Disciplinary Counsel v. Tomson

[Cite as Disciplinary Counsel v. Tomson, 136 Ohio St.3d 71, 2013-Ohio-2154.]

DISCIPLINARY COUNSEL v. TOMSON.

[Cite as Disciplinary Counsel v. Tomson, 136 Ohio St.3d 71, 2013-Ohio-2154.]

Attorneys—Misconduct—Neglect of entrusted legal matters—Failure to perform

contracted work—Failure to cooperate in disciplinary investigation—

Permanent disbarment.

(No. 2012-2068—Submitted February 6, 2013—Decided June 4, 2013.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 12-020.

____________________

Per Curiam.

{¶ 1} Respondent, William Leonard Tomson Jr. of Cleveland, Ohio,

Attorney Registration No. 0033832, was admitted to the practice of law in Ohio in

1971.

{¶ 2} In an April 2012 complaint, relator, disciplinary counsel, alleged

that Tomson had agreed to pursue postconviction relief on behalf of two separate

clients, taken excessive amounts of money from them, made false promises

regarding the anticipated completion of the work, and failed to cooperate in one of

the ensuing disciplinary investigations. Relator further alleged that this conduct

adversely reflected on his fitness to practice law and was prejudicial to the

administration of justice. Although the complaint was served on Tomson by

certified mail, he failed to answer it or otherwise appear in these proceedings, and

relator moved for default.

{¶ 3} A master commissioner appointed by the Board of Commissioners

on Grievances and Discipline determined that the materials submitted in support

of relator’s motion for default were sufficient, found by clear and convincing

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evidence that Tomson had committed the charged misconduct, and recommended

that he be ordered to make restitution to the affected clients and suspended

indefinitely from the practice of law in Ohio. The board adopted the master

commissioner’s findings of fact and misconduct and agreed with the

recommendation for restitution, but concluded that Tomson’s misconduct

warranted permanent disbarment. On December 19, 2012, this court issued an

order to show cause why the court should not confirm the board’s

recommendation and enter an order of discipline. No objections have been filed.

{¶ 4} We adopt the board’s findings of fact and misconduct and find that

permanent disbarment is the appropriate sanction for Tomson’s misconduct.

Misconduct

Count One—The Limbach Matter

{¶ 5} In 2001, Craig Limbach was convicted of attempted rape, illegal

use of a minor in nudity-oriented material, pandering sexually oriented material

involving a minor, and other offenses. He was sentenced to an aggregate term of

more than 45 years in prison. His convictions were affirmed on appeal. See State

v. Limbach, 5th Dist. No. 2001CA00396, 2002-Ohio-3934, 2002 WL 1770536.

{¶ 6} In 2003, Limbach sought Tomson’s assistance to pursue the

reopening of his appeal and other postconviction relief, and in the winter of 2003-

2004 he paid the $4,000 retainer Tomson required to begin the work. Tomson

sent Limbach a letter in June 2004 stating that (1) he had completed 90 percent of

the research, (2) he required an additional $4,000 to complete the research and

prepare a brief and other pleadings, and (3) he would file the application and brief

within 45 days of receiving the additional payment.

{¶ 7} When nothing had been filed by late November 2005, Limbach

sent Tomson a letter inquiring about the delay. Tomson responded that (1) the

prior ruling would be difficult to overcome, (2) he was confident that he would

prevail in his efforts to reduce Limbach’s sentence, (3) he would continue to

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monitor cases decided by this court, and (4) he was confident that he would have

something definitive to provide to Limbach in 30 to 45 days. Despite these

representations, Tomson filed nothing in the next three years.

{¶ 8} In a February 2009 letter, Tomson told Limbach that he would visit

him in prison during the last week of March with the final draft of the pleadings,

but he failed to do so. Tomson sent another letter to Limbach in September 2009,

stating, “I feel confident that I will be able to complete a final product and bring it

to you before the end of November or sooner.” In October 2010—11 months

after Tomson last predicted a date of completion—Limbach sent a letter to

Tomson complaining that he had paid thousands of dollars but that Tomson had

not performed the promised work. After receiving no response to this letter,

Limbach filed a grievance with relator in January 2011.

{¶ 9} Tomson’s response to relator’s initial letter of inquiry stated that he

expected to complete and file a brief in Limbach’s case no later than May 15,

2011. He did not file the seven-page application to reopen Limbach’s appeal,

however, until September 20, 2011—four months after the date that he had told

relator that it would be filed and more than seven years after his client retained

him to perform this work. The court of appeals ultimately denied the application

for reopening.

{¶ 10} The board found that Tomson’s conduct in the Limbach matter

violated DR 1-102(A)(4) and Prof.Cond.R. 8.4(c) (both prohibiting a lawyer from

engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation),

DR 1-102(A)(5) and Prof.Cond.R. 8.4(d) (both prohibiting a lawyer from

engaging in conduct that is prejudicial to the administration of justice), DR 1-

102(A)(6) and Prof.Cond.R. 8.4(h) (both prohibiting a lawyer from engaging in

conduct that adversely reflects on the lawyer’s fitness to practice law), DR 2-

106(A) and Prof.Cond.R. 1.5(a) (both prohibiting a lawyer from making an

agreement for, charging, or collecting an illegal or clearly excessive fee), DR 6-

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101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter), and

Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in

representing a client) as charged in the complaint.1 We adopt these findings of

fact and misconduct.

