Stark Cty. Bar Assn.v.Tscholl

Supreme Court of OhioFeb 27, 1991
57 Ohio St. 3d 211 (Ohio 1991)
57 Ohio St. 3d 211567 N.E.2d 265

No. 90-1702

Submitted October 17, 1990 —

Decided February 27, 1991.

Attorneys at law — Misconduct — Public reprimand — Failure to timely file the judgment entry in a divorce action.

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-51.

By a complaint filed on August 28, 1989, relator, Stark County Bar Association, charged that respondent, John A. Tscholl, had violated DR 6-101(A)(3) (neglecting a legal matter entrusted to him). The claim arose out of respondent's failure to timely file the judgment entry in a divorce action, causing the action to be dismissed. Respondent answered the complaint on September 22, 1989 in which he substantially admitted all the allegations. The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on January 26, 1990. Prior to the hearing, respondent and relator entered joint stipulations.

According to the stipulations and exhibits, respondent was retained by Pearlene Green in 1985 for the purpose of securing a divorce. On her behalf, respondent filed and served Green's husband with the divorce papers. Subsequently, an uncontested hearing was held, at which time a previously negotiated separation agreement was approved. After the hearing, however, respondent failed to file a final entry of divorce. According to court records, respondent was notified on or about March 17, 1986 of his failure to file a final entry of divorce. The notice warned that the divorce action would be dismissed unless a judgment entry was filed by April 14, 1986. On April 18, 1986, the divorce action was dismissed and notice of the dismissal was given to respondent.

At the hearing, Green testified she contacted respondent several times in order to obtain a copy of the divorce decree. Each time she called, respondent reassured her he would send her a copy. Respondent confirmed receiving Green's phone calls and stated that he would direct his secretary to search the basement of his new office for Green's file as a result of Green's calls. However, the file was never found.

Respondent also stated that he never received notice that the final entry had not been filed or that the divorce action had been dismissed. However, Green learned from her husband that the divorce action was still not final. Green then pursued the matter at the courthouse and was eventually notified that her case had in fact been dismissed. She presented this information to respondent who attempted to find the papers in his basement. Not finding them, respondent requested that Green give him a week to rectify the situation.

Subsequently, Green filed this grievance. She also retained another attorney and paid that attorney a retainer of $100 to complete the divorce that respondent had failed to complete. Upon the filing of the grievance, respondent filed a motion to vacate the dismissal of the divorce, and the divorce was final on May 26, 1989. Respondent has since reimbursed Green the $100 she paid to the other attorney. Other than this, Green has not suffered any loss.

Based upon the foregoing, the panel found that respondent was guilty of violating DR 6-101(A)(3) (neglecting a legal matter entrusted to him). Before making its recommendation, the panel considered the relator's belief that this was an isolated incident. The panel also had before it evidence indicating respondent's expressed remorse, his full cooperation in relator's investigation, and his otherwise unblemished record as an attorney. The panel recommended that the respondent be publicly reprimanded. The board adopted the panel's findings and recommendation and also recommended that costs be taxed to respondent.

Baker, Meekison Dublikar and Gregory A. Beck, for relator.

John A. Tscholl, pro se.

Having thoroughly reviewed the record, we agree with the board's finding of misconduct. We also agree with the board's recommendation. Accordingly, we order that respondent be publicly reprimanded. Costs taxed to respondent.

Judgment accordingly.