The opinion
[Cite as Dayton Bar Assn. v. Wilson, 127 Ohio St.3d 10, 2010-Ohio-4937.]
DAYTON BAR ASSOCIATION v. WILSON, A.K.A. CAMP.
[Cite as Dayton Bar Assn. v. Wilson, 127 Ohio St.3d 10, 2010-Ohio-4937.]
Attorneys at law — Misconduct — Restitution ordered — Indefinite license
suspension.
(No. 2010-0717 — Submitted June 9, 2010 — Decided October 14, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-029.
__________________
Per Curiam.
{¶ 1} In June 2009, relator, Dayton Bar Association, filed a three-count
amended complaint charging respondent, Y. Nicole Wilson, Attorney Registration
No. 0075975, whose last known address is in Dayton, Ohio, with multiple
violations of the Ohio Rules of Professional Conduct and Gov.Bar R. V(4)(G).
We note, however, that this attorney number is registered to Y. Nicole Camp, who
was admitted to the practice of law in 2003 under the name Yvonne Nicole
Wilson. We conclude that Y. Nicole Wilson and Y. Nicole Camp are the same
person because (1) the complaint bears the attorney registration number of Y.
Nicole Camp, (2) relator has submitted affidavits from two grievants stating that
Y. Nicole Wilson is also known as Y. Nicole Camp, (3) on February 4, 2008,
Yvonne Nicole Wilson filed a change of name with the Office of Attorney
Services, stating that she had changed her name to Y. Nicole Camp, and (4) the
addresses on file with Attorney Services match those used by relator in its efforts
to obtain service on respondent.
{¶ 2} Relator’s three-count amended complaint charged respondent with
issuing a bad trust-account check to a client after agreeing to refund his retainer,
failing to act with reasonable diligence or to provide competent representation in
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two other client matters, and failing to cooperate in the resulting disciplinary
investigations.
{¶ 3} Although the board attempted to serve relator’s amended
complaint on respondent via certified mail at her last known home and business
addresses, the documents were returned by the postal service as undeliverable.
On July 22, 2009, the Clerk of the Supreme Court of Ohio accepted service on
respondent’s behalf in accordance with Gov.Bar R. V(11)(B). Because
respondent failed to file an answer, relator moved for default pursuant to Gov.Bar
R. V(6)(F). And on November 3, 2009, we suspended respondent’s license to
practice law for her failure to register for the 2009/2011 biennium.
{¶ 4} The board referred the matter to a master commissioner, who
prepared a report for the board’s review. The board adopted the master
commissioner’s findings of fact, conclusions of law, and recommendation that we
indefinitely suspend respondent from the practice of law, rejecting relator’s
recommended sanction of permanent disbarment.
{¶ 5} We agree that respondent committed professional misconduct as
found by the board and that her conduct warrants an indefinite suspension.
Misconduct
Count I
{¶ 6} With respect to Count I, the board found that respondent had
informed relator that she would refund the retainer to a grievant who was
dissatisfied with her representation in a bankruptcy proceeding. However, the
bank returned for insufficient funds the $450 check she had issued to the client
from her trust account. Respondent failed to respond to relator’s repeated
requests for a meeting to discuss the returned check and failed to honor a request
that she appear before a scheduled meeting of the grievance committee.
{¶ 7} Based upon these findings, the board found that respondent had
violated Prof.Cond.R. 1.15 (a) (requiring a lawyer to hold property of clients in a
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trust account separate from the lawyer’s personal funds and maintain a record of
the funds held for each 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 to respond to a demand for information by a
disciplinary authority), and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate
with a disciplinary investigation). But concluding that the record did not support
relator’s allegation that respondent had violated Prof.Cond.R. 8.4(c) (prohibiting a
lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), the board recommends dismissal of that alleged violation.
{¶ 8} We agree that respondent’s conduct in issuing a client refund
check from her trust account that was returned by the bank for insufficient funds
clearly and convincingly demonstrates that respondent failed to maintain accurate
records of those funds and that she failed to promptly deliver funds that the client
was entitled to receive. We also agree that by failing to respond to relator’s
repeated attempts to communicate with her about this grievance and failing to file
an answer in this disciplinary proceeding, respondent has violated Prof.Cond.R.
8.1(b) and Gov.Bar R. V(4)(G). But because there is no evidence in the record to
demonstrate that the overdraft of respondent’s trust account was the result of
dishonesty, fraud, deceit, or misrepresentation, rather than an honest accounting
mistake, we accept the board’s recommendation to dismiss the alleged violation
of Prof.Cond.R. 8.4(c).
