made to breaking and entering only. After investigation by the probation department, the defendants were not notified by respondent to appear for sentencing. A capias was issued and the clients were brought before the judge and, as stipulated herein, received 60-day jail sentences, the remainder of their sentences being suspended. It was claimed that respondent had advised these clients that there would be no jail sentence. Respondent denied he ever intimated this. He claimed he did attempt to contact his clients and, in fact, although ill, personally went out looking for them late at night. After the incarceration, the mother of one of the clients, a Mrs. Davenport, felt her son could be released from jail if his employer could contact the judge. Respondent was allegedly called again and again to see if his assistance could be used to approach the judge. The net result was that the client Davenport served the entire 60 days. The judge appeared as a witness for relator and testified that at no time did he ever indicate that there would be no jail time. The respondent testified that he was in the hospital during part of the time and was also sick at home. He felt the retainer he received was justified and that, overall, he adequately represented his clients. He attributed part of the problem to lack of sufficient telephone numbers to reach his clients. This was disputed by Mrs. Davenport and her son.

Count 13 involved the representation of a client in a bankruptcy case. Respondent was paid the costs and fees to file the bankruptcy. He never did file the case, which resulted in another attorney's completing and filing same four or five months later at no charge to the client. On two occasions before the second attorney took the case, wage attachments were made against the client. Respondent claimed he became ill during this time and was in Arizona. He denied telling his client that he had filed the petition and intimated further that he advanced his own funds to pay one of the wage attachments.

Count 14, the final count, concerned yet another facet of general practice, a real estate transaction involving the preparation of a deed, the bringing up to date of an abstract, and the rendering of a title opinion. The client had advanced $50 to respondent for costs. Thereafter, no action was taken for several months. Ultimately, respondent's office associate did deliver the executed deed to the client. The client complained that he tried to contact respondent numerous times bout the matter. Respondent claimed that he was ill and not in the office much of this time. He stated he verbally approved the abstract, and that he was slow because the client owed him fees on a prior case. He did state he stands ready to provide title insurance or find and return the abstract.

Respondent testified at some length about his health problems. Since 1970, there is no question that respondent has been the victim of a debilitating persistent illness brought on by, among other things, a severe case of diabetes and porphyria. In addition, much of the medicine he took complicated his condition. He was confined to hospitals or at home on a number of occasions. He admitted that he could not function adequately much of the time, but since he had a rather large family to support, he kept hoping that things would improve and so proceeded as best he could. His doctor testified in some detail and supported respondent's position that over the past five or six years respondent was in constant trouble, severe pain, and in an extremely weak state due to his maladies. The panel felt that respondent's ailments were obvious merely by observing him during the hearings.

It is apparent that respondent's problems were directly linked to his physical and emotional conditions. Time and again respondent offered as a defense to the various charges that he was in the hospital, ill at home, or just unable to function properly at the office. All this gives rise to the basic question of whether a member of the legal profession should continue to hold himself out as an attorney in general practice, undertaking new and possibly complicated cases, when he has full knowledge of his condition and its attendant problems (which respondent obviously did). We do not believe he should. If a lawyer cannot stand the rigors of an active general practice due to his health problems, he should not be permitted to maintain a posture of competency and availability as regards the general public.

Respondent was warned several times by the Stark County Bar Association (officially and informally) that there were complaints against him. Still, he persisted in undertaking new cases and new clients when many of the prior matters were left unattended.

Respondent continues to attempt to practice law and desires to remain a member of the Ohio Bar although he recently has secured a position in Arizona as head of security for several race tracks. He testified that he is deeply in debt due to his hospital and doctor bills and, in fact, does not maintain any bank accounts for fear of attachment. He seldom visits his office. He currently is involved in a dispute with a client over representation in a driving-while-intoxicated case.

After a concerned and extended consideration of the record, the findings of the board of commissioners and the briefs, we are of the conclusion that there is overwhelming evidence to support the board's finding that respondent was in violation of the Code of Professional Responsibility, specifically, Canon 6, DR 6-101(A)(3), Canon 7, DR 7-101(A)(2) and Canon 9, DR 9-102(B)(4).

Therefore, respondent, Donald F. Lukens, is indefinitely suspended from the practice of law.

Judgment accordingly.

O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.