The opinion
[Cite as Disciplinary Counsel v. Longino, 128 Ohio St.3d 426, 2011-Ohio-1524.]
DISCIPLINARY COUNSEL v. LONGINO.
[Cite as Disciplinary Counsel v. Longino,
128 Ohio St.3d 426, 2011-Ohio-1524.]
Attorneys — Misconduct — Multiple violations of the Rules of Professional
Conduct, including the misappropriation of client funds — Permanent
disbarment.
(No. 2010-1646 — Submitted January 4, 2011 — Decided April 6, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-079.
__________________
Per Curiam.
{¶ 1} Respondent, Shondra Collette Longino of Mayfield Heights, Ohio,
Attorney Registration No. 0081874, was admitted to the practice of law in Ohio in
2007. In October 2009, relator, Disciplinary Counsel, filed a 12-count complaint
charging respondent with multiple violations of the Rules of Professional Conduct
arising from her neglect of client matters; failure to keep her clients informed
about the status of their cases and obtain their informed consent; improper
notarization of affidavits, including the notarization of documents that were not
signed, were not signed by the purported signer, or contained false information;
her settlement of a client’s legal matter without his consent and her subsequent
misappropriation of the settlement proceeds; and her representation of two clients
with conflicting interests. Relator amended his complaint in February 2010 to
allege three additional counts of misconduct relating to respondent’s mishandling
of her client trust account and two client bankruptcies.
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{¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline conducted a three-day hearing. At the close of its case, relator moved
to dismiss counts 4 and 5 of his complaint, and the panel granted the motion.
{¶ 3} Having considered the testimony of respondent and 11 other
witnesses, more than 120 exhibits, and stipulations of fact and misconduct
regarding two counts of the amended complaint, the panel issued findings of fact
and conclusions of law and recommended that respondent be indefinitely
suspended from the practice of law, with any future reinstatement contingent upon
certain conditions.
{¶ 4} The board accepted the panel’s findings of fact and conclusions of
law. But citing respondent’s “extraordinary record of misconduct” in her brief
legal career, the board recommended that respondent be permanently disbarred
from the practice of law in Ohio. We accept these findings of fact and
misconduct and conclude that the appropriate sanction for respondent’s
misconduct is permanent disbarment.
Misconduct
Counts 3, 6, 7, 8, and 9
{¶ 5} Counts 3, 6, 7, 8, and 9 relate to respondent’s conduct in notarizing
and filing poverty affidavits on behalf of her clients. Each of the affidavits falsely
states that it was sworn to and subscribed in respondent’s presence. One client
completed portions of a poverty affidavit but did not sign it. Someone later
completed the affidavit with false information and signed the client’s name;
respondent, however, admitted that she notarized the document, falsely indicating
that the client had sworn to and subscribed the affidavit in her presence.
{¶ 6} Two of the affidavits were signed by persons other than the named
affiants without indicating that they were signed with permission. Respondent
also placed her notary stamp and seal on a fourth affidavit purporting to be that of
the named affiant, although it did not bear any signature, and signed a fifth
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client’s name to at least one affidavit and then notarized her own signing of the
client’s name.
{¶ 7} With respect to these five counts, the panel found that respondent
had committed four violations of Prof.Cond.R. 8.4(c) (prohibiting a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation),
three violations of Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice), and five violations of
Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that
adversely reflects on the lawyer’s fitness to practice law).
Count 1
{¶ 8} The evidence adduced at the panel hearing demonstrates that in
August 2008, a client paid respondent $750 and retained her to appeal the
Cuyahoga County Employment and Family Services Agency’s decision revoking
her childcare license. Although respondent was aware that time was of the
essence, she waited nearly one month to file the appeal, which was dismissed in
December 2008 for failure to comply with the statutory requirements for
perfecting the appeal. Respondent did not notify the client of the dismissal and in
March 2009 filed a Civ.R. 60(B) motion for relief from judgment without the
client’s knowledge or consent. In May 2009, after the client learned of the status
of the case from relator, the client met with respondent to discuss the dismissal of
her appeal and subsequent denial of the motion for relief from judgment.
