The opinion
[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 235.]
DAYTON BAR ASSOCIATION v. SUAREZ.
[Cite as Dayton Bar Assn. v. Suarez, 2002-Ohio-5935.]
Attorneys at law—Misconduct—Eighteen-month suspension with nine months of
sanction suspended on condition that no further misconduct be
committed—Failing to adequately advise client of proceedings in his
divorce and then attempting to hide the neglect.
(No. 2002-1086—Submitted August 27, 2002—Decided November 13, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 99-18.
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Per Curiam.
{¶1} This case requires us to decide the sanction for an attorney who failed
to adequately advise her client of proceedings in his divorce and then tried to hide
her neglect. The Board of Commissioners on Grievances and Discipline found that
respondent, Isabel Suarez of Dayton, Ohio, Attorney Registration No. 0015899,
committed this misconduct in violation of DR 1-102(A)(4) (conduct involving
fraud, deceit, dishonesty, or misrepresentation) and (6) (conduct reflecting
adversely on an attorney’s fitness to practice law), 6-101(A)(3) (neglect of an
entrusted legal matter), and Gov.Bar R. V(4)(G) (failure to cooperate in an
investigation of misconduct). The board recommended that respondent be
suspended from the practice of law in Ohio for 18 months. Upon review, we agree
with the board’s findings of misconduct; however, we find that an eighteen-month
suspension, with nine months of this sanction stayed, is appropriate.
{¶2} In September 1997, respondent accepted $5,000 to represent a client
in his divorce. The client advised respondent that he wanted to obtain custody of
his four children because his wife could be abusive. The client brought respondent
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the divorce complaint that had been filed against him as well as other papers.
During November 1997, the client signed an affidavit of financial disclosure and,
later, an affidavit regarding child custody, at respondent’s office. Respondent
reassured him at those times that his case was in good hands.
{¶3} On December 11, 1997, respondent found his wife removing items
from their marital residence and learned from her that the final hearing in the
divorce had been held on December 5, 1997. Respondent never notified her client
of the hearing, nor did she appear on his behalf. After the client discovered
respondent’s neglect by visiting the courthouse and learning that respondent had
filed nothing in the case, he went to her office, where respondent’s staff advised
him that she was out.
{¶4} Respondent called the client later that evening and offered to meet to
discuss the divorce case. She also offered to represent him concerning a recent auto
accident. The client declined, advising her that he did not want her representing
him further, and retained another attorney.
{¶5} On December 15, 1997, three days after their last meeting, respondent
filed an answer and counterclaim on her former client’s behalf. She also filed the
financial disclosure affidavit that she had prepared the month before. On January
9, 1998, the trial court granted a final judgment and decree of divorce based on
petitioner’s pleadings and the final hearing. Suarez’s former client was not granted
custody.
{¶6} Respondent repaid her former client’s retainer fee, and he has since
obtained custody of his two youngest children. He did not obtain custody, however,
until the children had suffered domestic assaults.
{¶7} Thereafter, relator, Dayton Bar Association, investigated the
allegations of this misconduct. In response to inquiries about the work she
performed for the $5,000 fee her client paid, respondent claimed to have conducted
computerized research and produced a printout of her work as proof. According to
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the printout, however, the computer research was not undertaken until March 1998,
almost three months after the former client’s final divorce decree.
{¶8} Relator filed a complaint on April 12, 1999, charging respondent with
violations of the Code of Professional Responsibility. A panel of the board heard
the cause, found the facts regarding Suarez’s conduct as stated, and concluded that
respondent had committed the cited misconduct. Specifically, the panel found that
respondent’s failure to act on her client’s behalf was “compounded by her
misrepresentations to him that she was, in fact, protecting his interests.” The panel
also found that respondent had attempted to deceive relator about the work that she
had done on her client’s behalf.
{¶9} In recommending a sanction, the panel considered as an aggravating
factor respondent’s public reprimand for misconduct several years ago.
Disciplinary Counsel v. Suarez (1998), 84 Ohio St.3d 4, 701 N.E.2d 683. The panel
was also troubled by what it considered to be her lack of candor, remorse, and
inability to take responsibility for her misconduct. The panel recommended that
respondent be suspended from the practice of law for 18 months. The board
adopted the panel’s findings of misconduct and recommendation.
{¶10} We agree that respondent violated DR 1-102(A)(4) and (6) and
Gov.Bar R. V(4)(G). On credibility issues, we generally defer to the panel’s and
board’s determinations. Cleveland Bar Assn. v. Cleary (2001), 93 Ohio St.3d 191,
198, 754 N.E.2d 235. We follow this rule here despite respondent’s assurances that
she did not mean to delude her client or relator with misrepresentations.
{¶11} In her objections and before the panel, respondent contended that she
had to recreate her computer research because a former staff person had tampered
with her office files. She also claimed that she had provided the printout to relator
as an example of her work, not as the actual work product. This explanation would
be more plausible if respondent had not already supplied two conflicting accounts
for having failed to appear at the hearing in her client’s divorce.
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{¶12} During the investigation, respondent said that she had received notice
of her client’s December 5, 1997 hearing date but had placed it by mistake on her
calendar for a date in January 1998. At the panel hearing, however, respondent said
that she had been under the impression that a staff member had already filed the
answer and counterclaim that she had prepared. Thus, she claimed to have missed
the December 5th hearing because she was waiting for the court to assign a hearing
date and had not realized that the case had been put on the court’s noncontested
docket as a result of the default.
{¶13} We also find that respondent neglected her client in violation of DR
6-101(A)(3). We do so, however, not only because respondent’s former client
attested to her neglect, but because respondent conceded this misconduct and took
responsibility for it at various times during these proceedings. As a result of her
concessions and contrary to the board’s conclusions, we find mitigating factors in
this record. In fact, we are also encouraged that respondent returned her client’s
money.
{¶14} For these reasons, it is not necessary to remove respondent from her
practice for the full eighteen-month suspension recommended by the board.
Accordingly, we order that respondent be suspended from the practice of law for
18 months, but nine months of this sanction will be suspended on the condition that
she commit no further misconduct. Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
COOK, J., dissents.
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COOK, J., dissenting.
{¶15} Because I would adopt the recommendation of both the panel and the
board to suspend Suarez for eighteen months, I respectfully dissent.
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January Term, 2002
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Green & Green and Thomas L. Czechowski, for relator.
Bieser, Greer & Landis, L.L.P., and David C. Greer, for respondent.
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