Greene County Bar Ass'n v. Saunders

[Cite as Greene Cty. Bar Assn. v. Saunders, 127 Ohio St.3d 241, 2010-Ohio-5708.]

GREENE COUNTY BAR ASSOCIATION v. SAUNDERS.

[Cite as Greene Cty. Bar Assn. v. Saunders,

127 Ohio St.3d 241, 2010-Ohio-5708.]

Attorney misconduct, including failing to comply as soon as practicable with a

client’s reasonable request for information, failing to act with reasonable

diligence in representing a client, and failing to cooperate in a

disciplinary investigation — Indefinite suspension.

(No. 2010-1143 — Submitted September 15, 2010 — Decided

November 30, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-004.

___________________

Per Curiam.

{¶ 1} Respondent, Craig William Saunders, Attorney Registration No.

0071865, whose last known business address is in Dayton, Ohio, was admitted to

the practice of law in Ohio in 2000. In November 2009, we imposed an attorney-

registration suspension for his failure to file a certificate of registration and pay

applicable fees on or before September 1, 2009, in accordance with Gov.Bar R.

VI, and on January 25, 2010, we imposed an interim felony suspension based

upon his felony conviction. See In re Saunders, 123 Ohio St.3d 1475, 1480,

2009-Ohio-5786, 915 N.E.2d 1256, and In re Saunders, 124 Ohio St.3d 1435,

2010-Ohio-187, 920 N.E.2d 367.

{¶ 2} On February 8, 2010, relator, Greene County Bar Association,

filed a complaint charging respondent with four counts of professional

misconduct. When attempts to serve the complaint on respondent by certified

mail at multiple addresses failed, relator served them on the Clerk of this court in

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accordance with Gov.Bar R. V(11)(B). Because respondent failed to file an

answer to the complaint, relator moved for a default judgment on May 13, 2010.

{¶ 3} A master commissioner appointed by the board considered the

motion for default and prepared a report containing findings of fact and

misconduct and recommending dismissal of multiple charges that were not

supported by clear and convincing evidence, including all but one of the alleged

violations in Count Four of the complaint. The master commissioner ultimately

recommended that respondent be indefinitely suspended for his misconduct.

{¶ 4} The board adopted the master commissioner’s report, including the

recommended sanction, and dismissed those charges that were not supported by

sufficient sworn or certified documentary prima facie evidence. See Gov.Bar R.

V(6)(F)(1)(b) and V(6)(K). We agree that respondent has committed professional

misconduct as found by the master commissioner and the board and that an

indefinite suspension is warranted.

Misconduct

{¶ 5} The chairman of the Greene County Bar Association Certified

Grievance Committee investigated four complaints against respondent in 2009.

He averred that the committee had sent letters of inquiry to respondent regarding

the grievances underlying each of the four counts of the complaint. Although the

postal service did not return as undeliverable any of the letters, respondent failed

to respond to relator’s inquiries.

Count One

{¶ 6} A husband and wife hired respondent to assist them in estate-

planning matters. Respondent prepared the necessary documents but kept them in

his possession. In November 2008, the couple asked respondent to forward the

documents to another attorney. Their son also contacted respondent seeking

release of the documents. When respondent did not comply with these requests,

the son filed a grievance on the couple’s behalf. Because respondent never

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January Term, 2010

provided the documents, the clients had to have another attorney prepare new

documents.

{¶ 7} Based upon these facts, the master commissioner and board found

that respondent had violated Prof.Cond.R. 1.4(a)(3) (requiring a lawyer to keep

his client reasonably informed about the status of a matter), 1.4(a)(4) (requiring a

lawyer to comply as soon as practicable with reasonable requests for information

from the client), and 8.1(b) (prohibiting a lawyer from knowingly failing to

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

investigation).

Count Two

{¶ 8} In January 2009, another man retained respondent to represent him

in his divorce and paid him $1,500 for his services. Although the client attempted

to call on at least 50 occasions, respondent did not return the calls or provide the

client with copies of any documents filed in the case. Respondent also failed to

attend scheduled court proceedings, including the final divorce hearing. Because

the client did not have the funds to hire another attorney, he had no choice but to

represent himself.

{¶ 9} The master commissioner and board concluded that respondent’s

conduct with respect to this count violated Prof.Cond.R. 1.3 (requiring a lawyer to

act with reasonable diligence in representing a client), 1.4(a)(3), and 8.1(b).

Count Three

{¶ 10} In March 2007, a woman hired respondent, who was the attorney

of record for her deceased father’s estate, to prepare her father’s 2006 income tax

returns. Respondent did not return her phone calls, even when the client

attempted to contact him at the Xenia Municipal Court, where he worked as an

assistant prosecuting attorney. On one occasion, when the client was able to

reach respondent, he advised her that he had requested an extension of time for

filing the tax return and that she would not have to pay a penalty—statements that

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the client avers are not true. The client eventually retained an accountant to

prepare the necessary tax returns and another attorney to finalize her father’s

estate.

{¶ 11} The master commissioner and the board determined that

respondent’s conduct with respect to this count violated Prof.Cond.R. 1.4(a)(2)

(requiring a lawyer to reasonably consult with his client about the means by

which the client’s objectives are to be accomplished), 1.4(a)(3), 1.4(a)(4), and

8.1(b).

Count Four

{¶ 12} Count Four of relator’s complaint is based on respondent’s alleged

neglect of another client matter. The board, however, dismissed all but one of the

charges in this count because, rather than submitting an affidavit of the grievant,

relator submitted an affidavit of the grievant’s new counsel, who did not have

personal knowledge of the facts. See Dayton Bar Assn. v. Sebree, 104 Ohio St.3d

448, 2004-Ohio-6560, 820 N.E.2d 318, ¶ 9 (“A motion for default in a

disciplinary proceeding supported only by summary, conclusory, and hearsay-

filled affidavits is not supported by the prima facie evidence of misconduct

required by Gov.Bar R. V(6)(F)”). Nonetheless, based upon the affidavit of the

chairman of the certified grievance committee, the board concluded that

respondent’s failure to respond to the investigation of this grievance violated

Prof.Cond.R. 8.1(b).

Sanction

{¶ 13} 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

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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.

{¶ 14} As aggravating factors, the board found that respondent has

committed prior disciplinary offenses, acted with a dishonest or selfish motive,

engaged in a pattern of misconduct involving multiple offenses, failed to

cooperate in the disciplinary process, and caused harm to vulnerable clients.

BCGD Proc.Reg. 10(B)(1)(a), (b), (c), (d), (e), and (h). No mitigating factors

were found.

{¶ 15} We have recognized that an attorney’s neglect of an entrusted legal

matter and failure to cooperate in the ensuing disciplinary investigation generally

warrant an indefinite suspension. Disciplinary Counsel v. Hoff, 124 Ohio St.3d

269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10; Disciplinary Counsel v. Mathewson,

113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891, ¶ 19.

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

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

we adopt the board’s findings of fact, conclusions of law, and recommended

sanction.

{¶ 17} Accordingly, Craig William Saunders is indefinitely suspended

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

Judgment accordingly.

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

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

__________________

David R. Miles, for relator.

______________________

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