Although respondent appealed the denial of the motion, the client terminated her
representation in September 2009 because respondent failed to keep her apprised
of the status of the appeal.1
1. Subsequently, the Eighth District Court of Appeals reversed the dismissal of the Civ.R. 60(B)
motion and remanded the cause to the trial court for further proceedings. In re Jones-Smith, 8th
Dist. No. 93276, 2009-Ohio-6470.
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{¶ 9} The panel and board also found that during the course of her
representation, respondent filed two poverty affidavits on the client’s behalf. The
first affidavit contained false information, was not signed, falsely stated that it had
been sworn to and subscribed in respondent’s presence, and was filed without the
client’s knowledge or consent. The second affidavit was blank when the client
signed it, but someone other than the client filled in the information.
{¶ 10} The panel and board concluded that these facts clearly and
convincingly demonstrate that respondent had violated Prof.Cond.R. 1.3
(requiring a lawyer to act with reasonable diligence in representing a client),
1.4(a)(1) (requiring a lawyer to inform the client of any decision or circumstance
with respect to which the client’s informed consent is required), 1.4(a)(3)
(requiring a lawyer to keep the client reasonably informed about the status of a
matter), and 8.4(c), (d), and (h).
Count 2
{¶ 11} In September 2008, another client paid respondent $450 in attorney
fees and $375 for service by publication to initiate divorce proceedings on his
behalf. At that time, the client signed a poverty affidavit. Respondent did not
deposit the money that the client had given her for court costs into her client trust
account. After more than three months, respondent filed a divorce complaint on
the client’s behalf but did not request service by publication as he had requested.
Instead, respondent included with the complaint a poverty affidavit that contained
false financial information for the client, a forged client signature, and a false
notary jurat stating that the client had sworn to and subscribed the affidavit in
respondent’s presence.
{¶ 12} Despite making several attempts to inquire about the status of his
case, the client was unable to reach the respondent. When he finally reached her
and went to her office, respondent gave him documents that falsely stated that the
divorce had been filed with instructions for service by publication. Because the
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documents did not contain a file stamp or proof of publication, the client sought to
verify the filing with the court, where he discovered that someone had forged his
signature on a poverty affidavit. After the client confronted respondent, she
dismissed the divorce proceeding and refunded his money.
{¶ 13} Based upon these findings, the panel and board found that
respondent had violated Prof.Cond.R. 1.4(a)(3), 1.15(c) (requiring a lawyer to
deposit into a client trust account legal fees and expenses that have been paid in
advance), and 8.4(c), (d), and (h). Although relator’s complaint alleged that
respondent’s conduct also violated Prof.Cond.R. 1.4(a)(1), the board made no
findings with respect to that allegation. Because relator has not proven the
allegation by clear and convincing evidence, we hereby dismiss it.
Count 10
{¶ 14} The charges in count 10 arise from respondent’s settling of a
client’s civil matter without the client’s knowledge or consent and then
misappropriating proceeds of that settlement.
{¶ 15} Prior to the panel hearing, respondent stipulated to the allegations
contained in count 10 of relator’s complaint, with three modifications to which
relator consented.2 Respondent acknowledged that she did not notify the client of
the settlement offer, did not receive his authorization to settle the case for $8,000,
and did not advise him that his case had been dismissed with prejudice in June
2008. Although she denied that she had forged the client’s signature on the
release of claims or the settlement check, she stipulated that she and her niece
signed the release as witnesses to the forged client signature, that someone forged
2. The modifications included (1) respondent’s denial that she specifically told the client that
“these things take time,” as alleged in the amended complaint, (2) respondent’s denial that she
signed the back of the settlement check as alleged in the amended complaint, and (3) the deletion
of a sentence listing transactions made from respondent’s operating account after she had
deposited the settlement check.
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the client’s signature on the back of the check, that she deposited the settlement
check into her operating account, and that she dissipated the settlement proceeds.