Count II
{¶ 9} Count II arises from respondent’s agreement to represent a
husband and wife in a custody matter involving their grandson. Respondent did
not respond to relator’s repeated attempts to obtain information regarding this
grievance. Based upon these factual findings, the board concluded that
respondent’s failure to respond to relator’s attempts to inquire about this
grievance violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(4)(G). But because
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relator failed to submit sworn or certified evidence from the grievants, in
accordance with our decision in Dayton Bar Assn. v. Sebree, 104 Ohio St.3d 448,
2004-Ohio-6560, 820 N.E.2d 318, the board recommends that we dismiss the
alleged violations of Prof.Cond.R. 1.1 (requiring a lawyer to provide competent
representation to a client) and 1.3 (requiring a lawyer to act with reasonable
diligence in representing a client).
{¶ 10} We accept the board’s findings of fact, agree that respondent’s
conduct violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(4)(G), and dismiss the
alleged violations of Prof.Cond.R. 1.1 and 1.3 set forth in Count II of the
amended complaint as unsupported by the evidence.
Count III
{¶ 11} Count III involves a grievance filed by another husband and wife
who had retained respondent to file a Chapter 7 bankruptcy. Although respondent
commenced the clients’ bankruptcy proceeding, the board found that she had
failed to stop the improper garnishment of the husband’s paycheck. And when
the clients sent respondent documents that she had instructed them to obtain, the
envelope was returned by the post office marked “undeliverable.” Based upon
these findings, the board concluded that respondent had violated Prof.Cond.R. 1.1
and 1.3. We accept these findings of fact and misconduct.
{¶ 12} The board also found that “Relator’s investigator has attempted to
contact Respondent regarding this grievance on two occasions, but the first
attempt to contact her was returned as ‘not deliverable as addressed’ and
Respondent has failed to respond to the second request.” While relator alleges
these facts in its complaint, the affidavits submitted by relator do not mention
these specific attempts to communicate with respondent. Therefore, we reject
these findings.
{¶ 13} Nonetheless, because we find that the record contains clear and
convincing evidence that respondent has not responded to relator’s repeated
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attempts to obtain information regarding this grievance and has not filed an
answer in this proceeding, we accept the board’s findings that respondent has
violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(4)(G) with regard to this count.
Sanction
{¶ 14} 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
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.
{¶ 15} Respondent has breached her duties to her clients by failing to
maintain accurate records of the funds held in her client trust account, failing to
promptly deliver funds that a client was entitled to receive, and failing to provide
diligent and competent legal representation to another client. Moreover, she has
breached her duty to the public and legal profession by failing to participate in the
disciplinary process.
{¶ 16} The master commissioner and board found that at least five of the
nine aggravating factors set forth in BCGD Proc.Reg. 10(B)(1) are present,
including (1) a pattern of misconduct, (2) multiple offenses, (3) lack of
cooperation in the disciplinary process, (4) refusal to acknowledge the wrongful
nature of her conduct, and (5) failure to make restitution. BCGD Proc.Reg.
10(B)(1)(c), (d), (e), (g), and (i). In mitigation, the board found only that
respondent has no prior disciplinary record. BCGD Proc.Reg. 10(B)(2)(a).
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{¶ 17} Based upon these findings, the master commissioner recommended
that respondent’s law license be indefinitely suspended. The board adopted this
recommendation.
{¶ 18} An indefinite suspension is an appropriate sanction for a lawyer
who has violated the standards of professional competence, diligence, and
integrity by failing to maintain accurate records of the funds held in her client
trust account, failing to promptly deliver funds that a client was entitled to
receive, failing to provide diligent and competent legal representation to her
clients, and failing to cooperate in the resulting disciplinary investigation. See
Columbus Bar Assn. v. Torian, 106 Ohio St.3d 14, 2005-Ohio-3216, 829 N.E.2d
1210, at ¶ 17 ("As we have consistently held, neglect of legal matters and the
failure to cooperate in the ensuing disciplinary investigation warrant an indefinite
suspension from the practice of law"); Cleveland Bar Assn. v. Verbiski (1999), 86
Ohio St.3d 627, 628, 716 N.E.2d 702 (indefinitely suspending an attorney for
neglecting legal matters, including failure to perfect service of a divorce
complaint, failing to timely refund the client’s retainer, and failing to cooperate in
the resulting disciplinary investigation).
{¶ 19} 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 an indefinite suspension.
Accordingly, Y. Nicole Wilson, also known as Y. Nicole Camp, is indefinitely
suspended from the practice of law in the state of Ohio. A condition of any
possible reinstatement is the payment of restitution of $450 to the client in Count
I, with interest at the statutory rate from the date of suspension. Costs are taxed to
respondent.
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
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__________________
Richard L. Carr Jr., for relator.
______________________
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