Columbus Bar Assn. v. Troxell

[Cite as Columbus Bar Assn. v. Troxell, 129 Ohio St.3d 133, 2011-Ohio-3178.]

COLUMBUS BAR ASSOCIATION v. TROXELL.

[Cite as Columbus Bar Assn. v. Troxell, 129 Ohio St.3d 133, 2011-Ohio-3178.]

Attorneys at law — Misconduct — Multiple violations of the Code of Professional

Conduct — Indefinite license suspension.

(No. 2010-2248 — 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. 10-007.

__________________

Per Curiam.

{¶ 1} Respondent, Richard Hollingsworth Harold Troxell of Hilliard,

Ohio, Attorney Registration No. 0066395, was admitted to the practice of law in

Ohio in 1996.

{¶ 2} On February 8, 2010, relator, Columbus Bar Association, filed a

three-count complaint charging respondent with professional misconduct arising

from his alleged neglect of client matters, failure to provide competent

representation, failure to reasonably communicate with his clients or respond to

their demands for information, failure to give notice of, account for, and deliver

funds in which a client or third person has an interest, and failure to respond to the

resulting disciplinary investigations.

{¶ 3} Respondent was served with relator’s complaint by certified mail

on February 19, 2010, and relator’s counsel went to respondent’s home and

advised him that relator would seek a default judgment if respondent did not

cooperate. Because respondent did not file an answer or otherwise appear in the

action, relator filed a motion for default judgment pursuant to Gov.Bar R.

V(6)(F). In support of that motion, relator submitted the affidavit of its counsel

and two of the three clients affected by respondent’s conduct, sworn copies of

relator’s correspondence, and the transcript of an attempted deposition.

SUPREME COURT OF OHIO

{¶ 4} A master commissioner appointed by the Board of Commissioners

on Grievances and Discipline granted relator’s motion, making findings of fact

and misconduct and recommending that respondent be indefinitely suspended

from the practice of law. The board adopted the master commissioner’s report in

its entirety. We adopt these findings of fact and misconduct and indefinitely

suspend respondent from the practice of law in Ohio.

Misconduct

Count One

{¶ 5} In January 2004, a man retained respondent to represent him in a

personal-injury action. After four years, respondent settled the client’s case for

$236,000, from which he deducted his one-third fee, paid the client’s subrogated

medical expenses, and retained $15,000 to cover any lien that Medicare might

have on the settlement proceeds. Respondent has not provided the client with an

accounting or returned the remaining $15,000 and has not responded to the

client’s efforts to reach him by letter or telephone.

{¶ 6} Relator sent respondent a letter of inquiry regarding the client’s

grievance on August 6, 2008, and followed up with letters in September and

October, but respondent did not respond. In response to relator’s November 2008

mailing of a notice of deposition and request for production of documents,

respondent sent a three-page letter addressing some aspects of the client’s

grievance. The day before the scheduled deposition, respondent called and agreed

to provide documentation relating to the client’s case. Consequently, relator

canceled the deposition. However, respondent never provided the requested

documents and failed to attend a second scheduled deposition.

{¶ 7} The board found, and we agree, that respondent’s conduct violated

Prof.Cond.R. 1.4 (requiring a lawyer to reasonably communicate with a client),

1.15(d) (requiring a lawyer to promptly deliver funds or other property that the

client is entitled to receive), 8.1(b) (prohibiting a lawyer from knowingly failing

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January Term, 2011

to respond to a demand for information by a disciplinary authority during an

investigation), 8.4(b) (prohibiting a lawyer from committing an illegal act that

reflects adversely on the lawyer’s honesty or trustworthiness), and 8.4(h)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the

lawyer’s fitness to practice law).

Count Two

{¶ 8} In the spring of 2007, a second client retained respondent to

represent him for injuries he had received in an automobile accident. Despite the

client’s repeated attempts to contact respondent, he has not heard from respondent

since early 2008. In July 2009, a claims adjuster for the tortfeasor’s insurance

company informed the client that respondent had settled his claim for $4,000 in

May 2008, but that the settlement check had never been cashed and an executed

release had never been returned. The client eventually settled his claim with the

tortfeasor’s insurance company without the assistance of legal counsel.

{¶ 9} Respondent has not responded to relator’s letters of inquiry

regarding this matter, has failed to appear for a properly noticed deposition, and

has not responded to relator’s request for production of documents.

