Columbus Bar Assn. v. Chasser

[Cite as Columbus Bar Assn. v. Chasser, 124 Ohio St.3d 578, 2010-Ohio-956.]

COLUMBUS BAR ASSOCIATION v. CHASSER.

[Cite as Columbus Bar Assn. v. Chasser, 124 Ohio St.3d 578, 2010-Ohio-956.]

Attorneys at law — Multiple Disciplinary Rule violations, including dishonesty,

fraud, deceit, or misrepresentation — Indefinite license suspension.

(No. 2009-1533 — Submitted December 1, 2009 — Decided March 18, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 08-045.

__________________

Per Curiam.

{¶ 1} Respondent, Timothy G. Chasser of Columbus, Ohio, Attorney

Registration No. 0016847, was admitted to the practice of law in Ohio in 1976.

The Board of Commissioners on Grievances and Discipline recommends that we

indefinitely suspend his license to practice law, based on findings that he

improperly obtained a referral from and divided fees with another attorney, made

misrepresentations to a client, conducted himself in a manner adversely reflecting

on his fitness to practice law, intentionally failed to carry out a contract of

employment, failed to keep proper records of funds and to render accounts,

retained property belonging to a client, commingled client and personal funds,

intentionally damaged a client during the course of the professional relationship,

and failed to cooperate with the investigation of his misconduct. We agree that

respondent committed professional misconduct as found by the board, and we

further agree that an indefinite suspension is the appropriate sanction.

Facts and Procedural History

{¶ 2} Respondent is a sole practitioner handling workers’ compensation,

Social Security, and personal-injury claims. In July 1999, he rented office space

in Hilliard, Ohio, from attorney James Sullivan, whose practice focused on

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workers’ compensation. At that time, Sullivan represented Robert Lewis on a

workers’ compensation claim arising from injuries suffered in an automobile

accident during the course of Lewis’s employment. Because Lewis also had a

personal-injury claim against the driver, Sullivan referred Lewis to respondent.

{¶ 3} Respondent agreed to represent Lewis on a contingent-fee basis,

with respondent to receive a fee of 33 1/3 percent of any recovery if Lewis settled

the case and a fee of 40 percent of the recovery if the case proceeded to trial.

Although Sullivan allegedly served as co-counsel, the contingent-fee agreement

did not indicate that Sullivan would do so or that Sullivan would receive any

attorney fees for the personal-injury claim.

{¶ 4} On November 12, 1999, respondent filed a complaint on Lewis’s

behalf, and the case settled for $95,000 before trial. Lewis further agreed to settle

the BWC’s subrogation claim for $30,000. Sullivan’s only active participation in

the case involved providing respondent with the materials he had prepared and

assembled during the course of Lewis’s workers’ compensation claim.

{¶ 5} Respondent prepared a distribution sheet dated February 21, 2001,

reflecting the $95,000 settlement and showing deductions of $31,666.67 for

attorney fees, $30,000 for the subrogation payment to the BWC, $8,176.19 for

deposition charges, and $628.81 for miscellaneous costs, including copies, office

supplies, and parking expenses. The distribution sheet also indicated that

respondent had shared $10,555.55 of the attorney fees with Sullivan. For his

recovery in the case, Lewis received $24,528.33. Thereafter, respondent did not

pay the $30,000 that Lewis owed the BWC, but instead transferred those funds

from his trust account to his office operating account.

{¶ 6} When Lewis later questioned respondent about the deposition

charges, respondent claimed to have deposed Lewis’s family doctor, among

others. However, Lewis discovered that respondent had not deposed his doctor

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and disputed that charge, but could not get respondent to return his phone calls.

In fact, respondent had not taken any depositions.

{¶ 7} Without further discussion, Lewis received a revised distribution

sheet dated October 2, 2001, together with a check from respondent. Respondent

had removed the deposition charges of $8,176.19, indicated a balance due to

Lewis of $1,842.86, and added $6,333.33 to his attorney fees, which thus went

from 33 1/3 percent to 40 percent of the recovery. Although the distribution sheet

indicated that Sullivan had received an additional $2,111.11 as his third of the

additional attorney fees, respondent did not forward any money to Sullivan.

{¶ 8} Almost five years later, in 2006, Lewis read a newspaper article

about a class-action lawsuit against the BWC that had resulted in the

reimbursement of money that it had collected pursuant to the workers’

compensation subrogation statute. Lewis called respondent to inquire about when

the BWC would reimburse the $30,000 he had paid in subrogation, but respondent

did not return his calls. Lewis contacted another attorney and discovered that

respondent had never paid the $30,000 to the BWC.

