Disciplinary Counsel v. Dundon

[Cite as Disciplinary Counsel v. Dundon, 129 Ohio St.3d 571, 2011-Ohio-4199.]

DISCIPLINARY COUNSEL v. DUNDON.

[Cite as Disciplinary Counsel v. Dundon,

129 Ohio St.3d 571, 2011-Ohio-4199.]

Attorneys—Misconduct—Neglect of entrusted legal matter—Failure to promptly

deliver funds owed to client—Failure to act with reasonable diligence—

Failure to reasonably consult with client—Failure to keep client reasonably

informed—Failure to respond to client requests for information with

reasonable promptness—Public reprimand.

(No. 2011-0339—Submitted April 19, 2011—Decided August 30, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-067.

__________________

Per Curiam.

{¶ 1} Respondent, Jeffrey Raymond Dundon, Attorney Registration No.

0034271, was admitted to the practice of law in Ohio in 1985. On August 16,

2010, relator, Disciplinary Counsel, filed a complaint charging respondent with

violations of the Code of Professional Responsibility and the Rules of

Professional Conduct pertaining to his representation of Caroline Zell. On

September 9, 2010, Dundon filed an answer denying the alleged violations.

However, on January 5, 2011, the parties filed stipulations in which respondent

admitted certain violations and respondent and relator proposed a six-month

stayed suspension as the appropriate sanction. On January 12, 2011, the case was

heard before a panel of the Board of Commissioners on Grievances and Discipline

of the Supreme Court of Ohio. The board recommends the less severe sanction of

a public reprimand. We agree with this sanction.

Misconduct

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{¶ 2} In 2006, respondent was a partner in the firm of Dundon &

Huddleston. Respondent maintained an office in Centerville, while his partner,

Larry Huddleston, kept an office in Columbus. In November 2006, respondent

met with Caroline Zell to discuss estate-planning issues. Zell hired respondent to

develop an estate plan that included creating limited-liability companies (“LLCs”)

to protect Zell’s rental properties. Zell signed an agreement to pay respondent

$10,000 for the estate-planning work, with a $5,000 retainer. On December 9,

2006, Zell sent respondent a check for the $5,000 retainer.

{¶ 3} On December 28, 2006, respondent’s paralegal forwarded to Zell

forms regarding the organization and registration of three LLCs that required

Zell’s signature. Zell executed and returned those forms to respondent. On

January 11, 2007, respondent’s paralegal forwarded the forms to the secretary of

state for filing. On January 23, 2007, the secretary of state’s office approved the

three LLCs and returned to respondent copies that documented the registration of

these three LLCs.

{¶ 4} On January 30, 2007, respondent met with Zell, Jim Hayslip

(Zell’s financial advisor), and Jeff Zell (Zell’s son). The purpose of the meeting

was for Zell to sign various documents that respondent had prepared, including an

irrevocable life-insurance trust, an Ohio healthcare power of attorney, an Ohio

living-will declaration, a will, a trustee’s affidavit, an assignment of personal

property, a power of attorney, an Ohio Insurance Portability and Accountability

Act declaration, and a living trust.

{¶ 5} The next day, respondent’s paralegal forwarded the originals of all

these documents (the “trust book”) to Jerel Noggle at MainSource Bank,

requesting that he sign where indicated and return the documents to respondent.

MainSource was to act as trustee for the irrevocable trust. However, Noggle

never returned the trust book to respondent, and respondent never followed up

with him about the trust book.

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January Term, 2011

{¶ 6} In January 2007, respondent sent a letter to each of his ten active

clients explaining that he would soon be leaving the practice of law, and their files

could be turned over to his partner, Larry Huddleston, in Columbus. Respondent

also provided these clients a list of other local attorneys who would be willing to

take their cases.

{¶ 7} On February 5, 2007, respondent’s paralegal forwarded to Zell the

three LLC certificates that had been approved by the secretary of state. Three

days later, respondent’s paralegal forwarded to Zell organization and registration

forms for three additional LLCs that required Zell’s signature. Zell executed and

returned those documents to respondent. On February 15, 2007, respondent’s

paralegal forwarded those documents to the secretary of state for filing.

