Columbus Bar Assn. v. Stubbs

[Cite as Columbus Bar Assn. v. Stubbs, 134 Ohio St.3d 162, 2012-Ohio-5481.]

COLUMBUS BAR ASSOCIATION v. STUBBS.

[Cite as Columbus Bar Assn. v. Stubbs, 134 Ohio St.3d 162, 2012-Ohio-5481.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct,

including practicing law in violation of jurisdictional regulations,

engaging in conduct that adversely reflects on the lawyer’s fitness to

practice law, dishonesty, fraud, deceit, or misrepresentation, and failure

to cooperate in multiple disciplinary investigations—Permanent

disbarment.

(No. 2012-0316—Submitted April 24, 2012—Decided November 29, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-010.

__________________

Per Curiam.

{¶ 1} Respondent, SaKeya MonCheree Stubbs of Columbus, Ohio,

Attorney Registration No. 0071309, was admitted to the practice of law in Ohio in

1999. On June 21, 2006, we suspended her license for six months, staying the

suspension on a condition, and placed her on a one-year monitored probation for

falsifying a document in an attempt to convince the Ohio Bureau of Motor

Vehicles that she had been properly insured at the time she received a traffic

citation. Columbus Bar Assn. v. Stubbs, 109 Ohio St.3d 446, 2006-Ohio-2818,

848 N.E.2d 843. In December 2007, and then again in November 2009, we

imposed attorney-registration suspensions on Stubbs for her failure to register for

the 2007-2009 and 2009-2011 bienniums. In re Attorney Registration Suspension

of Stubbs, 116 Ohio St.3d 1420, 2007-Ohio-6463, 877 N.E.2d 305; In re Attorney

Registration Suspension of Stubbs, 123 Ohio St.3d 1475, 2009-Ohio-5786, 915

N.E.2d 1256. And on February 15, 2011, in a default proceeding, we indefinitely

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suspended Stubbs from the practice of law for failure to maintain accurate records

of the funds held in her client trust account, failure to promptly deliver funds that

a client was entitled to receive, and failure to cooperate in the disciplinary

process. Disciplinary Counsel v. Stubbs, 128 Ohio St.3d 344, 2011-Ohio-553,

944 N.E.2d 225. That suspension remains in effect.

{¶ 2} On February 14, 2011, relator, Columbus Bar Association, charged

Stubbs in a ten-count complaint with numerous violations of the Rules of

Professional Conduct. Although the complaint was served on Stubbs by certified

mail, she did not file an answer, and relator moved for an entry of default. The

Board of Commissioners on Grievances and Discipline appointed a master

commissioner, who found that Stubbs had committed some of the charged

misconduct and recommended an indefinite suspension, to run consecutively to

Stubbs’s previous suspension. The board adopted the master commissioner’s

findings of fact and misconduct but, as a sanction, recommends permanent

disbarment. Other than the one exception noted below, we adopt the board’s

findings of fact and misconduct, and we permanently disbar Stubbs from the

practice of law in Ohio.

Misconduct

Count I—Kacey R. Noel Matter

{¶ 3} Based on the sworn affidavit of grievant Kacey R. Noel, the board

found that in early December 2007, Noel, who had been accused of writing bad

checks, gave Stubbs a $500 retainer and a $100 gift card to represent her. At that

time, Stubbs’s first attorney-registration suspension was in effect, and she

informed Noel that she needed the retainer to pay her reinstatement fee. Despite

Stubbs’s attempt to work out an agreement with Noel’s creditors, Noel was

indicted on December 19, 2007.

{¶ 4} Noel felt that Stubbs had failed to adequately represent her and

requested the return of her money and gift card. Stubbs refused, and the two

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subsequently exchanged a number of increasingly uncivil voicemail messages.

Stubbs then filed a criminal complaint against her client with the Columbus city

attorney, and according to Noel, Stubbs provided the city attorney with recordings

of Noel’s voicemail messages containing client communications to corroborate

the allegations. Noel claims that the city attorney initially charged her with

telephone harassment, but the charges were later dismissed.

{¶ 5} The master commissioner and board found that Stubbs’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), 1.16(d) (requiring a lawyer

withdrawing from representation to take steps reasonably practicable to protect a

client’s interest, including returning all client property to which the client is

entitled), 1.6(a) (prohibiting a lawyer from revealing confidential client

information without informed consent), 5.5(a) (prohibiting a lawyer from

practicing law in a jurisdiction in violation of the regulation of the legal

profession in that jurisdiction),1 and 8.4(h) (prohibiting a lawyer from engaging in

conduct that adversely reflects on the lawyer’s fitness to practice law). We adopt

these findings of fact and of misconduct.