{¶ 9} Because respondent would not contact him, Lewis filed a

grievance with relator, Columbus Bar Association, on September 24, 2006.

{¶ 10} On November 2, 2006, respondent sent Lewis a check for $30,000

accompanied by a letter stating that the BWC had not identified everyone to be

repaid and suggesting that he was advancing Lewis $30,000 while respondent

awaited the reimbursement. That same day, respondent sent a letter to relator,

representing that he had paid Lewis the $30,000 with the expectation of retaining

the reimbursement check from the BWC when it arrived. Respondent did not

respond to relator’s subsequent letter inquiring as to whether he had actually sent

the BWC the money.

{¶ 11} In response to the investigation, respondent sent relator a letter on

May 23, 2007, claiming entitlement to the $6,333.33 increase in attorney fees

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because the contingent-fee agreement permitted him to receive 40 percent of the

settlement as his fee. He also asserted that the negotiations with the BWC to

settle its subrogation claim involved a separate representation subject to a separate

fee of $8,176.19, but that he had subsequently agreed with Lewis to accept a fee

of 40 percent of the recovery in exchange for waiving the fee for negotiating the

subrogation settlement. He also placed the blame for failing to pay the BWC on

his bookkeeper, who had made other mistakes and had been terminated.

{¶ 12} In a July 11, 2007 letter, respondent’s counsel explained to relator

that the $8,176.19 designated as “Deposition Charges” actually related to

respondent’s fee for settling the subrogation claim and should have been labeled

“Disposition Charges” on the February 21, 2001 distribution sheet.

{¶ 13} On June 9, 2008, relator, Columbus Bar Association, charged

respondent in a four-count complaint with multiple violations of the Disciplinary

Rules of the Code of Professional Responsibility and with violating Gov.Bar R.

V(4)(G) (requiring a lawyer to cooperate in a disciplinary investigation). A panel

appointed by the Board of Commissioners on Grievances and Discipline heard the

case, made findings of misconduct, and recommended an indefinite suspension.

The board adopted the panel’s findings of fact, conclusions of law, and

recommended sanction.

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

Disciplinary Rule Violations

Count I – Improper Fee Sharing

{¶ 15} The board found that respondent had violated DR 2-103(B)

(prohibiting a lawyer from compensating another for having made a

recommendation resulting in his employment) and 2-107(A)(1) (providing that

lawyers who are not in the same firm must obtain client consent in order to divide

legal fees) by sharing his fee with Sullivan as a reward for referring Lewis’s

personal-injury claim to him. We accept this finding of misconduct. We also

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agree with the board’s conclusion that clear and convincing evidence does not

support the charges that respondent violated DR 5-101(A)(1) (prohibiting a

lawyer from accepting employment if the exercise of professional judgment on

behalf of the client will be or reasonably may be affected by the lawyer’s

interests, unless the client consents) or Gov.Bar R. V(4)(G) with regard to this

conduct, and we therefore dismiss those parts of the complaint.

Count II – Misrepresentations

{¶ 16} The board found that respondent misrepresented to Lewis that he

had incurred expenses for depositions, thereby violating DR 1-102(A)(4)

(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation). We concur with this finding of misconduct.

Count III – Failure to Honor the Fee Agreement

{¶ 17} The board found that respondent charged attorney fees not

authorized by the contingent-fee agreement when he retained 40 percent of the

personal-injury settlement rather than the 33 1/3 percent provided for in the

agreement, that Lewis had not agreed to pay respondent a separate fee for settling

the BWC’s subrogation claim, that respondent had offered contradictory

explanations regarding how he had earned his fee, and that this conduct violated

DR 1-102(A)(4), 1-102(A)(6) (prohibiting conduct that adversely reflects on a

lawyer’s fitness to practice law), 7-101(A)(2) (prohibiting a lawyer from

intentionally failing to carry out a contract of professional employment), 9-

102(B)(3) (requiring a lawyer to maintain complete records of all client property

in the lawyer’s possession), 9-102(B)(4) (requiring a lawyer to promptly deliver

property in the lawyer’s possession that the client is entitled to receive), and

Gov.Bar R. V(4)(G). We concur with these findings of misconduct.