{¶ 16} When the client and his wife wrote to the respondent in November
2008 inquiring about the status of the case, she spoke with him and left him with
the impression that his case was still pending. In September 2009, the client
learned that his case had been settled more than a year earlier. When he
confronted respondent with this knowledge, she claimed that she was unaware of
any settlement but that she would investigate the matter. In a September 25, 2009
letter to the client, she stated that “[i]t appears that a check for $8,000.00 was sent
in settlement from [the defendant]” and offered to pay the client 66 percent of the
settlement proceeds in installments. As of the date of the hearing, respondent had
not paid the client any portion of the settlement.
{¶ 17} Based upon respondent’s stipulations and her testimony, the panel
and board found by clear and convincing evidence that respondent had violated
Prof.Cond.R. 1.2(a) (requiring a lawyer to abide by the client’s decisions
concerning the objectives of representation and to consult with the client as to the
means by which those objectives are to be pursued), 1.4(a)(1) and (3), 1.15(a)
(requiring a lawyer to hold property of clients separate from the lawyer’s own
property), 1.15(d) (requiring a lawyer to promptly deliver funds or other property
that the client is entitled to receive), and 8.4(c), (d), and (h).
Count 11
{¶ 18} Count 11 arises from respondent’s criminal defense of a husband
and wife facing federal drug charges. Respondent represented the husband in the
appeal of his conviction on charges of possession of crack cocaine with the intent
to distribute. She also represented his wife as she was investigated and indicted
on charges including conspiracy to distribute cocaine with her husband — charges
for which the husband was designated as an unindicted coconspirator.
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{¶ 19} The assistant United States attorney who prosecuted the wife
testified that she had offered to seek a reduction of the husband’s mandatory life
sentence if he would testify against his wife — an offer that remained open
throughout respondent’s representation — and had expressed concern regarding
respondent’s dual representation. Respondent rejected the offer and maintained
that despite their differing interests, the couple had consented to the joint
representation. In the wife’s case, however, the court issued an order
disqualifying respondent and later rejected respondent’s challenge to that
determination, stating that respondent “cannot adequately represent and defend
[the wife] against those allegations while also representing [the husband].”
{¶ 20} Based upon these facts, the panel and board determined that
respondent could not have ethically advised both the husband and wife.
Therefore, they concluded that respondent had violated Prof.Cond.R. 1.7
(prohibiting a lawyer from accepting or continuing the representation of a client if
such representation would create a conflict of interest except in certain limited
circumstances) and 8.4(d) and (h).
Count 13
{¶ 21} The panel and board found that from August 8 through December
11, 2007, respondent maintained a client trust account at Charter One Bank. She
commingled personal funds with client funds by depositing earned fees and
personal funds into the client trust account, and she used it as a personal account.
She also failed to maintain proper records for the client trust account. Moreover,
from December 12, 2007, to February 17, 2009, she did not maintain a client trust
account at all, although she received funds that should have been deposited into
such an account.
{¶ 22} Respondent admitted that she did not properly handle her client
trust account. She claimed, however, that she was a new lawyer who had never
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been instructed how to handle a client trust account or advised of the account’s
importance.
{¶ 23} Based upon the foregoing, the panel and board found by clear and
convincing evidence that respondent had violated Prof.Cond.R. 1.15(a), (b)
(permitting a lawyer to deposit his or her own funds in a client trust account only
for the purpose of paying or obtaining a waiver of bank-service charges), and (c).
Counts 12, 14, and 15
{¶ 24} Counts 12, 14, and 15 relate to respondent’s handling of three
separate bankruptcy proceedings.
{¶ 25} In April 2008, a husband and wife retained respondent to file a
petition for bankruptcy. Respondent never filed the petition and failed to notify
them when the bankruptcy court suspended her privileges to practice before that
court in August 2008. When the couple had difficulty reaching respondent, they
filed complaints with the Cleveland Bar Association, Better Business Bureau, and
small claims court. Respondent refunded their legal fees in December 2008.
