The opinion
[Cite as Mahoning Cty. Bar Assn. v. Pritchard, 131 Ohio St.3d 97, 2012-Ohio-44.]
MAHONING COUNTY BAR ASSOCIATION v. PRITCHARD.
[Cite as Mahoning Cty. Bar Assn. v. Pritchard,
131 Ohio St.3d 97, 2012-Ohio-44.]
Attorneys at law—Numerous violations of the Rules of Professional Conduct—
Indefinite license suspension.
(No. 2011-0815—Submitted June 21, 2011—Decided January 11, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-025.
__________________
Per Curiam.
{¶ 1} Respondent, Warren G. “Bo” Pritchard of Youngstown, Ohio,
Attorney Registration No. 0008417, was admitted to the practice of law in Ohio in
1982. In November 2009, we suspended his license for his failure to register with
the Office of Attorney Registration of the Supreme Court. In re Attorney
Registration Suspension of Pritchard, 123 Ohio St.3d 1475, 2009-Ohio-5786, 915
N.E.2d 1256. Later that month, having been apprised of some of the misconduct
described below, we imposed an interim remedial license suspension. Mahoning
Cty. Bar Assn. v. Pritchard, 123 Ohio St.3d 1487, 2009-Ohio-5956, 916 N.E.2d
812.
{¶ 2} On June 15, 2010, relator, the Mahoning County Bar Association,
filed an amended complaint with the Board of Commissioners on Grievances and
Discipline alleging misconduct involving 20 client relationships, including
numerous instances in which Pritchard accepted payment from clients, neglected
their matters, failed to respond to their communications, and refused to refund
their retainers.
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{¶ 3} Relying on the parties’ joint stipulation of facts and violations, the
board made findings of fact and misconduct and recommended Pritchard’s
indefinite suspension from the practice of law and payment of restitution. With a
few exceptions described below, we adopt the board’s findings of facts and
misconduct, order restitution, and indefinitely suspend Pritchard from the practice
of law in Ohio.
Misconduct
Count A
{¶ 4} From May to July 2009, Pritchard accepted $1,350 from Margaret
Bury to file a bankruptcy petition. Pritchard did not file the petition, respond to
Bury’s inquiries, or return her money. She ultimately retained a different
attorney.
Count B
{¶ 5} In April 2008, Pritchard accepted $1,200 to represent Gerald
Cenneno in a breach-of-contract case. Pritchard prepared and filed a complaint.
The defendant filed a counterclaim, which Pritchard discussed with Cenneno.
From that point forward, however, Pritchard ceased returning Cenneno’s calls and
messages and took no further action in the case. Unbeknownst to Cenneno, the
case proceeded and culminated in a default judgment against him, which he
eventually learned about from opposing counsel. Cenneno spent weeks trying to
reach Pritchard by telephone. He finally reached Pritchard, who stated that he
would contact the court. Months passed, and despite many calls, Cenneno
continued to have difficulty reaching Pritchard. Cenneno finally called the court
himself and learned that no pleadings had been filed on his behalf. Further calls
to Pritchard went unreturned. Cenneno finally retained another attorney, but he
was unable to overturn the default judgment.
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Count C
{¶ 6} The probate court in Columbiana County appointed Pritchard to be
commissioner of the estate of Steve Yancsurak. During 2009, Pritchard failed to
appear for several hearings. After the last absence, the court—as it had warned it
would do—found Pritchard in contempt and issued a warrant for his arrest. The
court referred the matter to disciplinary authorities but eventually recalled the
warrant.
Count D
{¶ 7} A client of Pritchard’s, William DiRenzo, wished to purchase
some real estate owned by Pritchard’s mother. In 2004, on his mother’s behalf,
Pritchard reached an agreement with DiRenzo and sold him the parcel. In 2006,
DiRenzo became interested in purchasing additional land from Pritchard, and he
eventually contributed $29,500 to a partnership formed to that end. The land had
fallen into foreclosure, and despite DiRenzo’s payment, after a series of
agreements and payments involving multiple parties, the property ended up in the
possession of a different buyer. At the time of the stipulation, DiRenzo had not
received back his expenditure of nearly $30,000 and did not own any of the land.
Count E
{¶ 8} In September 2007, Amy and Joseph DiDomenico retained
Pritchard to represent them in a dispute with a roofing contractor, eventually
paying him fees totaling at least $1,700. Pritchard took some initial steps to
prosecute their complaint, but they soon began to have difficulty contacting him.
