The opinion
[Cite as Cleveland Metro. Bar Assn. v. Freeman, 135 Ohio St.3d 263, 2013-Ohio-736.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. FREEMAN.
[Cite as Cleveland Metro. Bar Assn. v. Freeman, 135 Ohio St.3d 263,
2013-Ohio-736.]
Attorney misconduct, including failing to act with reasonable diligence in
representing a client, failing to keep client reasonably informed, failing to
promptly refund unearned fees and protect a client’s interests upon
withdrawal from representation, and failing to cooperate with a
disciplinary investigation.
(No. 2012-1693—Submitted January 23, 2013—Decided March 6, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 12-029.
__________________
Per Curiam.
{¶ 1} Respondent, Kenneth Jeff Freeman of Cleveland, Ohio, Attorney
Registration No. 0018940, was admitted to the practice of law in Ohio in 1981.
We publicly reprimanded Freeman in April 2002 for neglecting a client’s
bankruptcy, handling an adversarial proceeding in another client’s bankruptcy
without adequate preparation, and initially failing to cooperate in the resulting
disciplinary investigation. Cleveland Bar Assn. v. Freeman, 95 Ohio St.3d 117,
2002-Ohio-1944, 766 N.E.2d 152. And in March 2011, we imposed a one-year
suspension, fully stayed on conditions, for Freeman’s neglect of two client
matters and his failure to effectively communicate with the clients in those
matters. Cleveland Metro. Bar Assn. v. Freeman, 128 Ohio St.3d 416, 2011-
Ohio-1447, 945 N.E.2d 515.
{¶ 2} This matter is now before us on a three-count complaint filed by
relator, Cleveland Metropolitan Bar Association, alleging that Freeman overdrew
his client trust account, failed to reasonably communicate with two clients,
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neglected one client matter, failed to protect a client’s interests upon the
termination of his representation, failed to promptly refund the unearned portion
of his fee upon withdrawal from employment, committed an illegal act that
adversely reflects on his honesty or trustworthiness, and failed to cooperate in the
resulting disciplinary investigations.
{¶ 3} Although the complaint was served at the address Freeman has on
file with the Attorney Registration Office, he failed to file an answer or otherwise
respond. On September 7, 2012, relator moved for default judgment. A master
commissioner appointed by the Board of Commissioners on Grievances and
Discipline granted the default motion and, based upon the evidence submitted by
relator, found that Freeman had committed the charged misconduct. Citing
Freeman’s repeated breach of his duties to clients, the public, and the legal
profession, combined with the aggravating effect of his prior disciplinary record,
the master commissioner agreed with relator’s recommendation that Freeman be
permanently disbarred. The board adopted the master commissioner’s findings of
fact and misconduct as well as its recommendation that he be permanently
disbarred from the practice of law in Ohio. For the reasons that follow, we find
that permanent disbarment is the appropriate sanction for Freeman’s misconduct.
Misconduct
Count One: The Lewis Matters
{¶ 4} Joel K. Lewis retained Freeman to file a Chapter 7 bankruptcy in
January 2010 and paid attorney and filing fees totaling $2,177. But Freeman
never filed the bankruptcy petition and failed to respond to Lewis’s inquiries
about the case. Lewis paid Freeman an additional $825 to represent him in a
foreclosure action filed against him by Chase Bank, U.S.A. Freeman learned in
early August 2010 that Chase had filed a complaint against Lewis, but he waited
until August 17, 2010, to obtain a copy of it from the court, at which time he
discovered that Chase had moved for default judgment. Freeman obtained leave
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to answer the complaint, and in October 2010, he entered into a consent judgment
with Chase that stayed execution of the judgment against Lewis for 60 days. In
January 2011, Lewis forwarded a notice to Freeman indicating that Chase had
initiated collection proceedings against him. Freeman did not respond to that
correspondence or to Lewis’s subsequent notice of termination and request for a
refund. Lewis retained another law firm to address the garnishment of his wages.
{¶ 5} Freeman did not respond to relator’s letter of inquiry regarding the
Lewis grievance, despite the fact that relator twice granted him extensions of time
to respond. In response to a July 20, 2011 letter from relator, Freeman did
confirm that he had met with Lewis in January 2010 and that he had never filed a
bankruptcy petition on Lewis’s behalf. He also confirmed that he had learned of
the Chase lawsuit on August 6, 2010, but that he had waited until August 17,
2010, to obtain a copy of the complaint from the court. He did not respond to
further communications from relator. Nor did he file an answer or otherwise
appear in this disciplinary proceeding.
