Disciplinary Counsel v. Nittskoff

[Cite as Disciplinary Counsel v. Nittskoff, 130 Ohio St.3d 433, 2011-Ohio-5758.]

DISCIPLINARY COUNSEL v. NITTSKOFF.

[Cite as Disciplinary Counsel v. Nittskoff,

130 Ohio St.3d 433, 2011-Ohio-5758.]

Attorneys—Misconduct—Failure to file tax returns for estate—Failure to return

files upon client’s request—Mismanagement of client trust account—

Failure to cooperate with disciplinary authority—Failure to inform clients

of lack of professional-liability insurance—Indefinite suspension.

(No. 2010-2245—Submitted April 6, 2011—Decided November 10, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-089.

__________________

Per Curiam.

{¶ 1} Respondent, David Nittskoff, of South Euclid, Ohio, Attorney

Registration No. 0025471, was admitted to the practice of law in Ohio in 1970.

{¶ 2} In early 2009, relator, Disciplinary Counsel, received a grievance

alleging that Nittskoff had failed to inform his clients that he did not carry

malpractice insurance and had neglected a client matter, causing the client to

incur significant tax penalties.

{¶ 3} In December 2009, relator filed a formal complaint alleging that

Nittskoff had committed several violations of the Ohio Code of Professional

Responsibility and the Rules of Professional Conduct.1 Nittskoff did not answer.

1. Relator charged respondent with misconduct under applicable rules for acts occurring before

and after February 1, 2007, the effective date of the Rules of Professional Conduct, which

supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the

former and current rules are cited for the same acts, the allegations comprise a single continuing

ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894

N.E.2d 31, ¶ 1, fn. 1.

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{¶ 4} On April 30, 2010, relator filed an amended complaint; again,

Nittskoff did not answer. Relator filed a motion for default judgment on

September 21, 2010.

{¶ 5} The matter was referred by the board to a master commissioner,

who made findings of fact and conclusions of law and recommended a one-year

suspension from the practice of law with six months stayed, but without naming

any conditions. The Board of Commissioners on Grievances and Discipline

adopted the findings of fact and conclusions of law of the master commissioner,

but recommended that Nittskoff be suspended from the practice of law for six

months.

{¶ 6} We issued an order to show cause why the recommendation of the

board should not be adopted by the court. Relator responded, objecting to the

board’s recommendation and requesting this court to enter an order disbarring

Nittskoff. Nittskoff did not file a response.

{¶ 7} We adopt the board’s findings of fact and conclusions of law, but

suspend Nittskoff from the practice of law in Ohio indefinitely. We additionally

order that as a condition of reinstatement Nittskoff shall satisfy the civil judgment

obtained against him on behalf of the estate of Jack Gordon and shall submit

quarterly progress reports to relator on his payment of the judgment.

Misconduct

{¶ 8} Nittskoff and the late Jack Gordon formed an attorney-client

relationship beginning in the late 1970s and early 1980s. Nittskoff also

represented other members of Gordon’s family. Gordon operated a bicycle shop

near downtown Cleveland.

{¶ 9} Gordon died on September 27, 2005, leaving an estate and the Jack

Gordon Revocable Trust. Stanley P. Frankel, successor trustee of the revocable

trust and administrator of the estate, contacted Nittskoff after Gordon’s death.

Nittskoff then contacted Gordon’s heirs and attempted to determine the extent of

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the trust’s assets. He then prepared partially completed handwritten drafts of

probate court filings and conferred with Frankel.

{¶ 10} In 2006 and early 2007, Frankel continued to ask Nittskoff for the

status of Gordon’s estate. Nittskoff informed Frankel that everything was being

taken care of and that he would take care of any tax penalty that might be

assessed. Frankel terminated Nittskoff on April 2, 2007, due to poorly prepared

probate forms, errors in draft estate-tax returns, and his failure to file estate-tax

returns, which Frankel feared would lead to interest and penalties.