{¶ 10} The board found that respondent’s conduct with respect to this

count violated Prof.Cond.R. 1.1 (requiring a lawyer to provide competent

representation to a client), 1.3 (requiring a lawyer to act with reasonable diligence

in representing a client), 1.4, 1.15(d), and 8.4(h), as well as 8.1(b) and Gov.Bar R.

V(4)(G) (requiring a lawyer to cooperate with a disciplinary investigation).

Count Three

{¶ 11} On April 2, 2009, relator sent a letter to respondent at the address

on file with the Office of Attorney Registration seeking his response to a

grievance filed by a third client. That letter was returned by the postal service

marked “Troxell law office box closed[,] unable to forward[,] return to sender.”

When relator had not received a response by April 30, 2009, it sent a second

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SUPREME COURT OF OHIO

demand for a response via certified mail. That letter was returned marked,

“Return to sender[,] unclaimed[,] unable to forward.” On May 21, 2009, relator

sent a notice of deposition and request for production of documents regarding this

grievance and the grievances discussed in counts one and two above, by certified

mail to respondent’s home and business addresses. Respondent signed for the

letter sent to his business address, but the envelope sent to his home address was

returned unclaimed. Respondent did not appear for the deposition.

{¶ 12} Unable to obtain an affidavit from the third grievant, relator moved

to dismiss the alleged violations related to the underlying grievance.

Notwithstanding the grievant’s decision to withdraw her grievance, the board

found that respondent had ignored relator’s request for information and did not

file an answer regarding the allegations in the complaint. Therefore, it found by

clear and convincing evidence that respondent had violated Prof.Cond.R. 8.1(b)

and Gov.Bar R. V(4)(G). We adopt these findings of fact and misconduct.

Sanction

{¶ 13} In recommending that respondent be indefinitely suspended from

the practice of law, the master commissioner and board considered the

aggravating and mitigating factors listed in Section 10 of the Rules and

Regulations Governing Procedure on Complaints and Hearings Before the Board

of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). See Stark

Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d

818, ¶ 16.

{¶ 14} They found, as aggravating factors, that respondent had acted with

a dishonest or selfish motive, engaged in multiple offenses, failed to cooperate in

the disciplinary process, refused to acknowledge the wrongful nature of his

conduct, caused harm to vulnerable clients, and failed to make restitution. See

BCGD Proc.Reg. 10(B)(1)(b), (d), (e), (g), (h), and (i). The only mitigating factor

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they found was that respondent has no prior disciplinary record. See BCGD

Proc.Reg. 10(B)(2)(a).

{¶ 15} Respondent has failed to provide an accounting or deliver funds in

which a client has an interest, has failed to provide competent representation, has

failed to act with reasonable diligence, and has failed to respond to three separate

disciplinary investigations. By engaging in this conduct, he has violated his

duties to his clients, the public, and the legal profession.

{¶ 16} The board concluded that an indefinite suspension is appropriate,

applying the rule that “ ‘[a] lawyer’s neglect of legal matters and failure to

cooperate in the ensuing disciplinary investigation generally warrant an indefinite

suspension from the practice of law in Ohio,’ ” Cleveland Metro. Bar Assn. v.

Kaplan, 124 Ohio St.3d 278, 2010-Ohio-167, 921 N.E.2d 645, ¶ 15, quoting

Akron Bar Assn. v. Goodlet, 115 Ohio St.3d 7, 2007-Ohio-4271, 873 N.E.2d 815,

¶ 20. See also Disciplinary Counsel v. Mathewson, 113 Ohio St.3d 365, 2007-

Ohio-2076, 865 N.E.2d 891, ¶ 19. Having reviewed the record, weighed the

aggravating and mitigating factors, and considered the sanctions imposed for

comparable conduct, we agree that an indefinite license suspension is the

appropriate sanction in this case.

{¶ 17} Accordingly, Richard Hollingsworth Harold Troxell is indefinitely

suspended from the practice of law in the state of Ohio. Costs are taxed to

respondent.

Judgment accordingly.

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

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

__________________

Bruce A. Campbell, Bar Counsel, A. Alysha Clous, Assistant Bar Counsel,

Anne Valentine, and Paul Leithart II, for relator.

______________________

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