Opinion

Lorain County Bar Ass'n v. Godles

  • 128 Ohio St. 3d 279
  • 2010 Ohio 6274
Court
Ohio Supreme Court
Filed
Dec 27, 2010
Status
Published
On the bench
Brown, Pfeifer, Stratton, O'Connor, O'Donnell, Lanzinger, Cupp
Cited by
11 cases
Authority
More cited than 87.8%

The opinion

[Cite as Lorain Cty. Bar Assn. v. Godles, 128 Ohio St.3d 279, 2010-Ohio-6274.]

LORAIN COUNTY BAR ASSOCIATION v. GODLES.

[Cite as Lorain Cty. Bar Assn. v. Godles, 128 Ohio St.3d 279, 2010-Ohio-6274.]

Attorneys at law — Misconduct — Failure to communicate with client and notify

him of failure to maintain liability insurance — Public reprimand.

(No. 2010-1139  Submitted September 15, 2010  Decided

December 27, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-073.

__________________

Per Curiam.

{¶ 1} Respondent, Michael J. Godles of Elyria, Ohio, Attorney

Registration No. 0042398, was admitted to the practice of law in Ohio in 1989.

{¶ 2} Relator, the Lorain County Bar Association, filed a complaint

against respondent for his conduct in representing a client in a personal-injury

case and for not informing his client about his lack of professional-liability

insurance.

{¶ 3} A panel of the Board of Commissioners on Grievances and

Discipline heard the case, issued findings of fact and conclusions of law, and

found that respondent had violated Prof.Cond.R. 1.4(a)(1) (requiring a lawyer to

inform the client of any decision or circumstance for which the client’s informed

consent is required), 1.4(a)(2) (requiring a lawyer to reasonably consult with the

client about the means by which the client’s objectives are to be accomplished),

1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the

status of a matter), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable

with the client’s reasonable requests for information), and 1.4(a)(5) (requiring a

lawyer to consult with the client about any relevant limitation on the lawyer’s

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conduct when the lawyer knows that the client expects assistance not permitted),

1.4(b) (requiring a lawyer to explain matters to the extent reasonably necessary to

permit the client to make informed decisions regarding the representation), and

1.4(c) (requiring a lawyer to inform the client at the time of the engagement or at

any time subsequent to the engagement if the lawyer does not maintain

professional-liability insurance) and DR 1-104(A) (requiring a lawyer to disclose

to the client that the lawyer lacks professional-liability insurance).1 The panel

recommended that respondent be suspended from the practice of law in Ohio for

six months with all six months stayed. The board adopted the panel’s findings

and conclusions, except that it recommended reducing the sanction to a public

reprimand. No objections were filed to the board’s report.

{¶ 4} We adopt the findings and conclusions of the board, and we

publicly reprimand Michael J. Godles for his misconduct in this matter.

Facts

{¶ 5} In August 2006, a client hired respondent to represent him in

regard to a personal-injury claim arising out of an accident that had occurred in

2004. At the time respondent was hired, only five days remained on the statute of

limitations for the client’s claim, so respondent quickly filed a lawsuit in the

Ashland County Court of Common Pleas. He communicated with the opposing

counsel regarding a settlement before filing the suit, but the two sides were far

apart on a settlement value.

{¶ 6} In September, opposing counsel filed an answer, interrogatories,

and a request for documents. Respondent did not file a response to the discovery

request, because he knew that the client was still receiving medical treatment and

that he would eventually be filing a motion for a voluntary dismissal without

1. On February 1, 2007, the Rules of Professional Conduct became effective, replacing the Code

of Professional Responsibility in Ohio. Respondent’s conduct before February 1, 2007, is

governed by the Code of Professional Responsibility, and conduct after that date is governed by

the Rules of Professional Conduct.

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January Term, 2010

prejudice. The following February, opposing counsel filed a motion to compel a

response to the discovery requests. The court ordered respondent to respond to the

discovery request by May 2007, but respondent voluntarily dismissed the case at

the end of April. The voluntary dismissal gave the client one year to refile the

case.

{¶ 7} Respondent testified that he called the client in January 2008 to

inform him that respondent was going to discontinue his representation of the

client. He testified that he explained how long the client had to refile the case.

He then sent a letter to the client in February to confirm. The client testified that

this conversation never occurred and that he never received the letter.

{¶ 8} Neither respondent nor the client refiled the case before the time to

do so expired in May 2008. The client tried calling respondent several times

starting in July 2008, but respondent did not respond until October. During the

October discussion, the client stated that he was totally unaware of what was

happening with his case and had not known that the case had been dismissed.

