The opinion
[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 285.]
RICHLAND COUNTY BAR ASSOCIATION ET AL. v. BRICKLEY.
[Cite as Richland Cty. Bar Assn. v. Brickley, 2002-Ohio-6416.]
Attorneys at law—Misconduct—Indefinite suspension with reinstatement, if any,
subject to conditions—Neglecting or mishandling cases of fifteen different
clients—Failing to respond to requests for information during
investigation of misconduct.
(No. 2002-1087—Submitted August 27, 2002—Decided December 4, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-91.
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Per Curiam.
{¶1} We are asked in this case to determine the sanction for an attorney who
neglected or otherwise mishandled the cases of 15 different clients and who failed
to respond to requests for information during the investigation of this misconduct.
The Board of Commissioners on Grievances and Discipline found that respondent,
Barry F. Brickley of Mansfield, Ohio, Attorney Registration No. 0011435,
committed these acts and thereby violated several Disciplinary Rules and Gov.Bar
R. V. The board recommended that respondent be indefinitely suspended from the
practice of law with specific conditions to be met before reinstatement will be
considered. We agree that respondent’s misconduct and the mitigating
circumstances surrounding it, particularly his depression and alcoholism, justify an
indefinite suspension.
{¶2} In an amended complaint filed on March 15, 2002, relators,
Disciplinary Counsel and the Richland County Bar Association, charged
respondent with numerous violations of the Code of Professional Responsibility
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and Gov.Bar R. V(4)(G).1 Relators and respondent subsequently entered into
stipulations concerning the alleged misconduct and mitigating circumstances
underlying the complaint. A panel of the board heard the cause and made the
following findings.
I. Misconduct
A
{¶3} In 1999, respondent violated DR 6-101(A)(3) (neglecting an entrusted
legal matter) and 7-101(A)(2) (failing to carry out a contract for professional
services) by accepting $750 from a client to prepare and file documents for the
appointment of a guardian for the client’s sister. Respondent prepared the
documents and his client signed them, but respondent never filed them.
B
{¶4} Respondent violated DR 6-101(A)(3) by failing to file a Qualified
Domestic Relations Order for a client after her divorce was finalized in December
1999. The client stood to receive one-half of the value of her ex-husband’s 401(k)
fund from the divorce decree. The client repeatedly asked respondent to complete
the work and he promised that he would, but he never did.
C
{¶5} In 1999, respondent violated DR 6-101(A)(3), 7-101(A)(1) (failing to
seek client’s lawful objectives), and 7-101(A)(2). He failed to respond to a motion
for summary judgment while defending a client in a civil suit, and then he did not
file a motion for relief from the resulting $25,965.70 judgment against his client as
he had promised. And in a separate civil case against the same client, respondent
1. On April 23, 2002, we imposed an interim remedial suspension of respondent’s license to practice
law pursuant to Gov.Bar R. V(5a)(B) because the pattern of respondent’s alleged misconduct posed
a substantial threat of serious harm to the public. Disciplinary Counsel v. Brickley (2002), 95 Ohio
St.3d 1430, 766 N.E.2d 997.
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January Term, 2002
failed to answer the complaint, and a default judgment was entered against the
client.
D
{¶6} Respondent also violated Gov.Bar R. V(4)(G) by failing to cooperate
in the Disciplinary Counsel’s investigation of grievances concerning the three
clients mentioned in subsections A, B, and C, as well as two other clients. From
December 1999 through April 2001, respondent failed to answer numerous
certified letters of inquiry in these matters for which he or his agent had signed the
return receipt.
E
{¶7} In 1996, respondent violated DR 2-106 (charging an illegal or clearly
excessive fee), 6-101(A)(3), 7-101(A)(2), and 9-102(B)(4) (failing to promptly
return client’s funds) after accepting $520 from a client to establish a guardianship
for the client’s aunt. Respondent never filed the guardianship papers and failed to
return the client’s telephone calls about the matter. At one point, respondent
promised a bar association investigator that he would remedy the situation, but he
failed to return the money paid to him as a retainer.
F
{¶8} In 1998, respondent violated DR 6-101(A)(3) by promising to bring a
lawsuit on a couple’s behalf concerning a physical assault. The clients paid
respondent a $400 retainer and $126 for a filing fee, but he did not file the action.
In December 1999, respondent returned the couple’s money, but during the interim,
the statute of limitations on the clients’ assault claim expired.
