Cincinnati Bar Association v. Damon

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Cincinnati Bar Assn. v. Damon, Slip Opinion No. 2014-Ohio-3765.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2014-OHIO-3765

CINCINNATI BAR ASSOCIATION v. DAMON.

[Until this opinion appears in the Ohio Official Reports advance sheets,

it may be cited as Cincinnati Bar Assn. v. Damon,

Slip Opinion No. 2014-Ohio-3765.]

Attorney misconduct—Violations of the Rules of Professional Conduct, including

conviction of a felony, failing to act with reasonable diligence in

representing a client, failing to maintain client funds in a separate account

and to render a full accounting of a client’s funds, and failing to consult

with a client as to the means of pursuing the objectives of representation—

Permanent disbarment.

(No. 2013-1984—Submitted May 28, 2014—Decided September 3, 2014.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 2011-046.

____________________

KENNEDY, J.

{¶ 1} Respondent, Geoffrey Parker Damon of Independence, Kentucky,

Attorney Registration No. 0029397, was admitted to the practice of law in Ohio in

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1984. On May 21, 2013, we suspended his license to practice law on an interim

basis following his March 11, 2013 felony conviction for theft. In re Damon, 135

Ohio St.3d 1311, 2013-Ohio-2032, 988 N.E.2d 570.

{¶ 2} On April 19, 2011, relator, Cincinnati Bar Association, filed a

complaint charging Damon with violations of the Rules of Professional Conduct

arising from the conduct that led to his felony conviction. The complaint was

amended on July 18, 2011, December 29, 2011, and April 12, 2013. On April 9,

2012, the parties filed comprehensive stipulations of fact. Supplemental

stipulations of fact were filed by the parties on May 29, 2012. A hearing was held

on June 11, 2013, before a panel of the Board of Commissioners on Grievances

and Discipline.

{¶ 3} The panel unanimously accepted the stipulated facts. After

considering those facts, the testimony of the witnesses, including respondent’s

testimony, and all the admitted exhibits, the panel found that some of the

violations alleged in the complaint had been established by clear and convincing

evidence, but others had not, and it recommended dismissal of those allegations

that had not been established. The panel recommended that Damon be disbarred.

{¶ 4} The board considered this matter on December 13, 2013. The

board adopted the panel’s report and recommendation in its entirety. Damon filed

objections to the board’s findings of fact and conclusions of law and the

recommended sanction of disbarment.

{¶ 5} Upon consideration of the allegations for which the board found no

violation, we agree with the board and dismiss those allegations. For the reasons

that follow, we overrule Damon’s objections, adopt the board’s findings of fact

and conclusions of law, and conclude that disbarment is the appropriate sanction

in this case.

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Misconduct

Factual Findings of the Panel and the Board

Butkovich & Crosthwaite Company, L.P.A.

{¶ 6} On January 1, 2009, Damon became employed as a full-time

associate by the law firm of Butkovich & Crosthwaite Company, L.P.A., in

Cincinnati, Ohio. In return for an annual salary, Damon agreed to remit to the

firm all the fees he would earn during his employment, whether from work in

progress before joining the firm or from new client matters undertaken after

January 1, 2009.

{¶ 7} Notwithstanding this agreement, Damon accepted payments from

clients and deposited those funds into his own trust account, rather than into the

firm’s trust account. Damon did not report or remit any of these receipts to

Butkovich & Crosthwaite. The exact amount stolen from the law firm is

unknown. However, Damon declared approximately $84,000 in gross receipts for

the “Damon Law Office” on his 2009 federal tax filings.

{¶ 8} After he was no longer employed by the firm, Damon began

making restitution to the firm. The parties stipulated that he had paid

approximately $55,000 to the law firm.

Terry and Veronica Patterson

{¶ 9} Terry and Veronica Patterson paid Damon an initial retainer of

$5,000 when Damon began representing them in a legal-malpractice claim in

December 2008. A written fee contract was not executed in this matter. In July

2009, the Pattersons paid him an additional $3,700 for an expert witness. In

December 2009, Damon dismissed the lawsuit. Damon failed to provide an

accounting as requested by the clients and failed to return the $3,700 that was

never used for an expert.