Respondent said that he had explained everything to the client in previous

discussions. Within a week of that October conversation, the client hired a new

attorney to handle his case.

{¶ 9} Respondent had met the client in person only at their initial

meeting. Except for the letter terminating representation, he did not have any

written correspondence with the client. All conversations happened over the

telephone. Respondent did not send the client copies of the answer, the discovery

request, the motion to compel, or the dismissal order. Respondent never requested

or obtained the client’s medical records.

{¶ 10} The parties stipulated that at all times relevant to the proceedings,

respondent failed to maintain professional-liability insurance. The parties also

stipulated that respondent failed to advise the client that respondent did not

maintain professional-liability insurance.

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Conclusions of Law

{¶ 11} Relator charged respondent with violating 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 means by which they are to be

pursued), 1.3 (requiring a lawyer to act with reasonable diligence in representing a

client), 1.4(a), 1.4(b), and 1.16(d) (requiring a lawyer withdrawing from

representation to take steps reasonably practicable to protect a client’s interest).

{¶ 12} The panel and board found that respondent had violated

Prof.Cond.R. 1.4(a)(1) through (5) and 1.4(b). It is unclear how many times

respondent and the client communicated and what respondent communicated to

the client. The panel found that neither respondent nor the client was completely

credible in their conflicting testimony. What is clear is that respondent did very

little work on the case and failed to fully communicate with the client regarding

how the case was being managed and the status of the case. Therefore, we agree

with the panel and board that respondent violated Prof.Cond.R. 1.4(a)(1) through

(5) and 1.4(b).

{¶ 13} The panel and board recommended dismissing the alleged

violations of Prof.Cond.R. 1.2(a), 1.3, and 1.16(d) because those violations were

not proven by clear and convincing evidence. We agree and dismiss those

charges.

{¶ 14} The panel and board also found violations of DR 1-104(A) and

Prof.Cond.R. 1.4(c). The parties stipulated to respondent’s lack of professional-

liability insurance and his failure to advise the client of that fact. Therefore, we

also find a violation of DR 1-104(A) and Prof.Cond.R. 1.4(c).

Sanction

{¶ 15} 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

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January Term, 2010

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. Because each disciplinary

case is unique, we are not limited to the factors specified in the rule but may take

into account “all relevant factors” in determining what sanction to impose.

BCGD Proc.Reg. 10(A) and (B).

{¶ 16} As mitigating factors, the panel and board found that respondent

has no prior disciplinary record, that he did not act with a dishonest or selfish

motive, and that respondent has had other penalties imposed because a

malpractice action is pending against him. BCGD Proc. Reg. 10(B)(2) (a), (b),

and (f). The mere fact that a malpractice suit was pending should not have been

considered as a mitigating factor, as the suit itself is not a penalty. Respondent

has since submitted a notice of restitution, but we do not accept this as a

mitigating factor either, because he settled the case with no admission of

malpractice, which means that respondent did not admit the misconduct and is not

technically being penalized for it. See Disciplinary Counsel v. McCord, 121 Ohio

St.3d 497, 2009-Ohio-1517, 905 N.E.2d 1182, ¶ 47-48 (giving no consideration

for a separate suspension from the practice of law for the same conduct because

respondent received legal fees during that suspension and did not appear to learn

anything from the suspension).

{¶ 17} As an aggravating factor, the panel and board found that the client

was vulnerable due to his lack of sophistication regarding legal matters. BCGD

Proc.Reg. 10(B)(1)(h). The panel further found that the client lost the opportunity

to pursue damages for his injury.

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{¶ 18} The panel recommended a six-month suspension from the practice

of law in Ohio, with all six months stayed. The board recommended a public

reprimand. Considering respondent’s long career with no previous disciplinary

action, we agree with the board. See Cuyahoga Cty Bar Assn. v. Johnson, 123

Ohio St.3d 65, 2009-Ohio-4178, 914 N.E.2d 180 (public reprimand for an

attorney who, in an isolated instance, failed to notify a client of her lack of

malpractice insurance and neglected a legal matter entrusted to her). Respondent

is hereby publicly reprimanded for violating Prof.Cond.R. 1.4(a)(1) through (5),

1.4(b), and 1.4(c) and DR 1-104(A). Costs are taxed to respondent.

Judgment accordingly.

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

O’DONNELL, LANZINGER, and CUPP, JJ., concur.

__________________

Wickens, Herzer, Panza, Cook & Batista Co., and Daniel A. Cook, for

relator.

Michael J. Godles, pro se.

______________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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