Disciplinary Counsel v. Davis

[Cite as Disciplinary Counsel v. Davis, 130 Ohio St.3d 440, 2011-Ohio-6016.]

DISCIPLINARY COUNSEL v. DAVIS.

[Cite as Disciplinary Counsel v. Davis, 130 Ohio St.3d 440, 2011-Ohio-6016.]

Attorneys—Misconduct—Indefinite suspension.

(No. 2011-1081—Submitted August 8, 2011—Decided November 29, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-056.

__________________

Per Curiam.

{¶ 1} Respondent, Sherry Darlene Davis of Waverly, Ohio, Attorney

Registration No. 0068036, was admitted to the practice of law in Ohio in 1997. In

2009, Davis was suspended from the practice of law for two years, with one year

conditionally stayed. Disciplinary Counsel v. Davis, 121 Ohio St.3d 84, 2009-

Ohio-500, 902 N.E.2d 25, ¶ 17. On April 29, 2010, in response to a motion to

show cause filed by relator, Disciplinary Counsel, the court imposed an actual

two-year suspension on Davis. Davis’s term suspension has expired, but the

conditions of her reinstatement remain unfulfilled, and at the present time, Davis

has not applied for reinstatement.

{¶ 2} On May 27, 2010, relator, Disciplinary Counsel, charged Davis in

a three-count complaint with numerous violations of the Rules of Professional

Conduct. This is Davis’s third appearance before this court. The Board of

Commissioners on Grievances and Discipline recommends that we indefinitely

suspend Davis’s license to practice law. The parties have submitted stipulations

of fact and misconduct for some of the allegations, and a panel of the board

conducted a hearing on the remaining allegations. The panel accepted the parties’

agreed stipulations, made additional findings of fact and conclusions of law, and

recommended that Davis be indefinitely suspended from the practice of law and

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make restitution to her clients. The board agreed, adding that the suspension

should run concurrently to her term suspension that is continuing. We adopt the

board’s findings of fact and conclusions of law that Davis violated ethical

standards incumbent on Ohio lawyers, but we impose a separate indefinite

suspension of Davis’s license to practice law in Ohio.

Misconduct

Count 1 (The Cash Station Matter)

{¶ 3} Joann Taylor paid Davis $300 to work on a custody matter for her

daughter involving Taylor’s grandson. Taylor also hired Davis to do garnishment

and collection work for a business called Cash Station. Davis did no work on the

custody matter prior to her suspension and failed to return the client file and any

unused fees as promised in her postsuspension letter. Disciplinary Counsel also

alleged that Davis failed to return files on uncompleted work and fees to Cash

Station.

{¶ 4} The board found that during her suspension, Davis continued to

receive checks belonging to Cash Station totaling $1,299.58. Disciplinary

Counsel alleged that the funds were converted for Davis’s personal use and

rightfully belonged to Cash Station. Testimony from witnesses Taylor (former

manager of Cash Station) and Debra Stone (record-keeper of Cash Station)

showed that the Portsmouth Municipal Court sent checks directly to Davis for

money that Davis collected through her garnishment work. Davis was to keep her

fee and remit the balance to Cash Station. The municipal court received payments

from garnishees and sent checks to Davis from November 26, 2007, until April

30, 2009.

{¶ 5} Taylor alleged that Cash Station had received only a few checks

from Davis and that there were many more payments owed to it. Disciplinary

Counsel, however, could not provide detailed records with the names of

garnishees, how much of each check was retained by Davis, or how much she sent

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her client, Cash Station. Thus, the board concluded that no definitive proof

existed to substantiate Disciplinary Counsel’s claim that Davis kept the entire

amount remitted by the court and converted it. However, the board also

concluded that the stipulations documented Davis’s repeated failure to reply to

emailed letters of inquiry and requests for documents that she had promised to

submit to Disciplinary Counsel. Further, Davis failed to produce the requested

materials after the single telephone conversation she had with Disciplinary

Counsel.

