Disciplinary Counsel v. Folwell

[Cite as Disciplinary Counsel v. Folwell, 129 Ohio St.3d 297, 2011-Ohio-3181.]

DISCIPLINARY COUNSEL v. FOLWELL.

[Cite as Disciplinary Counsel v. Folwell, 129 Ohio St.3d 297, 2011-Ohio-3181.]

Attorneys — Substantial misconduct — Two-year license suspension with one

year stayed on conditions.

(No. 2010-2251 — Submitted February 16, 2011 — Decided July 6, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-032.

__________________

Per Curiam.

{¶ 1} Respondent, Norman L. Folwell of Marietta, Ohio, Attorney

Registration No. 0056055, was admitted to the practice of law in Ohio in 1991.

On September 23, 2010, relator, Disciplinary Counsel, filed a seven-count

amended complaint charging respondent with professional misconduct.

{¶ 2} Prior to the disciplinary hearing on October 15, 2010, before a

panel of the Board of Commissioners on Grievances and Discipline, the parties

stipulated to the entire case — i.e., the facts, mitigating and aggravating factors,

and rule violations. Relator dismissed the charges that were not stipulated. The

parties also jointly recommended a two-year license suspension with the second

year conditionally stayed. The panel adopted the parties’ stipulated findings of

fact, conclusions of law, and recommended sanction, adding that respondent’s

practice should be monitored for one year pursuant to Gov.Bar R. V(9)(A) during

the stayed suspension.

{¶ 3} Based on the panel’s report, the board accepted the panel’s

findings of fact and conclusions of law and recommends that respondent be

suspended from the practice of law for two years, with the second year stayed on

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the conditions that he cooperate with a monitor appointed by relator during the

stay and commit no further misconduct. We adopt this sanction.

Misconduct

{¶ 4} The relator and respondent stipulated to the following facts and

misconduct, which the panel and board adopted.

Count 1 (Ruble/Phelps)

{¶ 5} Yolanda Ruble and Cash Phelps shared custody of their minor son.

Ruble hired respondent to represent her son against Allstate Insurance Company

regarding injuries that her son had sustained in a car accident. Respondent had

Ruble execute a contingent-fee agreement on her son’s behalf, which provided

that respondent would receive one-third of any recovery from Allstate.

Respondent had not represented a minor in a personal-injury action before and did

not know that an attorney for a minor cannot settle a minor’s claim without

probate court approval.

{¶ 6} In the fall of 2008, respondent settled the case with Allstate for

$20,000, and Ruble signed a waiver releasing her son’s claim. However,

respondent did not include Phelps in negotiating the settlement, nor did he get

Phelps’s permission to settle his son’s claim. The check was payable to

respondent and the minor. Respondent visited the minor at a juvenile facility,

where he was incarcerated, in order to have him endorse the settlement check. On

December 9, 2008, respondent deposited the check in his client trust account and

withdrew $6,600 as his fee, leaving $13,400 belonging to the minor.

{¶ 7} Probate Judge Timothy Williams oversaw the juvenile facility in

which the minor was being held and learned the next day that the minor had

endorsed a settlement check. Judge Williams immediately informed respondent

that he could not settle a minor’s claim without approval of the probate court and

that proceeds from a settlement could not be distributed until the settlement has

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been approved. Judge Williams told respondent that the forms for approving

settlements could be acquired at the clerk’s office.

{¶ 8} However, approximately five months later, the minor had turned

18, yet respondent had not filed an application with the probate court to approve

the settlement. On April 29, 2009, Judge Williams again advised respondent that

he needed to get the court to approve the minor’s settlement.

{¶ 9} On July 10, 2009, respondent filed an application with the probate

court to approve the settlement. Because the settlement proceeds had been

deposited and Ruble had released Allstate from liability months before, Judge

Williams reluctantly approved the settlement, ordering the distribution of the

$20,000 as follows: $13,659.14 to the minor, $5,340.86 to Medicaid, and $1,000

to respondent for attorney fees. Thus, respondent was required to return $5,600 of

the fees that he had collected from the settlement proceeds. On July 31, 2009,

respondent disbursed $13,659.14 to the minor from respondent’s client trust

account.

{¶ 10} Respondent admitted that at least $13,400 of the client’s funds in

his trust account between December 12, 2009, and July 31, 2009, had belonged to

the minor. However, for most months between January 5, 2009, and July 30,

2009, the balance in this account was below $13,400, sometimes by as much as

$6,232.34. Thus, respondent used some of the minor’s funds for other purposes,

including making a payment to another client. Further, from February 1, 2007, to

mid-December 2009, respondent neither maintained client ledgers as prescribed

by Prof.Cond.R. 1.15(a)(2)(i) through (iv) nor reconciled his client trust account

on a monthly basis pursuant to Prof.Cond.R. 1.15(a)(5).