{¶ 11} On November 5, 2007, the Internal Revenue Service informed

Frankel that an estate-tax return had not been filed and that the Jack Gordon estate

owed a penalty of $317,146.20 and interest in the amount of $134,358.26, totaling

$451,504.46. Frankel then repeatedly requested that Nittskoff pay both the

penalty and interest or reimburse the estate for the entire amount. Nittskoff never

paid either the penalty or interest, nor did he ever respond to Frankel. The estate

paid the taxes, penalty, and interest.

{¶ 12} In October 2008, Frankel filed a legal-malpractice claim against

Nittskoff and Nittskoff’s law firm in the Cuyahoga County Court of Common

Pleas. See Frankel v. Nittskoff, Cuyahoga C.P. No. CV-08-673876. In April

2009, the court entered a default judgment against Nittskoff and the firm in the

amount of $451,504.46, and Frankel filed a judgment lien. In March 2010, acting

pro se, Nittskoff filed a motion for relief from judgment pursuant to Civ.R. 60(B),

but the motion was denied.

{¶ 13} Frankel, through his attorney, also requested that Nittskoff return

all file materials relating to the trust and the estate, but Nittskoff did not comply.

Frankel stated in an affidavit dated September 8, 2010, that Nittskoff still had not

returned any of the requested materials.

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{¶ 14} On March 25, 2009, relator sent Nittskoff a letter of inquiry

regarding the grievance. However, Nittskoff did not respond, nor did he respond

to relator’s second inquiry.

{¶ 15} On July 21, 2009, in response to a notice of deposition and

subpoena duces tecum, Nittskoff appeared at relator’s office with the requested

materials. During the deposition, Nittskoff testified that he had failed to maintain

professional-liability insurance for himself and his firm and that he had not

informed any of his clients of this fact.

{¶ 16} In 2009, Nittskoff maintained an interest-bearing account at

Charter One Bank. On October 27, 2009, relator received a notice from the bank

that the IOLTA account was overdrawn. During its investigation, relator

discovered that the certificate of authority for the Nittskoff firm had been

canceled by the Ohio secretary of state in 2007 for failure to pay franchise taxes.

{¶ 17} On November 30, 2009, relator sent a letter of inquiry regarding

the IOLTA-account overdraft via certified mail; Nittskoff did not respond. Nor

did Nittskoff send a response to relator’s second letter of inquiry, sent on

December 31, 2009.

{¶ 18} On December 4, 2009, a probable-cause panel certified the matter

to the board. The first formal complaint was filed on December 7, 2009, asserting

two counts: (1) that Nittskoff failed to file the requisite tax returns for the Jack

Gordon estate, did not reimburse the estate for the tax penalties assessed against

it, and failed to pay the judgment obtained against him by the successor trustee

and the estate administrator and (2) that he failed to inform any of his clients,

including Frankel, that neither he nor the Nittskoff firm maintained professional-

liability insurance.

{¶ 19} Nittskoff never filed an answer. On April 30, 2010, relator filed an

amended complaint to add a third count, alleging that Nittskoff failed to maintain

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sufficient funds in his IOLTA account and failed to respond to relator’s letters of

inquiry. Again, Nittskoff did not file an answer.

{¶ 20} On September 21, 2010, relator filed a motion for default. The

master commissioner recommended a sanction of a one-year suspension from the

practice of law with six months suspended. The board adopted the findings of

fact and conclusions of law of the master commissioner and granted the motion

for default. However, the board rejected relator’s recommendation that Nittskoff

be disbarred and recommended that he be suspended from the practice of law for

six months.

Count One

{¶ 21} With respect to count one, which pertains to Nittskoff’s conduct

regarding the Gordon estate and trust matters, the board found by clear and

convincing evidence that he had violated DR 1-102(A)(5) and Prof.Cond.R.

8.4(d) (engaging in conduct prejudicial to the administration of justice), DR 1-

102(A)(6) and Prof.Cond.R. 8.4(h) (engaging in conduct that adversely reflects on

the lawyer’s fitness to practice law), DR 6-101(A)(1) (handling a legal matter that

he is not competent to handle), 6-101(A)(3) (neglecting a legal matter entrusted to

him) and Prof.Cond.R. 1.1 (failing to provide competent legal representation to a

client), 1.3 (failing to act with reasonable diligence and promptness), 1.4(a)(2)

(failing to reasonably consult with a client about the means for achieving the

client’s objectives), 1.4(a)(3) (failing to keep the client reasonably informed),

1.4(a)(4) (failing to respond to requests for information from the client), and

1.4(b) (failing to explain a matter so as to permit the client to make informed

decisions).

