Toledo Bar Assn. v. Dzienny

[This opinion has been published in Ohio Official Reports at 72 Ohio St.3d 173.]

TOLEDO BAR ASSOCIATION v. DZIENNY.

[Cite as Toledo Bar Assn. v. Dzienny, 1995-Ohio-307.]

Attorneys at law—Misconduct—Stayed six-month suspension—Conduct involving

dishonesty, fraud, deceit, or misrepresentation—Neglect of an entrusted

legal matter—Attempting to limit liability to client for malpractice.

(No. 94-1844—Submitted January 25, 1995—Decided May 10, 1995.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 94-07.

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{¶ 1} In a four-count complaint filed on February 22, 1994, relator, Toledo

Bar Association, charged respondent, Michael A. Dzienny of Toledo, Ohio,

Attorney Registration No. 0037618, with multiple Disciplinary Rule violations.

Count I alleged violations of DR 6-101(A)(2) (handling a legal matter without

adequate preparation) and 6-101(A)(3) (neglect of an entrusted legal matter).

Count II alleged violations of DR 7-101(A)(1) (failure to seek lawful objectives of

client), 7-101(A)(2) (failure to carry out contract of employment) and 7-101(A)(3)

(act which prejudices client). Counts III and IV alleged violations of DR 1-

102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and

Count IV alleged a violation of DR 6-102(A) (attempting to limit liability to client

for malpractice). Respondent answered, admitting most of the factual allegations

presented in the complaint. Respondent denied that any of those allegations

constituted ethical violations. The matter was heard by a panel of the Board of

Commissioners on Grievances and Discipline of the Supreme Court on June 22,

1994.

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{¶ 2} The panel found violations only of DR 1-102(A)(4) and 6-102(A).

The panel recommended a six-month suspension, itself suspended. The board

adopted the findings of fact and conclusions of law of the panel.

{¶ 3} On October 10, 1989, respondent was hired to represent Rhonda

Kimmelman and her husband with respect to injuries she allegedly sustained during

a medical diagnostic procedure at Flower Hospital on September 25, 1989. On

September 11, 1990, respondent sent letters to the hospital and its employees,

pursuant to R.C. 2305.11(B)(1), notifying them that a medical malpractice lawsuit

was being considered. The statute of limitations for filing such an action was

extended for one hundred eighty days by virtue of filing the notice. The statute of

limitations, as extended, expired on March 11, 1991. Respondent had not filed an

action against the hospital or its employees by that date.

{¶ 4} On March 26, 1991, respondent filed a lawsuit, based upon the above

claim, naming as defendants Flower Hospital, "John Doe" and "Jane Doe." The

hospital filed a motion to dismiss the suit against it and its employees because the

statute of limitations had expired prior to the filing of the lawsuit. The trial court

granted the motion to dismiss on September 12, 1991.

{¶ 5} In the interim between the filing of the motion to dismiss and the grant

of that motion, respondent filed a motion to amend the complaint to identify the

"John Doe" defendant as the manufacturer of the equipment used to perform the

diagnostic test upon his client. The motion to amend was granted by the trial court

on September 12, 1991, and an amended complaint was filed September 16, 1991.

On November 20, 1992, the respondent took the depositions of the technicians who

had operated the diagnostic machine.

{¶ 6} In a letter dated November 24, 1992, respondent advised the

Kimmelmans that, based upon the information obtained in the depositions of the

technicians taken four days earlier, the clients should take a $1,000 settlement

offered by the equipment manufacturer. He further advised them that, in his

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opinion, they did not have a claim against the hospital or its employees. This

opinion was in a sense correct, given the fact that the complaint had been dismissed

thirteen months earlier.

{¶ 7} In Count II, relator alleged that respondent had agreed to the

settlement of $1,000 from the manufacturer of the diagnostic equipment on behalf

of his clients, without their permission. Respondent denied that allegation, stating

that it was only a proposed settlement. The board found that the allegation had not

been proved by clear and convincing evidence and therefore dismissed Count II.

