Disciplinary Counsel v. Ohlin

[Cite as Disciplinary Counsel v. Ohlin, 126 Ohio St.3d 384, 2010-Ohio-3826.]

DISCIPLINARY COUNSEL v. OHLIN.

[Cite as Disciplinary Counsel v. Ohlin, 126 Ohio St.3d 384, 2010-Ohio-3826.]

Attorneys — Misconduct — Failure to provide competent representation —

Failure to act with reasonable diligence — Failure to inform client of lack

of malpractice insurance — Neglect of entrusted legal matter — Failure to

seek client’s lawful objectives — Intentional failure to carry out contract

of employment — Failure to cooperate with disciplinary investigation —

Indefinite suspension.

(No. 2010-0287 — Submitted March 31, 2010 — Decided August 24, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-061.

__________________

Per Curiam.

{¶ 1} Respondent, Joseph David Ohlin of Warren, Ohio, Attorney

Registration No. 0031532, was admitted to the practice of law in Ohio in 1985. In

August 2009, relator, Disciplinary Counsel, filed a complaint charging him with

violations of the Code of Professional Responsibility, the Ohio Rules of

Professional Conduct, and Gov.Bar R. V(4)(G) and VI(1)(D). During the

pendency of this action, we suspended respondent’s license for his failure to

register for the 2009/2011 attorney-registration biennium. In re Ohlin, 123 Ohio

St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256. We also sanctioned and

suspended him for failing to comply with the continuing-legal-education

requirements set forth in Gov.Bar R. X(3). In re Ohlin, 124 Ohio St.3d 1402,

2009-Ohio-6833, 918 N.E.2d 1010.

{¶ 2} Although relator’s complaint was served by certified mail on

August 19, 2009, at the address respondent has registered with the Office of

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Attorney Services, he failed to file an answer. Relator filed a motion for default

supported by documentary evidence, including a deposition of respondent

conducted by relator in May 2009. A master commissioner appointed by the

board considered the motion for default and prepared a report recommending that

the board indefinitely suspend respondent. The board adopted the master

commissioner’s findings that the materials offered in support of the default

motion were sufficient and that respondent had committed multiple violations of

the ethical duties incumbent upon Ohio lawyers.

{¶ 3} In accordance with the master commissioner’s report, the board

now recommends that we (1) indefinitely suspend respondent from the practice of

law, (2) condition his reinstatement upon submission of proof that he has resolved

the problems that he claims contributed to his misconduct, and (3) require him to

complete one year of monitored probation pursuant to Gov.Bar R. V(9) upon his

reinstatement. Additionally, the board recommends that we require proof that

respondent has made full restitution to the client discussed in Count Three.

{¶ 4} We agree that respondent has committed professional misconduct

and accept the board’s recommended sanction.

Misconduct

Count One

{¶ 5} In 2002, a client retained respondent’s law firm to represent him in

a personal-injury case. Another attorney at the firm filed a lawsuit on the client’s

behalf, and when that attorney left the firm, respondent assumed the

representation. After respondent failed to reply to the defendants’ motion to

dismiss or to the defendants’ motion for summary judgment, the trial court

granted judgment in favor of the defendants.

{¶ 6} At his deposition, respondent acknowledged that he had received a

copy of a letter of inquiry from relator forwarding the client’s grievance and that

he failed to respond. He further admitted that his malpractice insurance had

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lapsed and that he had failed to inform the client of this fact. Although he agreed

to provide additional information regarding his malpractice insurance and the

client’s complete case file to the relator following the deposition, he failed to do

so.

{¶ 7} The board found that respondent’s conduct prior to February 1,

2007, violated DR 1-104(A) and (B) (requiring a lawyer to inform a client at the

time of engagement or at any time subsequent to the engagement if the lawyer

does not maintain professional-liability insurance, and to keep a copy of the

notice signed by the client for five years after the termination of representation),

and that his conduct after February 1, 2007, violated Prof.Cond.R. 1.1 (requiring a

lawyer to provide competent representation to a client), 1.3 (requiring a lawyer to

act with reasonable diligence and promptness in representing a client), 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 Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with

a disciplinary investigation). We accept these findings of misconduct.

