Disciplinary Counsel v. Mamich

[Cite as Disciplinary Counsel v. Mamich, 125 Ohio St.3d 369, 2010-Ohio-1044.]

DISCIPLINARY COUNSEL v. MAMICH.

[Cite as Disciplinary Counsel v. Mamich,

125 Ohio St.3d 369, 2010-Ohio-1044.]

Attorneys at law — Misconduct — Conduct prejudicial to administration of

justice — Failure to withdraw from representation — Six-month

suspension, stayed.

(No. 2009-2010 — Submitted January 13, 2010 — Decided March 25, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-036.

__________________

Per Curiam.

{¶ 1} Respondent, Samuel Jay Mamich of Beachwood, Ohio, Attorney

Registration No. 0006097, was admitted to the practice of law in Ohio in 1973.

The Board of Commissioners on Grievances and Discipline recommends that we

suspend respondent’s license to practice for six months, with the entire six months

stayed, based on findings that he represented a client’s daughter in a legal matter

without the daughter’s knowledge or consent. We accept the board’s findings of

professional misconduct and the recommendation of a six-month stayed

suspension.

{¶ 2} Relator, Disciplinary Counsel, charged respondent with violations

of the Rules of Professional Conduct. The parties stipulated to the facts,

misconduct, and mitigating factors and jointly recommended that the board

impose the sanction of a 12-month suspension, with the suspension stayed on the

condition that respondent commit no further misconduct during his suspension. A

panel of three board members heard the case and made findings of fact and

conclusions of law. The panel dismissed several charges for lack of the requisite

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clear and convincing evidence and recommended the six-month stayed

suspension. The board adopted the panel’s findings of misconduct and

recommended sanction.

{¶ 3} The parties have not objected to the board’s report.

Misconduct

{¶ 4} The parties stipulated that in November 2003, a client of

respondent applied online for and was issued a bank credit card in his daughter’s

name without her knowledge or consent. Three years later, the bank sold the debt

that had accumulated on the credit card account to John Soliday Financial Group,

L.L.C. In February 2007, the new creditor filed a complaint in the Cuyahoga

County Court of Common Pleas against the daughter seeking $1,040.80 in

principal, $380.96 in accrued interest, and additional interest at the rate of 16

percent per year. The father was not named as a defendant in the case, and when

an answer was not filed on behalf of the daughter, the creditor moved for default

judgment.

{¶ 5} The father contacted respondent to enter an appearance on behalf

of his daughter at a hearing on the motion for default and to defend her in the

case. The father advised respondent that he had applied for the credit card in his

name and that he had added his daughter’s name to the account as an authorized

user. Respondent did not learn that the card had been issued solely in the

daughter’s name until after disciplinary proceedings had begun against him. The

father also informed respondent that the debt on the credit card was his and that

his daughter knew nothing about the credit card, the default-judgment hearing, or

the case.

{¶ 6} Respondent advised the father to contact his daughter so that she

could defend herself against the lawsuit, but the father told respondent that his

daughter was traveling and that he preferred not to alarm her because it was his

debt. Unbeknownst to respondent, the daughter was living in the central Ohio

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area during the entire time that the case was pending. Despite knowing that the

daughter was not aware of the credit card or the case and that the father did not

want to notify her, respondent agreed to appear at the hearing on the daughter’s

behalf and to defend her in the case. The father also authorized respondent to

offer $300 to settle the case.

{¶ 7} As the case progressed, respondent offered the settlement,

appeared at the default-judgment hearing and a case-management hearing, and on

behalf of the daughter, filed an answer to the complaint and a response to a

motion for summary judgment. Respondent did not notify or receive

authorization from her for any of these actions.

{¶ 8} In submitting a response to the creditor’s motion for summary

judgment, respondent attached an affidavit of the father stating that the credit-card

debt was his and that his daughter knew nothing about the account or the debt.

The father agreed to personally file the response, but his affidavit was not

attached to the filed response. Respondent was not aware that the affidavit was

not filed with the response until after disciplinary proceedings had commenced.

{¶ 9} In December 2007, the court entered summary judgment in favor

of the creditor against the daughter. Respondent notified the father of the court’s

decision, but he did not notify the daughter. Respondent did not receive any

compensation from the father for his services in the case.

{¶ 10} Thereafter, the daughter received notice from her employer that it

was withholding wages from her paycheck to satisfy the judgment against her.

This was the first time that the daughter learned about the case. She retained an

attorney, who filed a motion to vacate the judgment, stay the garnishment, and

return the garnished funds. The court temporarily stayed the garnishment after

more than $1,000 had been garnished from the daughter’s wages.

{¶ 11} Once respondent learned of the daughter’s motion to vacate the

judgment, he contacted her attorney and told her the entire story and agreed to

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testify as a witness on her behalf. In his testimony, respondent admitted that he

had appeared in court and filed documents on the daughter’s behalf without her

knowledge or consent and that he had not contacted her in any way while the case

was pending. The court vacated the judgment and ordered that the previously

garnished wages be returned to the daughter.

