The opinion
[Cite as Cleveland Metro. Bar Assn. v. Berk, 132 Ohio St.3d 82, 2012-Ohio-2167.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. BERK.
[Cite as Cleveland Metro. Bar Assn. v. Berk,
132 Ohio St.3d 82, 2012-Ohio-2167.]
Attorney—Misconduct—Neglect of client matters—Eighteen-month suspension
stayed on conditions.
(No. 2011-1049—Submitted November 18, 2011—Decided May 17, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-090.
__________________
Per Curiam.
{¶ 1} Respondent, Robert J. Berk of Cleveland, Ohio, Attorney
Registration No. 0001031, was admitted to the practice of law in Ohio in 1969. In
August 2007, we suspended Berk’s license to practice law for one year, but we
stayed the entire suspension on conditions, including a requirement that Berk
serve two years of monitored probation. Cleveland Bar Assn. v. Berk, 114 Ohio
St.3d 478, 2007-Ohio-4264, 873 N.E.2d 285. To date, Berk has not applied for
termination of his probation. See Gov.Bar R. V(9)(D).
{¶ 2} In October 2010, relator, Cleveland Metropolitan Bar Association,
filed a two-count complaint, alleging that Berk’s neglect of two client matters by
twice failing to attend scheduled conferences in each case resulted in dismissal of
his clients’ actions.
{¶ 3} The parties entered into stipulations of fact, and a panel of the
Board of Commissioners on Grievances and Discipline conducted a hearing in
which it heard the testimony of Berk and three character witnesses. The panel
found that Berk had committed the charged misconduct. While it recognized
Berk’s pattern of missed deadlines and court appearances, the majority of the
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panel declined to recommend an actual suspension from the practice of law and
instead recommended an 18-month fully stayed suspension and two years of
monitored probation.
{¶ 4} The board adopted the panel’s findings of fact and misconduct but
adopted the dissenting panel member’s recommendation that Berk’s license be
suspended for 18 months, with 12 months stayed. Berk objects to the board’s
findings of misconduct and to its recommended sanction, arguing that his conduct
did not violate Prof.Cond.R. 1.3 and that the charges should therefore be
dismissed. Alternatively, he argues that an actual suspension from the practice of
law is not necessary to protect the public and will cause harm by depriving an
underserved population of his legal representation.
{¶ 5} For the reasons that follow, we overrule Berk’s objection to the
board’s finding of misconduct but sustain his objection to the recommended
sanction. Accordingly, we adopt the sanction recommended by a majority of the
panel and suspend Berk for 18 months, all stayed on conditions.
Misconduct
{¶ 6} In April 2007, Berk filed suit on behalf of Winston and Rachel
Lewis and Irene Papadelis for damages resulting from an automobile accident.
The plaintiffs voluntarily dismissed the case later that year but refiled it on
August 21, 2008.
{¶ 7} The court scheduled a telephonic case-management conference for
March 23, 2009, and ordered Berk to initiate the call, but he failed to do so. The
court continued the matter to April 20, 2009, and stated in its entry that Berk’s
failure to appear at that conference might result in dismissal of the action. Berk
failed to appear at the second conference, and the court dismissed the case without
prejudice the following day.
{¶ 8} Berk moved the court for relief from the judgment entry of
dismissal pursuant to Civ.R. 60(B), but the court denied the motion. The denial of
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that motion was affirmed on appeal. The Lewises and Papadelis then sued Berk
for malpractice. Although they voluntarily dismissed their malpractice action in
February 2011, Berk’s insurance carrier continued to discuss settlement even
through the time of Berk’s disciplinary hearing.
{¶ 9} Another client, Kenneth Render, was involved in an automobile
accident in August 2005. In July 2007, Berk filed suit against the other driver on
Render’s behalf. The trial court scheduled a case-management conference for
October 24, 2007. Although Berk was notified of the date, he failed to appear.
The court subsequently scheduled a settlement conference, with the warning that
Berk’s failure to appear might result in dismissal of the case. After Berk failed to
appear at the settlement conference, the trial judge dismissed the case with
prejudice.
{¶ 10} Render obtained new counsel and moved the court for relief from
judgment pursuant to Civ.R. 60(B), but his motion was denied on the grounds that
Berk had failed to appear at two conferences, had failed to conduct or respond to
discovery, and had failed to contact the court to explain his absence. The Eighth
District Court of Appeals reversed the trial court’s denial of the motion and held
that Render was entitled to relief from judgment pursuant to Civ.R. 60(B)(5).
Render v. Belle, 8th App. No. 93181, 2010-Ohio-2344. Render’s case was
subsequently settled and dismissed.
{¶ 11} The panel found that Berk’s conduct in each of these two counts
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client). The board adopted the panel’s findings of fact and
misconduct. Berk, however, objects to these findings of misconduct, arguing that
his lack of diligence is nothing more than simple negligence and that it should not
be considered a violation of the Rules of Professional Conduct. Specifically, he
contends that the comment to Prof.Cond.R. 1.3 states, “The lawyer disciplinary
process is particularly concerned with lawyers who consistently fail to carry out
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obligations to clients or consciously disregard a duty owed to a client.”