{¶ 6} The parties have stipulated, and we agree, that Davis’s conduct

violated Prof.Cond.R. 8.1(b) (requiring a lawyer to respond to a demand for

information from a disciplinary authority) and 8.4(d) (prohibiting conduct that is

prejudicial to the administration of justice) and Gov.Bar R. V(4)(G) (requiring an

attorney to cooperate in a disciplinary investigation). In addition, the board also

concluded, and we agree, that as alleged in the complaint, Davis’s conduct

violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence and

promptness in representing a client), 1.16(d) (as part of the termination of

representation, requiring a lawyer to deliver to the client all papers and property to

which the client is entitled), and 1.16(e) (requiring a lawyer who withdraws from

employment to refund promptly any part of a fee paid in advance that has not

been earned).

{¶ 7} Because Disciplinary Counsel did not present clear and convincing

evidence that Davis converted funds remitted by Portsmouth Municipal Court that

were the rightful possession of Cash Station, the board dismissed the alleged

violation of Prof.Cond.R. 8.4(b) (prohibiting an illegal act that reflects adversely

on the lawyer’s honesty or trustworthiness). Further, the board dismissed alleged

violations of both Prof.Cond.R. 1.5(a) (prohibiting a clearly excessive fee) and

8.4(h) (prohibiting conduct that adversely reflects on the lawyer’s fitness to

practice law).

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Count 2 (The O’Rourke Matter)

{¶ 8} Steven O’Rourke paid Davis $2,500 to appeal from a divorce

judgment. Davis filed an appeal, as well as several motions for stay, which were

denied, after which Davis failed to do any work on the case. In February 2009,

Davis notified O’Rourke of her license suspension and promised to refund any

unused portion of the retainer. O’Rourke made several requests for the return of

his complete file and his retainer, but Davis ignored him, so he filed a grievance.

{¶ 9} On November 5, 2009, Disciplinary Counsel sent a letter of inquiry

concerning O’Rourke’s grievance by certified mail to the address that Davis had

registered with the Supreme Court Office of Attorney Services. The letter was

returned unclaimed. A few weeks later, Disciplinary Counsel was able to

communicate with Davis by email, and she claimed ignorance of the grievance

but promised to cooperate. She ignored further emails.

{¶ 10} O’Rourke testified that the two-year period in which his appeal

was delayed was harmful both to him and to his children, whose company he was

denied. Further, because Davis did not return the $2,500 retainer, he had trouble

retaining another attorney to complete the work. O’Rourke further testified that

Davis also promised to deliver a draft of the appellate brief, which she claimed to

have almost completed, to O’Rourke’s new attorney, but she failed to do so. The

board further noted that as of the date of the board report, neither the retainer nor

files had been returned to O’Rourke.

{¶ 11} The parties have stipulated, and we agree, that Davis’s conduct

violated Prof.Cond.R. 8.1(b), 8.4(d), and 8.4(h) and Gov.Bar.R. V(4)(G).

{¶ 12} In addition, the board also concluded, and we agree, that Davis’s

conduct violated Prof.Cond.R. 1.16(d), 1.16(e), and 1.3.

{¶ 13} The board dismissed an alleged violation of Prof.Cond.R. 1.5(a)

because Disciplinary Counsel failed to prove by clear and convincing evidence

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that Davis made an agreement for, charged, or collected a clearly excessive fee.

We concur and dismiss this charge.

Count 3 (The Shreck Matter)

{¶ 14} In March 2005, John and Carolyn Shreck hired Davis to prepare an

estate plan for them. When they learned in 2009 of Davis’s license suspension,

they contacted her to obtain their original wills and estate-planning documents.

The Shrecks left multiple telephone messages for Davis that went unreturned, and

they sent a letter to her by certified mail, which was returned unclaimed. The

Shrecks were ultimately able to obtain their original wills from Davis’s former

law firm, but when they were unable to obtain their complete files, they filed a

grievance with Disciplinary Counsel.

