Dayton Bar Assn. v. Brown

[Cite as Dayton Bar Assn. v. Brown, 124 Ohio St.3d 221, 2009-Ohio-6424.]

DAYTON BAR ASSOCIATION v. BROWN.

[Cite as Dayton Bar Assn. v. Brown, 124 Ohio St.3d 221, 2009-Ohio-6424.]

Attorneys at law — Misconduct — Failure to cooperate in the disciplinary

process — Indefinite license suspension.

(No. 2009-1231 ⎯ Submitted September 16, 2009 ⎯ Decided

December 15, 2009.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 08-077.

__________________

Per Curiam.

{¶ 1} Respondent, Keith J. Brown of Jasper, Indiana, Attorney

Registration No. 0025640, was admitted to the practice of law in Ohio in 1981.

The Board of Commissioners on Grievances and Discipline recommends that we

indefinitely suspend respondent’s license to practice, based on findings that he

failed to transfer property into trusts for two couples and then, after one of those

clients died, failed in his duty to attest to the veracity of the signature on affidavits

of the surviving spouse and joint survivor. We accept the board’s findings that

respondent committed this professional misconduct and the recommendation for

the indefinite suspension of his license.

{¶ 2} Relator, Dayton Bar Association, charged respondent with

violations of the Disciplinary Rules of the Code of Professional Responsibility

and the current Rules of Professional Conduct.1 The board sent notice of the

original complaint and the complaint as amended by certified mail to respondent’s

1. Relator charged respondent with misconduct under applicable rules for acts occurring before

and after February 1, 2007, the effective date of the Rules of Professional Conduct, which

supersede the Code of Professional Responsibility. To the extent that both the former and current

rules are cited for the same acts, the allegations compose a single ethical violation. Disciplinary

Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.

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last known address in Indianapolis, Indiana, the address on record for his attorney

registration. Two notices of the amended complaint were returned: one for

expiration of the forwarding address and one as undeliverable. Pursuant to

Gov.Bar R. V(11)(B), the board served the complaint on the Clerk of the Supreme

Court.

{¶ 3} Respondent did not answer either complaint, and pursuant to

Gov.Bar R. V(6)(F), relator moved for default. A master commissioner appointed

by the board made findings of fact, conclusions of law, and a recommendation for

an indefinite suspension of respondent’s license. The board adopted the master

commissioner’s findings of misconduct and recommendation.

Respondent’s Claimed Lack of Notice

{¶ 4} Respondent objects to the board’s report, arguing that he received

insufficient notice of the disciplinary proceedings and of the charges against him.

We disagree.

{¶ 5} Lawyers admitted to the Ohio bar are required under Gov.Bar R.

VI(1)(A) to register as attorneys with this court’s Office of Attorney Registration

every two years. Gov.Bar R. VI(D) requires attorneys who are registered for

active status to provide notice of their current residence and office address and to

apprise the attorney registration office of any changes in this information. During

the investigation of the grievances underlying relator’s complaint and the board’s

proceedings, respondent was registered as on active status.

{¶ 6} The board was thus entitled to rely on the address on record for

respondent in providing any required legal notices. The board did so before

affording respondent constructive notice of the charges against him by sending

copies of the complaints, in conformity with Gov.Bar R. V(11)(B), to the clerk of

this court. Relator was also entitled to rely on the registration address, and in

doing so during the investigation of the grievances, relator received telephone

calls and a letter from respondent, signaling his actual notice of that proceeding.

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January Term, 2009

{¶ 7} Respondent does not dispute these facts. He had telephone

interviews with relator’s investigator, conversations that the investigator recalled

as being combative and dismissive. And in his letter, respondent declined an

invitation to meet with the investigator, advising that the trip would be “at best an

inconvenience and at worst a huge waste of resources.” At the conclusion of the

investigation, relator’s certified grievance committee scheduled another meeting,

and on the appointed date, respondent called to inform the committee that he was

in rehabilitation for alcohol dependence. But when relator then rescheduled the

meeting as an accommodation, respondent did not appear or provide explanation.

{¶ 8} With the exception of his objections, relator has not heard from

respondent since the investigation. After filing the motion for default, the

investigator, nevertheless, located a rehabilitation facility at which he thought

respondent might be residing. The investigator called and sent to that address a

copy of the amended complaint; however, no one at the facility confirmed

respondent’s presence by accepting the call or correspondence on his behalf.

{¶ 9} Relator asserts that respondent has voluntarily made himself

inaccessible, despite his knowledge that disciplinary proceedings were underway.

We agree. In fact, respondent did not appear for oral argument after filing his

objections to the board’s report. We take from respondent’s intermittent

communications and failures to appear that he has chosen not to avail himself of

opportunities to defend. The objection is therefore overruled.

Misconduct

The First Client’s Grievance

{¶ 10} After attending a financial-planning seminar in 2004, a couple

retained respondent to prepare various estate-planning documents, including wills,

a revocable trust, and deeds to ensure that three parcels of property would not

become part of their estate. Respondent agreed to complete these transactions.

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For his services, relator charged the couple $1,650, which they paid in full. The

couple gave respondent copies of the deeds to the three properties.