Prof.Cond.R. 1.3, comment 3.
{¶ 12} Prof.Cond.R. 1.3 requires a lawyer to act “with reasonable
diligence and promptness in representing a client,” and negligence is defined as
“[t]he failure to exercise the standard of care that a reasonably prudent person
would have exercised in a similar situation.” Black’s Law Dictionary 1133 (9th
Ed.2009). While neglect and negligence both involve the absence of reasonable
care, we have recognized that neglect usually involves a pattern of omissions or
ignored obligations. Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187,
191, 658 N.E.2d 237 (1995), citing Toledo Bar Assn. v. Dzienny, 72 Ohio St.3d
173, 176, 648 N.E.2d 499 (1995).
{¶ 13} It is true that the charged misconduct involves only two clients out
of the 400 to 450 client matters that Berk claims to handle each year. But in each
of these cases, the trial court issued a judgment entry scheduling a new conference
date after Berk had already missed one conference and warned Berk that his
failure to attend might be grounds for dismissal. Despite those warnings, Berk
did not appear at a second conference in each case, missing a total of four
appearances. Thus, the conduct charged in this case is itself sufficient to
constitute a pattern.
{¶ 14} Berk’s conduct is also comparable to the conduct that led to his
first disciplinary sanction. In that case, Berk failed to file a default motion when
the defendant did not answer his client’s complaint, and consequently, the trial
court dismissed the case without prejudice for want of prosecution. Berk, 114
Ohio St.3d 478, 2007-Ohio-4264, 873 N.E.2d 285, ¶ 5. When the defendant did
not answer the refiled complaint, Berk failed to provide requested documents that
would have allowed the court to grant a default judgment. Id. at ¶ 6.
Compounding his neglect and his intentional failure to carry out a contract of
professional employment, Berk provided financial assistance to the affected
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clients to help them pay for housing and other personal expenses, advised the
clients that they were unlikely to benefit substantially from their personal-injury
suit, and paid them $500 each to sign a settlement agreement that attempted to
exonerate him from his professional malpractice. Id. at ¶ 7-9. To sanction Berk
for that misconduct, we suspended him for one year but stayed the entire
suspension on the conditions that Berk commit no further misconduct and
complete a minimum of six hours of continuing legal education (“CLE”) on
effective office-management practices. We also placed Berk on probation for two
years in accordance with Gov.Bar R. V(9). Id. at ¶ 13.
{¶ 15} We acknowledge that Berk has learned from some of his past
mistakes. Rather than attempting to hide his failures as he has done in the past, he
has accepted responsibility for his actions by obtaining new counsel (at his
expense) for the affected clients to pursue remedial actions, and he has not
defended himself against the malpractice action filed by one of the affected
clients. Despite these improvements, however, Berk’s underlying misconduct—
the neglect of client matters—remains. Therefore, we conclude that Berk’s
conduct is not an isolated incident of negligence, but that it is a pattern of neglect
that violates his obligations not only to the affected clients, but to this court and
the profession as a whole.
{¶ 16} Accordingly, we overrule Berk’s objection to the board’s findings
of fact and misconduct and adopt those findings as our own.
Sanction
{¶ 17} 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
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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.
{¶ 18} As aggravating factors, the panel found that Berk had a prior
disciplinary offense and engaged in a pattern of misconduct involving multiple
offenses: two uncharged incidents involving show-cause orders issued for Berk’s
failure to attend certain bankruptcy hearings in addition to the misconduct
charged herein. See BCGD Proc.Reg. 10(B)(1)(a), (c), and (d). The panel also
expressed concern that Berk continued to carry a large caseload, despite his
efforts to limit his representation to bankruptcy and consumer-debt issues.
{¶ 19} Mitigating factors found by the panel include the absence of a
dishonest or selfish motive, Berk’s full and free disclosure to the board, and his
cooperative attitude toward the disciplinary proceedings. See BCGD Proc.Reg.
10(B)(2)(b) and (d). The panel also found that Berk had made a timely good-faith
effort to rectify the consequences of his misconduct by paying for his clients’
appellate counsel, insisting that appellate counsel blame him for the omissions
that led to the dismissal of their clients’ claims, and withdrawing his defense to a
malpractice action filed by one of the affected clients. See BCGD Proc.Reg.
10(B)(2)(c). It also cited four letters from individuals attesting to Berk’s
reputation and good character, as well as the testimony of three long-term
professional acquaintances regarding his many years of providing free or low-cost
legal services to those who could not otherwise afford counsel. See BCGD
Proc.Reg. 10(B)(2)(e). Moreover, the panel found that Berk had completed the
six hours of continuing legal education in law-office management required by his
prior sanction and that he had taken steps to improve his calendar system and his
office organization.