Count Two

{¶ 8} The board found that in April 2005, a second client retained

respondent and paid him $200 to pursue expungement of a federal criminal

conviction. A year and a half after he was retained, respondent sought the

assistance of another attorney. The client met with that attorney and issued a

check for $400, payable to respondent. Respondent cashed the check and gave

the money to the other attorney for the work he had performed. The board found

that respondent failed to obtain the expungement his client sought and that he

failed to return her telephone calls. At his deposition, respondent agreed to

provide the client’s file to relator, but failed to do so.

{¶ 9} Based upon its findings of fact, the board determined that

respondent’s conduct violated DR 6-101(A)(3) (prohibiting neglect of an

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entrusted legal matter) and 7-101(A)(1) (prohibiting a lawyer from intentionally

failing to seek the lawful objectives of his client) and Gov.Bar R. V(4)(G).

However, the board concluded that the record did not support relator’s allegation

that respondent’s conduct violated DR 7-101(A)(2) (prohibiting a lawyer from

intentionally failing to carry out a contract of employment for legal services).

{¶ 10} While we accept most of the board’s findings of fact, we note that

the findings regarding the respondent’s intentional failure to obtain the client’s

goal of expungement and his failure to return client telephone calls are not

supported by the record. In Dayton Bar Assn. v. Sebree, 104 Ohio St.3d 448,

2004-Ohio-6560, 820 N.E.2d 318, ¶ 5, we recognized that Gov.Bar R.

V(6)(F)(1)(b) “requires that a motion for default in a disciplinary proceeding be

supported by ‘[s]worn or certified documentary prima facie evidence in support of

the allegations made.’ ” We held that a motion for default in a disciplinary

proceeding supported only by the summary, conclusory, and hearsay-filled

affidavits of the relator’s investigator did not satisfy this requirement. Id. at ¶ 9.

Therefore, we instructed relators in future disciplinary proceedings to provide

affidavits executed by the grievants themselves to support a default motion. Id.

{¶ 11} In this case, the relator has submitted only a photocopy of the

client’s unsworn and uncertified grievance to prove that respondent failed to

return the client’s phone calls and failed to achieve the object of the

representation. Because relator has not submitted an affidavit from the grievant,

or otherwise proven these facts with sworn or certified documentary evidence, we

reject these factual findings.

{¶ 12} Nonetheless, the record contains sufficient sworn or certified

evidence to support the board’s other findings. Therefore, we agree that

respondent’s conduct violated DR 6-101(A)(3) and 7-101(A)(1) and Gov.Bar R.

V(4)(G), and we dismiss the alleged violation of DR 7-101(A)(2).

Count Three

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{¶ 13} With regard to Count Three, the board found that a third client

retained respondent to represent her in a personal-injury action. Respondent

settled the matter for $10,000 in September 2005. After having his client sign the

settlement check, he negotiated the check in November 2005. The board found

that in February 2007, more than a year after the settlement, the client threatened

to file a grievance if she did not receive her share of the settlement and that

several weeks later respondent delivered $800 in cash to her home. Although

respondent had promised to provide the client’s file to relator, he failed to do so.

{¶ 14} Based upon these factual findings, the board concluded that

respondent’s conduct before February 1, 2007, violated DR 6-101(A)(3), 7-

101(A)(1), 7-101(A)(2), and 9-102(B)(4) (requiring a lawyer to promptly pay or

deliver funds and property to which a client is entitled). The board also found that

his conduct after February 1, 2007, violated Prof.Cond.R. 1.15(a) (requiring a

lawyer to hold property of clients separate from the lawyer’s own property) and

1.15(d) (requiring a lawyer to promptly deliver funds or other property that the

client is entitled to receive) and Gov.Bar R. V(4)(G).

