Cincinnati Bar Assn. v. Grote

[Cite as Cincinnati Bar Assn. v. Grote, 127 Ohio St.3d 1, 2010-Ohio-4833.]

CINCINNATI BAR ASSOCIATION v. GROTE.

[Cite as Cincinnati Bar Assn. v. Grote, 127 Ohio St.3d 1, 2010-Ohio-4833.]

Attorney misconduct, including failing to provide competent representation,

failing to act with reasonable diligence in representing a client, and

failing to keep client informed — Indefinite suspension.

(No. 2010-0737 ⎯ Submitted July 6, 2010 ⎯ Decided October 7, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-054.

__________________

Per Curiam.

{¶ 1} Respondent, Jane M. Grote, Attorney Registration No. 0000745,

was admitted to the practice of law in Ohio in 1976.

{¶ 2} Relator, Cincinnati Bar Association, filed a complaint against

respondent charging her with violations of the Rules of Professional Conduct for

her behavior after she was hired by a client to handle a divorce.

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

Discipline heard the case and found clear and convincing evidence that

respondent violated seven Rules of Professional Conduct. The panel also

dismissed one charge, finding that it was not proven by clear and convincing

evidence. The panel recommended that respondent be suspended indefinitely

from the practice of law in Ohio. The board adopted the panel’s findings of fact,

conclusions of law, and recommended sanction. We adopt the findings,

conclusions, and recommendation of the board and impose an indefinite

suspension from the practice of law in Ohio.

Misconduct

SUPREME COURT OF OHIO

{¶ 4} This case arises out of respondent’s behavior after she was hired

by a client to handle a divorce in July 2007. The client paid respondent an initial

$500, and respondent informed the client that the total fees would not exceed

$1,500. There was no written fee contract and no discussion about court costs and

filing fees.

{¶ 5} The client promptly gave respondent the personal and financial

information necessary to initiate the divorce proceedings. Respondent took that

information and prepared a draft separation agreement and a shared-parenting

plan, mailed them to the client, and requested that the client review the documents

and indicate any suggested changes. The client did so and returned the documents

in January 2008.

{¶ 6} After the client returned the documents, respondent did not

respond to the client; in fact, she admits that she did not communicate with the

client for the rest of 2008. During that time, the client called and left messages

with respondent’s secretary and on respondent’s voicemail. In January 2009, the

client sent respondent a letter by certified mail asking about the status of the

divorce. The letter also informed respondent that the client’s husband had been

selling off their assets and keeping the money and that soon there would be no

assets left. Respondent admits that she received the certified letter but that she

still did not communicate with the client.

{¶ 7} Receiving no response from respondent, the client contacted the

Better Business Bureau in early 2009 regarding respondent’s behavior. The

Better Business Bureau referred her to the Cincinnati Bar Association to file a

grievance. The Better Business Bureau did write respondent a letter about the

client’s complaint, but respondent still did not contact the client. Finally, after the

Cincinnati Bar Association began investigating the grievance filed against her,

respondent sent the client a letter apologizing for her inaction and refunded the

$500 retainer.

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January Term, 2010

{¶ 8} At the hearing before the panel, respondent admitted that she had

not deposited the $500 retainer into an attorney trust account. She admitted that

she did not have professional-liability insurance when she undertook

representation of the client and did not notify the client that she did not have

insurance. See Prof.Cond.R. 1.4(c). Respondent further admitted at the hearing

that she still had not obtained professional-liability insurance or notified her

clients that she lacked insurance.

{¶ 9} Respondent does not dispute most of the allegations in this case.

She admits that she did not do what she was hired to do and did not advise her

clients of her lack of insurance. Respondent explained that her failure to

communicate with the client began after she accidentally placed the client’s file

into a pile of closed files. She explained that the neglect continued even after she

realized her mistake, because at that point in her life, she was busy with other

matters and personal issues. When respondent received the client’s certified

letter, she realized that she had let the situation get out of hand and did not know

what to do, so she did nothing.

{¶ 10} Respondent does dispute the allegation that she should have put the

$500 in her trust account, arguing to the panel that she felt that it was not

necessary to put the money into her trust account because she had earned the fee.

But that argument is incorrect. She received the money before she did any work

for the client, and therefore, it was unearned and should have been deposited into

a trust account.

{¶ 11} Respondent explained that she did not purchase professional-

liability insurance and did not notify her clients that she lacked insurance, because

it “was something [she] hadn’t paid that much attention to.” She explained that

she continued this misconduct, even after the investigation into her conduct

began, because she was not sure how much longer she would be allowed to

practice law and did not have many new clients.