{¶ 6} The board found that Freeman’s conduct in the Lewis matters
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(2) (requiring a lawyer to reasonably consult with the
client about the means by which the client’s objectives are to be accomplished),
1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the
status of a matter), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable
with reasonable requests for information from the client), 1.16(e) (requiring a
lawyer to promptly refund any unearned fee upon the lawyer’s withdrawal from
employment), and 8.1(b) and Gov.Bar R. V(4)(G) (both requiring a lawyer to
cooperate with a disciplinary investigation).
Count Two: The Wilder Matter
{¶ 7} In May 2010, Jamere Wilder retained Freeman to file an
emergency Chapter 13 bankruptcy. Freeman filed two bankruptcy petitions on
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Wilder’s behalf, but the bankruptcy court dismissed them because of Wilder’s
failure to make payments according to the plan. Wilder retained Freeman to file a
third bankruptcy in January 2011. She gave Freeman more than $16,000,
representing six months of the payments required by her previous Chapter 13
plan. Instead of filing a Chapter 13 bankruptcy, Freeman filed a Chapter 7
bankruptcy, and he deducted his $1,200 fee and $426 in filing fees from the funds
he had received from Wilder. Although Freeman had agreed to seek a mortgage
loan modification on Wilder’s behalf, he failed to do so. He also consistently
failed to return Wilder’s telephone calls. Consequently, in August 2011, Wilder
terminated his representation and asked him to return the balance of her money.
When Freeman did not return the money, Wilder filed a report with the Cleveland
police department and applied for reimbursement from the Clients’ Security Fund.
{¶ 8} Relator notified Freeman of Wilder’s grievance in two letters
mailed in September 2011. Relator also attempted to follow up with him by
telephone and fax, but received no response.
{¶ 9} The board found that Freeman’s conduct in the Wilder matter
violated Prof.Cond.R. 1.4(a)(2), 1.4(a)(3), 1.4(a)(4), 1.16(d) (requiring a lawyer
withdrawing from representation to take steps reasonably practicable to protect a
client’s interest), 8.1(b), and 8.4(b) (prohibiting a lawyer from committing an
illegal act that reflects adversely on the lawyer’s honesty or trustworthiness) and
Gov.Bar R. V(4)(G).
Count Three: Overdraft of Client Trust Account
{¶ 10} On July 28, 2011, disciplinary counsel received a notice from
Freeman’s bank, advising that he had overdrawn his client trust account.
Disciplinary counsel referred the matter to relator for further investigation.
Although Freeman received relator’s letter of inquiry and requested an extension
of time to respond to it, he failed to submit a response. He also did not return
relator’s telephone calls.
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{¶ 11} The board found that Freeman’s conduct violated Prof.Cond.R.
1.15(a) (requiring a lawyer to hold funds of clients in an interest-bearing trust
account, separate from the lawyer’s own funds), 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice
law), and 8.1(b) and Gov.Bar R. V(4)(G).
{¶ 12} We adopt the board’s findings of fact and misconduct with respect
to each of the three counts summarized above.
Sanction
{¶ 13} 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
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.
{¶ 14} The board found, and we agree, that seven of the nine aggravating
factors set forth in BCGD Proc.Reg. 10(B)(1) are present. Specifically, Freeman
has committed prior disciplinary offenses, has engaged in a pattern of misconduct
involving multiple offenses, has failed to cooperate in the disciplinary process,
has refused to acknowledge the wrongful nature of his conduct, has caused harm
to vulnerable clients, and has failed to make restitution. BCGD Proc.Reg.
10(B)(1)(a), (c), (d), (e), (g), (h), and (i). And there is no evidence that any of the
mitigating factors of BCGD Proc.Reg. 10(B)(2) are present.
{¶ 15} In light of Freeman’s persistent breach of his duties to his clients,
the public, and the legal profession by accepting legal fees and failing to complete
the promised legal work, failing to reasonably communicate with his clients, and
failing to cooperate in the ensuing disciplinary investigations, and because
Freeman has been disciplined in the past for similar misconduct, the master
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commissioner and board recommend disbarment. Indeed, the presumptive
sanction for accepting retainers and then failing to carry out the contract of
employment is disbarment because such conduct is tantamount to theft. See, e.g.,
Columbus Bar Assn. v. Moushey, 104 Ohio St.3d 427, 2004-Ohio-6897, 819
N.E.2d 1112, ¶ 16. In the absence of any mitigating factors to warrant the
imposition of a lesser sanction, we agree that permanent disbarment is the
appropriate sanction here.
{¶ 16} Accordingly, Kenneth Jeff Freeman is permanently disbarred from
the practice of law in Ohio. Costs are taxed to Freeman.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
__________________
Squire Sanders, L.L.P., Colin Jennings, and Kathleen M. Portman, for
relator.
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