{¶ 26} In the remaining counts, respondent filed the clients’ bankruptcy
proceedings, but they were dismissed when she failed to file all the required
documents, failed to comply with notices instructing her to correct her filings, and
failed to appear at the resulting show-cause hearings. Despite respondent’s
failures, she falsely advised one client that his failure to furnish certain documents
caused the dismissal of his bankruptcy proceeding. And although respondent
refiled the other client’s bankruptcy, that case was also dismissed when she failed
to file an electronic filing declaration.
{¶ 27} Additionally, the evidence demonstrates that these clients had
difficulty reaching respondent to discuss their cases. And she has not refunded
any portion of the $850 paid by the couple in count 14 or the $749 paid on behalf
of the client in count 15.
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{¶ 28} The panel and board found that by engaging in this conduct,
respondent had committed one violation of Prof.Cond.R. 1.1 (a lawyer shall
provide competent representation to a client), three violations of Prof.Cond.R. 1.3,
three violations of Prof.Cond.R. 1.4(a)(3), two violations of Prof.Cond.R. 8.4(c),
and two violations of Prof.Cond.R. 8.4(d).
Sanction
{¶ 29} 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, 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.
{¶ 30} Although the panel and board observed that respondent has not
been the subject of any prior disciplinary proceedings, see BCGD Proc.Reg.
10(B)(2)(a), they expressed their belief that this factor should not be considered
mitigating in light of respondent’s brief tenure as an attorney. They noted that
respondent had been practicing law for less than two years when relator began his
investigation into multiple instances of her alleged misconduct.
{¶ 31} Similarly, the panel and board rejected respondent’s claims that
she had cooperated in the disciplinary process. Indeed, the evidence demonstrates
that respondent never filed an answer to the original complaint, although she did
file a motion seeking dismissal of some of the counts; failed to claim or respond
to her mail, including correspondence and discovery requests from relator
regarding his investigation; did not provide relator or the panel with a list of her
witnesses until the first day of the panel hearing; and although properly notified,
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failed to appear for her second deposition. Thus, despite some participation in the
disciplinary process, respondent did not demonstrate a cooperative attitude toward
the proceedings. See BCGD Proc.Reg. 10(B)(2)(d).
{¶ 32} Likewise, respondent’s claimed depression does not qualify as a
mitigating factor. This is because other than her own testimony, there is no
evidence that her depression has been diagnosed by a qualified medical
professional, that it contributed to cause the misconduct, that she has completed a
sustained period of successful treatment, or that she will be able to return to the
competent, ethical, and professional practice of law. See BCGD Proc.Reg.
10(B)(2)(g)(i) through (iv). To the contrary, her contract with the Ohio Lawyers
Assistance Program (“OLAP”) was terminated for noncompliance.
{¶ 33} In contrast, the panel and board found that most of the aggravating
factors set forth in BCGD Proc.Reg. 10(B)(1) are present. Respondent has
exhibited a selfish and dishonest motive by submitting false poverty affidavits and
settling a client’s case without his knowledge or consent, then using the
settlement proceeds for her own benefit. BCGD Proc.Reg. 10(B)(1)(b). She has
engaged in a pattern of misconduct involving multiple offenses. See BCGD
Proc.Reg. 10(B)(1)(c) and (d).
{¶ 34} Although respondent offered some cooperation in the early stages
of relator’s investigation, by the time relator filed his complaint, that cooperation
gave way to avoidance and denial. See BCGD Proc.Reg. 10(B)(1)(e). While she
submitted an affidavit averring that she had signed poverty affidavits on behalf of
two clients as their attorneys in fact, she later testified that she thought the clients
had signed the documents and acknowledged that the information contained in her
affidavit was “incorrect.” See BCGD Proc.Reg. 10(B)(1)(f). She claimed that
she was unable to obtain her voicemail messages or contact her clients for several
weeks in November 2008 when she experienced an extended power outage at her
office, but admitted that she had never attempted to access them remotely. See id.
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{¶ 35} Respondent has also failed to acknowledge the wrongfulness of her
conduct and has caused harm to vulnerable clients. See BCGD Proc.Reg.
