Columbus Bar Assn. v. Mangan

[Cite as Columbus Bar Assn. v. Mangan, 123 Ohio St.3d 250, 2009-Ohio-5287.]

COLUMBUS BAR ASSOCIATION v. MANGAN.

[Cite as Columbus Bar Assn. v. Mangan,

123 Ohio St.3d 250, 2009-Ohio-5287.]

Attorneys — Misconduct — Handling a legal matter without adequate

preparation — Representing multiple clients without obtaining consent

from each client after full disclosure — Public reprimand.

(No. 2009-1127 — Submitted August 11, 2009 — Decided October 13, 2009.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 08-051.

__________________

Per Curiam.

{¶ 1} Respondent, Patrick F. Mangan of Columbus, Ohio, Attorney

Registration No. 0016104, was admitted to the practice of law in Ohio in 1979.

The Board of Commissioners on Grievances and Discipline recommends that we

publicly reprimand respondent, based mainly on findings that he undertook the

representation of a father, son, and daughter-in-law without first advising them of

the risks presented by their potentially conflicting interests and obtaining each

person’s consent to having a single advocate. We accept the board’s finding that

respondent’s conduct violated ethical standards incumbent on Ohio lawyers and

the recommendation for a public reprimand.

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

violations of the Disciplinary Rules of the Code of Professional Responsibility,

including DR 5-105(C) (prohibiting a lawyer from representing multiple clients

with conflicting interests unless “it is obvious that [the lawyer] can adequately

represent the interest of each and if each consents to the representation after full

disclosure of the possible effect of such representation on the exercise of [the

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lawyer’s] professional judgment on behalf of each”) and 6-101(A)(2) (prohibiting

a lawyer from undertaking a legal matter without adequate preparation under the

circumstances). A three-member panel of the board heard the case, including the

parties’ stipulations to the cited misconduct, made findings of fact and

conclusions of law, and recommended a public reprimand. The board adopted the

panel’s findings of misconduct and recommendation.

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

Misconduct

{¶ 4} Respondent has practiced for 30 years in probate and real estate

law, working for various employers, including the Legal Aid Society of

Columbus, UAW Legal Services, and Hyatt Legal Services. He practiced in

association with several attorneys from 1995 until 2005, when he opened his own

practice in Columbus.

{¶ 5} A man belonging to a prepaid legal services plan consulted

respondent in January 2005 about a pending foreclosure action. CIT

Group/Consumer Finance, Inc. (“CIT”), had filed the action in early December

2004, seeking to foreclose on a single-family dwelling that the man and his son

had inherited in June 2002. Respondent agreed to represent all defendants in the

foreclosure action: the father, his son, and the son’s wife.

{¶ 6} Despite this agreement, respondent never communicated with

either the son or the daughter-in-law, relying instead on the father’s assurances

that the father was acting on behalf of his son and daughter-in-law. But in fact,

the couple did not know of the foreclosure proceedings. And even before the

foreclosure proceedings began, the couple had been dissatisfied with the father’s

decisions about the property.

{¶ 7} In 2002, the father had borrowed $37,194 (approximately one-half

of the equity in the appraised value of the house) to upgrade the house so he could

move into it or the father and son could sell it. The father and son signed a

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mortgage against the house. In the years that followed, the father made some

improvements but ultimately gutted the kitchen. The son realized the extent of

disrepair, and in 2005, he and his wife refused to allow the father to borrow more

money by using the home as collateral.

{¶ 8} But by then, the home was already in foreclosure because,

unknown to his son and daughter-in-law, the father had stopped making mortgage

payments sometime in 2004. And by the time the father consulted respondent in

early 2005, the balance owed on the mortgage had grown to $47,700, the cost to

reinstate the loan was $10,000, and the homeowners needed another $20,000 loan

to complete the kitchen, roof, and heating, ventilation, and air conditioning

renovations. Thus, after reinstating the loan, completing the necessary

renovations, and selling the property for the new estimated fair market value of

$75,000, including paying a six-percent realtor commission ($4,500) and closing

costs ($2,000), the homeowners would have realized only about $790 in profit.

{¶ 9} Respondent discussed at length with the father the possibility of

reinstating the loan, but the father did not have the financial resources.

