Akron Bar Assn. v. Hoffer

[This decision has been published in Ohio Official Reports at 86 Ohio St.3d 97.]

AKRON BAR ASSOCIATION v. HOFFER.

[Cite as Akron Bar Assn. v. Hoffer (1999), 86 Ohio St.3d 97.]

Attorneys at law—Misconduct—One-year suspension with six months of suspension stayed on

conditions—Neglecting entrusted legal matters—Failing to seek lawful objectives of

clients—Failing to carry out contracts of employment—Prejudicing or damaging client

during course of professional relationship—Engaging in conduct involving dishonesty,

fraud, deceit, or misrepresentation—Engaging in conduct adversely reflecting on fitness

to practice law—Failing to promptly return client’s files upon request—Failing to

cooperate in disciplinary investigation.

(No. 98-2640—Submitted May 4, 1999—Decided July 7, 1999.)

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

Supreme Court, No. 97-49.

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{¶ 1} On December 9, 1997, relator, Akron Bar Association, filed an amended complaint

charging respondent, Paul R. Hoffer of Akron, Ohio, Attorney Registration No. 0024962, with

violating several Disciplinary Rules and a Rule for the Government of the Bar. After respondent

answered, the matter was heard by a panel of the Board of Commissioners on Grievances and

Discipline of the Supreme Court (“board”).

{¶ 2} Based on the stipulations, exhibits, and testimony of the parties, the panel found that

in March 1996, the Akron Health Department ordered Sheralynn Y. Stevens to repair the roof on

her house, which she owned subject to a mortgage. When the mortgagee learned of the repair

order, it refused to accept any more mortgage payments from Stevens and filed a foreclosure action

in July 1996. After the health department issued an order to raze the house, Stevens retained

respondent and paid him $160 to file for an injunction to prevent the city from demolishing her

house while she made arrangements to have her roof fixed. Respondent did not file the action nor

did he subsequently advise Stevens that he had not filed it. On January 4, 1997, Stevens entered

into a contract to sell her home, and the purchaser sent a facsimile copy of the contract to

respondent. Respondent did not contact either the health department or the mortgagee, and on

January 7, the city razed the house. When Stevens informed respondent, he admitted that he had

never filed the injunction action. The panel concluded that respondent’s conduct violated DR 6-

101(A)(3) (neglecting an entrusted legal matter), 7-101(A)(1) (failing to seek lawful objectives of

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

or damaging client during course of professional relationship).

{¶ 3} The panel additionally found that in 1990, the partners of Didado Energy Systems

(“DES”) retained respondent to represent DES in a contract dispute and to institute a replevin

action against Lamson & Sessions Co., d.b.a. Kent Machine. Respondent filed suit and obtained

a common pleas court judgment in favor of DES, but the judgment was reversed on appeal because

the court of appeals determined that the contract dispute was subject to arbitration.

{¶ 4} DES retained respondent and another attorney to handle the arbitration proceedings,

and in 1994, the arbitrator ordered that if respondent did not file a brief electing remedies for DES

SUPREME COURT OF OHIO

by July 15, 1994, the arbitration would be dismissed without prejudice. Respondent did not file

the brief and did not notify DES or its partners that the brief had not been filed. In October 1994,

the American Arbitration Association (“AAA”) informed respondent that the case would be closed

unless it was advised otherwise within ten days. Respondent took no action, and the AAA notified

him that the case had been dismissed for inaction. Respondent did not inform DES or its partners

of the dismissal, and when Gary Didado, one of the DES partners, contacted respondent, he

represented to Didado that “things were progressing.”