Count IV—Roland Pschibul Matter

{¶ 6} Based on the sworn affidavit of grievant Roland Pschibul, the

board found that in May 2009, Stubbs represented Pschibul’s wife in a custody

1. In count I of its complaint, as well as in counts VI and VII, relator charged Stubbs with a

violation of “Rule 5.5(b) [unauthorized practice of law].” For all three counts, the master

commissioner and board determined that Stubbs had engaged in the unauthorized practice of law;

however, they determined that her conduct violated Prof.Cond.R. 5.5(a), rather than 5.5(b). From

the misconduct described, it is clear that relator meant to cite Prof.Cond.R. 5.5(a). We agree with

the master commissioner and board’s determination that Stubbs’s charged misconduct here—i.e.,

the unauthorized practice of law—violates Prof.Cond.R. 5.5(a). See, e.g., Disciplinary Counsel v.

Meehan, 133 Ohio St.3d 51, 2012-Ohio-3894, 975 N.E.2d 972, ¶ 5 (attorney violated Prof.Cond.R.

5.5(a) for practicing while under attorney-registration suspension).

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matter regarding his minor daughter. During that representation, Stubbs

improperly notarized and filed a falsified affidavit. Specifically, Stubbs filed an

affidavit purportedly signed by the minor child, but the child did not sign the

document and was not in Stubbs’s presence when she notarized it. The master

commissioner and board found that Stubbs’s conduct violated Prof.Cond.R.

8.4(h), and we agree.

{¶ 7} Although relator’s complaint alleged that Stubbs also violated

Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that

reflects adversely on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting

a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct

that is prejudicial to the administration of justice), neither the master

commissioner nor the board made any findings with respect to these allegations.

Because the board did not address these violations, we dismiss the charges.

Count VI—Patricia Hall Matter

{¶ 8} Based on the sworn affidavit of grievant Patricia Hall, the board

found that on November 10, 2010, Hall paid Stubbs a $285 retainer to represent

her in a divorce case. Stubbs, however, never filed the divorce case, and

whenever Hall inquired as to the date on which the action would be filed, Stubbs

either failed to return her phone calls or gave her a false date. Although Stubbs

initially agreed to refund Hall’s money, she never returned it. The master

commissioner and board found that Stubbs’s conduct violated Prof.Cond.R. 1.1,

1.5(a), 1.16(d), and 8.4(h). We agree.

{¶ 9} We disagree, however, with the master commissioner and board’s

finding that sufficient evidence exists to conclude that Stubbs violated

Prof.Cond.R. 5.5(a) for representing Hall while her license was suspended.

Stubbs was suspended from the practice of law between November 3, 2009, and

March 5, 2010, for failure to register. The master commissioner and board found

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that Stubbs accepted Hall’s retainer during this time period. While Hall’s

grievance states that she paid Stubbs on “November 10, 2009,” relator’s

complaint and Hall’s sworn affidavit state that she hired Stubbs on “November

10, 2010.” Accordingly, we find that the sworn evidence in the record does not

clearly and convincingly show that Stubbs committed the charged misconduct,

and we therefore dismiss the violation. We also dismiss relator’s charges for

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

in representing a client) and 1.4 (requiring a lawyer to reasonably communicate

with a client) because the master commissioner and board made no findings with

respect to these charges.

Count VII—Adoption Matter

{¶ 10} Based on the sworn affidavit of grievant Kelly C. Patton, the board

found that in October 2009, Stubbs filed an adoption petition on behalf of a

prospective parent in the Franklin County Probate Court. The matter was

scheduled for a hearing before Magistrate Patton on December 8, 2009. As noted

above, Stubbs’s license was suspended at that time. Stubbs unsuccessfully

attempted to continue the hearing, and on the day of the hearing, her client

appeared in court alone. After questioning from the magistrate, the client stated

that she was unaware of Stubbs’s suspension. Stubbs then appeared and

proceeded to counsel her client and a representative from Franklin County

Children Services about the need for a continuance due to a factual matter. The

magistrate continued the matter until January 2010, at which time the client

appeared with new counsel.

{¶ 11} The master commissioner and board found, and we agree, that

Stubbs’s conduct violated Prof.Cond.R. 1.1, 1.3, 1.4(a)(3) (requiring a lawyer to

keep the client reasonably informed about the status of a matter), 5.5(a), 8.4(c),

and 8.4(h).

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Count VIII—Reana Allen Matter

{¶ 12} Based on the sworn affidavit of grievant Reana Allen, the board

found that in September 2009, Allen paid Stubbs an initial retainer of $150 to

represent her in a divorce action. Stubbs later informed Allen that she had made

several court appearances in the case and that the trial was set for March 23, 2010.

Stubbs, however, had not scheduled any hearings or otherwise appeared in the

case after filing the complaint, and when Allen attempted to reach Stubbs, she did

not respond. In addition, Stubbs never informed Allen of her license suspension,

and Allen was ultimately forced to obtain new counsel. The master commissioner

and board found, and we agree, that Stubbs’s conduct violated Prof.Cond.R. 1.1,

1.3, 1.4(a)(3), 1.5(a), 1.16(d), 5.5(a), and 8.4(h).