After Pritchard missed a status conference, in October 2006, the court dismissed
the DiDomenicos’ complaint. For the next six months, the DiDomenicos
continued to struggle to reach Pritchard. In March 2009, Pritchard finally filed a
motion to vacate the dismissal. The court scheduled the motion for hearing, but
despite a month’s notice and reminders from the DiDomenicos, Pritchard failed to
appear, telling the clients that the hearing was nonoral and that they need not
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appear. The court nevertheless set the case for the trial. Two months after his
interim suspension, Pritchard withdrew from the case, and the clients retained
new counsel. The case remains pending.
Count F
{¶ 9} In April 2009, Evelyn Sue Lorent, a widow, paid Pritchard $1,300
to advise her regarding a probate matter and possible bankruptcy. Pritchard gave
her a bankruptcy worksheet and developed a strategy for weighing the benefits of
bankruptcy but then did no further work on her case. Unable to reach Pritchard in
over five months despite numerous attempts, Lorent found another attorney.
Pritchard did not return the $1,300.
Count G
{¶ 10} In August 2008, Carol Hovanes retained Pritchard to represent her
in a foreclosure and possible bankruptcy, paying him $1,900 in legal and filing
fees. Pritchard filed a motion for leave to move or plead on behalf of Hovanes.
The motion, which was granted, proved to be the only filing Pritchard made in the
case. Pritchard eventually stopped responding to Hovanes’s calls and messages,
and she hired a different attorney in January 2010. Pritchard has not returned to
Hovanes any part of the fees that she had paid him.
Count H
{¶ 11} In August 2008, Duane and Tracie Corll paid Pritchard $1,300 to
represent them in a bankruptcy proceeding. After completing some initial tasks,
Pritchard became difficult to reach. Nevertheless, in May 2009 and at the Corlls’
prodding, he filed the bankruptcy petition. The bankruptcy was eventually
completed, subject to the filing of papers proving that the Corlls had attended
posthearing counseling. After Pritchard failed to appear at a July 2009 hearing,
the Corlls completed the counseling and paperwork but were unable to contact
Pritchard to have it filed. The court notified the Corlls that filing the paperwork
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now would require payment of the full filing fee again. When the paperwork was
not filed, the court dismissed the case.
Count I
{¶ 12} In July 2009, Pritchard accepted $1,000 from Tina Marie Benson
to file a bankruptcy petition, with a balance due of $350. Pritchard never filed the
case, never returned Benson’s calls and letters, and never met with Benson again.
Months later, she hired a different attorney. Pritchard has not returned her fees.
Count J
{¶ 13} In October 2008, Richard Bodendorfer paid Pritchard $750 to form
a limited-liability company. Two attempts at filing were rejected by the secretary
of state, after which Pritchard asked Bodendorfer for an additional $250.
Bodendorfer sent Pritchard a check, but Pritchard took no further action on his
behalf. Pritchard has not refunded Bodendorfer’s fee.
Count K
{¶ 14} In 2009, Darlene Burman retained Pritchard to assist in
administering the estate of her deceased brother. He did not complete the estate’s
inventory, and without court authorization, he charged the estate $15,028 in fees
and costs. The court did not sanction Pritchard, however, because he had almost
completed the inventory, and the amount he charged was less than the court’s
compensation schedule would have called for. Burman retained new counsel,
who completed the estate.
Count L
{¶ 15} Joyce Catterson retained Pritchard to represent her in a tort claim.
The representation began no later than 1999 and lasted until 2007. The last action
taken by respondent was an appeal from a magistrate’s decision in June 2007,
which was dismissed in July 2007 for lack of a final, appealable order. The lower
court, however, has apparently taken no further action on the case, and the
stipulated facts do not disclose any developments since then. Pritchard testified
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that following the dismissal, he had informed Catterson’s husband that “nothing is
transpiring” and that he and they are “still waiting for the court to do something.”
{¶ 16} Relator argued that Pritchard’s conduct violated Prof.Cond.R. 1.4,
which requires a lawyer to “keep the client reasonably informed about the status
of the matter.” The board, however, recommended dismissing this count in its
entirety. It found that the record showed that nothing had happened in the case
that needed reporting and that Pritchard had in fact informed Catterson’s husband
of the case’s status.
{¶ 17} We agree with the board that these facts do not clearly and
convincingly show that Pritchard violated Prof.Cond.R. 1.4. Accordingly, we
dismiss this count.
Count M
{¶ 18} In 2006, Jennifer Coyier paid Pritchard $200 to handle an
adoption, but he never filed the petition and did not return the money. Later,
Coyier and her husband, Gordon, retained Pritchard to represent them in a breach-
of-contract action. Pritchard filed a complaint in 2008 but performed no other
work on the case; after he failed to appear at a pretrial conference, the court
dismissed the case. Pritchard did not inform the Coyiers of the dismissal of the
case, and they were later sued by the company that had financed the transaction
related to the allegedly breached contract. The Coyiers eventually settled that
claim for $1,200.
