Disciplinary Counsel v. Noel

[Cite as Disciplinary Counsel v. Noel, 126 Ohio St.3d 56, 2010-Ohio-2714.]

DISCIPLINARY COUNSEL v. NOEL.

[Cite as Disciplinary Counsel v. Noel, 126 Ohio St.3d 56, 2010-Ohio-2714.]

Attorney misconduct, including neglecting entrusted legal matters and failing to

cooperate in disciplinary investigation — Two-year suspension with six

months stayed on conditions.

(No. 2009-2301 — Submitted February 17, 2010 — Decided June 17, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-046.

__________________

Per Curiam.

{¶ 1} Respondent, Gerald Thomas Noel Jr. of Columbus, Ohio, Attorney

Registration No. 0063972, was admitted to the practice of law in Ohio in 1994. In

June 2009, relator, Disciplinary Counsel, filed a complaint charging respondent

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

Professional Conduct, and the Supreme Court Rules for the Government of the

Bar. Although the complaint was served upon respondent by certified mail at his

home address on August 15, 2009, he failed to file an answer. In November

2009, relator moved for default pursuant to Gov.Bar R. V(6)(F).

{¶ 2} The board referred the motion to a master commissioner, who

found that respondent had neglected two client matters, failed to promptly deliver

a client’s file at the conclusion of his representation, knowingly ignored his

obligation to provide requested discovery in a civil action, and failed to cooperate

in a disciplinary investigation by (1) failing to respond to a demand for

information from a disciplinary authority and (2) knowingly making false

statements of fact in connection with the disciplinary investigation. The master

commissioner concluded that this conduct violated Gov.Bar R. V(4)(G), DR 6-

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101(A)(3), and five of the Rules of Professional Conduct and recommended that

respondent be suspended from the practice of law for two years, with six months

stayed on the conditions that respondent (1) engage in no further misconduct and

(2) complete at least six hours of continuing legal education in law-office

management.

{¶ 3} The board adopted the master commissioner’s findings, including

that the materials offered in support of the motion for default were sufficient, and

his conclusions of law. While the board agreed that we should impose a two-year

suspension, it recommended that 18 months of that suspension be stayed on the

conditions recommended by the master commissioner.

Misconduct

{¶ 4} In a disciplinary proceeding, relator must prove a lawyer’s

professional misconduct by clear and convincing evidence. Gov.Bar R. V(6)(J);

Akron Bar Assn. v. Catanzarite, 119 Ohio St.3d 313, 2008-Ohio-4063, 893

N.E.2d 835, ¶ 5. And pursuant to Gov.Bar R. V(6)(F)(1)(b), a motion for default

in a disciplinary proceeding must be supported by “[s]worn or certified

documentary prima facie evidence in support of the allegations made.”

{¶ 5} Relator submitted transcripts of respondent’s December 18, 2008

and February 6, 2009 deposition testimony, seven purported affidavits, and 65

additional exhibits in support of its motion for default. But the purported

affidavits are photocopies, not the original signed and notarized documents.

Moreover, relator has not provided an investigator’s affidavit to authenticate the

other exhibits submitted in support of its motion for default. See, e.g., Lorain Cty.

Bar Assn. v. Robinson, 121 Ohio St.3d 24, 2009-Ohio-262, 901 N.E.2d 783, ¶ 3.

Because these documents are neither sworn nor certified as required by Gov.Bar

R. V(6)(F)(1)(b), they are not proper evidence in support of a default motion.

Therefore, in ruling upon relator’s default motion, we consider only the

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transcripts of respondent’s deposition testimony and the exhibits admitted during

the deposition.

Count I

{¶ 6} The allegations in Count I relate to respondent’s failure to take all

the steps necessary to perfect a client’s appeal of a criminal conviction in the

United States Court of Appeals for the Sixth Circuit. Due to respondent’s

inaction, the court dismissed the client’s appeal for want of prosecution.

{¶ 7} Respondent’s deposition reveals that he had represented the client

at trial and that at the conclusion of the sentencing hearing, he informed the trial

court that his client wished to appeal. He also informed the court that his client

was indigent and needed court-appointed counsel. At the court’s direction, the

clerk prepared and filed a notice of appeal. Respondent had never handled an

appeal in the Sixth Circuit and was not familiar with that court’s local rules,

including 6 Cir.R. 101(a), which provides, “Trial counsel in criminal cases,

whether retained or appointed by the district court, is responsible for the

continued representation of the client on appeal until specifically relieved by this

court.” Believing that the trial court had granted his request to withdraw from

representation, respondent did not pay the required filing fee, file a form of

appearance, or file a transcript purchase order in the client’s appeal.

{¶ 8} Respondent had no knowledge of any letters from the appellate

court regarding the status of the appeal until he began to prepare for his deposition

in this case. He then discovered the letters in the file and assumed that his

secretary, believing the case to be closed, had filed the correspondence without

showing it to him. Respondent did admit certain facts. He had received

telephone calls from the appellate court concerning the status of the appeal and

agreed to provide documentation of his withdrawal. He failed to provide the

requested information and failed to follow the caller’s instructions to properly

withdraw from the case. Respondent testified that the case was not on his “high-

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priority burner,” because he thought that his representation had ended with the

sentencing hearing.