{¶ 20} Recognizing Berk’s dedication to his clients and his expressed
remorse, the majority of the panel recommended that Berk’s license be suspended
for 18 months, all stayed on the conditions that he complete two years of
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monitored probation. Emphasizing that Berk’s conduct in the Render case
occurred just two months into his earlier stayed suspension and that he failed to
report his conduct in both the Render and Lewis matters to his practice monitor,
the dissenting panel member recommended that only 12 months of the 18-month
suspension recommended by the majority of the panel be stayed.
{¶ 21} While the board concurred with the panel’s finding of aggravating
and mitigating factors, it adopted the dissenting panel member’s recommendation
that Berk be suspended from the practice of law for 18 months with 12 months
stayed and that he be required to serve two years of monitored probation.
{¶ 22} Berk objects to the recommended sanction, first arguing that his
transgressions are administrative failures that do not involve dishonesty, deceit,
theft, or a conscious disregard for the Rules of Professional Conduct and therefore
that they do not warrant an actual suspension from the practice of law. He
contends that in Cleveland Bar Assn. v. Norton, 116 Ohio St.3d 226, 2007-Ohio-
6038, 877 N.E.2d 964, ¶ 11, 15, 20, 25, and Allen Cty. Bar Assn. v. Brown, 124
Ohio St.3d 530, 2010-Ohio-580, 925 N.E.2d 112, ¶ 4, 6, 20, we imposed stayed
suspensions of six months and one year for comparable misconduct that could be
attributed, at least in part, to poor organizational skills or office-management
procedures. But what Berk fails to acknowledge is that neither Norton nor Brown
had previously been disciplined for professional misconduct, as he has, and
neither of them had committed additional misconduct just two months into a
stayed suspension.
{¶ 23} Berk also contends that his prior disciplinary sanction has
accomplished its intended goal of modifying his behavior and challenges the
board’s reliance on uncharged conduct as an aggravating factor weighing in favor
of a greater sanction. As previously mentioned, Berk has refrained from efforts to
cover up the misconduct at issue in this case and has sought to mitigate the
damage sustained by the affected clients. Although he was ordered to attend at
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least six hours of CLE instruction on effective office-management practices, he
missed several court appearances and admits that the procedures he uses to
maintain his calendar have changed little.
{¶ 24} While Berk has engaged in a pattern of neglecting client matters,
this pattern affected a relatively small number of clients, and it does not appear
that any of those clients have suffered irreparable harm. Berk has also provided a
great deal of free or low-cost legal representation to those who otherwise could
not afford to obtain such services.
{¶ 25} Alida Struze, who has retired after 42 years of service with the
Cleveland Legal Aid Society, testified that Berk accepted well over 200 referrals
from the Cleveland Legal Aid Society and represented those clients pro bono or
for a small fee. She never received a complaint from the clients that she referred
to Berk, and she observed that unlike many other attorneys, Berk would often take
the time to meet with prospective clients—even if it did not appear that they had a
very good case.
{¶ 26} The executive director for the Consumer Protection Association,
Solomon Harge, testified that Berk’s relationship with the association dated back
to the early 1970s and that some of the association’s counselors continue to send
him five to eight clients a month. He related that many of the people who seek
help from the association are elderly, unemployed, on welfare, mentally disabled,
or just without money to handle their legal problems. Harge indicated that Berk
would not say no when asked to help the disadvantaged, and he expressed his
belief that the people who seek help from the association would be “severely
underserved” if Berk could no longer assist them.
{¶ 27} We have considered an attorney’s history of low- or no-cost legal
services to underserved clients as a mitigating factor in the past, though we have
emphasized that “service to indigent clients, while mitigating, does not immunize
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a lawyer from discipline for misconduct.” Disciplinary Counsel v. Rohrer, 124
Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180, ¶ 51.
{¶ 28} We do not condone Berk’s pattern of neglecting client matters.
Nor do we give him a free pass based upon his extensive pro bono work. But
balancing those services, his acceptance of responsibility for his inaction, and his
excellent character and reputation outside of the charged misconduct against the
limited instances of his neglect, we conclude that an actual suspension from the
practice of law is not necessary to protect the public at this time. Therefore, we
sustain Berk’s second objection and adopt the sanction recommended by the panel
majority.
{¶ 29} Accordingly, Robert J. Berk is hereby suspended from the practice
of law in Ohio for 18 months, all stayed on the conditions that he commit no
further misconduct and that he serve a two-year term of probation in accordance
with Gov.Bar R. V(9)(D) with an experienced monitor who is familiar with the
disciplinary system and law-office management. If respondent fails to comply
with the conditions of the stay, the stay shall be lifted, and respondent shall serve
the full 18-month suspension. Costs are taxed to Berk.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur.
O’CONNOR, C.J., and LANZINGER and MCGEE BROWN, JJ., dissent and
would impose an 18-month suspension with 12 months stayed and a two-year
period of monitored probation following the suspension, as recommended by the
board.
__________________
David O. Simon and Heather M. Zirke, for relator.
Michael E. Murman, for respondent.
______________________
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