The opinion
[Cite as Cleveland Metro. Bar Assn. v. Dawson, 124 Ohio St.3d 22, 2009-Ohio-5959.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. DAWSON.
[Cite as Cleveland Metro. Bar Assn. v. Dawson,
124 Ohio St.3d 22, 2009-Ohio-5959.]
Attorney misconduct, including neglecting an entrusted legal matter and failing to
advise client that attorney lacks professional-liability insurance — Six-
month suspension.
(No. 2009-1115 — Submitted August 11, 2009 — Decided November 19, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-072.
__________________
O’DONNELL, J.
{¶ 1} We admitted respondent, William Dawson of Cleveland, Ohio,
Attorney Registration No. 0073025, to the practice of law in Ohio in 2000. The
Board of Commissioners on Grievances and Discipline recommends that we now
suspend his license to practice law for six months, but stay the suspension on
conditions, including monitored probation. The board’s recommendation is based
on findings that respondent committed professional misconduct, in that he failed
to comply with discovery requests, to oppose a motion for summary judgment, to
respond to a motion to deem admitted the statements propounded in requests for
admissions, and to timely file a notice of appeal. We accept the board’s findings
that respondent violated ethical standards incumbent on Ohio lawyers. However,
for the reasons that follow, we reject the board’s recommended sanction and
instead impose a six-month actual suspension from the practice of law.
{¶ 2} Relator, Cleveland Metropolitan Bar Association, charged
respondent in a two-count complaint with violations of the Disciplinary Rules of
the former Code of Professional Responsibility, including DR 1-104(A) (requiring
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a lawyer to advise a client that he lacks professional-liability insurance), 1-
102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects
on a lawyer’s fitness to practice law), and 6-101(A)(3) (prohibiting a lawyer from
neglecting an entrusted legal matter). A three-member panel of the board heard
the case, accepted respondent’s stipulations to having committed the stated
misconduct, made findings of fact and conclusions of law, and recommended the
six-month suspension and conditional stay. The Board of Commissioners on
Grievances and Discipline adopted the panel’s findings of misconduct and the
recommended sanction.
{¶ 3} The parties have not objected to the board’s report.
Misconduct
Count I ⎯ The DR 1-104(A) and 6-101(A)(3) Violations
{¶ 4} Upon graduating from law school in 2000, respondent accepted
employment with a large law firm in its litigation department. In 2002, however,
he entered solo practice. Thereafter, he agreed to take over a number of cases
from an attorney who was facing disciplinary proceedings for professional
misconduct.
{¶ 5} In one of those cases, respondent agreed to defend two clients in a
pending age-discrimination lawsuit. Respondent, however, never provided his
clients with the required notice that he did not carry professional-liability
insurance. He entered his appearance as defense counsel in August 2002, and at a
final pretrial conference the following month, requested a continuance of the trial
date and an extension of time to complete discovery. The court continued the trial
date until late January 2003.
{¶ 6} Respondent then neglected the case. Thinking that he would be
able to resolve the discovery issues and settle the case, respondent failed to
respond to the plaintiff’s November 2002 motion for partial summary judgment,
and, as a result, the court granted the unopposed motion for partial summary
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January Term, 2009
judgment. Also in that case, respondent failed to reply to the plaintiff’s motion to
deem as admitted the statements in the plaintiff’s requests for admissions. The
court also granted this unopposed motion. Thereafter, the trial court overruled
respondent’s motion to reconsider the order granting partial summary judgment,
noting respondent’s failure to timely respond to the requests for admissions and to
the motion seeking to deem as admitted the statements in the requests for
admissions.
{¶ 7} Because respondent failed to respond to the plaintiff’s requests for
discovery, the court canceled the scheduled trial and held a hearing on a pending
motion for default. The court granted a default judgment in March 2003,
awarding the plaintiff damages of $184,675 – $130,900 in compensatory
damages, $50,000 in punitive damages, and $3,775 in attorney fees. Respondent
further failed to timely appeal that default judgment. The parties later settled the
case for $27,000.
{¶ 8} Because of respondent’s failings, the board found the evidence
clear and convincing that respondent had violated DR 1-104(A) and 6-101(A)(3).
We accept these findings of misconduct.
Count II ⎯ The DR 1-102(A)(6) Violation
{¶ 9} In early January 2004, the clients involved in Count I sued
respondent for legal malpractice. In early November of that year, respondent and
his former clients agreed to a settlement, which was reduced to judgment,
requiring respondent to pay the former clients $17,000 if he paid on time and
$22,000 if he defaulted. Respondent agreed to pay in installments ⎯ $5,000 by
November 15, 2004, $6,000 by May 15, 2005, and $6,000 by November 15, 2005.
However, respondent defaulted after paying only one installment. He then agreed
to make monthly payments of $500 commencing on August 1, 2005, to satisfy his
outstanding obligation, but made only one payment under that agreement.
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{¶ 10} By mid-September 2005 respondent’s financial situation had
worsened. Facing foreclosure on three rental properties and a significantly
reduced income due to a decrease in public-defender appointments, respondent
filed for Chapter 7 voluntary bankruptcy and discharged his former clients’
judgment.
{¶ 11} The board found that respondent had entered into the settlements
with his former clients in good faith and without any intent to avoid the obligation
through bankruptcy. Nevertheless, the board found clear and convincing evidence
that respondent’s failure to satisfy the judgment adversely reflected on his fitness
to practice law and violated DR 1-102(A)(6). We accept this finding.