Count Two—The Welker Matter

{¶ 11} Charles Welker was convicted of gross sexual imposition and rape

and sentenced to 15 years in prison in November 1999. His convictions were

affirmed on appeal. See State v. Welker, 8th Dist. No. 83252, 2004-Ohio-1132,

2004 WL 450336. In December 2004, his wife, Phyllis Welker, retained Tomson

to pursue a reduction of his sentence. Phyllis Welker paid Tomson $5,200—$700

to evaluate the case and $4,500 to reopen the appeal or seek other postconviction

relief. In a December 2005 letter, Tomson wrote that he would visit Welker in

prison during the last week of March 2006 with the final draft of the pleadings,

but he failed to do so.

{¶ 12} Charles Welker wrote to Tomson in January 2009 to request

information about his case and to advise him that his wife had attempted,

unsuccessfully, to reach Tomson by telephone. Charles Welker again wrote to

inquire about the status of his case in July 2009. Tomson did not respond to

either letter. Tomson did, however, respond to a third inquiry from Charles

Welker, stating in a letter dated September 25, 2009, “I feel confident that I will

be able to complete a final product and bring it to you before the end of

November or sooner.” Despite this representation, he did not visit Welker in

prison.

1. Because Tomson’s misconduct occurred both before and after the adoption of the Rules of

Professional Conduct on February 1, 2007, relator charged him under the applicable rules of both

the former Code of Professional Responsibility and the current Rules of Professional Conduct. To

the extent that both the former and current rules are cited for the same acts, the allegations

comprise a single continuing ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d

330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.

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{¶ 13} In July 2011, Phyllis Welker filed a grievance with relator.

Although Tomson received the two letters of inquiry that relator sent by certified

mail regarding this grievance, he never responded to them.

{¶ 14} Tomson appeared for his October 18, 2011 investigatory

deposition pursuant to a subpoena duces tecum and testified that he would provide

Welker’s client file to relator, but he never did. He admitted that he had not filed

any documents on Welker’s behalf during the seven years that he represented

him. With Welker’s original prison sentence scheduled to expire in early 2013, it

appeared unlikely at the time of the deposition that Welker would ever see any

benefit from that representation. Nonetheless, Tomson testified that no refund

was warranted.

{¶ 15} The board found that Tomson’s conduct in the Welker matter

violated DR 1-102(A)(4) and Prof.Cond.R. 8.4(c), DR 1-102(A)(5) and

Prof.Cond.R. 8.4(d), and DR 1-102(A)(6) and Prof.Cond.R. 8.4(h), as well as DR

6-101(A)(3), 7-101(A)(1) (prohibiting a lawyer from intentionally failing to seek

the lawful objectives of his client), and 7-101(A)(2) (prohibiting a lawyer from

intentionally failing to carry out a contract of employment for legal services),

Prof.Cond.R. 1.2(a) (requiring a lawyer to abide by the client’s decisions

concerning the objectives of representation and to consult with the client as to the

means by which they are to be pursued), 1.3, and 8.1(b) (prohibiting a lawyer

from knowingly failing to respond to a demand for information by a disciplinary

authority during an investigation), and Gov.Bar R. V(4)(G) (requiring a lawyer to

cooperate with a disciplinary investigation). We adopt these findings of fact and

misconduct.

Sanction

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

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

sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio

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St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

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.

{¶ 17} The board found that Tomson received attorney fees in exchange

for his agreement to seek postconviction relief on behalf of two clients. He made

repeated promises to perform the contracted legal services and claimed to have

performed substantial legal research on behalf of these clients. But after seven

years, he had filed only a seven-page application to reopen one client’s appeal and

had filed nothing in the other client’s case.

{¶ 18} As aggravating factors, the board found that Tomson acted with a

dishonest or selfish motive, committed multiple offenses, failed to cooperate in

the disciplinary process, refused to acknowledge the wrongful nature of his

conduct, and failed to make restitution to the affected clients. See BCGD

Proc.Reg. 10(B)(1)(b), (d), (e), (g), and (i). The only evident mitigating factor is

the absence of a prior disciplinary record. See BCGD Proc.Reg. 10(B)(2)(a).