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Lisa Thompson

{¶ 10} In April 2008, Lisa Thompson hired Damon to represent her in a

disability-discrimination law suit against the University of Louisville College of

Law and the Law School Admission Council (“LSAC”). She paid Damon a

$5,000 retainer.

{¶ 11} Over a year later, and more than a year after the law school and

LSAC had granted Thompson the requested accommodation, Damon filed a

lawsuit in federal court under the Americans with Disabilities Act (“ADA”), 42

U.S.C. 12101 et seq., and state civil-rights statutes. At that time, the only viable

cause of action under the ADA was for the attorney fees that Thompson had paid

in obtaining the accommodation. The complaint, however, did not include a

claim for those attorney fees or an allegation that the client was damaged by

having to pay such fees. When the defendants in the action threatened sanctions

against Thompson for filing a frivolous complaint, Damon dismissed it with

prejudice. Damon has not refunded any money to Thompson. Damon kept

neither an itemized record of Thompson’s funds nor records of the time that he

spent on the case.

Timothy Robinson

{¶ 12} Around December 2008, Timothy Robinson hired Damon to file a

legal-malpractice claim on his behalf. Robinson paid Damon a total of $25,000,

which consisted of a $10,000 retainer and $15,000 for expenses.

{¶ 13} On March 18, 2009, Damon filed the action. He dismissed the suit

without prejudice when he could not find an expert witness to support the

malpractice claim. Damon has not refunded any of Robinson’s money. Damon

did not keep itemized records of Robinson’s funds or of the time that he spent on

the case.

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Mose Jemison

{¶ 14} In July 2010, Mose Jemison hired Damon to represent him in a

worker’s compensation retaliation claim and paid Damon a $1,500 retainer.

Damon failed to file an action, and Jemison discharged Damon in November

2010. Damon refunded $500 of Jemison’s money but failed to account for either

the remainder of the funds or the time that he spent on the case.

Stephen Johnson

{¶ 15} In April 2009, Damon undertook to represent Stephen Johnson in

an employment-discrimination action. Johnson paid Damon an initial retainer,

but the amount paid is disputed; the remainder of the fee was contingent upon an

award of attorney fees by the court. Damon failed to enter into a written fee

agreement with Johnson.

{¶ 16} On November 12, 2009, Damon filed a complaint on Johnson’s

behalf. The defendant filed a motion for summary judgment. Instead of filing a

memorandum in opposition, Damon filed a voluntary dismissal of the case

without prejudice. Damon has no time records for this matter and has not

returned any of the money that Johnson paid him.

Michael Long

{¶ 17} Prior to hiring Damon, Michael Long had filed suit against Long’s

former union, the United Auto Workers (“UAW”), and summary judgment had

been entered in favor of the UAW. The time for appeal had run months before

Long hired Damon. In September 2008, Damon undertook the representation of

Long in two separate but related suits against the UAW and his former employer,

General Motors Corporation (“GM”). Long paid Damon a $2,500 flat fee to

represent him in the UAW matter and $5,000 to represent him in the GM matter.

{¶ 18} On January 20, 2009, Damon filed a motion to vacate the summary

judgment issued in favor of the UAW. The UAW filed a memorandum opposing

the motion to vacate judgment and also sent a letter to Damon stating that if

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Damon did not withdraw the motion within 21 days, the union would file a

motion for sanctions. Damon withdrew the motion to vacate. Damon has not

provided an accounting of either the $2,500 fee or of the time he spent on the

matter.

{¶ 19} On October 29, 2009, knowing that GM had filed for bankruptcy

on June 2, 2009, Damon filed a complaint against “Motors Liquidation Company

FKA General Motors Corp.” in the Warren County Common Pleas Court. Damon

was advised by GM’s counsel that any claim against GM would have to be

pursued in the bankruptcy proceedings. Damon took no further action on the

complaint, and the action was dismissed without prejudice for lack of prosecution

on July 9, 2010. Damon has failed to produce records of the time that he spent on

the GM lawsuit and has failed to either account for or refund any of the $5,000

retainer.