{¶ 9} Respondent also admitted that he had received two letters from

relator about this client’s grievance and that he had not submitted a response. He

claimed that he had forgotten to respond to the first letter and that he had drafted a

response to the second letter but had never mailed it. He did not recall receiving a

third letter from relator, but did recall the letter’s content, which warned that a

subpoena would be issued to compel his appearance if he did not respond.

Respondent claimed that the subpoena arrived shortly after the letter and before

he had the chance to prepare a response.

{¶ 10} Throughout his deposition testimony, respondent attempted to

justify his inaction and deny responsibility for his misconduct. He claimed, “I

asked to get off of it [the appeal]. I wasn’t paid for it. I didn’t have any money to

pay for his filing fee or anything.” And he claimed, “[T]his was a situation that I

sort of created but didn’t create.” He also blamed his secretary for putting letters

into the client’s file without bringing them to his attention. Respondent did,

however, admit that he had not assigned a high priority to the matter, stating,

“The way my practice works, I kind of work on crisis. * * * And so I didn’t,

basically, categorize this internally as—as a crisis * * *.”

{¶ 11} The board found that respondent’s conduct with respect to this

client violated Prof.Cond.R. 1.3 (a lawyer shall act with reasonable diligence and

promptness in representing a client) and 8.4(d) (prohibiting a lawyer from

engaging in “conduct that is prejudicial to the administration of justice”). We

accept these findings and also find that by failing to respond to relator’s inquiries

with respect to Count I, respondent violated Prof.Cond.R. 8.1(b) (prohibiting a

lawyer from knowingly failing to respond to a demand for information from a

disciplinary authority during an investigation) and Gov.Bar R. V(4)(G) (requiring

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a lawyer to cooperate with a disciplinary investigation), as charged in the

complaint.

Count II

{¶ 12} Count II arises from respondent’s representation of a client who

had been in an automobile accident with a Central Ohio Transit Authority

(“COTA”) bus in 2002. Respondent met the client at the courthouse in 2004,

after she learned that her previous attorney had dismissed her case. After talking

with her at his office, and agreeing to take her case, respondent refiled the

complaint.

{¶ 13} Respondent admitted that he had failed to provide the materials

that COTA sought in discovery but blamed his failure on the client’s refusal to

submit to an independent medical examination and her failure to submit complete

answers to COTA’s interrogatories. He acknowledged that the trial court had

granted COTA’s request for attorney fees as a sanction for discovery violations

but noted that the court had never fixed the amount of that sanction. Respondent

also acknowledged that he had not opposed, and the trial court had later granted,

COTA’s motion to dismiss his client’s action with prejudice for failure to

prosecute.

{¶ 14} Addressing allegations that the client had had difficulty reaching

him, respondent admitted that he had sometimes ignored her telephone calls when

he had nothing to report, that he had sometimes missed scheduled appointments

due to his obligations in court, and that the voicemail on his cell phone had often

been full.

{¶ 15} When the client sought to retrieve her file from respondent, he told

her that he did not think another attorney would take her case because three

attorneys had already represented her, which was “a big red flag” that something

was wrong with her case. Notably, he failed to explain that her case had been

dismissed with prejudice and, therefore, could not be refiled.

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{¶ 16} Respondent denied relator’s allegations that he had missed an

appointment to return the client’s file. He explained that he had left the file out in

anticipation of the client’s arrival, but that the receptionist, who worked for

another attorney in his building, had not seen it. He did, however, admit that he

had made no other efforts to return the file to the client.

{¶ 17} With regard to allegations that respondent had failed to cooperate

in the resulting disciplinary investigation, respondent acknowledged that he had

received a letter on October 21, 2008, from the Columbus Bar Association

notifying him of the client’s grievance. But he explained that he had not

responded, because he believed that it was a duplicate notice of the grievance

underlying Count I.

{¶ 18} The board concluded that respondent’s conduct violated DR 6-

101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter),

Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in

representing a client), 1.15(d) (requiring a lawyer to promptly deliver funds or

other property that the client is entitled to receive), 3.4(c) (prohibiting a lawyer

from knowingly disobeying an obligation under the rules of a tribunal), 8.1(a)

(prohibiting a lawyer from knowingly making a false statement of material fact in

connection with a disciplinary matter), 8.1(b), and 8.4(d), and Gov.Bar R.

V(4)(G). We accept the board’s conclusion that respondent’s conduct violated

DR 6-101(A)(3), Prof.Cond.R. 1.3, 1.15(d)1, 8.1(b), and 8.4(d), and Gov.Bar R.

V(4)(G). However, we dismiss the alleged violations of Prof.Cond.R. 3.4(c) and

8.1(a) because they are not supported by sufficient sworn or certified evidence.

Sanction

1. Although we agree with the board’s finding that respondent violated Prof.Cond.R. 1.15(d), it

appears that Prof.Cond.R. 1.16(d) (requiring a lawyer upon termination of representation to

promptly deliver to the client papers and property belonging to the client) is the more fitting rule

for the charged conduct.

