Toledo Bar Assn. v. Harvey

[Cite as Toledo Bar Assn. v. Harvey, 133 Ohio St.3d 228, 2012-Ohio-4545.]

TOLEDO BAR ASSOCIATION v. HARVEY.

[Cite as Toledo Bar Assn. v. Harvey, 133 Ohio St.3d 228, 2012-Ohio-4545.]

Attorney misconduct, including failing to act with reasonable diligence in

representing a client and engaging in conduct that is prejudicial to the

administration of justice—One-year suspension, stayed on conditions.

(No. 2011-1760—Submitted February 7, 2012—Decided October 4, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-012.

__________________

Per Curiam.

{¶ 1} Respondent, Beauregard Maximillion Harvey of Toledo, Ohio,

Attorney Registration No. 0078717, was admitted to the practice of law in Ohio in

2005. On June 22, 2011, relator, Toledo Bar Association, filed a four-count

amended complaint charging Harvey with multiple violations of Prof.Cond.R. 1.3

(requiring a lawyer to act with reasonable diligence in representing a client),

1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the

status of a matter), and 8.4(d) (prohibiting a lawyer from engaging in conduct that

is prejudicial to the administration of justice). All but three of the charged

violations arose from his alleged failure to timely file documents in 14 bankruptcy

cases.

{¶ 2} The parties submitted, and the panel and board adopted,

stipulations of fact and misconduct with regard to Harvey’s handling of seven

clients’ bankruptcy cases and one client’s small-claims case. The panel

conducted a hearing, however, because Harvey denied having committed

misconduct in the seven additional bankruptcy cases. In four of the seven

contested cases, the panel and board found that Harvey had committed all the

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charged violations; in the fifth case, they found that he had committed two of the

charged violations; and with respect to the sixth and seventh cases, they found no

misconduct.

{¶ 3} Based upon these findings of misconduct, the panel and board

recommend that we suspend Harvey for one year, with six months stayed on the

conditions that he submit to monitored probation during the stayed suspension

and that he commit no further misconduct. We adopt the board’s findings of fact

and misconduct, but in light of the significant mitigating factors present in this

case, we find that a one-year suspension fully stayed on the conditions that

Harvey satisfactorily complete a one-year period of monitored probation and

commit no further misconduct is the appropriate sanction.

Misconduct

{¶ 4} Harvey stipulates to the fact that his failure to file required

documents in seven client bankruptcy cases resulted in the closing of those cases

without discharge. In addition, Harvey was once verbally admonished on the

record and was twice sanctioned by the bankruptcy court for his failure to timely

file documents.

{¶ 5} Harvey testified that during the relevant time period, he did not

monitor whether he was receiving these documents from his clients in time to

meet the deadlines for filing them with the bankruptcy court. Instead, he relied on

his clients to provide the documents to him in a timely fashion. And even when

his clients did timely provide the forms to him, he sometimes failed to submit

them to the bankruptcy court. Those are the cases in which Harvey stipulates to

his misconduct. Harvey stipulated that this conduct resulted in the closing of

bankruptcy cases initiated on behalf of clients Kreamer, Sittler, Krieger, Yglasias,

Bowman, Gibson, and Richardson.

{¶ 6} In seven bankruptcy cases, however, Harvey claimed that his

clients were responsible for his failure to file documents. Specifically, he argued

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that these clients were at fault because they had not given him the documents even

though they had been advised in both a packet of information he provided at the

beginning of his representation and in a document they received directly from the

bankruptcy court of the deadlines for filing the documents and the consequences

for failing to timely file them. The panel, however, rejected that argument and

placed the blame squarely on Harvey in four of the cases, finding that he violated

Prof.Cond.R. 1.3, 1.4(a)(3), and 8.4(d) in the cases involving clients Fair, Elchert,

Daughenbaugh, and Seiler. The panel noted that Harvey’s clients are laymen who

had retained Harvey for his expertise, diligence, and competence.

{¶ 7} With regard to the Freeman case, the panel found that Harvey had

had difficulty communicating with the client because Freeman did not return

telephone calls, and, therefore, the panel concluded that there was insufficient

evidence to support a violation of Prof.Cond.R. 1.4(a)(3). But because Harvey

had attended the first meeting of creditors with Freeman, the panel found that he

should have discovered that the client had completed the required financial-

management course and should have requested his certificate of completion.

Therefore, the panel concluded that Harvey’s failure to obtain the certificate and

timely file it with the court violated Prof.Cond.R. 1.3 and 8.4(d).

{¶ 8} Regarding the sixth case, involving client Gunn, the panel found

that Harvey did not violate Prof.Cond.R. 1.3, 1.4(a)(3), or 8.4(d), because the

client had terminated his representation (though Harvey never filed a motion or

notice of withdrawal with the court) and Harvey had assumed that she would file

the certificate of completion of the required financial-management course herself.

{¶ 9} In the seventh case, involving client Messenger, the panel found

that the bankruptcy court had issued three separate show-cause orders due to the

failure to timely file required documents. The client did not appear at the final

show-cause hearing, and the court closed the case. The panel found that the

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evidence was insufficient to establish that Harvey’s conduct in the Messenger

case violated the rules as alleged by relator.

{¶ 10} With respect to count four, the parties stipulated that Harvey had

failed to file an answer to a counterclaim filed against a client in a small-claims

action and that as a result, the defendant had obtained a default judgment against

the client. Although Harvey later moved the court to vacate that judgment,

neither he nor his client appeared at the scheduled hearing on the motion to

vacate, and the default judgment remained in force. The parties stipulated, and

the panel agreed, that this conduct violated Prof.Cond.R. 1.3 and 1.4(a)(3).