Respondent consequently filed an answer to the complaint, but without any input

from the son and daughter-in-law. The court thereafter granted summary

judgment in favor of CIT, and the house sold at a sheriff’s sale for $53,000,

$22,000 under the appraised value.

{¶ 10} The son and daughter-in-law did not learn of the foreclosure until

Christmas 2005, when a neighbor advised that the property had been sold. The

daughter-in-law soon contacted respondent, who only then realized his mistake.

The couple filed a grievance with relator, hired another attorney, and ultimately

recovered $3,700 in proceeds from the foreclosure that had been held in escrow.

{¶ 11} Respondent, who was not compensated for his representation,

candidly admitted that he had “dropped the ball” by failing to contact the son and

daughter-in-law and by focusing only on the filing of a timely answer. He

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acknowledged that he should have sent the couple a copy of the answer, and he

expressed his sincere regret for the oversight. To ensure that he does not repeat

the mistake, respondent has redoubled his efforts to keep each client adequately

informed of developments in his or her case.

{¶ 12} The parties stipulated and the board found that respondent’s acts

and omissions in relation to this family’s property foreclosure violated DR 5-

105(C) and 6-101(A)(2). Because respondent failed to gain all the parties’

consent to the multiple representation and did not communicate at all with two of

them, we accept that respondent committed this misconduct.

Sanction

{¶ 13} In recommending a sanction for this misconduct, the panel and

board weighed the aggravating and mitigating factors to which the parties also

stipulated and considered their joint proposal for a public reprimand. Adopting

the panel’s report, the board observed:

{¶ 14} “Mitigating factors include that Respondent has no prior

disciplinary record, lacked a dishonest or selfish motive, cooperated in the

disciplinary proceedings, and presented evidence of good character and

reputation. Respondent submitted twelve letters from fellow lawyers, a judge and

clients attesting to Respondent’s honesty, integrity, and competence in the

practice of law. These witnesses all have had extensive contact with Respondent

both before and after he began practicing law thirty years ago in 1979. [See

BCGD Proc.Reg. 10(B)(2(a), (b), (d), and (e).]

{¶ 15} “The sole aggravating factor may be vulnerability and resulting

harm to the victims of the misconduct. [See BCGD Proc.Reg. 10(B)(1)(h).]

However, after considering all the evidence submitted, the panel finds that any

financial harm to the grievants had occurred prior to any involvement of

Respondent. [The father] borrowed the funds on the mortgage, defaulted on the

loan, used the proceeds for other personal items, and rendered the home

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uninhabitable and in need of further mortgage and work before he consulted

Respondent. The damage to [the son and daughter-in-law’s] equity was the result

of [the father’s] actions, not Respondent’s error. Respondent further maintained

malpractice insurance with limits of one million dollars and no claim was made

against him by [the son and daughter-in-law] relating to this incident.”

{¶ 16} 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 knowing the identity of his clients. That lawyer, in pursuing a client’s

personal-injury claim, mistakenly sued for loss of consortium on behalf of the

client’s wife. The lawyer never communicated with the wife or inquired about

her status from his client, and actually, the wife and client were separated. The

couple later divorced, and the client ultimately agreed to indemnify his former

wife for losses she may have sustained because he settled his personal-injury

claim and dismissed the loss-of-consortium claim with prejudice.

{¶ 17} Respondent in this case similarly 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. But no one has suggested

that respondent’s “ill-advised actions resulted from anything other than

carelessness.” Id. at ¶ 10. Moreover, as in Ita, “[r]espondent's lack of any

enmity, his heretofore unblemished professional record, his established good

character and reputation, and his cooperation in these proceedings persuade us

that a warning will suffice in this case.” Id.

{¶ 18} Respondent is therefore publicly reprimanded for his violations of

DR 5-105(C) and 6-101(A)(2). Costs are taxed to respondent.

Judgment accordingly.

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

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

__________________

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Terrence A. Grady & Associates Co., L.P.A., and Terrence A. Grady; and

Bruce A. Campbell, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel,

for relator.

Mitchell, Catalano & Boda Co., L.P.A., and William Mann, for

respondent.

______________________

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