{¶ 8} On February 21, 2007, Zell sent respondent the balance of his fee

($5,000).

{¶ 9} At the end of February 2007, respondent closed his law office in

Centerville and went to work for the University of Cincinnati as the director of

planned giving. After respondent’s office was closed, phone calls to his office

were forwarded to Huddleston’s office in Columbus.

{¶ 10} The secretary of state’s office approved Zell’s last three LLCs on

February 22, 2007, and mailed copies of these documents to respondent on March

1, 2007.

{¶ 11} On June 14, 2007, Loretta Jamieson from Huddleston’s office sent

an e-mail to respondent stating that Jim Hayslip had called to say that Zell was

unhappy because she had not received any follow-up regarding the status of her

LLCs since she had paid the balance of her fee to respondent in February. Two

days later, respondent sent an e-mail to Hayslip that stated:

{¶ 12} “I have Caroline Zell’s file, but I have not received the executed

life insurance trust back from the bank. I will follow up on Monday with the trust

officer.

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{¶ 13} “The last of the LLC certificates came last week, so we need to

transfer the property [to] the individual LLCs. Jim do you have the property

descriptions?”

{¶ 14} Respondent could not explain why it took so long for the

certificates to reach him when, according to the secretary of state’s records, they

were mailed to him on March 1, 2007.

{¶ 15} On September 20, 2007, Jamieson sent respondent another e-mail

indicating that Jeff Zell and Hayslip were furious because respondent had still not

followed up with them. Jamieson requested a copy of Zell’s file. The next day,

respondent e-mailed Jamieson that he had told Caroline Zell’s manager that all the

LLCs had been formed and that several months ago, he had twice requested either

Zell or Hayslip to provide the deeds needed to transfer the real property into the

LLCs , but had not yet received a response.

{¶ 16} On February 12, 2008, Jeff Zell wrote to respondent complaining

about the delay in completing his mother’s estate plan. He further stated that he

had met with Larry Huddleston about his mother’s living trust and that the

meeting had cost him $300. Jeff asserted that he should not have had to pay,

because the work was respondent’s responsibility. Finally, the letter requested

that respondent complete all the work by March 1, 2008, and that respondent send

all notes and files to Larry Huddleston. Shortly thereafter, respondent sent Jeff

Zell a check for $300.

{¶ 17} On March 18, 2008, Jamieson sent respondent an e-mail stating

that Jeff Zell had just called her, and he was angry that he had received no

response to his February 12 letter. Respondent replied that he would send Zell’s

file to Huddleston the following week.

{¶ 18} On April 8, 2008, Jamieson e-mailed respondent, asking him if he

had sent Zell’s file yet. Respondent replied that he sent the file the night before.

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January Term, 2011

However, two days later, respondent informed Jamieson that Zell’s file had been

returned because he put the wrong zip code on the box. He promised to resend it.

{¶ 19} On February 6, 2009, attorney Ralph Russo wrote a letter to

respondent indicating that Zell had hired his firm to represent her regarding the

creation of her estate plan. Russo demanded that respondent return Zell’s $10,000

fee. Respondent did not reply to the letter and did not return the fee at that time.

{¶ 20} Beginning in February 2007, during his communications with

Jamieson, Jeff Zell, and Ralph Russo regarding Zell’s file, respondent believed

that he had transferred copies of Zell’s estate-planning documents to Huddleston

in electronic format. In fact, Huddleston never received these documents.

{¶ 21} Respondent learned from relator that Ralph Russo had drafted an

entirely new set of estate-planning documents for Zell. Consequently, respondent

refunded Zell’s entire $10,000 fee in January 2011.

{¶ 22} Because respondent failed to regularly communicate with Zell,

failed to follow up on the status of the trust documents with MainSource Bank,

and failed to timely respond to Zell’s new attorney’s request for a refund of fees,

the parties stipulated and the panel and board found by clear and convincing

evidence that respondent had violated DR 6-101(A)(3) (a lawyer shall not neglect

a legal matter entrusted to him) and 9-102(B)(4) (a lawyer shall promptly pay or

deliver to the client all funds in which the client is entitled), and Prof.Cond.R. 1.3

(a lawyer shall act with reasonable diligence and promptness in representing a

client), 1.4(a)(2) (a lawyer shall reasonably consult with a client), 1.4(a)(3) (a

lawyer shall keep a client reasonably informed), and 1.4(a)(4) (a lawyer shall

comply as soon as practicable with reasonable requests for information from the

client).

