Columbus Bar Assn. v. Patterson

[This opinion has been published in Ohio Official Reports at 86 Ohio St.3d 23.]

COLUMBUS BAR ASSOCIATION v. PATTERSON.

[Cite as Columbus Bar Assn. v. Patterson, 1999-Ohio-337.]

Attorneys at law—Misconduct—Six-month suspension—Failing to return unearned

portion of retainer fee—Failing to cooperate in disciplinary investigation—

Failing to register with Clerk of the Supreme Court for the 1997-1999

biennium—Failing to notify Attorney Registration Office of current

residence and office addresses.

(No. 99-370—Submitted April 20, 1999—Decided June 16, 1999.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 98-17.

__________________

{¶ 1} On April 6, 1998, relator, Columbus Bar Association, filed a three-

count complaint charging respondent, Brent P. Patterson of New Albany, Ohio,

Attorney Registration No. 0044103, with violating several Disciplinary Rules and

the Rules for the Government of the Bar. After relator unsuccessfully attempted to

serve respondent at his last known address, relator served the Clerk of the Supreme

Court pursuant to Gov.Bar R. V(11)(B). Respondent failed to answer or otherwise

plead within the time permitted by Gov.Bar R. V(6)(F), and relator’s motion for

default judgment was considered by a panel of the Board of Commissioners on

Grievances and Discipline of the Supreme Court (“board”).

{¶ 2} Based on the complaint and exhibits attached to the motion, in the first

count, the panel found that in May 1996, Stephen P. Krumlauf retained respondent

in a domestic relations proceeding by paying him a $1,000 fee, which was to be

held during respondent’s representation of Krumlauf and then applied against the

final billing. In addition, as the matter proceeded, Krumlauf paid respondent

$725.96 for legal work performed.

SUPREME COURT OF OHIO

{¶ 3} In November 1996, respondent sent Krumlauf a letter advising him

that he was taking an “extended leave of absence” from the practice of law because

of his fiancée’s battle with cancer. Respondent cooperated fully with Krumlauf’s

new counsel in transferring files concerning the domestic relations matter, but

despite Krumlauf’s requests, respondent never returned the $1,000 retainer, which

he had not earned. The panel concluded that respondent’s conduct violated DR 1-

102(A)(1) (violating a Disciplinary Rule) and 2-110(A)(3) (failing to promptly

refund any unearned part of a fee paid in advance).

{¶ 4} For the second count, the panel found that once Krumlauf asked

relator to assist him in recovering the retainer, relator was unsuccessful in its

attempts to locate respondent. And because he could not be located, the panel found

that respondent did not respond to or otherwise cooperate in the disciplinary

proceeding arising from the Krumlauf matter. The panel concluded that respondent

violated Gov.Bar R. V(4)(G) (failing to cooperate in a disciplinary investigation)

and DR 1-102(A)(1).

{¶ 5} On the third count, the panel found that respondent did not register

with the Clerk of the Supreme Court for the 1997-1999 biennium and did not

apprise the Attorney Registration Office of his current address. The panel

concluded that respondent violated Gov.Bar R. VI(1)(A) (duty to register) and

VI(1)(D) (duty to notify Attorney Registration Office of current residence and

office addresses) as well as DR 1-102(A)(1).

{¶ 6} The panel recommended that respondent be indefinitely suspended

from the practice of law in Ohio with his reinstatement contingent upon his refund

of the unearned retainer fee, with interest, and his certification of a current address.

The board adopted the findings and conclusions of the panel, but instead

recommended that respondent be suspended from the practice of law in Ohio for

six months and that he make full restitution of unearned retainer fees with interest.

__________________

2

January Term, 1999

Taft, Stettinius & Hollister and David L. Johnson; Bruce A. Campbell, for

relator.

__________________

Per Curiam.

{¶ 7} We adopt the findings of the board. Respondent’s fiancée’s health

problems do not excuse his misconduct. See, e.g., Cuyahoga Cty. Bar Assn. v.

Curry (1997), 79 Ohio St.3d 181, 185, 680 N.E.2d 966, 969, where we noted,

“While sympathy can be found for respondent’s ill health, ill health is no excuse

for a failure to cooperate with disciplinary proceedings.” See, also, Butler Cty. Bar

Assn. v. Packard (1994), 70 Ohio St.3d 539, 540, 639 N.E.2d 1152, 1153.

Nevertheless, we do not concur with the board’s findings that respondent’s conduct

in the second and third counts violated a “Disciplinary Rule” for purposes of DR

1-102(A)(1). Instead, respondent’s conduct in these counts violated the Rules for

the Government of the Bar, which are not Disciplinary Rules. Butler Cty. Bar Assn.

v. Doll (1997), 80 Ohio St.3d 273, 274, 685 N.E.2d 1233, 1234; see, also, Preface

to Code of Professional Responsibility. We adopt the board’s remaining

conclusions.

{¶ 8} Given respondent’s misconduct, most notably his violation of DR 2-

110(A)(3) by failing to return the unearned portion of the retainer fee and his failure

to cooperate in the ensuing disciplinary proceeding, we concur with the board that

a six-month suspension and an order to make restitution are warranted. Cf.

Cleveland Bar Assn. v. Schuman (1998), 81 Ohio St.3d 185, 187, 690 N.E.2d 1, 2,

in which we imposed a comparable sanction for misconduct that included violations

of DR 2-110(A)(3) and Gov.Bar R. V(4)(G). Accordingly, respondent is hereby

suspended from the practice of law in Ohio for six months, and he is ordered to

make full restitution of the retainer fee plus interest. Costs taxed to respondent.

Judgment accordingly.

3

SUPREME COURT OF OHIO

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

LUNDBERG STRATTON, JJ., concur.

__________________

4