Count X—Failure to Cooperate

{¶ 13} Relator charged Stubbs with failure to cooperate in eight

disciplinary investigations. For each investigation, relator submitted sworn

testimony demonstrating that it had mailed to Stubbs a copy of each grievance,

along with additional letters of inquiry for each grievance. Even though Stubbs

signed for most of the letters, she never submitted a written response as requested.

In addition, Stubbs signed a receipt accepting relator’s notice of deposition and a

subpoena requesting documents that were sent by certified mail, but she failed to

appear for the deposition and did not respond to the request for production of

documents.

{¶ 14} Because Stubbs repeatedly ignored relator’s investigative inquiries,

we agree with the master commissioner and board that Stubbs’s conduct violated

Prof.Cond.R. 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).

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Remaining Counts

{¶ 15} Relator did not submit evidence to support Counts II, III, V, and

IX of its complaint. We therefore dismiss the allegations in those counts under

former Gov.Bar R. V(6)(F)(1)(b), 64 Ohio St.3d XCVII, which requires “[s]worn

or certified documentary prima facie evidence” in support of a motion for default.

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

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 no mitigating factors in this case but found eight

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

prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct,

multiple offenses, lack of cooperation in the disciplinary process, refusal to

acknowledge the wrongful nature of the conduct, vulnerability of and resulting

harm to the client, and failure to make restitution. See BCGD Proc.Reg.

10(B)(1)(a), (b), (c), (d), (e), (g), (h), and (i).

{¶ 18} Relator recommended permanent disbarment. The master

commissioner found that because Stubbs’s misconduct preceded or overlapped

the misconduct for which she was indefinitely suspended in Disciplinary Counsel

v. Stubbs, 128 Ohio St.3d 344, 2011-Ohio-553, 944 N.E.2d 225, the appropriate

sanction was another indefinite suspension, to run consecutively to the previously

imposed suspension. Based on the “pervasiveness” of Stubbs’s misconduct, the

board disagreed and recommends permanent disbarment.

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{¶ 19} We have previously explained that “ ‘[t]he normal penalty for

continuing to practice law while under suspension is disbarment.’ ” Disciplinary

Counsel v. Sabroff, 123 Ohio St.3d 182, 2009-Ohio-4205, 915 N.E.2d 307, ¶ 21,

quoting Disciplinary Counsel v. Allison, 98 Ohio St.3d 322, 2003-Ohio-776, 784

N.E.2d 695, ¶ 12. Moreover, we have held that “accepting legal fees and then

failing to carry out the contract for employment is tantamount to theft of client

funds and is also cause for disbarment, particularly when coupled with neglect, a

history of misconduct, and other disciplinary infractions.” Disciplinary Counsel

v. Frazier, 110 Ohio St.3d 288, 2006-Ohio-4481, 853 N.E.2d 295, ¶ 54, citing

Columbus Bar Assn. v. Moushey, 104 Ohio St.3d 427, 2004-Ohio-6897, 819

N.E.2d 1112, ¶ 16; see also Disciplinary Counsel v. Henry, 127 Ohio St.3d 398,

2010-Ohio-6206, 939 N.E.2d 1255, ¶ 33 (“respondent’s pattern of neglect and

failure to perform as promised, followed by his failure to return unearned fees and

client documents and his complete disregard for the ensuing disciplinary

proceedings, warrants his permanent disbarment”); Cleveland Metro. Bar Assn. v.

Cicirella, 133 Ohio St.3d 448, 2012-Ohio-4300, 979 N.E.2d 244, ¶ 12 (an

attorney was permanently disbarred when she “not only continued to practice law

while under suspension, but also took her client’s money, failed to carry out the

contract of employment, failed to return her client’s money or records, and failed

to cooperate in the resulting disciplinary investigation”).

{¶ 20} Having considered Stubbs’s conduct, the profusion of aggravating

factors, the absence of any mitigating factors, and our precedent, we conclude that

the appropriate sanction is permanent disbarment. Stubbs’s neglect of entrusted

client matters, her acceptance of client funds without performing the work, her

attempts to practice law while her license was suspended, her failure to inform

clients of her license suspension, her dishonesty, her incompetence, and her

failure to cooperate in the disciplinary process demonstrate that she is no longer

fit to practice law.

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{¶ 21} Accordingly, SaKeya MonCheree Stubbs is hereby permanently

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

Judgment accordingly.

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

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

__________________

Jeffrey C. Rogers; Yvonne L. Twiss; and Bruce A. Campbell, Bar

Counsel, and A. Alysha Clous, Assistant Bar Counsel, for relator.

______________________

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