{¶ 8} By a letter dated December 17, 1992, the Kimmelmans discharged

respondent as their attorney, and subsequently obtained other counsel. At no time

prior to that date had respondent notified his clients that the case against the hospital

and technicians had been dismissed. It was not until the clients consulted other

counsel that they discovered the lawsuit had been dismissed and the dismissal was

the result of the respondent's failure to timely file the complaint.

{¶ 9} The new attorney negotiated a settlement with respondent and his

professional liability insurance carrier in the sum of $12,500, with respondent

paying $10,000 out of his own funds. The clients received another $1,000 from the

settlement negotiated by respondent.

{¶ 10} Based upon the above facts, the board found that the respondent had

committed misconduct by engaging in a continuing course of conduct of misleading

his clients concerning the status of their case and covering up his negligence in

missing the statute of limitations. The board found that the respondent had violated

both DR 1-102(A)(4) and 6-102(A). In recommending a sanction for respondent's

misconduct, the board considered the fact that the respondent had no previous

history of disciplinary complaints and that he had expressed remorse for his actions.

However, the board recommended, based upon the lengthy period of deception, that

the respondent be suspended for six months, with that suspension stayed. The board

did not recommend monitoring or probation.

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__________________

Scalzo, Cherry & Geudtner and Jonathan B. Cherry; and M. Susan

Swanson, for relator.

Marshall & Melhorn and Richard M. Kerger, for respondent.

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Per Curiam.

{¶ 11} In his only objection to the board's findings and recommendation,

respondent argues that he should receive a public reprimand instead of the six-

month stayed suspension recommended by the board. In its objection to the board's

report, relator argues that the board erred in not finding that respondent's conduct

also violated DR 6-101(A)(3) and 7-101(A)(2).

{¶ 12} In light of the significant and lengthy deception of his clients, the

respondent's argument that he deserves the lightest punishment possible under the

rules is without merit. Respondent relies solely upon Portsmouth Bar & Library

Assn. v. Stevenson (1994), 69 Ohio St.3d 37, 630 N.E.2d 337, for his position that

he should receive a public reprimand. Although Stevenson also involved an

attorney's failure to timely file suit and subsequent deception of his client as to the

status of the suit, the attorney in Stevenson eventually informed his client of his

misconduct. In this case, respondent's deceptions would never have been

uncovered if the clients had not retained another attorney to look into the matter.

As such, respondent's misconduct is worse than that committed by the attorney in

Stevenson and therefore deserves a greater punishment.

{¶ 13} In similar cases of misconduct, we have consistently imposed a

suspension or a suspended suspension as opposed to a public reprimand. 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. In Lorain Cty. Bar Assn. v. Motsch (1993), 66

Ohio St.3d 56, 607 N.E.2d 1069, we likewise held that deceiving clients about the

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fact that a suit had been filed on their behalf when that was not the case deserved a

suspended six-month suspension.

{¶ 14} Relator argues that the board erred in not finding that respondent's

conduct constituted a violation of DR 7-101(A)(2). However, relator asserted a

violation of that rule only in connection with Count II of the complaint. As noted

above, the board dismissed that count because it had not been proved by clear and

convincing evidence. We defer to the board and decline to disturb that finding. See

Cincinnati Bar Assn. v. Fennell (1980), 63 Ohio St.2d 113, 119, 17 O.O.3d 68, 72,

406 N.E.2d 1129, 1133.

{¶ 15} Relator also argues that the board erred in not finding that the failure

of respondent to timely file the lawsuit against the hospital and its employees

violated DR 6-101(A)(3). In order to violate DR 6-101(A)(3), an attorney's conduct

must constitute neglect. "Neglect involves an attorney's failure to advance a client

matter for which he has been retained. Neglect is different from negligence and

usually requires a pattern of disregarding obligations or repeated omissions by an

attorney." Guttenberg & Snyder, The Law of Professional Responsibility in Ohio

(1992) 201. Even though the failure to timely file a lawsuit, standing alone, may

not rise to a violation of DR 6-101(A)(3), we believe that respondent's failure to

timely file the lawsuit coupled with his continued deception of his clients does

constitute a violation of DR 6-101(A)(3). We reached the same result in Cuyahoga

Cty. Bar Assn. v. Caywood (1991), 62 Ohio St.3d 185, 580 N.E.2d 1076, where the

attorney missed the statute of limitations and then deceived his client about the

status of the case. See, also, Toledo Bar Assn. v. Westmeyer (1988), 35 Ohio St.3d

261, 520 N.E.2d 223; Columbus Bar Assn. v. Nichols, supra.