Sanction

{¶ 23} When imposing sanctions for attorney misconduct, we consider

relevant factors, including the ethical duties that the lawyer violated and the

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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 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; Akron Bar Assn. v. Freedman, 128 Ohio

St.3d 497, 2011-Ohio-1959, 946 N.E.2d 753, ¶ 7.

{¶ 24} The parties stipulated and the panel and board found that none of

the aggravating factors in BCGD Proc.Reg. 10(B)(1) were present. As mitigating

factors under BCGD Proc.Reg. 10(B)(2), the parties stipulated and the panel and

board also found that respondent had no disciplinary record, had not acted with a

dishonest or selfish motive, had acknowledged his wrongful conduct, had

cooperated during the disciplinary process, and had made full restitution to his

client.

{¶ 25} Relator and respondent recommended that the appropriate sanction

is a six-month stayed suspension. Relator cited three cases in support of this

sanction: Dayton Bar Assn. v. Sebree, 96 Ohio St.3d 50, 2002-Ohio-2987, 770

N.E.2d 1009, Disciplinary Counsel v. Harp (2001), 91 Ohio St.3d 385, 745

N.E.2d 1032, and Cincinnati Bar Assn. v. Wilson (2000), 89 Ohio St.3d 243, 730

N.E.2d 957.

{¶ 26} In Sebree, in addition to other violations, the attorney failed to

respond to a counterclaim filed against one client and failed to prosecute a

collection case for another client. Sebree at ¶ 2, 3. The court found that the

attorney had neglected an entrusted legal matter, failed to seek the lawful

objectives of a client, and failed to carry out a contract for professional services.

Id. at ¶ 5, 8. The court imposed a six-month suspension of his license, stayed on

conditions. Id at ¶ 9.

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January Term, 2011

{¶ 27} In addition to other violations, the attorney in Harp had caused the

dismissal of a client’s case by failing to respond to a motion to dismiss, failing to

file a complaint on behalf of another as promised, and completely failing to take

any action on behalf of two others. Id., 91 Ohio St.3d 385, 745 N.E.2d 1032. The

court found that the attorney neglected an entrusted legal matter, failed to seek the

lawful objectives of a client, and failed to carry out a contract for professional

services. The court imposed a stayed six-month suspension of his license, with

conditions. Id. at 386.

{¶ 28} In addition to other misconduct, the attorney in Wilson failed to

inform a client that the defendant had offered to settle the case and then failed to

respond to a motion for summary judgment, which resulted in the dismissal of the

case with prejudice. Wilson, 89 Ohio St.3d 243, 730 N.E.2d 957. The court found

that the attorney had neglected an entrusted legal matter, failed to seek the legal

objectives of a client, failed to carry out a contract of employment, and prejudiced

or damaged a client during the course of a professional relationship. The court

imposed a six-month suspension, stayed upon conditions, including the

assignment of a monitor and the payment of restitution.

{¶ 29} The panel herein believed that the conduct in these cases was more

egregious than respondent’s conduct. Specifically, the panel recognized that the

respondent had actually prepared the documents necessary to complete Zell’s

estate plan, but that his failure to pay attention to the circumstances that

subsequently arose resulted in his failure to fulfill the obligation to his client. The

panel further found that respondent’s actions in this case appeared to be an

aberration. Finally, the panel found that there seemed to be little risk of repetition

or a danger to the public in this case. Consequently, the panel recommended that

respondent be given a public reprimand and that he pay the costs of the

proceedings.

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{¶ 30} The board adopted the panel’s findings of fact and conclusions of

law and recommended that we publicly reprimand respondent and charge him

with costs. We adopt the board’s findings of fact and conclusions of law and the

board’s recommended sanction. Consequently, respondent is hereby publicly

reprimanded.

{¶ 31} Costs taxed to respondent.

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 Carol A. Costa,

Assistant Disciplinary Counsel, for relator.

Montgomery, Rennie & Johnson and George D. Jonson, for respondent.

______________________

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