Disciplinary Counsel v. Motylinski

[Cite as Disciplinary Counsel v. Motylinski, 134 Ohio St.3d 562, 2012-Ohio-5779.]

DISCIPLINARY COUNSEL v. MOTYLINSKI.

[Cite as Disciplinary Counsel v. Motylinski, 134 Ohio St.3d 562,

2012-Ohio-5779.]

Attorneys—Misconduct—Failure to reasonably communicate with client—

Practicing law while registered as inactive—Six-month suspension, stayed

on condition.

(No. 2011-1016—Submitted June 20, 2012—Decided December 7, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-021.

_________________

Per Curiam.

{¶ 1} Respondent, Michael Motylinski of St. Thomas, Virgin Islands,

Attorney Registration No. 0076628, was admitted to the practice of law in Ohio in

2003.1 On February 14, 2011, relator, disciplinary counsel, charged Motylinski

with professional misconduct for failing to reasonably communicate with a client

and for continuing to practice law after he changed the status of his license to

practice law to inactive.

{¶ 2} In accordance with BCGD Proc.Reg. 11, the parties submitted a

consent-to-discipline agreement containing stipulations of fact and misconduct

and a recommendation that Motylinski be suspended from the practice of law for

a period of six months, with the entire suspension stayed. On the

recommendation of a panel of its members, the Board of Commissioners on

Grievances and Discipline recommended that we adopt the consent-to-discipline

agreement. We rejected the parties’ recommended sanction, however, and

1. Motylinski testified that he had become licensed to practice law in California in 2009 and had

provisional admittance to practice in the Virgin Islands.

SUPREME COURT OF OHIO

remanded the matter to the board for further proceedings. Disciplinary Counsel v.

Motylinski, 129 Ohio St.3d 1458, 2011-Ohio-4228, 951 N.E.2d 1052.

{¶ 3} On remand, the parties submitted their stipulated findings of fact,

misconduct, and mitigation, and agreed to a six-month stayed suspension. A

panel of the board agreed to accept the parties’ stipulations in lieu of a hearing

and adopted the parties’ stipulated sanction of a six-month stayed suspension, but

recommended that the stay of the suspension be conditioned on Motylinski

reimbursing the client for a filing fee. The board adopted the panel’s proposed

sanction, and so do we.

Misconduct

{¶ 4} The stipulated facts and testimony demonstrate that in April 2009

the New York law firm of Bond, Schoeneck & King, P.L.L.C., referred its client,

Roth Industries, to Motylinski to handle a collection matter on a contingent-fee

basis. The law firm forwarded to Motylinski a check in the amount of $125 for

court costs, and on May 5, 2009, Motylinski filed a complaint in the Cuyahoga

County Court of Common Pleas on behalf of Roth.

{¶ 5} In July 2009, Motylinski received an offer of employment in the

Virgin Islands that he accepted. He subsequently moved out of the country on

August 15, 2009, and changed the status of his license to practice law in Ohio to

inactive on September 1, 2009. From August to September 2009, Motylinski did

not respond to Bond, Schoeneck & King’s numerous phone calls and e-mails

regarding the status of Roth’s case. It was not until Bond, Schoeneck & King

demanded that Motylinski return Roth’s file that Motylinski responded to any of

the law firm’s messages. At that time, Motylinski revealed that he was working

in the Virgin Islands but did not disclose the status of his registration to practice

law in Ohio.

{¶ 6} In November and December 2009, Motylinski continued to work

on Roth’s case, including transmitting a settlement offer and participating in a

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January Term, 2012

telephone pretrial conference with the court. Eventually, the court discovered that

Motylinski was registered as inactive and, on December 21, 2009, dismissed

Roth’s case without prejudice because Motylinski was prohibited from practicing

law. Motylinski did not advise Roth or Bond, Schoeneck & King that the case

had been dismissed. Instead, Motylinski continued to attempt to negotiate a

settlement for Roth until February 2010, when Bond, Schoeneck & King

discovered Motylinski’s inactive status and terminated his services.

{¶ 7} Based upon the stipulated facts summarized above, the parties

agreed that Motylinski’s conduct violated Prof.Cond.R. 1.4(a)(4) (requiring a

lawyer to comply as soon as practicable with reasonable requests for information

from the client), 1.4(b) (requiring a lawyer to explain a matter to the extent

reasonably necessary to permit the client to make informed decisions regarding

the representation), 5.5(a) (prohibiting a lawyer from practicing law in a

jurisdiction in violation of the regulation of the legal profession in that

jurisdiction), and 5.5(b)(2) (prohibiting a lawyer who is not admitted to practice in

this jurisdiction to hold out to the public or otherwise represent that the lawyer is

admitted to practice in this jurisdiction).

{¶ 8} The panel found that Motylinski violated Prof.Cond.R. 1.4(a)(4),

1.4(b), and 5.5(b)(2), but concluded that there were not sufficient facts to find a

violation of Prof.Cond.R. 5.5(a) and recommended that the charge be dismissed.

While the board agreed that Motylinski had violated Prof.Cond.R. 1.4(a)(4) and

1.4(b), it disagreed with the panel in two respects. First, it found that Motylinski

had violated Prof.Cond.R. 5.5(a) by engaging in the practice of law while on

inactive status. Second, it recommended dismissal of the charge of violating

Prof.Cond.R. 5.5(b)(2), which prohibits a lawyer from holding out that he or she

is admitted to the practice of law in this jurisdiction, because Motylinski was

admitted to the practice of law in Ohio even though he was on inactive status. We

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SUPREME COURT OF OHIO

agree with the findings of the board. Accordingly, the charge of violating

Prof.Cond.R. 5.5(b)(2) is dismissed.

Sanction

{¶ 9} 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. Disciplinary Counsel v. Broeren, 115 Ohio St.3d

473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

{¶ 10} The parties stipulated that mitigating factors include the absence of

a prior disciplinary record, absence of a dishonest or selfish motive, and full and

free disclosure and a cooperative attitude toward the disciplinary proceedings.

See BCGD Proc.Reg. 10(B)(2)(a), (b), and (d). The parties did not stipulate to

any aggravating factors. The panel and board found, however, that the evidence

demonstrated that Motylinski did have a selfish and dishonest motive. The record

reveals that Motylinski did not disclose his inactive status and continued to work

on Roth’s collection case after becoming inactive because he wanted to collect a

percentage of any settlement. We agree that Motylinski’s intentions were

dishonest and decline to consider BCGD Proc.Reg. 10(B)(2)(b) as a mitigating

factor.

{¶ 11} The parties stipulated that that a six-month stayed suspension is the

appropriate sanction for Motylinski’s misconduct. The panel and board agree

with the recommended sanction but also recommend that we condition the stay of

Motylinski’s suspension on requiring Motylinski to reimburse Roth for the money

that was given him to pay the court costs in Roth’s collection case. We agree and

conclude that the sanction recommended by the board is appropriate.

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January Term, 2012

{¶ 12} Accordingly, we suspend Michael Motylinski from the practice of

law for a period of six months, with the entire suspension stayed on the condition

that he pay Roth Industries $125 within 30 days of the date of this order. Costs

are taxed to Motylinski.

Judgment accordingly.

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

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

_________________

Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa,

Assistant Disciplinary Counsel, for relator.

Michael Motylinski, pro se.

__________________________

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