{¶ 11} In December 2004, the couple met with respondent and signed

various documents, including a revocable trust and quitclaim deeds to transfer the

real property into the trust. But after her husband’s death in June 2006, the wife

learned that respondent had still not recorded one of the quitclaim deeds.

Respondent charged an additional $166.50 to fix the problem.

{¶ 12} Then, in attempting to transfer the property, respondent told the

wife that he needed her to sign the affidavits as surviving spouse and joint

survivor to put her “ownership of the * * * properties on record.” But when he

mailed the affidavits to the wife, respondent had already notarized the blank

signature line, although the document stated that the affiant had signed in his

presence. This violated the jurat on both affidavits, and realizing the impropriety,

the wife would not sign either affidavit.

{¶ 13} The wife later hired other counsel to resolve the transfer of

property and close her husband’s estate, incurring additional attorney fees and

other expenses in the process.

{¶ 14} Because respondent had violated his duty to ensure the authenticity

of his client’s signature on two affidavits while also failing to transfer property as

promised, the board found the evidence clear and convincing that he had violated

DR 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or

misrepresentation), 1-102(A)(5) (prohibiting conduct prejudicial to the

administration of justice), 1-102(A)(6) (prohibiting conduct that adversely reflects

on the lawyer’s fitness to practice law), and 6-101(A)(3) (prohibiting the neglect

of an entrusted legal matter). We accept these findings of misconduct.

The Second Client’s Grievance

{¶ 15} After reviewing their insurance and estate-planning needs in late

2006, a second couple consulted respondent about establishing an irrevocable

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trust. Respondent agreed to create the trust and to transfer the couple’s real estate

into it. The couple paid respondent’s $2,000 fee and executed the trust document

that he prepared.

{¶ 16} On respondent’s recommendation, the couple agreed to have title

to vehicles and bank accounts transferred into the trust. They also anticipated the

transfer of their real estate, but as time passed, they continued to receive tax

notices for the property in their name rather than in the name of the trust. When

the couple asked respondent to explain, he promised to look into the matter.

{¶ 17} Respondent never spoke with the couple again, despite all their

efforts to contact him. The couple eventually retained other counsel, who in late

August 2008 completed transfer of the trust property. In doing so, the successor

counsel discovered that the declaration of trust had not been filed with the county

recorder. The successor counsel arranged for this filing, which cost the couple an

additional $150 to $200.

{¶ 18} With the irrevocable trust, this couple had hoped to facilitate their

eventual move into a nursing home and receipt of Medicaid benefits.

Respondent’s one-and-one-half-year delay in transferring their property into the

trust, however, also delayed Medicaid eligibility under that plan. Respondent did

not return any portion of the $2,000 for his failure to complete the transfer of

property into the irrevocable trust.

{¶ 19} Because respondent failed to complete work as promised and then

lost all contact with these clients, the board found the evidence clear and

convincing that he had violated Prof.Cond.R. 1.1 (requiring a lawyer to provide

competent representation with the thoroughness and preparation reasonably

necessary under the circumstances); 1.3 (requiring a lawyer to act with reasonable

diligence and promptness in representing a client) and its earlier counterpart, DR

6-101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter);

8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the

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administration of justice); and Prof.Cond.R. 8.4(h) (prohibiting conduct that

adversely reflects on the lawyer’s fitness to practice law) and its predecessor, DR

1-102(A)(6).

Sanction

{¶ 20} In recommending a sanction for respondent’s misconduct, the

board weighed the mitigating and aggravating factors listed in BCGD Proc.Reg.

10(B).

{¶ 21} As a mitigating factor under BCGD Proc.Reg. 10(B)(2)(a), the

board cited respondent’s lack of any prior disciplinary record. But the board

attributed no mitigating effect to respondent’s asserted alcohol dependence.

Though this condition might have weighed in his favor under BCGD Proc.Reg.

10(B)(2)(g), he failed to satisfy requirements of the rule, including that the

condition had been medically diagnosed and had contributed to cause his

misconduct. As aggravating factors, the board found that respondent had

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

had harmed vulnerable victims, and had failed to make restitution. See BCGD

Proc.Reg. 10(B)(1)(d), (e), (h), and (i).

{¶ 22} We accept these findings. Moreover, because an indefinite

suspension is commensurate with sanctions imposed in similar cases, we also

accept the board’s recommendation of that sanction. A lawyer’s indifference

toward the process of discipline within the legal profession is entirely

unacceptable. Indeed, we have held that an indefinite suspension from the

practice of law “is especially fitting * * * [where] neglect of a legal matter is

coupled with a failure to cooperate in the ensuing disciplinary investigation.”

Warren Cty. Bar Assn. v. Lieser (1997), 79 Ohio St.3d 488, 490, 683 N.E.2d

1148. The single mitigating factor that a lawyer has no previous disciplinary

record does not warrant a departure from this rule.

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{¶ 23} We therefore indefinitely suspend respondent from the practice of

law in Ohio. Pursuant to Gov.Bar R. V(10)(B), he may not apply for the

reinstatement of his license for two years from the date of this order. Costs are

taxed to respondent.

Judgment accordingly.

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

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

__________________

David M. Rickert, for relator.

______________________

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