G
{¶9} Respondent violated DR 1-102(A)(4) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation) and 6-101(A)(3) by promising to
prepare and file a shared-parenting agreement for a client in March 1999. After the
mother of the client’s child missed several appointments to sign the agreement,
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respondent agreed to file an action on the client’s behalf to obtain custody or be
awarded visitation rights. In September or October 1999, respondent told his client
that the necessary papers had been filed and that he was just waiting for them to be
returned. But in November 1999, the client learned that respondent had not filed
the papers and discharged him.
H
{¶10} Respondent violated DR 6-101(A)(3) and 7-101(A)(1) by promising
to prepare and file a client’s 1998 income tax return. Respondent obtained an
extension until August 1999 to file the return but did not return his client’s calls or
meet with her to finish the return. In October 1999, the client filed for bankruptcy
and in December 1999, the client’s bankruptcy trustee asked respondent for the
client’s tax return or her records. Respondent failed to provide them. Respondent
later had a bookkeeping service prepare the 1998 return, and he so advised his client
in March 2000, after she had filed a grievance against him.
{¶11} Respondent also agreed to file a motion to expunge a previous
criminal conviction for this client. He never filed the motion, and the client retained
the services of another attorney, who ultimately obtained the expungement.
I
{¶12} In April 2000, respondent violated DR 6-101(A)(3) and 7-101(A)(2)
after promising to complete a change of custody agreement for a client whose ex-
wife had already agreed to the new arrangement. Respondent assured the client
that the process would take only a few weeks and that he would prepare the agreed
judgment entry. Respondent never filed the papers necessary to change custody of
the client’s child.
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J
{¶13} Respondent violated DR 1-102(A)(5) (engaging in conduct that is
prejudicial to the administration of justice) and 7-101(A)(2) and (3) (intentionally
causing client damage or prejudice) after he agreed to represent a client in several
pending criminal matters, including two traffic offenses and a probation violation
case. In March 2000, the client’s husband paid respondent $3,100 with the
understanding that all the money would go to court costs, fines, and fees for the
reinstatement of his wife’s driver’s license. Respondent did not place these funds
in a client trust account.
{¶14} In May 2000, respondent paid the client’s fines and court costs in full,
a total of $614. In November of that year, he sent a $1,359 check toward his client’s
$2,415 license reinstatement fee. Also in November, respondent took $1,754 in
fees from the client’s funds without authority from his client. He eventually
returned $750 of his fee, but the check he wrote for the client’s license reinstatement
fee was returned for insufficient funds. Respondent later paid the license
reinstatement fee. During the investigation of this misconduct, respondent tried to
get his client’s husband to sign a letter that respondent had prepared to send to the
Richland Bar Association explaining respondent’s use of the funds, but the husband
refused.
K
{¶15} Respondent violated Gov.Bar R. V(4)(G) by failing to cooperate in
the Richland County Bar Association’s investigation of his misconduct. During
September and October 2000, respondent failed to answer several requests for
information concerning the grievance of the client described in subsection I herein.
During December 2000 and January 2001, he also failed to keep several meetings
with relator to discuss the grievance of the client described in subsection J herein.
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L
{¶16} Respondent violated DR 1-102(A)(6) (engaging in conduct that
adversely reflects on an attorney’s fitness to practice law) and 6-101(A)(3) after
agreeing in April 2001 to represent a client in a divorce proceeding. By July 6,
2001, the client had paid respondent $625, and respondent had assured him that the
divorce would be completed by December of that year. When the client later
discovered that a hearing had not been scheduled for December 2001, respondent
assured him that the divorce would be completed in January 2002. Respondent had
not filed the complaint for divorce at the time he made this representation. In fact,
respondent did not initiate the client’s divorce proceedings until February 2002.
M
{¶17} Respondent violated DR 6-101(A)(3) and 9-102(B)(4) during 2001
and 2002 after promising to represent a client in a criminal proceeding, a contempt
proceeding against her husband, and a motion to modify child support. The client
paid respondent $350 to appear on her behalf in the criminal case and $150 to
handle the contempt and support cases. Respondent did appear in court but did
nothing in the other two matters. However, he withdrew the client’s $500 from his
client trust account. He has since promised to repay $150 but has not.