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{¶ 19} 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.

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

following BCGD Proc.Reg. 10(B)(1) aggravating factors are present: (d) multiple

offenses, (e) lack of cooperation in the disciplinary process, (g) refusal to

acknowledge the wrongful nature of the conduct, and (h) vulnerability of and

resulting harm to the victims of the misconduct. In mitigation, the master

commissioner and board noted that respondent has no prior disciplinary record.

See BCGD Proc.Reg. 10(B)(2)(a).

{¶ 21} Having weighed these factors, the master commissioner and the

board have recommended that we suspend respondent from the practice of law for

two years. The board, however, rejected the master commissioner’s

recommendation to stay only the last six months of that suspension and

recommends that we stay the last 18 months of the suspension on the conditions

that respondent (1) engage in no further misconduct and (2) complete at least six

hours of continuing legal education in law-office management.

{¶ 22} In Cleveland Metro. Bar Assn. v. Kaplan, 124 Ohio St.3d 278,

2010-Ohio-167, 921 N.E.2d 645, we recognized that “ ‘[a] lawyer’s neglect of

legal matters and failure to cooperate in the ensuing disciplinary investigation

generally warrant an indefinite suspension from the practice of law in Ohio.’ ” Id.

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at ¶ 15, quoting Akron Bar Assn. v. Goodlet, 115 Ohio St.3d 7, 2007-Ohio-4271,

873 N.E.2d 815, ¶ 20.

{¶ 23} In Kaplan, the attorney had failed to maintain a record

documenting his receipt of a client’s fee, failed to promptly comply with

reasonable client requests for information, and failed to cooperate in the resulting

disciplinary proceeding. Id. at ¶ 16. As aggravating factors in that case, the board

found that the attorney engaged in a pattern of misconduct involving multiple

offenses, failed to cooperate in the disciplinary process, refused to acknowledge

the wrongful nature of his conduct, was deceptive during the disciplinary process

regarding when he would mail a check to one of his former clients, and failed to

make restitution to another former client. Id. at ¶ 7, 12. In mitigation, the board

found that respondent had practiced for more than 30 years without disciplinary

action. Id. at ¶ 13. Based upon those findings, we concluded that Kaplan’s

conduct warranted an indefinite suspension.

{¶ 24} However, in Cuyahoga Cty. Bar Assn. v. Muhlbach (1999), 86

Ohio St.3d 547, 715 N.E.2d 1134, we concluded that a lesser sanction than an

indefinite suspension was appropriate for an attorney who had neglected an

entrusted legal matter, failed to carry out an employment contract, and failed to

cooperate in the ensuing disciplinary investigation. Noting the lack of evidence

of substantial damage to the client and the attorney’s eventual cooperation in the

disciplinary investigation, we imposed a one-year suspension. Id. at 549.

{¶ 25} Similarly, in Stark Cty. Bar Assn. v. Marosan, 106 Ohio St.3d 430,

2005-Ohio-5412, 835 N.E.2d 718, we suspended an attorney for two years, with

18 months stayed on conditions, based upon his neglect of the entrusted legal

matters of multiple clients, his failure to promptly return unearned fees to those

clients, his failure to maintain a client trust account, and his failure to cooperate in

the ensuing disciplinary investigation. Aggravating factors in Marosan included a

pattern of misconduct involving multiple offenses, lack of cooperation in the

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disciplinary process, and failure to pay restitution. Id. at ¶ 20. Mitigating factors

included the absence of prior discipline and the absence of a dishonest or selfish

motive. Id. at ¶ 21. We accepted the board’s recommendation of a more lenient

sanction than indefinite suspension, stating that “the respondent’s misconduct,

while serious, did not involve dishonesty and did not result in irreparable harm to

his clients.” Id. at ¶ 24.

{¶ 26} In this case, the record demonstrates by clear and convincing

evidence that respondent neglected the legal matters of two clients, resulting in

the dismissal of a criminal appeal and the dismissal with prejudice of a civil case.

He also failed to timely deliver a client’s file and failed to cooperate in the

disciplinary investigation.

{¶ 27} Based on our review of respondent’s conduct, as well as the

aggravating and mitigating factors, we conclude that his conduct was not as

egregious as that of Kaplan. But the resulting harm to his clients renders his

conduct more serious than that of Muhlbach and Marosan. Accordingly, Gerald

Thomas Noel Jr. is suspended from the practice of law in the state of Ohio for two

years, with six months stayed on the conditions that respondent (1) engage in no

further misconduct and (2) complete at least six hours of continuing legal

education in law-office management. If he fails to comply with the terms of the

stay, the stay will be lifted, and he will serve the full two-year suspension.

{¶ 28} Costs are taxed to respondent.

Judgment accordingly.

LUNDBERG STRATTON, O’CONNOR, LANZINGER, and CUPP, JJ., concur.

PFEIFER and O’DONNELL, JJ., would suspend respondent from the practice

of law in Ohio for two years but would stay 18 months of the suspension.

BROWN, C.J., not participating.

__________________

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Jonathan E. Coughlan, Disciplinary Counsel, and Karen H. Osmond, Staff

Attorney, for relator.

______________________

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