{¶ 12} Respondent admitted that during his representation of his client’s

daughter in the common pleas court case, he violated Prof.Cond.R. 1.7(a)(2)

(incorporated in 1.7(b) [prohibiting a lawyer from continuing to represent a client

when there is a substantial risk that the lawyer’s ability to consider, recommend,

or carry out an appropriate course of action for that client will be materially

limited by the lawyer’s responsibilities to a third person]), 1.16(a)(1) (prohibiting

a lawyer from representing a client, or when representation has commenced,

requiring the lawyer to withdraw from the representation of the client, if the

representation will result in a violation of the Rules of Professional Conduct or

other law), 5.4(c) (prohibiting a lawyer from permitting a person who

recommends, employs, or pays the lawyer to render legal services for another to

direct or regulate the lawyer’s professional judgment in rendering the legal

services), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is

prejudicial to the administration of justice). We agree with the board that there is

clear and convincing evidence that respondent committed these violations.

{¶ 13} Respondent also admitted violations of Prof.Cond.R. 1.2(a)

(requiring a lawyer to abide by a client’s decision whether to settle a matter),

1.4(a)(1) (requiring a lawyer to inform the client of any decision or circumstance

for which the client’s informed consent is required), and 1.4(a)(3) (requiring a

lawyer to keep the client reasonably informed about the status of the matter). We

agree with the board, however, that these latter charges have not been established,

because they required an attorney-client relationship between respondent and his

client’s daughter. Manifestly, there was no express attorney-client relationship

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between respondent and his client’s daughter. Moreover, there was no implied

attorney-client relationship because the daughter was unaware of the case and had

no reasonable expectation that respondent was representing her. See Cuyahoga

Cty. Bar Assn. v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d

369, syllabus (“An attorney-client relationship may be created by implication

based upon the conduct of the parties and the reasonable expectations of the

person seeking representation”). Therefore, we dismiss these unproven charged

violations.

Sanction

{¶ 14} When imposing sanctions for attorney misconduct, we weigh the

evidence of aggravating and mitigating factors, including those listed in Section

10(B)(1) and (2) of the Rules and Regulations Governing Procedure on

Complaints and Hearings Before the Board of Commissioners on Grievances and

Discipline (“BCGD Proc.Reg.”). We also consider other relevant factors,

including the sanctions imposed in similar cases. Cleveland Metro. Bar Assn. v.

Kaplan, 124 Ohio St.3d 278, 2010-Ohio-167, 921 N.E.2d 645, ¶ 11.

{¶ 15} The parties jointly recommended a 12-month stayed suspension

conditioned on respondent’s committing no further misconduct during his

suspension. The board, however, recommends a six-month stayed suspension.

For the following reasons, we agree that the board’s recommended lesser sanction

is appropriate.

{¶ 16} First, the parties’ recommendation of a harsher sanction was

predicated in part on several disciplinary violations that have been dismissed.

{¶ 17} Second, as the board found, there are no aggravating factors, and

there are several mitigating factors – respondent has no prior disciplinary record

in an otherwise unblemished legal career of over 35 years, he had no dishonest or

selfish motive, and he cooperated fully in the disciplinary investigation. BCGD

Proc.Reg. 10(B)(2)(a), (b), and (d). Respondent could have relied on his client’s

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claimed power of attorney from the daughter, but he was justifiably concerned

that his client had falsified it, and he admitted that it was not the basis for his

representation of the daughter in the case. And when he learned about his client’s

deception, respondent testified on the daughter’s behalf in support of her motion

to vacate the judgment.

{¶ 18} Finally, in comparable cases, we have imposed a lesser sanction.

In Disciplinary Counsel v. Ita, 117 Ohio St.3d 477, 2008-Ohio-1508, 884 N.E.2d

1073, we publicly reprimanded a lawyer who filed a pleading without the

permission of one of his clients. The lawyer, who filed a personal-injury suit on

behalf of his client, included a loss-of-consortium claim on behalf of his client’s

wife even though the lawyer had never communicated with the wife or inquired

about her status, when actually, the wife and client had separated. The couple

later divorced, and the client ultimately settled his personal-injury claim,

dismissed the loss-of-consortium claim with prejudice, and agreed to indemnify

the defendant against any potential liability on the loss-of-consortium claim.

{¶ 19} Similarly, in Columbus Bar Assn. v. Mangan, 123 Ohio St.3d 250,

2009-Ohio-5287, 915 N.E.2d 651, ¶ 17, we publicly reprimanded a lawyer who

had “failed to communicate with clients in a family setting, failed to ascertain

their interests, and failed to obtain their informed consent to the multiple

representation.”

{¶ 20} This case differs from Ita, a case cited by relator and the board in

this disciplinary case, because the client’s daughter here had to employ an

attorney to vacate the judgment entered without her knowledge or consent, and

her wages were garnished before she knew what had occurred. Consequently, a

more severe sanction than a public reprimand is justified.

{¶ 21} Therefore, after considering the pertinent mitigating factors as well

as comparable precedent, we agree that the sanction recommended by the board is

commensurate with respondent’s misconduct. Respondent is hereby suspended

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from the practice of law for six months, with the entire six-month period stayed

on the condition that respondent commit no further misconduct. If respondent

fails to comply with the terms of the stay, the stay will be lifted, and respondent

will serve the six-month suspension. Costs are taxed to respondent.

Judgment accordingly.

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

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

__________________

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

Attorney, for relator.

Zipkin Whiting Co., L.P.A., and David M. Smith, for respondent.

_____________________

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