The opinion
[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 292.]
COLUMBUS BAR ASSOCIATION v. FOSTER.
[Cite as Columbus Bar Assn. v. Foster, 2002-Ohio-6415.]
Attorneys at law—Misconduct—Permanent disbarment—Repeatedly taking
clients’ money without performing promised legal services—Failing to
cooperate in investigation of misconduct—Failing to comply with a
previous order indefinitely suspending license to practice law.
(No. 2002-1107—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. 02-03.
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Per Curiam.
{¶1} This case requires us to decide the sanction for an attorney who
repeatedly took his clients’ money without performing promised legal services,
failed to cooperate in the investigation of his misconduct, and did not comply with
a previous order suspending indefinitely his license to practice law in Ohio. The
Board of Commissioners on Grievances and Discipline found that respondent,
Thomas Joseph Foster of Bexley, Ohio, Attorney Registration No. 0058540,
committed these acts and others in violation of the Code of Professional
Responsibility and recommended that he be disbarred. We agree that this
misconduct warrants disbarment.
{¶2} In a complaint filed on February 4, 2002, relator, Columbus Bar
Association, charged respondent with nine counts of professional misconduct.
Respondent was served with the complaint but did not answer, and relator moved
for default. See Gov.Bar R. V(6)(F). A master commissioner for the board
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considered the motion and made the following findings of fact and conclusions of
law.
I. Misconduct
A
{¶3} With respect to Count One, the master commissioner found that in
February 2000, respondent accepted a $500 retainer and a $100 deposit for court
costs to represent a client in a child-custody dispute. Respondent did not initiate
proceedings as promised before his license to practice law was suspended
indefinitely on July 18, 2001, by order of Columbus Bar Assn. v. Foster (2001), 92
Ohio St.3d 411, 750 N.E.2d 1112. Respondent also did not contact his client to
return her money after this suspension and did not assist the client in finding new
counsel.
B
{¶4} As to Count Two, the master commissioner found that another client
paid respondent $375 in August 1997 to represent her in a bankruptcy. Respondent
filed the bankruptcy petition, but the cause was later dismissed due to his failure to
meet court deadlines, and he did not tell his client about the dismissal. Respondent
eventually refiled the action, but his prior misfeasance caused his client to have not
one, but two, bankruptcy entries on her credit report.
C
{¶5} Regarding Count Three, the master commissioner found that a client
paid respondent $500 in 1998 to represent her in a child-support proceeding.
Respondent apparently did nothing in the case for about 18 months. During this
period, he also misrepresented to his client several times that a court date had been
scheduled and later cancelled by the court. Respondent ultimately returned the
client’s retainer and offered to represent her pro bono, but he did not follow through
with this representation. And after his suspension on July 18, 2001, respondent did
not return the client’s file or assist her in finding a new attorney.
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January Term, 2002
D
{¶6} With respect to Count Four, the master commissioner found that while
representing an estate in probate court, respondent failed to comply with a 1997
court order to transfer title to property.
E
{¶7} As to Counts Five and Six, the master commissioner found that two
separate clients had each paid respondent at least $500 during March and May 2000
to represent them in matters involving family law. Respondent apparently again
did nothing for these clients before his suspension took effect on July 18, 2001.
And afterward, he did not return the clients’ money or files, nor did he assist one
client in finding a new attorney.
F
{¶8} Regarding Count Seven, the master commissioner found that a client
paid respondent $850 in March 2000 for representation in a child custody and a
contempt case. Respondent appeared in court for the client but did nothing on the
client’s behalf except secure continuances of two hearing dates. The client claims
that she was never able to contact respondent again. The client also averred that
when she appeared in court without respondent on November 2, 2000, the judge
advised the client to discharge him and file a grievance. Respondent never returned
the client’s money or file.
G
{¶9} With respect to Count Eight, the master commissioner found that a
client’s mother paid respondent a $500 retainer in the fall of 1999 to represent her
son in a criminal case. The son ran away from home shortly before a court date
scheduled for January 2, 2000. The client’s mother averred that respondent
appeared in court to obtain a continuance. He also advised the client’s mother at
that time that he could not do more on the case until her son was found. But by the
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time the son returned, the mother was unable to find respondent, and her son had to
rely on a public defender.
H
{¶10} Finally, as to Count Nine, the master commissioner found that
respondent has failed to respond to relator’s letters inquiring about these eight
grievances. Each letter, save one, was sent by certified and regular mail to
respondent’s business address as on file with the Office of Attorney Registration.
The one letter sent only by regular mail, which concerned the client described under
subsection A, was returned, marked “Attempted Not Known.” The other letters
were not returned and presumably were delivered. The certified letters were either
accepted by someone at the business address or were returned without signature.
Relator also sent an investigator to respondent’s residence. When no one answered
the door, the investigator left copies of all eight grievances and a subpoena for
respondent’s deposition and the production of documents. Respondent did not
comply.
I
{¶11} The master commissioner concluded that the conduct described in
subsections A through H violated DR 1-102(A)(4) (engaging in conduct involving
misrepresentation), (5) (engaging in conduct prejudicial to the administration of
justice), and (6) (engaging in conduct that adversely reflects on an attorney’s fitness
to practice law); 6-101(A)(3) (neglecting an entrusted legal matter); 7-101(A)(1)
(failing to seek a client’s lawful objective), (2) (failing to carry out a contract of
employment), and (3) (prejudicing or damaging a client); 9-102(B)(4) (failing to
deliver client’s funds or property); and Gov.Bar R. V(4)(G) (failing to cooperate in
a disciplinary investigation). The board adopted the master commissioner’s
findings of misconduct.
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January Term, 2002
II. Recommendation and Sanction
{¶12} In recommending a sanction for this misconduct, the master
commissioner determined that there was no evidence of any mitigating factors. See
Section 10 of the Rules and Regulations Governing Procedure on Complaints and
Hearings Before the Board of Commissioners on Grievances and Discipline. As
aggravating factors, the master commissioner considered not only that respondent
is already serving an indefinite suspension for 17 previous instances of client
neglect, Foster, 92 Ohio St.3d 411, 750 N.E.2d 1112, but that he has still not
complied with various procedural requirements of that order. The master
commissioner recommended that respondent be disbarred. The board adopted this
recommendation.
{¶13} We agree that respondent committed the misconduct found by the
board. We also agree with the board’s recommended sanction. 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. And it is especially appropriate where,
as here, the attorney has consistently ignored investigative inquiries into his neglect.
In fact, disbarment can be warranted for neglect of this magnitude even when an
attorney has cooperated in the disciplinary process and has shown mitigating
circumstances surrounding the misconduct. Disciplinary Counsel v. Nasrallah
(2002), 94 Ohio St.3d 143, 761 N.E.2d 11.
{¶14} Accordingly, respondent is permanently disbarred. 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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Bruce Campbell, Bar Counsel, and Jill Snitcher McQuain, Assistant Bar
Counsel; Pamela N. Maggied and Randall S. Arndt, for relator.
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