The opinion
[This decision has been published in Ohio Official Reports at 96 Ohio St.3d 470.]
DAYTON BAR ASSOCIATION v. GRAHAM.
[Cite as Dayton Bar Assn. v. Graham, 2002-Ohio-4910.]
Attorneys at law—Misconduct—One-year suspension with entire sanction stayed
on conditions—Failing to cooperate in disciplinary process—Failing to
communicate to a client attorney’s professional misgivings about
pursuing the client’s employment-related claims and then not filing an
action the client anticipated.
(No. 2002-0699—Submitted June 5, 2002—Decided October 2, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 01-64.
__________________
Per Curiam.
{¶1} This case requires us to decide the sanction for an attorney who does
not communicate to a client her professional misgivings about pursuing the client’s
employment-related claims and then does not file an action the client anticipated.
The Board of Commissioners on Grievances and Discipline found that respondent,
V. Ellen Graham of Dayton, Ohio, Attorney Registration No. 0030454, committed
this misconduct and thereby violated DR 6-101(A)(3) (neglect) and 7-101(A)(2)
(failure to carry out a contract for professional services). Considering these
infractions and respondent’s failure to cooperate during the disciplinary process,
the board recommended that respondent be suspended from the practice of law in
Ohio for one year, with nine months of this sanction to be stayed on conditions.
We agree that respondent violated DR 6-101(A)(3) and 7-101(A)(2), but we find a
one-year suspension, stayed in its entirety, the more appropriate sanction.
{¶2} In November 1996, Ilona Owens engaged respondent to represent her
in various claims against her employer and the company’s vice-president. Prior to
SUPREME COURT OF OHIO
this engagement, Owens, in addition to some of her coworkers, had complained to
their employer about the vice-president’s sexual harassment and other improper
conduct, and the employer had investigated and sent Owens written apologies.
Unsatisfied with this resolution, Owens contacted respondent to explore further
legal remedies.
{¶3} In the succeeding months, respondent met with Owens a number of
times and spoke with Owens over the telephone on occasion. In time, respondent
advised Owens’s employer of her representation and offered a settlement demand
of $1 million. When respondent received no response, she filed suit in May 1997
against the corporate employer and the vice-president, in his individual capacity,
for sexual harassment, negligent failure to provide a safe workplace, and infliction
of emotional distress.
{¶4} Respondent’s opposing counsel moved to dismiss the action on the
grounds that Owens’s remedies were limited to arbitration procedures under a
collective-bargaining agreement. The motion to dismiss was granted as to the
employer company, and respondent approved as to form a dismissal entry that also
allowed Owens to pursue a grievance to arbitration and to continue her cause
against the vice-president within 21 days by the filing of an amended complaint.
{¶5} Respondent did not appeal the judgment of dismissal, nor did she file
the amended complaint against the vice-president. Respondent did not file the
appeal because she was convinced through research that Owens was obligated to
pursue arbitration and that this process would likely resolve the matter to Owens’s
satisfaction. Respondent did not file the amended complaint because she thought
that it would be difficult to collect any damages from the vice-president and that
Owens was not really interested in pursuing him as a defendant. Respondent
explained her professional misgivings about the appeal to Owens; however, she
failed to explain to Owens her opinion on the futility of legal action against the
2
January Term, 2002
vice-president and to tell Owens that she did not intend to file the amended
complaint. Thereafter, the statute of limitations for Owens’s action elapsed.
{¶6} Owens later pursued on her own other actions against her employer
based on charges of retaliation, failure to accommodate a disability, and unfair labor
practices. And with the help of her union, she settled a grievance stemming from
her eventual discharge. She also filed a grievance concerning respondent’s
representation with relator, Dayton Bar Association.
{¶7} Relator investigated the grievance and, on June 11, 2001, initiated
proceedings claiming that respondent had violated the Code of Professional
Responsibility. A panel of the board heard the cause and found the facts as stated.
While respondent claimed that she had explained to Owens her reasons for not
filing an amended complaint against the vice-president, the panel credited Owens,
who testified that respondent had not explained them to her. The panel found that
respondent had thereby violated DR 6-101(A)(3) and 7-101(A)(2).
{¶8} After considering evidence that respondent had complied with
relator’s requests for discovery, but not in a timely manner, the panel further found,
as an aggravating factor, that respondent had not cooperated in the disciplinary
process. In mitigation, the panel found that respondent had no prior disciplinary
record, had not taken fees from Owens or acted with dishonesty or a selfish motive,
and had expressed remorse for her misconduct. See Section 10 of the Rules and
Regulations Governing Procedure on Complaints and Hearings Before the Board
of Commissioners on Grievances and Discipline. The panel recommended that
respondent be suspended from the practice of law for one year, but that nine months
of this sanction be stayed on the conditions that she have no further disciplinary
actions brought against her and remain current with continuing legal education
requirements. The board adopted the panel’s findings and recommendation.
{¶9} We agree with the board’s findings of misconduct and
recommendation, but with some modification. In the past, an attorney’s “lack of a
3
SUPREME COURT OF OHIO
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” have persuaded us to stay the entire
suspension for an attorney’s failure to adequately represent a single client.
Disciplinary Counsel v. Boulger (2000), 88 Ohio St.3d 325, 327, 725 N.E.2d 1112.
As this case presents the same mitigating factors, we will also stay the
recommended suspension here in its entirety. Respondent is therefore suspended
from the practice of law in Ohio for one year, but this sanction is stayed on the
conditions that she have no further disciplinary actions brought against her and
remain current with continuing legal education requirements. Costs are taxed to
respondent.
Judgment accordingly.
DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., dissents and would suspend respondent for one year without
stay.
COOK and LUNDBERG STRATTON, JJ., dissent.
__________________
Cook, J., dissenting.
{¶10} This case features conduct and mitigating circumstances that are
similar to those that were present in Disciplinary Counsel v. Boulger (2000), 88
Ohio St.3d 325, 725 N.E.2d 1112. I would therefore impose the same sanction as
this court imposed in Boulger — a six-month suspension stayed in its entirety.
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
__________________
Diane L. Gentile and John F. Kolberg, for relator.
V. Ellen Graham, pro se.
__________________
4