10(B)(1)(g) and (h). She contends that she did nothing wrong when she filed
false and fraudulent poverty affidavits because the courts did not rely upon them,
and appears to believe that refunding her clients’ money somehow rectifies her
misconduct. She does not appreciate the conflict of interest created by her dual
representation of clients in related criminal proceedings and continues to blame
her clients for the dismissal of their bankruptcy proceedings, despite the fact that
the dismissal entries clearly identify her filing errors as the reason for the
dismissals. And while respondent acknowledged that she mishandled her client
trust account, she seeks to deflect blame for her conduct by claiming that she had
never been taught about the proper handling of the account.
{¶ 36} Before the panel hearing, respondent stipulated that she did not
notify a client that a settlement offer had been made in his case and did not
receive the client’s authorization to accept the offer, but that she signed the
release as a witness to the signature purporting to be that of her client, sent the
executed release to opposing counsel, and deposited the settlement check into her
operating account. Yet at the hearing, she attempted to disavow her actions by
testifying that she had “learned that [the client’s case] was settled” and that she
was “just taking full responsibility” for the events that had occurred with respect
to that client. Not only has respondent failed to provide any restitution to the
client since she settled his case in June 2008, see BCGD Proc.Reg. 10(B)(1)(i),
she continues to claim that she is entitled to one-third of the proceeds of the
unauthorized settlement.
{¶ 37} At the hearing, relator argued that an indefinite suspension is the
appropriate sanction for respondent’s misconduct, but stated that he would not
object to permanent disbarment. Respondent, however, argued in favor of a
suspension of no more than two years, with 18 months stayed on conditions.
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{¶ 38} Citing its belief that respondent suffers from some type of mental
disability and that she could be rehabilitated, the panel recommends that
respondent be indefinitely suspended and that we place certain conditions on any
future reinstatement. While the board adopted the panel’s findings of fact and
conclusions of law, based upon respondent’s “extraordinary record of
misconduct,” the board recommends that we permanently disbar her from the
practice of law in Ohio. Respondent has not challenged the board’s findings of
misconduct or the recommended sanction of permanent disbarment.
{¶ 39} We have consistently recognized that the presumptive disciplinary
sanction for misappropriation of client funds is disbarment. See, e.g., Lorain Cty.
Bar Assn. v. Fernandez, 99 Ohio St.3d 426, 2003-Ohio-4078, 793 N.E.2d 434, ¶
9; Disciplinary Counsel v. France, 97 Ohio St.3d 240, 2002-Ohio-5945, 778
N.E.2d 573, ¶ 11; Disciplinary Counsel v. Wherry (2000), 87 Ohio St.3d 584,
587, 722 N.E.2d 515. Although this presumption may be overcome by sufficient
evidence of mitigating or extenuating circumstances, no such circumstances are
present in this case. See, e.g., Dayton Bar Assn. v. Gerren, 103 Ohio St.3d 21,
2004-Ohio-4110, 812 N.E.2d 1280, ¶ 14, citing Disciplinary Counsel v. Smith,
101 Ohio St.3d 27, 2003-Ohio-6623, 800 N.E.2d 1129. On the contrary,
misappropriation of client funds is just one of 48 violations of the Ohio Rules of
Professional Conduct. Respondent’s inability or unwillingness to recognize the
seriousness of her actions, coupled with the nature and sheer volume of her
misconduct, demonstrates a lack of integrity and candor that is essential to the
competent, ethical, and professional practice of law.
{¶ 40} Having considered respondent’s conduct, the aggravating factors,
the absence of mitigating factors, and our precedent, we adopt the board’s
findings of fact and conclusions of law and conclude that the appropriate sanction
for respondent’s misconduct is permanent disbarment.
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{¶ 41} Accordingly, Shondra Collette Longino is hereby permanently
disbarred 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.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, Lori J. Brown, Chief
Assistant Disciplinary Counsel, and Karen H. Osmond, for relator.
Shondra Collette Longino, pro se.
______________________
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