{¶ 11} The parties stipulated that respondent’s conduct violated

Prof.Cond.R. 1.1 (failing to provide competent representation), 1.3 (failing to act

with reasonable diligence and promptness in representing a client), 1.15(a)(2)

(failing to maintain separate client ledgers for the funds in a trust account),

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1.15(a)(5) (failing to perform and retain a monthly reconciliation of the funds in

his trust account), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit,

or misrepresentation), and 8.4(h) (engaging in other conduct that adversely

reflects on his fitness to practice law).

Count 2 (Crawford)

{¶ 12} In August 2006, Darrell Crawford, a real estate agent, hired

respondent to recover the balance of a commission from real estate broker, Harry

Welch. Having been paid $60, on August 6, 2006, respondent sent a demand

letter to Welch, but Welch refused to give Crawford any further payment.

Consequently, Crawford paid respondent a flat fee of $1,650 to file a lawsuit

against Welch. Respondent never filed a complaint, however, and on December

2, 2006, Welch died.

{¶ 13} Later that month, Crawford called respondent to discuss how he

could recover the balance of the commission. Respondent advised that once

Welch’s estate was opened, he could file a lawsuit against Welch’s estate. In

August 2007, Crawford informed respondent that Welch’s estate had been

opened. Crawford had understood from his discussions with respondent that

respondent would be filing a claim against Welch’s estate. In July 2008,

however, Crawford called the probate court and the county recorder of deeds and

learned both that respondent had not filed suit against Welch’s estate and that

Welch’s property had been transferred seven months earlier. Crawford then

contacted respondent and asked that his attorney fees be refunded. Two years

later, respondent refunded Crawford’s attorney fees.

{¶ 14} The parties stipulated that respondent’s conduct violated

Prof.Cond.R.1.3, 1.16(e) (failing to promptly refund any unearned fee upon

withdrawal of representation), and 8.4(h).

Count 3 (Hoover)

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January Term, 2011

{¶ 15} On May 28, 2007, respondent consulted with William Hoover

about respondent’s assisting Hoover in obtaining grandparent visitation. Hoover

paid respondent $187 for the consultation and for respondent to send a letter to the

attorney for Hoover’s daughter. There was no response from Hoover’s daughter’s

attorney.

{¶ 16} In November 2007, Hoover asked respondent to file a lawsuit.

Respondent told Hoover that he would first need to pay respondent a flat fee of

$750. On November 21, 2007, Hoover paid respondent $750.

{¶ 17} On November 27, 2007, Hoover left a message with respondent’s

secretary that respondent should not proceed. After confirming that respondent

received the message, Hoover asked respondent to return the $750 fee.

Respondent promised to return a portion of the fee, but failed to do so. Over the

next several months, Hoover repeatedly asked respondent to refund his fees. Each

time, respondent promised a refund, but never followed through. Finally, on July

14, 2010, respondent refunded Hoover $400 in attorney fees.

{¶ 18} The parties stipulated that respondent’s conduct violated

Prof.Cond.R. 1.16(e) and 8.4(h).

Count 4 (Yates Estate)

{¶ 19} In June 2008, Bessie Yates hired respondent to probate her

deceased husband’s estate. Respondent charged her $1,200, which was to be paid

at the completion of the case. A year passed without respondent’s filing the

probate case. In June 2009, Yates met with respondent to sign the final

paperwork and provide the $300 filing fee.

{¶ 20} On July 13, 2009, Yates’s son, Phillip, contacted the Washington

County Probate Court and verified that no estate had been opened. Two weeks

later, respondent finally filed the probate case. Respondent admitted that he could

have opened the estate sooner.

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{¶ 21} The parties stipulated that respondent’s conduct violated

Prof.Cond.R. 1.3.

Count 5 (Washington)

{¶ 22} On April 4, 2008, Diana Washington hired respondent to pursue a

postdecree matter in Ohio instead of Philadelphia, where the divorce had been

granted. Washington paid respondent a $2,500 flat fee to handle the case.

Subsequently, respondent informed Washington that he could not help her and

told her that he would refund most of her attorney fees. However, as of

December 2008, respondent had yet to return any of Washington’s attorney fees.

{¶ 23} Washington filed a grievance against respondent for failure to

return the unearned fees. In December 2008, relator notified respondent that an

investigation had begun. On March 5, 2009, respondent returned $840 of his fee

to Washington pursuant to a check from his client trust account. On July 14,

2010, respondent refunded the remaining unearned portion of Washington’s

attorney fees.

{¶ 24} The parties stipulated that respondent’s conduct violated

Prof.Cond.R. 1.16(e) and 8.4(h).

Count 6 (Martin Estate)

{¶ 25} On January 15, 2009, Thomas Martin hired respondent to transfer

title to certain vehicles. Subsequently, Martin hired respondent to handle the

probate case for his deceased father’s estate. Martin paid a total of $500 for the

representation. On February 26, 2009, Martin met with respondent and provided

respondent additional information for handling the estate.

{¶ 26} In April 2009, respondent reassured Martin that the probate case

“was being taken care of.” Consequently, Martin believed that the probate case

had been filed. In fact, respondent had done nothing on the case since he had met

with Martin two months earlier.

