Mahoning County Bar Ass'n v. Sakmar

[Cite as Mahoning Cty. Bar Assn. v. Sakmar, 127 Ohio St.3d 244, 2010-Ohio-5720.]

MAHONING COUNTY BAR ASSOCIATION v. SAKMAR.

[Cite as Mahoning Cty. Bar Assn. v. Sakmar,

127 Ohio St.3d 244, 2010-Ohio-5720.]

Attorneys at law — Misconduct — Failure to cooperate in disciplinary

investigation — Conduct adversely reflecting on fitness to practice law —

Conduct prejudicial to the administration of justice — Two-year

suspension, partially stayed.

(No. 2010-1201 — Submitted September 15, 2010 — Decided

December 1, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-080.

__________________

Per Curiam.

{¶ 1} Respondent, Michael A. Sakmar of Boardman, Ohio, Attorney

Registration No. 0062443, was admitted to the practice of law in Ohio in 1993.

{¶ 2} On October 12, 2009, relator, Mahoning County Bar Association,

filed a complaint charging respondent with four counts of professional

misconduct. Although respondent was served with the complaint on October 17,

2009, he did not file an answer or otherwise appear in the action. Therefore, on

April 20, 2010, relator moved for default pursuant to Gov.Bar R. V(6)(F). A

master commissioner appointed by the Board of Commissioners on Grievances

and Discipline granted the motion, making findings of misconduct and

recommending that respondent be suspended from the practice of law for 12

months, serve two years of monitored probation upon his return to the practice of

law, and be required to complete eight hours of continuing legal education in law-

office management in addition to the continuing-legal-education requirements of

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Gov.Bar R. X. The board, however, recommends a two-year suspension with one

year stayed, two years of monitored probation and eight hours of continuing legal

education in law-office management. For reasons that follow, we accept the

board’s recommendation.

Misconduct

{¶ 3} In support of its motion for default, relator submitted three

affidavits: two from Youngstown Municipal Court judges and one from the

grievance committee member assigned to investigate a grievance filed by one of

those judges. Based upon those affidavits, the master commissioner and board

found that from February 2006 to December 2008, respondent had either been

tardy or failed to appear for numerous hearings before the two municipal court

judges and that he had once left a hearing early against the judge’s specific

instruction to remain.

{¶ 4} As a result of this conduct, respondent was cited for contempt

multiple times and found guilty of contempt and fined on two separate occasions

in the Youngstown Municipal Court. And when respondent failed to appear for a

scheduled hearing in August 2007, the judge issued a capias for his arrest but

withdrew it when respondent paid the $60 capias fee.

{¶ 5} The master commissioner and board did not expressly make

factual findings regarding respondent’s failure to cooperate in the resulting

disciplinary proceeding. But the affidavit of relator’s attorney investigator

demonstrates that in January and February 2009, relator sent three separate letters

to respondent, including one by certified mail, advising him of the grievance and

asking him to submit a written response. Having received no response, in April

2009, relator sent a fourth letter advising respondent that the grievance committee

would be filing a formal complaint against him. On April 1 of the following year,

when the investigator executed his affidavit, respondent had not responded to

relator’s inquiry.

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January Term, 2010

{¶ 6} The master commissioner and board found that there was clear and

convincing evidence that respondent had violated Prof.Cond.R. 1.3 (requiring a

lawyer to act with reasonable diligence in representing a client), 3.5(a)(6)

(prohibiting a lawyer from engaging in undignified or discourteous conduct that is

degrading to a tribunal), 8.4(d) (prohibiting a lawyer from engaging in conduct

that is prejudicial to the administration of justice), and 8.4(h) (prohibiting a

lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to

practice law) and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a

disciplinary investigation).

Sanction

{¶ 7} 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.

{¶ 8} Respondent has either been tardy or failed to appear on behalf of

his clients at multiple court hearings. He has left a proceeding against the

presiding judge’s express instruction to remain in the courtroom. Although

judges have given him ample opportunity to correct this behavior, respondent has

failed to do so. This conduct demonstrates a lack of diligence and a profound

disrespect not only for the tribunal, but also for the other attorneys and parties

appearing before the tribunal. It also impedes the efficient administration of

justice.

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{¶ 9} Mitigating factors in this case include the absence of a prior

disciplinary record and the absence of a dishonest or selfish motive. BCGD

Proc.Reg. 10(B)(2)(a) and (b). In aggravation, however, the master commissioner

and board found that respondent had engaged in a pattern of misconduct involving

multiple offenses and had failed to cooperate in the disciplinary process. See

BCGD Proc.Reg. 10(B)(1)(c), (d), and (e).

{¶ 10} The master commissioner recommended that the appropriate

sanction for respondent’s misconduct is a 12-month suspension, two years of

monitored probation, and eight hours of continuing legal education focusing on

law-office management. The board, however, recommends that respondent be

suspended for two years, with one year stayed.

