The opinion
[This opinion has been published in Ohio Official Reports at 89 Ohio St.3d 82.]
LORAIN COUNTY BAR ASSOCIATION v. FERNANDEZ.
[Cite as Lorain Cty. Bar Assn. v. Fernandez, 2000-Ohio-112.]
Attorneys at law—Misconduct—Indefinite suspension—Engaging in a pattern of
neglect involving multiple clients—Refusing to cooperate in disciplinary
investigations.
(No. 99-2265—Submitted February 9, 2000—Decided May 24, 2000.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 99-09.
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{¶ 1} In November 1995, Joshua Robles retained respondent, Yolanda
Fernandez of Lorain, Ohio, Attorney Registration No. 0062647, to dissolve a
partnership for a vending-machine business. As a result of a February 1997
arbitration hearing to attempt to settle the case, the arbitrator advised the parties to
have the business appraised, and Robles gave respondent the name of an appraiser
to contact. Several months passed before respondent contacted the appraiser; and
after the appraiser declined to perform the appraisal, Robles gave respondent the
name of a second appraiser. Respondent contacted the second appraiser in
November 1997, but did not otherwise proceed or contact Robles. When Robles
requested his file so that he could get another attorney to handle the dissolution,
respondent refused to return it.
{¶ 2} In January 1997, Amy McDonald retained respondent to represent her
in a bankruptcy matter. McDonald paid respondent $625 to cover the filing and
attorney fees. McDonald made numerous attempts to contact respondent, and
eventually reached her, only to be told that respondent needed additional
information. McDonald provided the additional information, but respondent never
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filed the bankruptcy case. After McDonald filed a grievance, respondent failed to
respond to a letter of inquiry by relator, Lorain County Bar Association.
{¶ 3} Carmen Belingeri retained respondent to file a lawsuit against her
insurance company. The case was scheduled for a September 1997 arbitration
hearing, but was dismissed when neither Belingeri nor respondent appeared.
Respondent did not notify Belingeri to attend the hearing and subsequently
represented to Belingeri that the case was still active. In July 1998, Belingeri
discovered the dismissal when she checked the court records herself. Respondent
did not respond to a letter of inquiry sent by relator concerning a grievance filed by
Belingeri against her.
{¶ 4} In May 1996, the Lorain County Common Pleas Court appointed
respondent to represent Walter Wade in a criminal case. Respondent advised Wade
that if he pled guilty to drug trafficking, he would receive probation. Wade pled
guilty but received a sentence of eighteen months in prison. Respondent then
advised Wade to file a motion for shock probation. Wade handed respondent the
pertinent papers to file, but she never filed the motion. Respondent also failed to
respond to relator’s inquiry concerning Wade’s subsequent grievance about her
representation.
{¶ 5} In September 1997, Rosa Bonilla retained respondent to file for
divorce on her behalf. Bonilla paid respondent $350 to file the divorce action, but
respondent never filed it. In the meantime, however, Bonilla’s husband was
apparently able to establish venue in Texas, and in January 1998, Bonilla learned
that her husband had filed for divorce in Texas. In August 1998, Bonilla’s husband
informed her that their divorce had been finalized following respondent’s failure to
answer on her behalf. After Bonilla filed a grievance, respondent failed to respond
to relator’s letter of inquiry.
{¶ 6} On August 2, 1999, relator filed an amended complaint charging
respondent with multiple violations of Disciplinary Rules and a Rule for the
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January Term, 2000
Government of the Bar. Respondent failed to answer, and the matter was submitted
to a panel of the Board of Commissioners on Grievances and Discipline of the
Supreme Court (“board”) on relator’s motion for default judgment pursuant to
Gov.Bar R. V(6)(F).