Count Two

{¶ 22} On count two, the board further found by clear and convincing

evidence that Nittskoff’s failure to inform his clients that he did not maintain

professional-liability insurance constituted a violation of DR 1-102(A)(6) and 1-

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104(A) (failing to inform a client that the lawyer does not maintain professional-

liability insurance).

Count Three

{¶ 23} On the third and final count of the amended complaint, the board

found that Nittskoff’s misconduct in allowing an overdraft of his IOLTA account

and his failure to respond to relator’s two letters of inquiry violated Prof.Cond.R.

8.1(b) (failing to respond to a request for information from a disciplinary

authority in connection with a disciplinary matter) and 8.4(h).

Sanction

{¶ 24} 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 on sanctions, 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.

{¶ 25} The board found that Nittskoff’s lack of cooperation in the

disciplinary process, including his failure to answer the complaint and the

amended complaint, was an aggravating factor. See BCGD Proc.Reg.

10(B)(1)(e). The board also found an aggravating factor in the vulnerability of

and resulting harm to the victims of Nittskoff’s misconduct. See BCGD

Proc.Reg. 10(B)(1)(h).

{¶ 26} As mitigating factors, the board found that Nittskoff had no prior

disciplinary record and no dishonest or selfish motive. See BCGD Proc.Reg.

10(B)(2)(a) and (b). The board also found that Nittskoff’s compliance with the

subpoena duces tecum demonstrated a full and free disclosure to the board and a

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cooperative attitude toward the proceedings. See BCGD Proc.Reg. 10(B)(2)(d).

However, we believe that any mitigating effect of Nittskoff’s compelled

appearance at the deposition is outweighed by his failure to respond to relator’s

correspondence and his failure to file an answer or otherwise appear in this action.

The board found the imposition of other penalties or sanctions, namely the civil

judgment against Nittskoff, to be mitigating under BCGD Proc.Reg. 10(B)(2)(f).

{¶ 27} Relator filed objections to the board’s report, arguing that

Nittskoff’s conduct warrants disbarment rather than a six-month suspension as

recommended by the board. Relator argues that the board erroneously relied on

Nittskoff’s “entirely unverified” deposition testimony. Had Nittskoff participated

in the formal disciplinary process as required, relator argues, relator would have

been able to test Nittskoff’s statements through regular discovery.

{¶ 28} Relator further argues that the board relied on claims by Nittskoff

that are entirely irrelevant to the disciplinary case and the determination of the

appropriate sanction. For example, the board cited Nittskoff’s testimony that he

did not ask the IRS for an extension to file tax returns because he did not believe

that the estate was large enough to pay taxes. Relator argues that while that

statement may be an accurate reflection of Nittskoff’s reasoning, it is not relevant

or mitigating. As another example, relator cites the board’s reliance on

Nittskoff’s “irrelevant and hearsay” deposition testimony to conclude that the

value of Gordon’s bicycle shop was zero.

{¶ 29} Relator argues that the only relevant information the board needed

in order to determine the appropriate sanction in the Gordon matter is that (1)

Nittskoff agreed to provide legal representation to the Jack Gordon estate and to

Frankel and (2) Nittskoff did not file certain estate-tax returns and failed to ask for

an extension of time to file. Relator argues that “[t]his Court should reject the

board’s recommendation and enter a sanction that is consistent with the facts of

this case and prior decisions.”