{¶ 15} We agree that respondent’s delay of more than a year before

delivering $800 in settlement proceeds to his client violated DR 6-101(A)(3) and

9-102(B)(4) and Prof.Cond.R. 1.15(d) and that his failure to cooperate in the

ensuing disciplinary investigation violated Gov.Bar R. V(4)(G).

{¶ 16} However, the relator has failed to satisfy its burden of proving the

remaining allegations by clear and convincing evidence. Specifically, we observe

that the record contains no sworn or certified evidence tending to demonstrate that

respondent intentionally failed to seek the lawful objectives of the client,

intentionally failed to carry out a contract of employment, failed to hold the

client’s funds separate from his own, or failed to deliver all of the settlement

proceeds that the client was entitled to receive.

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{¶ 17} On the contrary, respondent’s uncontroverted, sworn deposition

testimony demonstrates that he (1) filed a complaint on the client’s behalf, (2)

obtained a $10,000 settlement, (3) deposited the settlement check into his trust

account, (4) paid the client’s “very high” medical bills from the settlement

proceeds, (5) distributed more than $800 to the client, and (6) did not use any of

the money for his own expenses, with the exception of his one-third contingency

fee. Accordingly, we dismiss the alleged violations of DR 7-101(A)(1) and

(A)(2) and Prof.Cond.R. 1.15(a).

Count Four

{¶ 18} Despite having received a letter from relator seeking respondent’s

reply to a fourth grievance, respondent did not participate in the disciplinary

investigation of that grievance. Furthermore, at his deposition, respondent agreed

to provide relator with a copy of the client’s file, but he failed to do so.

Therefore, the board found, and we agree, that respondent has violated Gov.Bar

R. V(4)(G).

Count Five

{¶ 19} With regard to Count Five, the board found that respondent moved

in the fall of 2008 and failed to provide his new residence and business addresses

to the Office of Attorney Services. As a result of this failure, respondent did not

receive several of the letters that relator sent him. At his deposition, respondent

agreed to update his attorney-registration records, but to date, he has not done so.

Accordingly, we agree that respondent’s conduct violates Gov.Bar R. VI(1)(D)

(requiring attorneys to keep the Office of Attorney Services apprised of their

residence and office addresses).

Sanction

{¶ 20} 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

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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.

{¶ 21} As aggravating factors, the board found that respondent had

committed multiple offenses, failed to cooperate in the disciplinary process,

refused to acknowledge the wrongful nature of his conduct, and caused harm to

vulnerable clients. BCGD Proc.Reg. 10(B)(1)(d), (e), (g), and (h). Respondent

claimed to suffer from alcohol dependence and a mental disability. But the board

declined to consider those factors in mitigation because respondent did not

introduce any competent medical evidence to establish either the diagnoses or

their causal connection to his misconduct. See BCGD Proc.Reg. 10(B)(2)(g)(i)

and (ii). The board found no other factors weighing in favor of a lesser sanction.

{¶ 22} We have previously recognized that 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.

{¶ 23} 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.

{¶ 24} Accordingly, Joseph David Ohlin is indefinitely suspended from

the practice of law in the state of Ohio. Respondent’s reinstatement is

conditioned upon his submission of proof that (1) any alcohol dependence and

mental-health problems have been resolved, (2) he has followed all treatment

recommendations, including compliance with his existing contract with the Ohio

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Lawyers Assistance Program, (3) he is able to return to the competent, ethical,

and professional practice of law, and (4) he has paid the client discussed in Count

Three all monies that she is entitled to receive from the proceeds of her

settlement. Furthermore, upon his reinstatement to the practice of law, respondent

shall complete one year of monitored probation pursuant to Gov.Bar R. V(9).

Costs are taxed to respondent.

Judgment accordingly.

PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and

CUPP, JJ., concur.

BROWN, C.J., not participating.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa,

Assistant Disciplinary Counsel, for relator.

______________________

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