{¶ 11} We have previously recognized that neglect of an entrusted legal

matter coupled with a failure to cooperate in the ensuing disciplinary investigation

warrants an indefinite suspension. E.g., Cleveland Metro. Bar Assn. v. Gottehrer,

124 Ohio St.3d 519, 2010-Ohio-929, 924 N.E.2d 825, ¶ 16; Disciplinary Counsel

v. Hoff, 124 Ohio St.3d 269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10. In Gottehrer,

we imposed an indefinite suspension for conduct that violated Prof.Cond.R. 1.3

(requiring a lawyer to act with reasonable diligence and promptness in

representing a client), 1.4(a)(3) (requiring a lawyer to keep clients reasonably

informed about the status of their matters), 1.4(a)(4) (requiring a lawyer to

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

client), 1.5(a) (prohibiting a lawyer from making an agreement for, charging, or

collecting an illegal or clearly excessive fee), 1.15(d) (requiring a lawyer to

promptly deliver to the client any funds or other property that the client is entitled

to receive), and 8.1(b) (prohibiting an attorney from knowingly failing to respond

to a demand for information by a disciplinary authority during an investigation)

and Gov.Bar R. V(4)(G). Gottehrer, 124 Ohio St.3d 519, 2010-Ohio-929, 924

N.E.2d 825, at ¶ 17. In Gottehrer, however, the record demonstrated not only that

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the attorney had neglected a client matter, but also that his neglect resulted in the

dismissal of the client’s appeal and economic harm to the client from the

attorney’s retention of an unearned fee. Id. at ¶ 7.

{¶ 12} At the other end of the spectrum is a case in which we imposed a

six-month suspension upon an attorney for deliberately disobeying a court order

and then lying to the court about it. Disciplinary Counsel v. Rohrer, 124 Ohio

St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180. Id. at ¶ 26, 54. In mitigation, the

attorney had no prior disciplinary record, displayed a cooperative attitude in the

disciplinary proceedings, had already had sanctions imposed on him by the

juvenile court, and had presented evidence attesting to his good character and

reputation. Id. at ¶ 32. Aggravating factors included the attorney’s commission

of multiple offenses and a selfish or dishonest motive. Id. at ¶ 34, 36.

{¶ 13} Another case resulted in a sanction between the two. Disciplinary

Counsel v. Nicks, 124 Ohio St.3d 460, 2010-Ohio-600, 923 N.E.2d 598. In Nicks,

we imposed a two-year suspension, with 18 months stayed on conditions for

violations of Prof.Cond.R. 1.3, 3.4(c) (prohibiting a lawyer from knowingly

disobeying an obligation under the rules of a tribunal), 8.4(c) (prohibiting a

lawyer from engaging in conduct involving fraud, deceit, dishonesty, or

misrepresentation), 8.4(d), and 8.4(h). Id. at ¶ 8. The attorney had collected fees

for a probate matter on two separate occasions without first obtaining the court’s

approval, retained fees in excess of those approved by the court, and failed to file

an estate-tax return while retaining the funds his client remitted for estate taxes.

Id. at ¶ 4-6. In a second matter, the attorney was found to be in contempt of court

for his failure to file an estate-distribution report or appear at a status conference

on the case. Id. at ¶ 11. Although the attorney had engaged in multiple offenses

and failed to make restitution, in mitigation we found that he had no prior

disciplinary record, had cooperated fully in the disciplinary process, and had a

chemical dependence that had contributed to his misconduct. Id. at ¶ 15-16, citing

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BCGD Proc.Reg. 10(B)(1)(d) and (i) and 10(B)(2)(a), (d), and (g). The attorney

had also acknowledged the wrongful nature of his conduct and accepted full

responsibility for its consequences. Id. at ¶ 16.

{¶ 14} This case is different from two of the three cases cited above. The

record does not demonstrate that any of respondent’s clients suffered economic

harm or prejudice as a result of his tardiness or failure to appear at scheduled

hearings as the clients did in Gottehrer. But respondent engaged in a pattern of

misconduct by arriving late or failing to attend numerous hearings for various

clients over a period of several years, while the misconduct in Rohrer was a single

occurrence and the attorney cooperated in the disciplinary proceeding and

presented evidence in mitigation.

{¶ 15} The case involving misconduct most comparable to respondent’s

tardiness and failure to attend scheduled hearings is Nicks, which involved

multiple violations of a local court rule. Nicks’s conduct, however, was arguably

more egregious than respondent’s because he engaged in conduct involving fraud,

deceit, dishonesty, or misrepresentation and retained client funds intended to pay

estate taxes. But the severity of his misconduct was also tempered by his

cooperation in the disciplinary proceedings, acknowledgement of the

wrongfulness of his misconduct, and his diagnosed chemical dependence.

{¶ 16} Having reviewed the record, weighed the aggravating and

mitigating factors, and considered the sanctions imposed for comparable conduct,

we adopt the board’s recommended sanction of a two-year suspension from the

practice of law, with the second year stayed on condition of no further violations,

two years of monitored probation upon respondent’s return to the practice of law,

and eight hours of continuing legal education in law-office management in

addition to the continuing-legal-education requirements of Gov.Bar R. X.

{¶ 17} Accordingly, Michael A. Sakmar is suspended from the practice of

law in Ohio for two years, with the second year of the suspension stayed on

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condition of no further violations. If respondent fails to comply with the

condition of the stay, the stay will be lifted, and he will serve the entire two-year

suspension. Upon his reinstatement to the practice of law, he shall serve two

years of monitored probation in accordance with Gov.Bar R. V(9) and complete

eight hours of continuing legal education in law-office management in addition to

the continuing-legal-education requirements of Gov.Bar R. X. Costs are taxed to

respondent.

Judgment accordingly.

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

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

__________________

Ronald E. Slipski and David C. Comstock Jr., for relator.

______________________

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