Count IV – Retention of Client Funds

{¶ 18} The board found that respondent had retained the $30,000 that he

had withheld from Lewis ostensibly to satisfy the BWC’s subrogation claim, that

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he had used those funds for his own benefit, that he had failed to maintain

complete records of client funds and to preserve those funds for Lewis, and that

he had failed to forthrightly answer relator’s direct questions during the

investigation of this misconduct, thereby violating DR 1-102(A)(4), 1-102(A)(6),

7-101(A)(2), 7-101(A)(3) (prohibiting a lawyer from intentionally prejudicing or

damaging his client), 7-102(A)(5) (prohibiting a lawyer from knowingly making a

false statement of law or fact), 9-102(A) (requiring all funds of clients paid to a

lawyer to be deposited in one or more identifiable bank accounts, in which no

funds belonging to the lawyer shall be deposited), and 9-102(B)(3) and Gov.Bar

R. V(4)(G). We accept these findings of misconduct.

{¶ 19} We also agree with the board’s conclusion that clear and

convincing evidence does not support the charges that respondent violated DR 1-

102(A)(5) (prohibiting conduct prejudicial to the administration of justice) or 6-

101(A)(1) (prohibiting a lawyer from representing a client without the

competence and preparation reasonably required by the undertaking) with regard

to this conduct, and we therefore dismiss those parts of the complaint.

Sanction

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

relevant factors, including the duties the lawyer violated, the lawyer’s mental

state, 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 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

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rule but may take into account “all relevant factors” in determining what sanction

to impose. BCGD Proc.Reg. 10(B).

{¶ 21} Regarding mitigating factors, we accept the board’s finding that

respondent lacks a prior disciplinary record. BCGD Proc.Reg. 10(B)(2)(a). But

while respondent presented evidence of his good reputation, we also agree with

the board that this evidence does not show that the witnesses were fully aware of

the misconduct. Regarding aggravating factors, we accept the board’s finding

that respondent acted with a dishonest or selfish motive, engaged in a pattern of

misconduct, committed multiple offenses, demonstrated a lack of cooperation and

deception in the disciplinary process, refused to acknowledge the wrongful nature

of his conduct, and harmed a vulnerable client. BCGD Proc.Reg. 10(B)(1)(b), (c),

(d), (e), (f), (g), and (h).

{¶ 22} The board also found that respondent failed to make complete

restitution. However, subsequent to the board issuing its report, respondent paid

the balance of $17,594.20 in restitution to Lewis, which the parties represent was

the full amount owed.

{¶ 23} The primary purpose of the disciplinary process is to protect the

public from lawyers who are unworthy of the trust and confidence essential to the

attorney-client relationship and to allow us to ascertain the lawyer’s fitness to

practice law. Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-

6510, 858 N.E.2d 368, ¶ 10. In this case, that goal is served by an indefinite

suspension.

{¶ 24} This sanction is consistent with our precedent. In Toledo Bar

Assn. v. Vild, 106 Ohio St.3d 471, 2005-Ohio-5518, 835 N.E.2d 1255, we

indefinitely suspended an attorney for engaging in conduct involving dishonesty,

fraud, deceit, or misrepresentation, engaging in conduct that adversely reflected

on his fitness to practice law, neglecting client matters, intentionally failing to

carry out a contract of employment, failing to return the client's property in the

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lawyer's possession, and failing to cooperate with the disciplinary investigation.

Id. at ¶ 23-24. In Cuyahoga Cty. Bar Assn. v. Wagner, 113 Ohio St.3d 158, 2007-

Ohio-1253, 863 N.E.2d 164, ¶ 15, we imposed an indefinite suspension on an

attorney who had kept unearned client funds and had failed to cooperate with the

ensuing disciplinary investigation. And in Disciplinary Counsel v. Zingarelli

(2000), 89 Ohio St.3d 210, 729 N.E.2d 1167, we indefinitely suspended an

attorney for, among other things, failing to properly comply with the requirements

for fee-sharing under DR 2-107(A) and for violating DR 1-102(A)(4). Id. at 218-

220.

{¶ 25} Moreover, respondent has “compounded his misdeeds by refusing

to acknowledge the wrongful nature of his misconduct and failing to cooperate

fully and candidly in the disciplinary process.” Disciplinary Counsel v. Heiland,

116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 45.

{¶ 26} Respondent has not challenged the board's findings of misconduct

or the recommended sanction of indefinite suspension. Based on respondent’s

conduct and our precedent, he is indefinitely suspended from the practice of law

in Ohio.

{¶ 27} Costs are taxed to respondent.

Judgment accordingly.

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

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

__________________

McNamara Law Office and Dennis W. McNamara; Vorys, Sater, Seymour

& Pease, L.L.P., and James E. Phillips; and Bruce A. Campbell, Bar Counsel, and

A. Alysha Clous, Assistant Bar Counsel, for relator.

Kettlewell & Donchatz, L.L.C., and Charles J. Kettlewell, for respondent.

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