Toledo Bar Assn. v. Martin

[Cite as Toledo Bar Assn. v. Martin, 131 Ohio St.3d 134, 2011-Ohio-6396.]

TOLEDO BAR ASSOCIATION v. MARTIN.

[Cite as Toledo Bar Assn. v. Martin, 131 Ohio St.3d 134, 2011-Ohio-6396.]

Attorney misconduct—Failure to cooperate in investigation of alleged

misconduct—One-year suspension, all stayed on condition.

(No. 2011-1401—Submitted September 7, 2011—Decided December 15, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-013.

__________________

Per Curiam.

{¶ 1} Respondent, David Martin, of Sylvania, Ohio, Attorney

Registration No. 0039953, was admitted to the practice of law in Ohio in 1988. In

February 2011, relator, the Toledo Bar Association, filed a five-count complaint

charging Martin with multiple violations of the Rules of Professional Conduct

arising from his conduct while representing five clients in various legal matters.

{¶ 2} In accordance with Section 11 of the Rules and Regulations

Governing Procedure on Complaints and Hearings Before the Board of

Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”), Martin

entered into an agreement with relator on June 7, 2011, in which he admitted

having violated Gov.Bar R. V(4)(G) by failing to cooperate in the investigations

of his alleged misconduct and Prof.Cond.R. 8.1 by knowingly failing to respond

to a demand for information from a disciplinary authority. Relator withdrew the

underlying allegations of misconduct relating to Martin’s attorney-client

relationships. The parties stipulated that a one-year suspension stayed on

condition of one year of probation and monitoring was the appropriate sanction.

{¶ 3} The Board of Commissioners on Grievances and Discipline voted

to accept the proposed agreement and sanction.

SUPREME COURT OF OHIO

{¶ 4} We accept the board’s findings of fact, conclusions of law, and

recommended sanction.

Misconduct

Count I

{¶ 5} The stipulated facts demonstrate that on November 15, 2007,

Martin met with Anne Furey and Gregory Risk to discuss preparation of wills.

The couple paid Martin a $350 fee for the service. When the wills were not

immediately received, Furey and Risk filed a grievance with the Toledo Bar

Association, and Martin later reimbursed the $350 fee. Martin did not respond to

the grievance and was notified by letter on June 20, 2008, of the need to provide a

written narrative response. He again failed to reply, and on July 18, 2009, the

investigation report was prepared without Martin’s written response. After

further discovery, Martin was charged with violating Gov.Bar R. V(4)(G) and

Prof.Cond.R. 8.1.

Count II

{¶ 6} In late 2000, Martin was hired to assist with liquidating certain

property belonging to Ryan Black. Black filed a grievance with relator when

Martin failed to provide him with an accounting. Martin did not respond to the

grievance and was notified by letter on July 11, 2008, of the need to provide a

written narrative response. He again failed to reply and was charged with

violating Prof.Cond.R. 1.15(d) (failure to provide an accounting), Gov.Bar R.

V(4)(G), and Prof.Cond.R. 8.1.

Count III

{¶ 7} On June 4, 2007, John Cunningham paid Martin a retainer of

$1,500, but terminated the representation six months later and sought a refund of

the unused portion of the retainer. Martin sent Cunningham a check for $760. On

January 24, 2009, Cunningham filed a grievance with relator. Martin was notified

of the grievance by letter and was asked to provide a written narrative response

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January Term, 2011

within 14 days. He was also asked to provide a response in a letter dated August

19, 2009, and he again failed to do so. After further discovery, Martin was again

charged with violating Gov.Bar R. V(4)(G) and Prof.Cond.R. 8.1.

