Akron Bar Assn. v. Carr

[Cite as Akron Bar Assn. v. Carr, 135 Ohio St.3d 390, 2013-Ohio-1485.]

AKRON BAR ASSOCIATION v. CARR.

[Cite as Akron Bar Assn. v. Carr, 135 Ohio St.3d 390, 2013-Ohio-1485.]

Attorneys—Misconduct—Failure to provide competent representation—Charging

clearly excessive fee—Engaging in conduct prejudicial to administration

of justice—Engaging in conduct adversely reflecting on fitness to practice

law—Engaging in conduct involving deceit or dishonesty—Indefinite

suspension.

(No. 2012-1699—Submitted January 23, 2013—Decided April 17, 2013.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-101.

__________________

Per Curiam.

{¶ 1} Respondent, Jeffrey Alan Carr, of Akron, Ohio, Attorney

Registration No. 0081745, was admitted to the practice of law in Ohio in 2007. In

February 2012, we suspended his license for six months, with the entire

suspension stayed on conditions, for charging a clearly excessive fee. Akron Bar

Assn. v. Carr, 131 Ohio St.3d 210, 2012-Ohio-610, 963 N.E.2d 802. At that time,

Carr was registered with the Office of Attorney Services as inactive, and we

ordered that his stayed suspension shall take effect upon his being restored to

active status. Id. at ¶ 19. We also ordered that Carr make restitution and pay the

costs associated with that disciplinary proceeding before being restored to active

status. Id. On March 14, 2013, we found Carr in contempt for failing to comply

with this court’s order to pay costs, revoked the stay of his six-month suspension,

and ordered Carr to serve the entire six months as an actual suspension. 134 Ohio

St.3d 1490, 2013-Ohio-924, 984 N.E.2d 32.

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{¶ 2} In December 2011, relator, Akron Bar Association, charged Carr

with professional misconduct in a three-count complaint involving a different

client. The Board of Commissioners on Grievances and Discipline attempted

service of the complaint by certified mail, but service was returned as “refused.”

The board then served the complaint on the clerk of this court, pursuant to

Gov.Bar R. V(11)(B). Even though Carr had earlier appeared for a deposition

during relator’s investigation of the grievance filed against him, he did not answer

the complaint, and relator thereafter moved for an entry of default. The board

appointed a master commissioner, who made findings of fact and misconduct and

recommended an indefinite suspension. The board adopted the master

commissioner’s findings and recommended sanction. We, in turn, adopt the

board’s findings and hereby indefinitely suspend Carr from the practice of law in

Ohio.

Misconduct

{¶ 3} Based on Carr’s deposition testimony and the sworn affidavits in

the record, the board found that Carr acted incompetently, charged clearly

excessive fees, made false statements to relator, and prejudiced his clients’

interests.

{¶ 4} Specifically, in March 2009, Carol Shelly retained Carr, through

relator’s lawyer-referral service, to represent her and her husband in a case filed

against them by the United States government for unpaid federal taxes. At that

time, Carr did not have experience litigating tax issues in federal court.

{¶ 5} In December 2009, the United States filed a motion for summary

judgment against the Shellys and, along with its 23-page brief, submitted 21

exhibits to support its motion, including deposition transcripts, discovery

responses, and various tax documents. In response, Carr filed an eight-page brief,

without any exhibits or supporting materials—despite the fact that Shelly had

given him the relevant tax returns prepared by her accountant and reports from

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January Term, 2013

Internal Revenue Service agents showing that the Shellys owed less than the

amount claimed by the government in its lawsuit. In January 2010, the federal

court granted summary judgment against the Shellys, found them liable for

$520,810.35 in unpaid taxes, and ordered that tax liens be foreclosed on their

home. In the district court opinion, the judge explained that the Shellys’ legal

argument suffered from “one significant, fatal flaw”: “they offered no evidence

of any kind.”

{¶ 6} Despite this result, between March 2009 and January 2010, Carr

billed Shelly $70,272 in fees relating to the federal tax lawsuit, and she paid him a

total of $65,190. The board found that these fees were excessive—mostly

because Carr’s billing invoices did not match his work product. For example, in

his April 2009 invoice, Carr billed four hours for a client conference that

according to Shelly, lasted about 45 minutes. Similarly, in his May 2009 invoice,

Carr billed 16 hours for document review, but according to Shelly, he later

seemed unfamiliar with the documents at a deposition. And Carr billed 14.5

hours for preparation of his memorandum in opposition to the government’s

summary judgment motion, even though the document was only eight pages and

did not include any supporting materials.