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SUPREME COURT OF OHIO

{¶ 12} We agree with the board that respondent’s conduct constituted a

violation of the following Rules of Professional Conduct: Prof.Cond.R. 1.1, for

failing to provide competent representation to the client; 1.3, for failing to act

with reasonable diligence and promptness in representing the client; 1.4(a)(2), for

failing to consult with her client regarding the means by which the client’s

objectives would be accomplished; 1.4(a)(3), for failing to keep the client

informed about the status of the divorce; 1.4(a)(4), for failing to respond as soon

as practicable to reasonable requests for information from the client; 1.4(c), for

failing to obtain a signed acknowledgment from the client that he or she had

received notice of respondent’s lack of professional-liability insurance; and

1.15(c), for failing to keep unearned legal fees in a trust account.

Sanction

{¶ 13} 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. 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(B).

{¶ 14} The primary aggravating factor in this case is that respondent has

been disciplined twice in the past for professional misconduct. The first case

involved a violation of DR 1-102(A)(4), for conduct involving dishonesty, fraud,

deceit, and misrepresentation, and a violation of DR 6-101(A)(3), for neglecting

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January Term, 2010

legal matters entrusted to her. Cincinnati Bar Assn. v. Grote (1987), Disciplinary

Docket No. 87-5. Respondent was warned that if she were to be found guilty of

misconduct in the future, she would be either suspended from the practice of law

indefinitely or permanently disbarred. Id.

{¶ 15} Respondent was disciplined again in 1990 for violating DR 1-

102(A)(4) and 6-101(A)(3) after she failed to pursue a client’s claim, failed to

communicate with her client, and failed to advise her client that she had allowed

the applicable statute of limitations to pass. Cincinnati Bar Assn v. Grote (1990),

50 Ohio St.3d 156, 553 N.E.2d 657.

{¶ 16} The harm to the client caused by respondent’s misconduct in this

case, specifically the fact that the client is not yet divorced and the fact that her

husband was able to sell off marital property while respondent did nothing, is an

additional aggravating factor. BCGD Proc.Reg. 10(B)(1)(h).

{¶ 17} In mitigation, the board found an absence of a dishonest or selfish

motive. BCGD Proc.Reg. 10(B)(2)(b). Additionally, respondent cooperated fully

with relator and the board throughout the proceedings. BCGD Proc.Reg.

10(B)(2)(d). Respondent admitted the misconduct and accepts responsibility for

her actions.

{¶ 18} Although respondent returned the $500 fee to the client, it was not

returned in a timely fashion and was returned only after respondent was contacted

by relator. See BCGD Proc.Reg. 10(B)(2)(c). Therefore, the fact that a refund

was made has little mitigating value.

{¶ 19} We have stated in the past that an attorney’s failure to render legal

services that he or she has been paid to complete is “tantamount to theft.”

Disciplinary Counsel v. Sigall (1984), 14 Ohio St.3d 15, 17, 14 OBR 320, 470

N.E.2d 886. We have indefinitely suspended attorneys for misconduct that

demonstrates a pattern of neglect. See Cincinnati Bar Assn. v. Harmon (1985), 17

Ohio St.3d 69, 17 OBR 134, 477 N.E.2d 629; Disciplinary Counsel v. Schiller,

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SUPREME COURT OF OHIO

123 Ohio St.3d 200, 2009-Ohio-4909, 915 N.E.2d 324. In Harmon, we

indefinitely suspended an attorney for neglecting two legal matters. The attorney

in that case had recently been disciplined for neglecting other legal matters. In

Schiller, although the attorney had no prior disciplinary record, we indefinitely

suspended him for neglecting multiple legal matters and failing to advise clients

that he did not have professional-liability insurance.

{¶ 20} Even taken alone, respondent’s misconduct in this case is very

serious, but in considering the two previous disciplinary cases involving

respondent, we cannot help but conclude that this misconduct is part of a pattern,

bound to be repeated. The fact that respondent did not either obtain professional-

liability insurance or obtain acknowledgments of her lack of insurance from her

clients after the investigation began, when she was explicitly aware that she must

do so, makes it clear that she is not motivated to stop this pattern of misconduct.

{¶ 21} For the foregoing reasons, respondent is indefinitely suspended

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

Judgment accordingly.

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

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

__________________

Schuh & Goldberg, L.L.P., and Richard J. Goldberg; and Clements, Mahin

& Cohen, L.P.A., Co., and William E. Clements, for relator.

Jane M. Grote, pro se.

______________________

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