{¶ 11} The board adopted the panel’s findings of fact and misconduct, as

do we.

Sanction

{¶ 12} 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.

{¶ 13} As aggravating factors, the panel and board found that Harvey had

engaged in a pattern of misconduct involving multiple offenses, and, in some

instances, had attempted to justify his missing filing deadlines by blaming his

clients. See BCGD Proc.Reg. 10(B)(1)(c), (d), and (g). They found the following

factors to be mitigating: the absence of a prior disciplinary record, the absence of

a dishonest or selfish motive, Harvey’s cooperative attitude toward the

disciplinary proceedings, his stipulation to numerous violations, and his timely

and good-faith effort to both rectify the consequences of his misconduct and alter

his office practices to prevent future misconduct. See BCGD Proc.Reg.

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10(B)(2)(a), (b), (c), and (d). The panel and board noted that in most of the cases,

Harvey had voluntarily paid the costs for reopening the bankruptcy cases that had

been closed due to his failure to timely file documents and that he had charged no

additional fee for his services. After relator began investigating this case, Harvey

hired a paralegal and purchased a computer program to track his bankruptcy

cases. These office changes make it easier for him to remind bankruptcy clients

about impending deadlines.

{¶ 14} Relying primarily upon Cleveland Metro. Bar Assn. v. Nance, 124

Ohio St.3d 57, 2009-Ohio-5957, 918 N.E.2d 1000, relator argued before the panel

that Harvey’s misconduct warrants a one-year suspension with six months stayed

on conditions. In Nance, we imposed that sanction on an attorney who

mistakenly represented to a bankruptcy court that he had paid the requisite filing

fee in a case, failed to timely file required documents in two additional

bankruptcy cases, and was found in contempt for failing to disgorge fees paid in

each of those cases. Id. at ¶ 5-10.

{¶ 15} Harvey argued that his case is different from Nance’s because he

does not have a disciplinary record, he promptly paid the fees to refile his client’s

bankruptcy cases and completed their cases, and he made Dickerson whole.

Nance, in contrast, waited more than three years to comply with the bankruptcy

court’s first disgorgement order, and his contempt fines remained outstanding at

the time of his disciplinary hearing. Id. at ¶12, 16.

{¶ 16} The panel and board adopted relator’s proposed sanction. Harvey

filed objections to the board’s recommended sanction. He asserts that the

sanction is too harsh and that the board erred in not giving mitigating weight to

the events in his life at the time of the misconduct—his mother’s death and his

protracted divorce. Relator, however, contends that these life events do not

satisfy the stringent requirements of BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv)

for a mitigating mental disability.

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{¶ 17} We agree with relator’s contention that Harvey’s stress due to the

sudden death of his mother at the age of 58 and his protracted divorce proceeding

do not qualify as a mitigating mental disability. We note that in light of the fact

that there are unique circumstances in each disciplinary case, BCGD Proc.Reg.

10(B) directs the board to consider “all relevant factors,” including, but not

limited to, the factors specifically enumerated in the rule.

{¶ 18} On at least two occasions, we have accepted the board’s

recommended sanction in cases in which the board considered stress as a factor in

mitigation. In Cincinnati Bar Assn. v. Fidler, 83 Ohio St.3d 396, 700 N.E.2d 323

(1998), the panel received evidence that the respondent was under great personal

stress at the time he committed two minor theft offenses. And in Disciplinary

Counsel v. Spencer, 71 Ohio St.3d 316, 643 N.E.2d 1086 (1994), we adopted

panel findings that the attorney’s in-laws had been living with him for about five

months, refusing to work, and causing marital discord. While we do not accord

evidence of stressful life events as much weight as evidence of a qualifying

mental disability, they are, nonetheless, relevant factors that may be considered in

determining the appropriate sanction for an attorney’s misconduct.

{¶ 19} The primary purpose of the disciplinary process is not to punish

the offender but to protect the public from lawyers who are unworthy of the trust

and confidence essential to the attorney-client relationship. Disciplinary Counsel

v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10.

Harvey’s misconduct caused, at the very least, unnecessary aggravation and delay

to his clients. But in light of the significant mitigating factors in this case—

including the stress caused by his divorce and the sudden death of his mother, but

most importantly, Harvey’s efforts to remedy the effects of his mistakes and

ensure that he does not make similar mistakes in the future—we believe that a

one-year suspension, all stayed on the conditions that he commit no further

misconduct and submit to a one-year period of monitored probation in accordance

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with Gov.Bar R. V(9), with particular emphasis on the oversight of Harvey’s

case-management system, will sufficiently protect the public.

{¶ 20} Accordingly, Beauregard Maximillion Harvey is hereby suspended

from the practice of law in Ohio for one year, but the suspension is stayed on the

conditions that he commit no further misconduct and submit to a one-year period

of monitored probation in accordance with Gov.Bar R. V(9). If Harvey fails to

comply with the conditions of the stay, the stay will be lifted, and he will serve

the entire one-year suspension. Costs are taxed to Harvey.

Judgment accordingly.

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

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

__________________

Michael A. Bonfiglio, Bar Counsel; and Barry & Feit and Gordon R.

Barry, for relator.

Beauregard Maximillion Harvey, pro se.

______________________

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