{¶ 19} In his motion for default, relator argued that an indefinite

suspension from the practice of law is the appropriate sanction for Tomson’s

misconduct. The master commissioner adopted this recommendation but also

suggested that Tomson should be ordered to make restitution of $8,000 to

Limbach and $5,200 to Phyllis Welker before seeking reinstatement. In support

of his recommendation, the master commissioner noted that an indefinite

suspension is the presumptive sanction for attorneys who neglect client matters

and fail to cooperate in the resulting disciplinary investigation. Akron Bar Assn.

v. Goodlet, 115 Ohio St.3d 7, 2007-Ohio-4271, 873 N.E.2d 815, ¶ 20. The master

commissioner then cited cases in which we have indefinitely suspended other

attorneys for misconduct similar to Tomson’s, including attorneys who also

accepted retainers and then failed to perform the contracted work and failed to

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cooperate in the ensuing investigation. See, e.g., Columbus Bar Assn. v. Emerson,

84 Ohio St.3d 375, 704 N.E.2d 238 (1999); Cleveland Bar Assn. v. Davis, 121

Ohio St.3d 337, 2009-Ohio-764, 904 N.E.2d 517.

{¶ 20} While the board agrees that Tomson should be ordered to make

full restitution to Limbach and Phyllis Welker, it recommends that he be

permanently disbarred from the practice of law in Ohio.

{¶ 21} We have found that Tomson has neglected the Limbach and

Welker matters and that he has failed to cooperate in the ensuing investigation. In

addition to this conduct, however, he has accepted thousands of dollars in fees

from these clients and failed to perform the contracted work. Although he claims

to have performed research on behalf of these clients, he testified at his deposition

that he had not used common online research tools, such as Westlaw or Lexis, or

reviewed any treatises that might have helped him formulate a strategy to pursue

his clients’ legal objectives. Instead, he read the weekly advance sheets published

by the Ohio State Bar Association, waiting in vain for this court to develop case

law that would advance his clients’ objectives.

{¶ 22} Moreover, Tomson repeatedly told his clients that he was

“confident” that he would have something to them within a definite time period—

such as within 30 to 45 days—but he never met his projected completion dates.

And at his deposition, he claimed that those projections were not promises to

complete the clients’ work in a certain time frame but were merely statements of

his intentions that his clients mistook for promises. He explained that he intended

to complete the work by those self-imposed deadlines but that he “could just

never find the right case law” and that every time he would get ready to file

something, he would decide that “it just wasn’t good enough.” Rather than

seeking postconviction relief with the case law he had found, or telling his clients

that he could not help them and suggesting that they seek new counsel, Tomson

kept their money—more than $13,000 in all according to the board’s report—and

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strung them along for more than seven years. That he sees nothing wrong with

his course of conduct is extremely troubling.

{¶ 23} In Warren Cty. Bar Assn. v. Marshall, 121 Ohio St.3d 197, 2009-

Ohio-501, 903 N.E.2d 280, we permanently disbarred an attorney who accepted

retainers totaling more than $5,000, neglected his clients’ entrusted legal matters,

and intentionally failed to carry out his contracts of employment for legal services

and who then failed to cooperate in the ensuing disciplinary investigations. There

were no mitigating factors in that case. Id. at ¶ 14. Aggravating factors included

Marshall’s two prior disciplinary offenses that resulted in separate two-year

suspensions from the practice of law, his pattern of misconduct, his dishonesty,

fraud, deceit, or misrepresentation to his clients about the status of their matters,

his failure to refund unearned fees on request, and his failure to cooperate in the

disciplinary investigation. Id. at ¶ 14, 18.

{¶ 24} In Cleveland Metro. Bar Assn. v. Hildebrand, 127 Ohio St.3d 304,

2010-Ohio-5712, 939 N.E.2d 823, ¶ 20, 22, we also disbarred an attorney who

collected fees from clients and failed to perform the agreed-upon services, ignored

his clients’ inquiries about the status of their cases, ignored his clients’ requests

for refunds when it became apparent that he was not performing the contracted

work, made false statements to the relator regarding his intentions to respond to

the resulting grievances, and intentionally failed to cooperate in the disciplinary

proceedings. We observed that “ ‘[t]aking retainers and failing to carry out

contracts of employment is tantamount to theft of the fee from the client’ ” and

stated that permanent disbarment is the presumptive sanction for such acts. Id. at

¶ 21, quoting Cincinnati Bar Assn. v. Weaver, 102 Ohio St.3d 264, 2004-Ohio-

2683, 809 N.E.2d 1113, ¶ 16.

{¶ 25} We recognize that Tomson does not have a prior disciplinary

record, as did Marshall and Hildebrand. However, we find that his offenses are

comparable because he accepted thousands of dollars from the two affected

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clients, failed to pursue their claims for postconviction relief as they sat in prison

for more than seven years, and deceived them by representing that he was

working to secure the reductions of their criminal sentences. Therefore, we agree

that permanent disbarment is the appropriate sanction for Tomson’s misconduct.

{¶ 26} Accordingly, William Leonard Tomson Jr. is ordered to make

restitution of $8,000 to Limbach and $5,200 to Phyllis Welker and is permanently

disbarred from the practice of law in Ohio. Costs are taxed to Tomson.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

____________________

Jonathan E. Coughlan, Disciplinary Counsel, and Philip A. King, Assistant

Disciplinary Counsel, for relator.

_________________________

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