Sanction
{¶ 12} In recommending a sanction for respondent’s misconduct, the
board weighed the aggravating and mitigating factors of his case. The board cited
respondent’s suspension from practice in December 2005 for failing to comply
with attorney-registration requirements as an aggravating factor.1 In mitigation,
the board found that respondent has no prior disciplinary record, did not act with
any selfish or dishonest motive, made free and full disclosure to relator, and
cooperated throughout these proceedings. See BCGD Proc.Reg. 10(B)(2)(a), (b),
and (d).
{¶ 13} The parties proposed as the appropriate sanction for respondent’s
misconduct a six-month suspension of his license to practice law with the entire
period stayed on the conditions that he (1) commit no further violations of the
applicable ethical standards, (2) complete six hours of continuing legal education
in time management or law-office management as approved by relator, and (3)
1. See In re Atty. Registration Suspension, Dawson, 107 Ohio St.3d 1431, 2005-Ohio-6408, 838
N.E.2d 671. The board also noted that respondent has been issued monetary sanctions for failing
to comply with continuing-legal-education requirements; however, Gov.Bar R. X(5)(C) prohibits
consideration of such sanctions in disciplinary proceedings.
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January Term, 2009
successfully complete a one-year monitored probation under the auspices of an
attorney appointed by relator. The panel and board accepted that proposal.
{¶ 14} In adopting the panel’s report, the board compared this sanction to
the sanction imposed in Toledo Bar Assn. v. Hales, 120 Ohio St.3d 340, 2008-
Ohio-6201, 899 N.E.2d 130. The board determined that respondent’s conduct
warranted a sanction less severe than the sanction this court ordered in Hales,
explaining:
{¶ 15} “Hales was sanctioned because he (1) mishandled and lost his
client’s medical malpractice case due to his inexperience; (2) failed to notify his
insurance carrier of the client’s legal malpractice claim, thus causing the insurer
to deny coverage; and (3) [by declaring bankruptcy], prevented his client from
collecting on a $280,000.00 default judgment she obtained [against him for legal
malpractice] * * *.
{¶ 16} “Hales filed a Chapter 7 bankruptcy petition for discharge of his
personal debts in February 2005. The Bankruptcy Court treated his filing as a
‘no-asset case,’ and as such, the failure to list the potential judgment did not
prevent discharge of the debt. In mid-May 2005, the Bankruptcy Court
discharged all of Hales’s indebtedness.
{¶ 17} “Hales’s client sued him for malpractice in June of 2005.
Respondent Hales did not file an answer in the legal-malpractice case and the
Court awarded his client $280,000.00 in damages.
{¶ 18} “At some point, Hales also filed a Chapter 13 bankruptcy petition
listing the malpractice claim. The end result was Hales’s client was unable to
recover anything from him because of the discharge in bankruptcy and his failure
to notify his liability insurer of her claim.
{¶ 19} “Hales was given a two-year suspension from the practice of law
with 18 months stayed. Citing Cleveland Bar Assn. v. Gay (2002), 94 Ohio St.3d
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404, [763 N.E.2d 585], the Supreme Court did not order Hales to make restitution
for the debt discharged in bankruptcy.
{¶ 20} “The instant case differs from Hales in that [respondent’s] clients
did not suffer as much harm and Respondent in this case entered into the
settlement with his clients in good faith and did not intend to discharge the
obligation in bankruptcy.”
{¶ 21} While we agree with the board’s determination that respondent’s
conduct warrants a sanction less severe than that imposed in Hales, we note that
the sanction imposed in Hales was more than a six-month suspension. It was a
two-year suspension, with 18 months stayed upon conditions. Id., 120 Ohio St.3d
340, 2008-Ohio-6201, 899 N.E.2d 130, ¶ 26.
{¶ 22} In Butler Cty. Bar Assn. v. Schoonover, 105 Ohio St.3d 472, 2005-
Ohio-2816, 828 N.E.2d 1007, we imposed a six-month suspension stayed upon
conditions for violations of the same disciplinary rules that respondent has been
found to have violated. In Schoonover, the attorney accepted $350 from a couple
to establish a guardianship for the husband’s uncle but did not initiate the
proceedings before the uncle’s death several months later. Id. at ¶ 3-7. Despite
the clients’ request for a refund, the attorney waited more than one and a half
years to return their money. Id. at ¶ 8. As in this case, the relator’s investigation
revealed that the attorney did not have malpractice insurance and that he had
failed to advise his clients of that fact. Id. at ¶ 9.
{¶ 23} In Schoonover, there were no aggravating factors. Id. at ¶ 12.
However, there were mitigating factors, including the death of the attorney’s
mother and his subsequent medical treatment for anxiety. Id. at ¶ 11. Moreover,
the board and this court noted that the attorney did not financially harm his clients
and made restitution. Id. at ¶ 12.
{¶ 24} In contrast, respondent’s neglect here resulted in a $184,675
judgment against his clients, who were able to later settle that obligation for
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January Term, 2009
$27,000. Although respondent agreed to pay his former clients $22,000, he paid
them a total of only $5,500 before he defaulted on his obligation, and he
subsequently discharged the remainder of that obligation in bankruptcy.
{¶ 25} We acknowledge that respondent did not act with any selfish or
dishonest motive, but we conclude that his conduct warrants a more severe
sanction than that recommended by the board. Accordingly, respondent is
suspended from the practice of law in Ohio for six months. Costs are taxed to
respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Reminger Co., L.P.A., Alan B. Parker, and Gary H. Goldwasser; and K.
Ann Zimmerman, for relator.
Bricker & Eckler, L.L.P., and Alvin E. Mathews Jr., for respondent.
______________________
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