{¶ 7} The board also found that Carr failed to honor his agreement with

relator’s lawyer-referral service. As a participant, Carr agreed that in the event he

obtained a client through the service, he would remit 15 percent of any fees over

$200 from that client to the service within ten days of receiving the fee. While

Carr remitted fees in May, June, and July 2009 relating to his representation of the

Shellys, he did not pay any percentage in the months of September through

December, even though he received additional money from Carol Shelly during

this time period. Moreover, on December 17, 2009, Carr reported to the service

that the Shellys’ case had closed and that no additional fees had been paid to him.

The record shows, however, that Carr filed his opposition to the government’s

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motion four days later, on December 21, 2009. Further, Carr continued to work

on and bill for the Shellys’ case through January 2010, and he received a payment

of $4,650 from Carol Shelly on January 6, 2010. Ultimately, based on the amount

that Shelly paid him less the $200 deductible, Carr should have remitted

$9,748.50 to the service, but he paid only $1,430. And at his deposition, Carr

refused to acknowledge the wrongful nature of his conduct by testifying that he

had met his obligations under the referral-service agreement.

{¶ 8} Based on these findings, the board found that Carr’s conduct

violated Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation

to a client), 1.5(a) (prohibiting a lawyer from making an agreement for, charging,

or collecting an illegal or clearly excessive fee), 4.1(a) (prohibiting a lawyer from

knowingly making a false statement of material fact or law), 8.4(a) (prohibiting a

lawyer from violating or attempting to violate the Ohio Rules of Professional

Conduct), 8.4(c) (prohibiting a lawyer from engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (prohibiting a lawyer from

engaging in conduct that is prejudicial to the administration of justice), and 8.4(h)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the

lawyer’s fitness to practice law). We agree.

{¶ 9} We also agree with the board’s recommendation to dismiss the

charge under Prof.Cond.R. 1.5(b) (requiring an attorney to communicate the

nature and scope of the representation and the basis or rate of the fee and

expenses within a reasonable time after commencing the representation) for

insufficient evidence. And we also dismiss the charge under Prof.Cond.R. 1.15(a)

(requiring a lawyer to hold property of clients in an interest-bearing client trust

account, separate from the lawyer’s own property), because neither the master

commissioner nor the board made any findings with respect to this allegation.

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Sanction

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

several relevant factors, including the ethical duties violated, the actual injury

caused, the existence of any aggravating and mitigating factors listed in BCGD

Proc.Reg. 10(B), 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;

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

N.E.2d 935, ¶ 21.

{¶ 11} We have already identified Carr’s ethical breaches of duties owed

to his clients and the legal profession. The board found no mitigating factors but

found five of the aggravating factors listed in BCGD Proc.Reg. 10(B)(1),

including a prior disciplinary offense, dishonest or selfish motive, lack of

cooperation in the disciplinary process, submission of false statements or other

deceptive practices during the disciplinary process, and a refusal to acknowledge

the wrongful nature of his conduct. BCGD Proc.Reg. 10(B)(1)(a), (b), (e), (f),

and (g).

{¶ 12} For precedent, the board cited Columbus Bar Assn. v. Torian, 106

Ohio St.3d 14, 2005-Ohio-3216, 829 N.E.2d 1210, and Cincinnati Bar Assn. v.

Brown, 121 Ohio St.3d 445, 2009-Ohio-1249, 905 N.E.2d 184, to support its

recommendation of an indefinite suspension. Both cases reiterate our consistent

holding that neglect of legal matters and the failure to cooperate in the ensuing

disciplinary investigation warrant an indefinite suspension from the practice of

law. Torian at ¶ 17; Brown at ¶ 9.

An indefinite suspension is an appropriate sanction when a

lawyer violates the standards of professional competence,

diligence, and integrity by neglecting to complete promised legal

services, misappropriating client funds, and failing to promptly

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return client funds and other property to which the client is

entitled.

Id. See also Cleveland Metro. Bar Assn. v. Gottehrer, 124 Ohio St.3d 519, 2010-

Ohio-929, 924 N.E.2d 825 (indefinite suspension warranted in a default

proceeding for neglect of client matters, charging a clearly excessive fee, and

failing to cooperate in the ensuing disciplinary proceeding). In addition, we have

previously noted that when neglect of client matters and failure to cooperate “are

coupled with dishonesty in any form, an indefinite suspension is all but

guaranteed.” Disciplinary Counsel v. Golden, 97 Ohio St.3d 230, 2002-Ohio-

5934, 778 N.E.2d 564, ¶ 23.

{¶ 13} Having considered Carr’s conduct, the profusion of aggravating

factors, the absence of any mitigating factors, and the sanctions previously

imposed for comparable conduct, we agree with the board that the appropriate

sanction is an indefinite suspension. Accordingly, Jeffrey Alan Carr is hereby

indefinitely suspended from the practice of law in the state of Ohio. Costs are

taxed to Carr.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

__________________

William G. Chris, Bar Counsel, and Milton C. Rankins, Vincent J. Alfera,

and Linda Chugh Ulinski, for relator.

______________________

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