{¶ 15} Disciplinary Counsel mailed a letter of inquiry to the address that

Davis had registered with this court, but it was returned unclaimed. Davis replied

to Disciplinary Counsel’s email, stating that she was unaware of any new

grievances but would promptly send the requested documents as soon as she

received the new grievances. Disciplinary Counsel mailed a second letter of

inquiry by regular mail, which was not returned, but no response was received.

The board found that the signed stipulations established Davis’s failure to reply to

the grievance or to the email correspondences requesting the return of the

Shrecks’ estate-planning file.

{¶ 16} The parties have stipulated, and we agree, that Davis’s conduct

violated Prof.Cond.R. 1.16(d), 8.1(b), 8.4(d), and 8.4(h) and Gov.Bar.R. V(4)(G).

Aggravation and Mitigation

{¶ 17} The panel and board found the following aggravating factors

pursuant to 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.”): Davis has been previously disciplined; she

exhibited a dishonest or selfish motive by accepting client retainers, performing

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little to no work, and then failing to return the client retainers and failing to make

restitution; she engaged in a pattern of misconduct involving three clients and

multiple offenses; she failed to cooperate in the disciplinary process; she refused

to acknowledge the wrongful nature of her conduct; and she harmed vulnerable

victims. BCGD Proc.Reg. 10(B)(1)(a), (b), (c), (d), (e), (g), and (h).

{¶ 18} The board concluded, and we agree, that there are no mitigating

factors.

Sanction

{¶ 19} When imposing sanctions for attorney misconduct, in addition to

weighing aggravation and mitigation, we consider all relevant factors, including

the duties violated by the lawyer in question 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.

{¶ 20} We have identified Davis’s breaches of her duties to her clients,

the legal profession, and the judicial system. The stipulations submitted by the

parties contain no recommended sanction. At the hearing, Disciplinary Counsel

requested an indefinite suspension based on the nature of the misconduct, the

harm caused, the lack of mitigation, the profusion of aggravating factors, and

precedent.

{¶ 21} Disciplinary Counsel cited three cases in support of his

recommendation to the panel, all of which we find similar to the case at bar. In

Cleveland Metro. Bar Assn. v. Gottehrer, 124 Ohio St.3d 519, 2010-Ohio-929,

924 N.E.2d 825, we indefinitely suspended an attorney for accepting retainers in

two cases in which he failed to do the work, failed to respond to communications

from clients, failed to return retainers, and failed to cooperate with the

disciplinary process. Id. at ¶ 3. In Columbus Bar Assn. v. Clovis, 125 Ohio St.3d

434, 2010-Ohio-1859, 928 N.E.2d 1078, we indefinitely suspended an attorney

for failing to do work, failing to return documents and a $4,000 retainer, and

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failing to cooperate in the disciplinary process. Id. at ¶ 2. Finally, in Columbus

Bar Assn. v. Van Sickle, 128 Ohio St.3d 376, 2011-Ohio-774, 944 N.E.2d 677, we

indefinitely suspended an attorney for practicing while under a license

suspension, failing to register with the Supreme Court, failing to complete work,

and failing to respond to requests for return of funds and documentation. That

respondent had shown some evidence of past depression. Id. at ¶ 15.

{¶ 22} Having considered the aggravating factors and the fact that no

mitigating factors exist in this case, and having considered the sanctions

previously imposed for comparable conduct, we adopt the board’s recommended

sanction of an indefinite suspension. We also order Davis to make restitution to

her clients Joann Taylor and Steven O’Rourke.

{¶ 23} Accordingly, we indefinitely suspend Sherry Darlene Davis from

the practice of law. We condition any future reinstatement on the submission of

proof that Davis has fulfilled the conditions of both her term suspension and her

indefinite suspension and has made restitution as follows: $300 to Joann Taylor,

an accounting to Cash Station and return of any funds not accounted for, and

$2,500 to Steven O’Rourke. Costs are taxed to Davis.

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 Stacy Solochek

Beckman, Assistant Disciplinary Counsel, for relator.

Sherry Darlene Davis, pro se.

______________________

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