{¶ 16} Therefore, we hold that respondent violated DR 1-102(A)(4), 6-

101(A)(3) and 6-102(A). Even though we have found an additional violation, we

agree with the sanction recommended by the board. Accordingly, we order that

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respondent be suspended from the practice of law in the state of Ohio for six months

and that the suspension be stayed.

Judgment accordingly.

DOUGLAS, WRIGHT, RESNICK and PFEIFER, JJ., concur.

MOYER, C.J., F.E. SWEENEY and COOK, JJ., dissent.

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MOYER, C.J., dissenting.

{¶ 17} On March 11, 1991, respondent committed an act of negligence

when he permitted the statute of limitations governing a client's action to pass

without filing a complaint. Rather than limit his misconduct to a single act of

malpractice, respondent engaged in a lengthy course of fraud and deception

designed to cover up his mistake.

{¶ 18} On May 10, 1991, the named defendant in the underlying lawsuit

moved to dismiss and the respondent did not inform his clients of his error. On

September 12, the defendant's motion was granted and respondent did not inform

his clients. On that same day, respondent moved to amend the complaint so that

some claim might survive and again he did not inform his clients. On November

24, 1992, respondent finally communicated with his clients but still failed to be

truthful.

{¶ 19} Respondent admitted to missing the statute of limitations and to

failing to inform his clients in a "timely manner." Even this admission is not totally

honest. Respondent never informed his clients; in fact he misled them. It was not

until respondent had been discharged and new counsel retained that respondent's

failures were discovered. Respondent now argues that his cover-up was the result

of unusual circumstances unique to this case. He attempts to justify his conduct

rather than accept personal responsibility for his actions.

{¶ 20} Respondent argues that a public reprimand is the appropriate

sanction because his malpractice was committed on a matter involving the relative

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of a former associate whose performance he had criticized when he suggested the

associate leave the law firm. He suggests that his desire to avoid the embarrassment

of admitting malpractice under these circumstances is "a justification for a public

reprimand."

{¶ 21} The majority adopts the board's recommendation for a six-month

suspended suspension without any provision for monitoring or continuing review

of respondent's conduct. I cannot accept such an inadequate sanction for

respondent's conduct. We should all be troubled by the increasing number of cases

in which attorneys have deceived or lied to their clients. In my view there are few

violations of the Code of Professional Responsibility that are more severe than a

violation of DR 1-102(A)(4). As the majority indicates, we have stayed

suspensions of attorneys' licenses even where the attorneys' conduct constituted a

violation of DR 1-102(A)(4). However, the case before us is an excellent example

of why that disposition is no longer appropriate, where the attorney engages in a

course of conduct involving dishonesty, deceit, or misrepresentation.

{¶ 22} Had their lawsuit gone forward, the clients of respondent in this case

might have received no more than the amount of the settlement. It was not because

respondent came forward and admitted his deceit that his clients received

something more than that; it was because they were forced to seek new counsel in

order to discover that their attorney had violated his oath of office and the Code of

Professional Responsibility to their detriment. And for that, our disciplinary system

tells respondent not to do that again.

{¶ 23} It is time for a clear message from this court that when a lawyer

engages in a course of conduct that violates DR 1-102(A)(4), we will impose a

sanction which actually suspends the attorney from the practice of law for an

appropriate period of time. That message should be sent to those who question why

lawyers who lie to clients are permitted to continue practicing law without

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interruption, and to lawyers who apparently are assuming that the benefit for

deceiving clients is worth the risk of our sanction.

{¶ 24} For the foregoing reasons I would suspend respondent from the

practice of law for six months.

F.E. SWEENEY and COOK, JJ., concur in the foregoing dissenting opinion.

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