Disciplinary Counsel v. McCord

[This decision has been published in Ohio Official Reports at 96 Ohio St.3d 21.]

OFFICE OF DISCIPLINARY COUNSEL v. MCCORD.

[Cite as Disciplinary Counsel v. McCord, 2002-Ohio-2587.]

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

on condition that attorney make full restitution to client—Engaging in

conduct prejudicial to the administration of justice—Engaging in conduct

adversely reflecting on fitness to practice law—Failing to promptly

deliver funds or property to which the client is entitled.

(No. 2001-2201—Submitted March 26, 2002—Decided June 19, 2002.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 01-18.

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Per Curiam.

{¶1} In October 1998, Geraldine Flenoury paid $1,500 to respondent,

Michael McCord of Columbus, Ohio, Attorney Registration No. 0020304, and

turned over some files to him for review. Flenoury and respondent had no written

fee agreement and the facts about the engagement are disputed. Flenoury thought

that respondent was going to sue her previous workers’ compensation lawyer for

malpractice. Respondent testified that he told Flenoury that the $1,500 was an

“investigation fee” to look into the case.

{¶2} Flenoury said that after she paid respondent $1,500, she was unable to

contact him until December 14, 1998, when he called and told her that she had no

viable cause of action. Flenoury said that at that time she asked that the $1,500 be

returned. On December 20, 1998, respondent wrote a detailed letter to Flenoury

confirming his opinion of December 14, 1998, that she had no cause of action.

{¶3} Seeking a return of her money, Flenoury filed a fee arbitration request

with the Columbus Bar Association in February 1999. At the hearing, respondent

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estimated that he had expended twelve hours of time examining Flenoury’s case,

but he had not itemized his time except for notes he kept on a notepad. The

arbitrator found that the kind of work for which respondent was engaged is usually

handled on a contingent-fee basis, that a contingent-fee contract must be in writing,

that there was no written contract between Flenoury and respondent, and that

respondent was not entitled to any fee. Respondent did not appeal the arbitration

award. When respondent had not paid the award by August 2, 1999, the chairman

of the arbitration committee contacted respondent. Respondent said that he would

not voluntarily pay the award and that Flenoury would have to sue him for it.

{¶4} In September 1999, Flenoury sued respondent in the Warren

Municipal Court. Respondent did not appear, and in October 1999, the court

awarded Flenoury a default judgment in the sum of $1,500 plus interest and costs.

Respondent did not pay the judgment. Flenoury then filed a grievance with the

Columbus Bar Association, which in April 2000, informed her that it would dismiss

her grievance because it involved a collection problem and not a disciplinary

matter. In February 2001, Flenoury filed the Warren court judgment in the Franklin

County Municipal Court.

{¶5} Flenoury then filed a grievance with relator, Disciplinary Counsel. On

June 25, 2001, relator filed an amended complaint charging that respondent’s

failure to refund the unused portion of the fee paid to him by Flenoury violated the

Code of Professional Responsibility. Respondent answered, and the matter was

referred to a panel of the Board of Commissioners on Grievances and Discipline of

the Supreme Court.

{¶6} Based on stipulations and evidence received at a hearing, the panel

found the facts as stated above. It also found that although respondent admitted

that he was bound by the arbitration process, he did not refund the $1,500 because

the arbitrator did not give him any compensation for the effort he put into

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Flenoury’s case. Respondent said that to return the money would be to admit that

he did nothing in the case.

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

102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration of

justice), 1-102(A)(6) (a lawyer shall not engage in conduct adversely reflecting on

the lawyer’s fitness to practice law) and 9-102(B)(4) (a lawyer shall promptly

deliver to the client funds or property to which the client is entitled). Noting that

in 24 years of practice respondent has never before been the subject of a grievance,

while also considering respondent’s refusal to acknowledge that this disciplinary

action was more than merely a fee dispute, the panel recommended that respondent

be suspended from the practice of law for six months with the entire suspension

stayed on condition that respondent pay Flenoury $1,500 plus interest. The board

adopted the findings and conclusions of the panel but, in light of respondent’s lack

of remorse, the board recommended that he be suspended from the practice of law

for six months with no stay.

{¶8} We have thoroughly examined the record in this case and adopt the

findings of the board. Although we agree that the matter between respondent and

Flenoury began as a fee dispute, it has clearly gone beyond that, at least since the

arbitration award. We will not inquire into the correctness of the arbitrator’s award.

Respondent was bound by that award, and his persistence in refusing to pay reflects

adversely on the bar. We conclude that by not paying the award after the appeal

time had expired for that award and after the judgment in the Warren Municipal

Court, respondent violated DR 1-102(A)(5), 1-102(A)(6), and 9-102(B)(4).

{¶9} Respondent is hereby suspended from the practice of law for six

months with the entire six months stayed, provided that within 14 days from the

announcement of this opinion he make full restitution to Flenoury. Failure to pay

Flenoury the sum of $1,500 with statutory interest from the date of the arbitration

award at the rate of ten percent per annum and court costs within the 14 days shall

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result in full imposition of the suspension from the practice of law. 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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Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First

Assistant Disciplinary Counsel, for relator.

Michael M. McCord, pro se.

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