Count N
{¶ 19} In 2008, Emil Forska retained Pritchard in an effort to have his
driver’s license reinstated. Pritchard filed a complaint and attended a few
hearings, but then neither worked on the case nor responded to his client’s
inquiries. The board states that the case was then dismissed, but the stipulated
facts state that a filing fee was never paid and that the case “remains without a
docket assignment.”
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Count O
{¶ 20} In June 2009, Betty Garback paid Pritchard $130 to transfer a
property interest. Pritchard never performed the work, never responded to her
communications, and never returned her money.
Count P
{¶ 21} Beginning in December 2008, Pritchard represented Saed Khatib
in a property dispute. Despite accepting $300 from Khatib, Pritchard failed to
appear for a hearing, failed to file necessary pleadings, failed to answer his
client’s communications, and failed to return Khatib’s funds.
Count Q
{¶ 22} The parties stipulated to a dismissal of this count, and the board
agreed that it had not been proven by clear and convincing evidence.
Count R
{¶ 23} In July 2009, Arthur Titus retained Pritchard to transfer to Titus the
title to property that Titus had given to his late son. Pritchard accepted $450 from
Titus but neither performed any work nor answered Titus’s calls and letters. Nor
did he return Titus’s $450.
Count S
{¶ 24} In 2006, Clyde Weimer retained Pritchard to represent him in a
complaint against two men and ultimately paid him $1,900. Well into the
proceedings, in September 2009, the defendants filed a notice to take Weimer’s
deposition. Neither Pritchard nor Weimer appeared, and a few months later,
Weimer retained new counsel.
{¶ 25} Regarding this count, the board found that Pritchard had violated
Prof.Cond.R. 1.3, requiring “reasonable diligence and promptness in representing
a client.” While we accept the stipulated facts, we are not bound by the parties’
stipulation to misconduct, see, e.g., Trumbull Cty. Bar Assn. v. Donlin (1996), 76
Ohio St.3d 152, 155, 666 N.E.2d 1137, and we do not agree that the stipulated
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facts provide clear and convincing evidence of a lack of diligence. The only fact
suggesting a lack of diligence was Pritchard’s failure to attend a deposition. But
it is not clear that Pritchard had notice of that deposition; in fact, the stipulation
suggests that the notice of deposition was docketed in the wrong case. The
stipulation also states that the court sent “a copy of a hearing notice * * * to all
parties,” but it does not explain whether this notice referred to the deposition.
Even if it did, it was sent “by regular mail” on the day of the deposition, so it
seems unlikely Pritchard could have received it in time. Nothing else in the
stipulation addresses whether Pritchard had notice of the deposition.
{¶ 26} This assortment of facts affirmatively suggests that Pritchard did
not receive notice of the proceeding that he missed. Thus, without more, his
absence does not clearly and convincingly show a lack of diligence. Accordingly,
we dismiss this charge.
Count T
{¶ 27} In 2009, Pritchard accepted $550 from John Zetts to seek a child-
support reduction. Pritchard performed no work, did not respond to Zetts’s calls,
and did not refund the $550.
Lack of Professional-Liability Insurance
{¶ 28} The parties also stipulated that in each one of the representations
listed above, Pritchard failed to advise his clients that he lacked professional-
liability insurance.
Conclusions of Law
{¶ 29} The board concluded that the conduct described above resulted in
violations of Prof.Cond.R. 1.1 (requiring a lawyer to provide competent
representation), 1.3 (requiring a lawyer to act with reasonable diligence and
promptness in representing a client), 1.4(a)(3) and (4) (requiring a lawyer to keep
a client informed about the status of matters for which he or she was engaged and
to comply as soon as practicable to reasonable requests for information), 1.4(c)
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(requiring a lawyer to inform the client if the lawyer does not maintain
professional-liability insurance), 1.8 (prohibiting a lawyer from entering into a
business transaction with a client unless certain conditions are met), 1.15(d)
(requiring a lawyer promptly to deliver client funds and provide a full accounting
of the funds), and 1.16(d) and (e) (requiring a lawyer to protect a client’s interest
upon termination of a representation and promptly to return unearned fees). Some
of Pritchard’s misconduct occurred while the Code of Professional Responsibility
remained in effect; as to this conduct, the board found that Pritchard had violated
DR 5-104(A) (prohibiting a lawyer from entering into a business transaction with
a client if he and the client have different interests) and 6-101 (prohibiting a
lawyer from neglecting an entrusted legal matter).
{¶ 30} Except as noted above, we adopt the board’s conclusions.