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January Term, 2011

{¶ 27} In May 2009, while speaking to Martin, respondent realized that

Martin believed that respondent had filed the probate case. However, respondent

did not correct Martin’s impression. In fact, respondent never filed the probate

case, and in August 2009, Martin hired new counsel, who filed the probate case

within a week. Respondent then refunded $500 to Martin.

{¶ 28} The parties stipulated that respondent violated Prof.Cond.R. 1.3,

8.4 (c), and 8.4(h).

Count 7 (Burdette)

{¶ 29} Between 2006 and 2010, Jennifer Burdette was employed as

respondent’s secretary. She greeted visitors, answered the phone, scheduled

respondent’s appointments, and typed documents. Burdette was not an attorney.

{¶ 30} During Burdette’s employment, Oliver Sprouse hired respondent to

represent him in a civil matter on a contingent fee. Respondent agreed to pay

Burdette ten percent of that fee. After receiving the fee from Sprouse, respondent

paid ten percent ($200) to Burdette.

{¶ 31} The parties stipulated that respondent violated Prof.Cond.R. 5.4(a)

(a lawyer shall not share legal fees with a nonlawyer).

Sanction

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

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

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.

Aggravating and Mitigating Factors

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{¶ 33} The parties stipulated to the following mitigating factors:

respondent had no prior disciplinary record, BCGD Proc.Reg. 10(B)(2)(a), and

respondent cooperated with the disciplinary proceedings, BCGD Proc.Reg.

10(B)(2)(d). The parties also stipulated to the following aggravating factors:

respondent had engaged in a pattern of misconduct, BCGD Proc.Reg. 10(B)(1)(c),

and respondent had committed multiple offenses, BCGD Proc.Reg. 10(B)(1)(d).

The board also found that the additional aggravating factor of a dishonest or

selfish motive was proven by clear and convincing evidence. BCGD Proc.Reg.

10(B)(1)(b).

Recommended Sanction

{¶ 34} The parties jointly recommended that respondent receive a two-

year suspension from the practice of law with the second year stayed on the

condition that respondent commit no further misconduct, and the panel added the

recommendation that respondent accept a monitor to oversee his practice during

the stayed portion of the suspension.

{¶ 35} The panel and board found that the jointly recommended sanction

was consistent with the sanctions that this court had imposed in Disciplinary

Counsel v. Claflin, 107 Ohio St.3d 31, 2005-Ohio-5827, 836 N.E.2d 564, and

Cleveland Bar Assn. v. Mishler, 118 Ohio St.3d 109, 2008-Ohio-1810, 886

N.E.2d 818.

{¶ 36} In Claflin, the respondent failed to deliver insurance proceeds to

his client for more than 32 months while using the funds for expenses and to

operate his law office. Id. at ¶ 6. Claflin had no disciplinary record and

cooperated with the disciplinary process, but his actions harmed his clients. Id. at

¶ 11, 12. The court noted that disbarment was the presumptive sanction for such

misappropriation, but that sanction can be tempered when misconduct is an

isolated incident in an otherwise unblemished career and not a course of

misconduct. Id. at ¶ 14-15, quoting Toledo Bar Assn. v. Kramer (2000), 89 Ohio

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St.3d 321, 323, 731 N.E.2d 643. Thus, the court suspended Claflin’s license for

two years, with one year stayed on the condition that the respondent reimburse the

client and pay interest on the funds improperly withheld. Id. at ¶ 16.

{¶ 37} In Mishler, the respondent settled cases without his client’s

consent, obtained settlement proceeds with forged client endorsements, charged

excessive fees, and failed to account for client funds. Cleveland Bar Assn. v.

Mishler, 118 Ohio St.3d 109, 2008-Ohio-1810, 886 N.E.2d 818, ¶ 2. The

respondent had no disciplinary record. Id. at ¶ 41. The court imposed a two-year

license suspension, with the second year stayed on the conditions that respondent

not commit further ethical violations, fully account for and refund client fees with

interest, and upon reinstatement, complete a probation period of one year and

establish an office accounting system to track receipts and disbursements of his

clients’ funds. Id. at ¶ 47.

{¶ 38} After reviewing these cases, the panel and board agreed with the

parties’ recommended sanction of a two-year suspension with the second year

stayed on conditions.

{¶ 39} Having reviewed the record, the stipulations, and the board’s

findings, conclusions, and recommendations, we agree that respondent committed

the stipulated misconduct and that the board’s recommended sanction is supported

by the record.

{¶ 40} Consequently, we suspend respondent’s license to practice law for

two years, with the second year stayed on the conditions that respondent commit

no further misconduct and that he complete one year of probation and be

monitored by an attorney appointed by relator in accordance with Gov.Bar R.

V(9)(B). If respondent fails to comply with these conditions, the stay will be

lifted, and he will serve the full two-year suspension. Costs are taxed to

respondent.

Judgment accordingly.

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

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Philip A. King, Assistant

Disciplinary Counsel, for relator.

Bricker & Eckler, L.L.P., and Alvin Mathews, for respondent.

______________________

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