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{¶ 30} We repeatedly have recognized that neglect of an entrusted legal

matter, coupled with a failure to cooperate in the ensuing disciplinary

investigation, warrants an indefinite suspension. See, e.g., Disciplinary Counsel

v. Meade, 127 Ohio St.3d 393, 2010-Ohio-6209, 939 N.E.2d 1250, ¶ 20. Meade

involved an attorney who failed to cooperate in multiple disciplinary

investigations, failed to act with reasonable diligence and promptness in

representing a client resulting in the dismissal of an appeal of a deportation order,

and failed to deliver the client’s file to her new counsel. We ordered an indefinite

suspension. See also Disciplinary Counsel v. Hoff, 124 Ohio St.3d 269, 2010-

Ohio-136, 921 N.E.2d 636, ¶ 10 (indefinite suspension imposed on attorney who

failed to return unearned fees and failed to cooperate with disciplinary

authorities); Cleveland Bar Assn. v. Davis, 121 Ohio St.3d 337, 2009-Ohio-764,

904 N.E.2d 517 (indefinite suspension appropriate for attorney who neglected

several of his clients, failed to refund retainers for work he did not perform, and

failed to cooperate in the disciplinary investigation); Disciplinary Counsel v.

Mathewson, 113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891 (attorney

indefinitely suspended for neglecting clients’ cases, mismanaging his client trust

account, and failing to cooperate throughout the disciplinary process); Columbus

Bar Assn. v. Harris, 108 Ohio St.3d 543, 2006-Ohio-1715, 844 N.E.2d 1202

(indefinite suspension imposed on attorney who neglected clients’ cases, failed to

keep clients apprised of the status of their cases, allowed her malpractice

insurance to lapse, and did not cooperate with the disciplinary process).

{¶ 31} The facts of this case are closer to the facts in the foregoing

decisions than to those in which less severe sanctions were imposed. Here, the

evidence demonstrates clearly that Nittskoff neglected his client by failing to

properly file estate-tax returns or request an extension, thereby causing the client

to incur a significant tax penalty, totaling $451,504.46. Moreover, Nittskoff

neglected to maintain professional-liability insurance and did not inform his

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clients of that fact. Nittskoff also neglected to maintain adequate records of his

IOLTA account, which ultimately resulted in an overdraft. Finally, when relator

attempted to investigate the IOLTA-account matter, Nittskoff failed to cooperate.

{¶ 32} In accordance with our previous decisions involving neglect of

entrusted legal matters combined with a failure to cooperate in the ensuing

disciplinary investigation, we hereby indefinitely suspend Nittskoff from the

practice of law in Ohio. We further order as a condition of reinstatement that

Nittskoff shall satisfy the civil judgment obtained against him on behalf of the

estate of Jack Gordon and shall also submit quarterly progress reports to relator

on his payment of the judgment.

{¶ 33} Costs are taxed to Nittskoff.

Judgment accordingly.

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

CUPP, and MCGEE BROWN, JJ., concur.

PFEIFER, J., dissents.

__________________

PFEIFER, J., dissenting.

{¶ 34} I agree with the majority that attorney Nittskoff violated several

provisions of the Ohio Code of Professional Responsibility and the Rules of

Professional Conduct and that he should be sanctioned. I dissent because I

believe that an indefinite suspension is excessive given the misconduct that

Nittskoff committed.

{¶ 35} At its core, this case is a garden-variety malpractice case. Based

merely on the malpractice, it is unlikely that this court would have indefinitely

suspended Nittskoff from the practice of law. But this case also includes repeated

failures to respond and cooperate in the disciplinary process. In my opinion, that

aggravating factor does not outweigh the underlying malpractice case and the

mitigating factors.

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{¶ 36} The majority opinion cites five prior disciplinary cases to justify its

imposition of an indefinite suspension. In four of those cases, the attorney who

was indefinitely suspended committed violations involving multiple clients. This

case does not involve multiple clients; only one client was neglected, though the

neglect was substantial and the effect was extremely expensive for the client. The

fifth case cited by the majority opinion involved more aggravating factors than

this case, including a selfish motive, which is lacking in this case.

{¶ 37} Viewing the case as a whole and after considering all the

aggravating and mitigating factors, I conclude that the violations do not rise to the

level necessary to impose an indefinite suspension. I would impose the sanction

recommended by the Board of Commissioners on Grievances and Discipline and

suspend Nittskoff from the practice of law for six months.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, Chief

Assistant Disciplinary Counsel, for relator.

______________________

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