{¶ 7} The panel found the facts as previously set forth and concluded that
by her conduct, respondent had violated DR 6-101(A)(3) (neglecting an entrusted
legal matter) in the Robles, McDonald, Belingeri, Wade, and Bonilla matters, 7-
101(A)(2) (failing to carry out a professional services employment contract) in the
McDonald, Wade, and Bonilla matters, 7-101(A)(3) (prejudicing or damaging
client during the course of the professional relationship) in the Bonilla matter, and
Gov.Bar R. V(4)(G) (neglecting or refusing to testify in a disciplinary investigation
or hearing) in the McDonald, Belingeri, Wade, and Bonilla matters. The panel
essentially found that there were no mitigating circumstances and recommended
that respondent be indefinitely suspended from the practice of law in Ohio. The
board adopted the findings, conclusions, and recommendation of the panel.
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Snoble, Snoble, Tonry & Innes and Gerald A. Innes, for relator.
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Per Curiam.
{¶ 8} We adopt the findings, conclusions, and recommendation of the
board. Absent mitigating circumstances, an indefinite suspension from the practice
of law is an appropriate sanction when an attorney engages in a pattern of neglect
involving multiple clients and refuses to cooperate in the ensuing disciplinary
investigations. See Disciplinary Counsel v. Henderson (1999), 87 Ohio St.3d 219,
221, 718 N.E.2d 1277, 1279. No mitigating factors are evident that would warrant
a lesser sanction for respondent’s reprehensible conduct here. Respondent is
hereby indefinitely suspended from the practice of law in Ohio. Costs taxed to
respondent.
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Judgment accordingly.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
MOYER, C.J., and COOK, J., dissent.
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COOK, J., dissenting.
{¶ 9} I agree with the findings and conclusions of the board, but determine
that disbarment is the appropriate sanction here. When respondent repeatedly
neglected entrusted legal matters, she violated the duties of diligence that she owed
to her clients. The ABA Standards for Imposing Lawyer Sanctions1 provide that
“[d]isbarment is generally appropriate when * * * a lawyer knowingly fails to
perform services for a client and causes serious or potentially serious injury to a
client; or * * * a lawyer engages in a pattern of neglect with respect to client matters
and causes serious or potentially serious injury to a client.” Standards 4.41(b) and
(c).
{¶ 10} Five of respondent’s clients were seriously prejudiced by
respondent’s violations. Two of them paid respondent significant sums to file
actions, which were never filed. A third found her lawsuit dismissed when
respondent failed to attend a scheduled arbitration hearing and failed even to notify
the client that the hearing was taking place. A fourth client waited months for
respondent to secure an appraiser, which never occurred. And another of
respondent’s clients, a criminal defendant, relied on respondent’s erroneous
guarantee of probation and then waited in vain for respondent to file the requested
motion for shock probation. In four of these five matters, respondent disregarded
1. See ABA Center for Professional Responsibility, Standards for Imposing Lawyer Sanctions
(1991 & Amend.1992).
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relator’s letters of inquiry, and respondent has failed to respond to relator’s
amended complaint.
{¶ 11} The majority chooses to adopt the board recommendation to suspend
respondent indefinitely. But the panel and board reports cite no mitigating factors,
and I find none in this record. Instead, the panel and board reports contain
aggravating factors that reflect the board’s own recently proposed Guidelines for
Imposing Lawyer Sanctions.2 Respondent’s pattern of misconduct, multiple
offenses, and failure to cooperate with the disciplinary investigation should all be
considered in favor of a more severe sanction.
{¶ 12} This court has previously disbarred attorneys for violations of DR 6-
101(A)(3) when those violations were, as here, coupled with a refusal to return
client files and an utter disregard for the disciplinary process. See, e.g., Cleveland
Bar Assn. v. Johnson (1998), 84 Ohio St.3d 146, 702 N.E.2d 409; Cuyahoga Cty.
Bar Assn. v. Clower (1998), 84 Ohio St.3d 151, 702 N.E.2d 412.
{¶ 13} Because I believe that disbarment is the appropriate sanction in this
case, I respectfully dissent.
MOYER, C.J., concurs in the foregoing dissenting opinion.
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2. See Board of Commissioners on Grievances and Discipline, Proposed Rules and Regulations
Governing Procedure on Complaints and Hearings, Sections 10(A)(3), (4), and (5), Guidelines for
Imposing Lawyer Sanctions.
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