Toledo Bar Assn. v. Farah

[Cite as Toledo Bar Assn. v. Farah, 125 Ohio St.3d 455, 2010-Ohio-2116.]

TOLEDO BAR ASSOCIATION v. FARAH.

[Cite as Toledo Bar Assn. v. Farah, 125 Ohio St.3d 455, 2010-Ohio-2116.]

Attorney misconduct, including neglect of client matters and failure to cooperate

in the resulting disciplinary investigation — One-year suspension, all

stayed on conditions.

(No. 2009-2330 ⎯ Submitted February 24, 2010 ⎯ Decided May 20, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 08-078.

__________________

Per Curiam.

{¶ 1} Respondent, Asad Farah of Temperance, Michigan, Attorney

Registration No. 0066174, was admitted to the practice of law in Ohio in 1996.

He is also licensed to practice in Michigan. Based upon findings of client neglect

and failure to respond to the resulting disciplinary investigation, the Board of

Commissioners on Grievances and Discipline recommends that we suspend

respondent’s license to practice law in Ohio for 12 months, all stayed upon

conditions, including one year of monitored probation.

{¶ 2} In a two-count complaint, relator, Toledo Bar Association, charged

respondent with five violations of the Code of Professional Responsibility arising

from his representation of a client in two personal-injury actions prior to February

1, 2007, and a single violation of Prof.Cond.R. 8.1(b) arising from his failure to

respond to the resulting disciplinary investigation.

Misconduct

{¶ 3} At the panel hearing, the client testified that respondent had

represented her in two personal-injury actions arising from separate automobile

accidents. Respondent consolidated the cases, but he never resolved them. The

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client claimed that respondent had dismissed her cases without her knowledge or

consent in March 2006, but that he had led her to believe that the cases remained

pending. She also testified that her cases “dragged out for a long time” and that

respondent often did not return her calls during the course of his representation.

Despite the alleged deficiencies in respondent’s representation, the client was able

to obtain new counsel who refiled and ultimately settled her claims.

{¶ 4} Respondent testified that he had informed the client several times,

both in person and on the telephone, that he was dismissing her case pursuant to

Civ.R. 41(A) because he did not have all the medical records and documentation

necessary to proceed to trial. He also claimed that he had sent her copies of

everything that he had filed, including the motion to dismiss, and produced copies

of two letters that he had sent to her regarding the dismissal. Nonetheless, he

conceded that he “could have done more” to pursue her case and keep her

informed.

{¶ 5} Respondent admitted that he had failed to cooperate in relator’s

investigation of the grievance. He acknowledged that he had received letters

regarding the investigation but never opened them and that he had promised but

failed to provide certain documents to relator. He further stipulated that his

conduct violated Prof.Cond.R. 8.1(b), and he volunteered to give up the practice

of law in Ohio for one year to atone for his misconduct. He noted that any

sanction imposed in Ohio would also affect his license in Michigan, where he

conducts the majority of his practice.

{¶ 6} The panel and board found that respondent violated DR 6-

101(A)(3) by neglecting his client’s legal matters and Prof.Cond.R. 8.1(b) by

failing to cooperate in the resulting disciplinary investigation, but dismissed the

remaining charges as unsupported by clear and convincing evidence. We adopt

these findings.

Sanction

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January Term, 2010

{¶ 7} When imposing sanctions for attorney misconduct, we consider

several factors, including the ethical duties that the lawyer violated and 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).

{¶ 8} The board noted that respondent’s initial lack of cooperation in the

disciplinary process was an aggravating factor. BCGD Proc.Reg. 10(B)(1)(e). In

mitigation, it found respondent’s absence of a prior disciplinary record, the

absence of a dishonest or selfish motive, and respondent’s eventual cooperative

attitude toward the disciplinary proceedings. BCGD Proc.Reg. 10(B)(2)(a), (b),

and (d). At the time he handled the grievant’s case, respondent faced a number of

personal problems, including a lawsuit against a former partner who allegedly

forged respondent’s signature on half a million dollars of bank notes and the

criminal defense of a family friend, the result of which he said rendered him

“dysfunctional for a period of time.” These issues combined to cause marital and

financial problems for respondent that culminated in his filing for bankruptcy.

Respondent testified that as a result of these professional and personal challenges,

he considered taking his own life. Although he sought counsel from his clergy, he

did not seek professional counseling, because he had no health insurance and

could not afford treatment.

{¶ 9} At the hearing, relator argued in favor of a 12-month suspension

from the practice of law, with six months stayed, and respondent volunteered that

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he would voluntarily withdraw from the practice of law in Ohio for one year. The

board recommends that we impose a 12-month suspension, all stayed on the

conditions that respondent (1) submit to a mental-health evaluation conducted by

the Ohio Lawyers Assistance Program (“OLAP”), (2) comply with all of OLAP’s

treatment recommendations, and (3) submit to one year of monitored probation

commencing upon the completion of OLAP’s mental-health assessment.

{¶ 10} We have previously imposed suspensions ranging from six to 18

months, stayed upon conditions, for similar conduct accompanied by similar

mitigating factors. See, e.g., Cleveland Bar Assn. v. Norton, 116 Ohio St.3d 226,

2007-Ohio-6038, 877 N.E.2d 964; Columbus Bar Assn. v. DiAlbert, 98 Ohio St.3d

386, 2003-Ohio-1091, 785 N.E.2d 747; Disciplinary Counsel v. Boulger (2000),

88 Ohio St.3d 325, 725 N.E.2d 1112; and Disciplinary Counsel v. Boykin (1994),

70 Ohio St.3d 75, 637 N.E.2d 296. Therefore, we agree that the board’s

recommended sanction is appropriate.

{¶ 11} Accordingly, we suspend respondent from the practice of law in

Ohio for 12 months; however, the suspension is stayed upon the conditions that

respondent (1) submit to a mental-health evaluation conducted by OLAP, (2)

comply with all of OLAP’s treatment recommendations, and (3) submit to one

year of monitored probation pursuant to Gov.Bar R. V(9). If respondent fails to

comply with the conditions of the stay or probation, the stay will be lifted, and

respondent will serve the full 12-month suspension from practice. Costs are taxed

to respondent.

Judgment accordingly.

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

CUPP, JJ., concur.

BROWN, C.J., not participating.

__________________

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January Term, 2010

Marshall & Melhorn, L.L.C., and John A. Borell Jr.; Yolanda D. Gwinn;

and Jonathan B. Cherry, Bar Counsel, for relator.

Asad Farah, pro se.

______________________

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