{¶ 5} In May 1996, Didado discovered that the arbitration had been dismissed for inaction

in October 1994. Nevertheless, through 1997, respondent repeatedly asserted to Didado that the

arbitration had been voluntarily dismissed without prejudice despite knowing that it had been

dismissed due to his inaction. Respondent also failed to promptly return all of the files concerning

his representation of DES despite Didado’s numerous requests. DES subsequently refiled the

arbitration proceeding and received a significant award. After Didado filed a grievance against

respondent, respondent did not respond to the initial investigative inquiries by relator. The panel

concluded that respondent’s conduct violated DR 6-101(A)(3), 7-101(A)(1) and (2), 1-102(A)(4)

(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(6)

(engaging in conduct that adversely reflects on lawyer’s fitness to practice law), 9-102(B)(4)

(failing to promptly return client’s files upon request), and Gov.Bar R. V(4)(G) (failing to

cooperate in a disciplinary investigation).

{¶ 6} In mitigation, the panel found that, as respondent testified, his office procedures had

been lax and he had failed to follow up with his clients concerning his representation. It noted that

since the disciplinary proceeding began, respondent had entered into an office sharing arrangement

with other attorneys and that he had hired his own secretary to help alleviate some of his previous

office management problems. The panel found that respondent also suffered from sleep apnea,

which contributed to some of his forgetfulness and neglect, and that he was being treated for this

condition.

{¶ 7} The panel recommended that respondent receive a six-month suspension from the

practice of law in Ohio, with the entire suspension stayed on the conditions that respondent’s office

practice be monitored for six months, that respondent obtain certification by a physician that his

medical condition has been treated and no longer poses any interference with his ability to practice

law in Ohio, that respondent attend an additional six hours of continuing legal education on ethics

and professional responsibility in addition to his regular CLE requirements, that respondent

reimburse DES for the $1,568.78 in costs in connection with the dismissal of the arbitration

proceedings, and that respondent return the $160 retainer to Stevens. The board adopted the

findings and conclusions of the panel but recommended a harsher sanction because it found

respondent’s acts concerning the Didado matter to be deceitful. The board recommended that

respondent be suspended from the practice of law in Ohio for one year, with six months of the

suspension stayed upon the conditions recommended by the panel.

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Brouse & McDowell and Marc B. Merklin; Lee Peterson; James M. Campbell; and

Michael C. Scanlon, for relator.

James E. Banas and Gregg A. Manes, for respondent.

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January Term, 1999

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Per Curiam.

{¶ 8} We adopt the findings, conclusions, and recommendation of the board. “[W]hen an

attorney engages in a course of conduct that violates DR 1-102(A)(4), the attorney will be actually

suspended from the practice of law for an appropriate period of time.” Disciplinary Counsel v.

Fowerbaugh (1995), 74 Ohio St.3d 187, 191, 658 N.E.2d 237, 240. Here, respondent’s repeated

deceit regarding the arbitration proceedings constitutes a “course of conduct” rather than an

isolated act and consequently warrants an actual suspension from the practice of law. See, e.g.,

Cincinnati Bar Assn. v. Caliman (1998), 83 Ohio St.3d 461, 700 N.E.2d 857. Sleep apnea does

not exonerate respondent from punishment for his acts of deceit. See Cleveland Bar Assn. v.

Knowlton (1998), 81 Ohio St.3d 76, 689 N.E.2d 538. The panel’s recommendation of a stayed

suspension, which the board properly rejected, did not follow the Fowerbaugh prescription of an

“actual suspension.” Caliman, 83 Ohio St.3d at 462, 700 N.E.2d at 857.

{¶ 9} Accordingly, we suspend respondent from the practice of law in Ohio for one year,

with six months of the suspension stayed on the conditions that respondent’s office practice be

monitored for six months, that respondent obtain certification by a physician that his medical

condition has been treated and no longer poses any interference with his ability to practice law in

Ohio, that respondent attend an additional six hours of continuing legal education on ethics and

professional responsibility in addition to his regular CLE requirements, that respondent reimburse

DES for the $1,568.78 in costs in connection with the dismissal of the arbitration proceedings, and

that respondent return the $160 retainer to Stevens. Costs taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG

STRATTON, JJ., concur.

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