Disciplinary Counsel v. Boulger

[This opinion has been published in Ohio Official Reports at 88 Ohio St.3d 325.]

OFFICE OF DISCIPLINARY COUNSEL v. BOULGER.

[Cite as Disciplinary Counsel v. Boulger, 2000-Ohio-347.]

Attorneys at law—Misconduct—Six-month suspension with entire suspension

stayed—Engaging in conduct adversely reflecting on fitness to practice

law—Neglecting an entrusted legal matter—Failing to carry out

employment contract.

(No. 99-2241—Submitted February 9, 2000—Decided March 29, 2000.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 99-02.

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{¶ 1} On February 8, 1999, relator, Office of Disciplinary Counsel, filed a

complaint charging respondent, James Thomas Boulger of Chillicothe, Ohio,

Attorney Registration No. 0033873, with violating several Disciplinary Rules and

a Rule for the Government of the Bar. After respondent filed an answer, the matter

was heard by a panel of the Board of Commissioners on Grievances and Discipline

of the Supreme Court (“board”) on the stipulations of the parties and the testimony

of respondent.

{¶ 2} The panel found that in late 1993, Michael D. Maxey retained

respondent to represent him in a personal-injury matter arising from an automobile

accident. Although respondent frequently did not return Maxey’s telephone calls,

he filed a complaint on behalf of Maxey before the statute of limitations expired.

Respondent failed to timely respond to repeated attempts by the insurer of the other

vehicle to communicate with him and failed to file answers to interrogatories. In

August 1996, after opposing counsel filed a motion to compel compliance with the

discovery rules, respondent dismissed the case without informing Maxey.

Respondent did not protect Maxey’s rights by refiling the case during the year

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following the dismissal. Maxey later discovered that his case had been dismissed

after consulting another attorney in October 1997. Respondent admitted neglecting

the suit and failing to protect Maxey’s interests, and attributed his neglect to the

demands of his criminal law practice, which included an average of thirty to forty

jury trials per year.

{¶ 3} The panel further found that respondent had failed to answer relator’s

letters of inquiry regarding a grievance filed by Michael Maxey and grievances

filed by three other clients.

{¶ 4} The panel concluded that respondent’s conduct violated DR 1-

102(A)(6) (engaging in conduct adversely reflecting on fitness to practice law), 6-

101(A)(3) (neglecting an entrusted legal matter), and 7-101(A)(2) (failing to carry

out an employment contract), and Gov.Bar R. V(4)(G) (failing to cooperate with

disciplinary investigation).

{¶ 5} In mitigation, the panel found that respondent eventually cooperated

with relator and entered into stipulations on the facts, violations, and recommended

sanction. Respondent also lacked a prior record of violating Disciplinary Rules,1

did not exhibit any dishonest or selfish motive in neglecting the Maxey matter, and

showed remorse for his actions. In addition, respondent testified at the hearing

before the panel that in order to rectify some of the factors that contributed to his

neglect, he had limited his civil law practice.

{¶ 6} The panel recommended that respondent be suspended from the

practice of law in Ohio for six months, with the entire suspension stayed. The board

adopted the findings, conclusions, and recommendation of the panel.

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1. Respondent had, however, been previously suspended from the practice of law in Ohio for failing

to comply with the continuing legal education requirements of Gov.Bar R. X, and he was

subsequently reinstated. In re Report of the Comm. on Continuing Legal Edn. v. Boulger (1997),

79 Ohio St.3d 1410, 679 N.E.2d 726.

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January Term, 2000

Jonathan E. Coughlan, Disciplinary Counsel, and Kevin L. Williams,

Assistant Disciplinary Counsel, for relator.

James T. Boulger, pro se.

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Per Curiam.

{¶ 7} We adopt the findings, conclusions, and recommendation of the

board. “Although an indefinite suspension is [normally] warranted when a pattern

of neglecting legal matters is coupled with a failure to cooperate in the ensuing

disciplinary investigation, there is no pattern of neglect related to multiple clients

here.” Cleveland Bar Assn. v. Cicirella (1999), 86 Ohio St.3d 544, 545, 715 N.E.2d

1131, 1132. Given respondent’s lack of a prior disciplinary record, absence of a

dishonest or selfish motive related to his neglect, relatively isolated nature of his

neglect, eventual cooperation in the disciplinary proceedings, and remorse, a less

severe sanction is appropriate. See, e.g., Disciplinary Counsel v. Brown (1999), 87

Ohio St.3d 316, 321-322, 720 N.E.2d 525, 529-530, fn. 1 and 2, and Board of

Commissioners on Grievances and Discipline, Proposed Rules and Regulations

Governing Procedure on Complaints and Hearings, Section 10, Guidelines for

Imposing Lawyer Sanctions, Ohio Official Reports, Nov. 22, 1999 Advance Sheets

xli, xliv-xlv, setting forth appropriate mitigating factors to consider in imposing

sanctions. Respondent is hereby suspended from the practice of law in Ohio for six

months with the entire suspension stayed. Costs taxed to respondent.

Judgment accordingly.

DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG

STRATTON, JJ., concur.

MOYER, C.J., concurs in part and dissents in part.

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MOYER, C.J., concurring in part and dissenting in part.

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{¶ 8} I concur in the order that suspends respondent from the practice of

law for six months. To the extent that our order stays the suspension, I dissent.

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