Sanction
{¶ 31} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties that the lawyer violated, the lawyer’s mental
state, and 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 Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 32} As to aggravating factors, the parties stipulated and the board
found that Pritchard had acted with a dishonest or selfish motive, demonstrated a
pattern of misconduct, committed multiple offenses, failed to cooperate in the
disciplinary process prior to the institution of formal proceedings, harmed
vulnerable clients, and failed to make restitution. See BCGD Proc.Reg.
10(B)(1)(b), (c), (d), (e), (h), and (i).
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{¶ 33} As to mitigating factors, the parties stipulated and the board found
that Pritchard lacked a prior disciplinary record, had fully and freely disclosed his
misconduct, had been cooperative after the institution of formal proceedings, had
presented evidence of good character and reputation, and had suffered and been
treated for a mental disability that contributed to his misconduct. See BCGD
Proc.Reg. 10(B)(2)(a), (d), (e), and (g)(i) through (iv). But although the board
stated that Pritchard had no prior disciplinary record, that finding is erroneous.
As stated earlier, he received an attorney-registration suspension in November
2009.
{¶ 34} Before the board, Pritchard argued for a two-year suspension with
credit for time served under the remedial suspension, but the board disagreed and
recommended that Pritchard be indefinitely suspended from the practice of law.
The board recognized that much of Pritchard’s misconduct occurred as he was
struggling with major depression related to marital problems. And the board
acknowledged that he had taken numerous steps to deal with these problems. But
it found that negative factors outweighed the mitigating. Pritchard committed
dozens of disciplinary violations that harmed approximately 20 clients, some
irreversibly. Moreover, it found that Pritchard’s “poor law office management”
played a significant role in his misconduct, and his failure to establish a reliable
system predated his marital problems. Some misconduct preceded his marital
problems, including his failure to advise clients that he lacked malpractice
insurance. And the board also found that Pritchard continued taking money from
clients (without providing services) months into his personal crisis.
{¶ 35} The board recommended that Pritchard “be indefinitely suspended
from the practice of law with no credit for time served and that he pay full
restitution.” Concerning restitution, the board was unable to “determine from the
present record exactly how much” restitution Pritchard owes, and it suggested that
relator make this determination. It also recommended that Pritchard provide
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proof of continuing mental-health counseling, proof that he is fully competent to
return to the practice of law, proof that he is in compliance with all Ohio Lawyers
Assistance Program (“OLAP”) requirements, and proof that he has attended a
rigorous and comprehensive office-management course approved by relator.
Further, the board recommends that we order him to comply with all applicable
continuing-legal-education requirements, make restitution, pay the costs of the
action, and commit no further misconduct. The board also recommends a two-
year probationary period in the event of reinstatement, with several conditions.
{¶ 36} We adopt the board’s recommended sanction, which is appropriate
in this case. See, e.g., Disciplinary Counsel v. Broschak, 118 Ohio St.3d 236,
2008-Ohio-2224, 887 N.E.2d 1176, ¶ 50, 52 (imposing indefinite suspension
when respondent neglected clients, failed to return unearned fees, caused his
clients to forfeit legal rights, and did not adequately communicate with his
clients); Disciplinary Counsel v. Andrews, 124 Ohio St.3d 523, 2010-Ohio-931,
924 N.E.2d 829, ¶ 18 (imposing indefinite suspension when respondent had no
aggravating factors but committed multiple violations); see also, e.g., Disciplinary
Counsel v. Holland, 106 Ohio St.3d 372, 2005-Ohio-5322, 835 N.E.2d 361, ¶ 25
(requiring payment of restitution as determined by relator). The record, the
balance of aggravating and mitigating factors, and precedent all support the
board’s recommendation.
{¶ 37} Accordingly, Pritchard is indefinitely suspended from the practice
of law in the state of Ohio. Prior to reinstatement, Pritchard must demonstrate
that he has fulfilled the following conditions: (1) he must provide proof of
continuing mental-health counseling and proof from a mental-health professional
that he is fully competent to return to the practice of law; (2) he must comply with
all requirements of his OLAP contract during the period of his suspension; (3) he
must attend a rigorous and comprehensive course in law-office management
approved by relator; (4) he must comply with any and all mandatory CLE
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requirements; (5) he must make full restitution, as determined by relator, to Bury,
Cenneno, the DiDomenicos, Lorent, Hovanes, the Corlls, Benson, Bodendorfer,
Jennifer Coyier, Garback, Khatib, Titus, and Zetts for any unearned fees and
unused cost advances, completion of which must be certified by relator; (6) he
shall not commit any further misconduct during the period of suspension; and (7)
upon reinstatement, he shall be subject to a two-year probationary period, during
which he must (a) continue to abide by the foregoing requirements to the extent
they are of a continuing nature, (b) be monitored by relator, and (c) permit relator
to monitor his attorney trust account. Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Ronald Slipski and David Comstock Jr., for relator.
______________________
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