Count IV

{¶ 8} In January 2008, Abigail Donbrosky paid Martin a $1,500 retainer

to file a Chapter 7 bankruptcy on her behalf. After having no contact with Martin

for some time, Donbrosky filed a grievance with relator on July 6, 2009. Martin

was notified of the grievance by letter and was asked to respond with a written

narrative within 14 days. Martin wrote to the investigator and requested an

additional ten days to respond. He also sent e-mails stating that his response was

forthcoming. Eventually, the investigation report was prepared without Martin’s

narrative. Martin was charged with violating Prof.Cond.R. 1.3 (failure to act with

reasonable diligence and promptness in representing a client) and 1.4(a)(2), (3),

and (4) (failure to reasonably consult with the client, failure to keep the client

reasonably informed, and failure to comply with reasonable requests for

information from the client). He was also charged with violating Gov.Bar R.

V(4)(G) and Prof.Cond.R. 8.1.

Count V

{¶ 9} On July 1, 2008, Michelle Pratt retained Martin to represent her in

foreclosure actions and in a bankruptcy filing. Pratt paid a retainer of $1,500, but

after becoming dissatisfied with Martin’s progress, Pratt filed a grievance on July

31, 2009. Martin was notified of the grievance by letter and was asked to respond

in writing. He did not respond, even after he received a second letter reminding

him to do so, and the investigation report was prepared without Martin’s

narrative. Martin was charged with violating Prof.Cond.R. 8.4(c) (engaging in

conduct involving dishonesty, fraud, deceit, or misrepresentation), 1.3, and

1.4(a)(2), (3), and (4). Martin was also charged with violating Gov.Bar R.

V(4)(G) and Prof.Cond.R. 8.1.

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SUPREME COURT OF OHIO

Agreement

{¶ 10} After the formal complaint was filed against him, Martin

responded to relator’s discovery requests and eventually explained to relator’s

satisfaction that he had not violated the Rules of Professional Conduct in his

representations of the aforementioned clients. Martin and relator entered into an

agreement on June 7, 2011, in which he admitted violating Gov.Bar R. V(4)(G)

and Prof.Cond.R. 8.1. These violations arose from his failure to respond to and

cooperate in the investigations in all five counts.

Sanction

{¶ 11} When imposing sanctions for attorney misconduct, we consider

relevant factors, including the ethical duties the lawyer violated and the sanctions

imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424,

2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. We also weigh evidence of the

aggravating and mitigating circumstances listed in BCGD Proc.Reg. 10(B).

Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875

N.E.2d 935, ¶ 21.

{¶ 12} In mitigation, the board noted that Martin had no prior disciplinary

history, BCGD Proc.Reg. 10(B)(2)(a). The board found that the failure to

respond to relator’s inquiries was an aggravating factor, BCGD Proc.Reg.

10(B)(1)(e), but that further investigation did not reveal actionable violations.

None of the complaining clients appears to have suffered financial harm, since

Martin did complete some legal matters and refunded unearned retainer fees,

BCGD Proc.Reg. 10(B)(2)(c), and, where needed, other attorneys provided the

required legal services. The board agreed with the parties that Martin’s failure to

cooperate was uncharacteristic of his usual conduct, BCGD Proc.Reg.

10(B)(2)(e), and that the disciplinary investigations all arose during his handling

of major litigation spanning a nine-year period in Anton v. SBC Global Servs.,

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January Term, 2011

Inc., E.D.Mich. No. 2:01-CV-40098-SFC. The board found that Martin’s failure

to cooperate was likely due to his focus on the Anton case.

{¶ 13} Based upon Martin’s own admissions that he violated Gov.Bar R.

V(4)(G) and Prof.Cond.R. 8.1 and the fact that he does not have a prior

disciplinary record, the board recommends that we impose a one-year stayed

suspension, as agreed upon by the parties, on the condition of one year of

probation pursuant to Gov.Bar R. V(9) and the appointment of a monitoring

lawyer. We adopt the board’s recommended sanction.

{¶ 14} Accordingly, David Martin is suspended from the practice of law

for a period of one year, with the entire year stayed. The stayed suspension shall

include one year of probation and monitoring, and the costs of these proceedings

shall be taxed to Martin.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

William G. Meyer and Michael A. Bonfiglio, for relator.

Alvin E. Matthews Jr., for respondent.

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