N
{¶18} In 2001, respondent violated DR 6-101(A)(3) after agreeing in June
to work pro bono for a client who wanted to arrange for her husband to adopt her
children. The client paid $156 for filing fees, and respondent represented that he
would have the adoption completed in six weeks. He also advised her on two
separate occasions that a hearing had been scheduled even though he had not yet
filed anything in court. In October 2001, the client learned from the court that
respondent had still not filed the adoption documents, so she took her records and
filing fee back from respondent and filed the case herself.
O
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{¶19} Respondent violated DR 6-101(A)(3) during 2001 after he agreed to
represent a client who wanted a divorce so that he could marry his girlfriend in June
of that year. The client’s girlfriend paid respondent $750. In March 2001,
respondent represented that the client had a court date in June even though he had
not yet filed the case. Respondent finally filed a complaint for divorce on June 11,
2001.
P
{¶20} Respondent violated DR 1-102(A)(4) and 6-101(A)(3) after he
agreed in July 2001 to represent a client pro bono in a personal injury matter and to
contact an insurance carrier concerning the matter. Respondent told his client that
he was in the process of settlement negotiations when, in fact, he was not. He also
falsely represented that the carrier had twice attempted to deliver settlement checks
to his office. The client later learned that respondent had told these lies just to get
the client “off his back.”
Q
{¶21} Finally, respondent violated Gov.Bar R. V(4)(G) by failing to answer
Disciplinary Counsel’s requests for information about grievances filed by the
clients described in subsections N, O, and P, as well as two other clients.
II. Recommendation
{¶22} In recommending a sanction for this misconduct, the panel
considered the factors stipulated as mitigating, which were corroborated by the
forthright testimony of respondent, a professional acquaintance and friend of
respondent, and respondent’s treating psychologist. The panel learned that
respondent had been a competent practitioner prior to the events at issue but was
subsequently devastated by the decline of his marriage and eventual divorce. His
despondency led to alcoholism, three convictions for driving while under the
influence of alcohol, and, in January 2000, hospitalization. The panel determined
that respondent’s misconduct over the preceding years had stemmed from his
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personal misfortunes and the condition diagnosed by his psychologist —
depression/anxiety adjustment disorder with mixed emotional features and alcohol
dependence. The panel also determined that respondent had been treated for this
condition and is now in recovery.
{¶23} Taking into account (1) the above-mentioned factors, (2) that
respondent’s misconduct was similar to the misconduct in Toledo Bar Assn. v.
Godbey (2002), 94 Ohio St.3d 416, 763 N.E.2d 1156, and Cincinnati Bar Assn. v.
Kieft (2002), 94 Ohio St.3d 429, 763 N.E.2d 1167, and (3) that relators stipulated
to a sanction of indefinite suspension, the panel recommended that respondent be
suspended indefinitely from the practice of law. The panel also recommended that
respondent’s reinstatement be conditioned on his documented reimbursement of
$750 to the client described in subsection A herein, $520 to the client described in
subsection E herein, and $150 to the client described in subsection M herein, in
addition to the requirements of Gov.Bar R. V(10). The panel further recommended
that respondent document his completion of 12 hours of accredited continuing legal
education courses in office management and that he enter into and satisfactorily
complete a Lawyer’s Support System Recovery Contract under the supervision of
the Ohio Lawyers Assistance Program, Inc. Finally, the panel recommended that,
if reinstated, respondent should serve a two-year probation period monitored by an
attorney selected by the Richland County Bar Association.
{¶24} The board adopted the panel’s findings of misconduct and
recommendation, and we agree with its decision. Disbarment is ordinarily the
sanction when an attorney’s misconduct permeates his practice in the way that
respondent’s misconduct did in this case. Cleveland Bar Assn. v. Glatki (2000), 88
Ohio St.3d 381, 726 N.E.2d 993. However, even when disbarment is otherwise
appropriate, we have tempered our disposition if sufficient mitigating factors exist
and the board recommends it. Cleveland Bar Assn. v. Harris, 96 Ohio St.3d 138,
2002-Ohio-2988, 772 N.E.2d 621, at ¶ 6. We consider this to be such a case.
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{¶25} Accordingly, respondent is indefinitely suspended from the practice
of law in Ohio, and his reinstatement, if any, will be subject to the recommended
conditions. Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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David L. Remy; Brown, Bemiller, Murray & McIntyre, L.L.P., and J.
Jeffrey Heck, for relator Richland County Bar Association.
Jonathan E. Coughlan, Disciplinary Counsel, and Dianna M. Anelli,
Assistant Disciplinary Counsel, for relator Office of Disciplinary Counsel.
Barry F. Brickley, pro se.
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