Lori Gehring

{¶ 20} On April 6, 2011, Lori Gehring hired Damon to represent her in a

medical-malpractice claim. At that time, Gehring paid Damon $1,500 for

consultation with and review of her records by a medical professional.

{¶ 21} Notwithstanding Damon’s representations that her medical records

would be sent to a nurse practitioner for review, he did nothing with the records

for almost four months. Upon learning this, Gehring requested, on two separate

occasions, a return of her medical records and the retainer. Damon failed to

refund Gehring’s retainer. Moreover, he returned Gehring’s medical files only

after he received a letter from relator’s investigator regarding this grievance.

Valerie DuBose

{¶ 22} In August 2009, Valerie DuBose hired Damon to represent her in

an employment matter. She paid Damon a total of $4,800. The defendants in the

action filed a motion for summary judgment. Damon filed a memorandum in

opposition only after the trial court issued an order requiring Damon to either file

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the memorandum in opposition or show cause why the matter should not be

dismissed for lack of prosecution. At the oral argument on the motion for

summary judgment, Damon voluntarily dismissed the case without prejudice,

without discussing the dismissal with DuBose. Shortly thereafter, DuBose

learned that her case had been dismissed, and she terminated her relationship with

Damon. Damon provided neither an accounting of DuBose’s funds nor of the

time that he spent in representing her.

Criminal Conviction

{¶ 23} Damon entered a plea of guilty on March 11, 2013, in the

Hamilton County Court of Common Pleas to grand theft, a felony of the fourth

degree. The offense involved the theft of fees from Butkovich and Crosthwaite.

On April 4, 2013, the court sentenced Damon to three years’ community control,

with a prison term of 12 months to be imposed if he violated the terms and

conditions of that control. Damon was further ordered to pay restitution to the

law firm in the amount of $59,553.98. This amount is in addition to the more

than $55,000 Damon has already paid.

Damon’s Objections to Factual Findings

{¶ 24} Damon objects to the board’s findings with regard to restitution.

He contends that the board ignored the stipulation regarding the amount taken

from the law firm and instead found that the exact amount stolen from the firm

was unknown and could not be ascertained. Damon contends that Joseph

Butkovich testified that they had arrived at a final restitution figure. Damon

argues that there was a finite number of clients that he represented while

employed by the law firm and that his cases were a matter of record.

{¶ 25} Butkovich testified that Damon provided “some of his bank

records.” Additionally, during questioning by Damon, Butkovich responded,

“[Y]ou don’t have records for us to make an accounting. And it doesn’t account

for the cash payments that you received that we have no idea who and when

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retained you because you didn’t inform us of your clients. So, I can’t tell you

what you owe us because you don’t have records.”

{¶ 26} “Unless the record weighs heavily against a hearing panel’s

findings, we defer to the panel’s credibility determinations, inasmuch as the panel

members saw and heard the witnesses firsthand.” Cuyahoga Cty. Bar Assn. v.

Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24; see also

Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d

1117, ¶ 8. Therefore, we defer to the panel’s reasonable decision to credit

Butkovich’s testimony that Damon had not provided records from which the exact

amount of funds stolen could be calculated.

{¶ 27} In light of the above, we overrule Damon’s objection and adopt the

board’s factual findings.

Findings of Misconduct

{¶ 28} The board found by clear and convincing evidence that Damon

violated Prof.Cond.R. 1.15(a)(2) (a lawyer shall not fail to maintain a record of

client funds) in his representation of Thompson, Robinson, and Jemison; 1.15(d)

(a lawyer shall not fail to render a full accounting of a client’s funds upon request

by the client) in his representation of the Pattersons, Thompson, Robinson,

Jemison, Johnson, Long, Gehring, and DuBose; 1.2(a) (a lawyer shall not fail to

consult with a client as to the means of pursuing the objectives of representation),

1.3 (a lawyer shall not fail to act with reasonable diligence and promptness in

representing a client), 1.4(a) (a lawyer shall not fail to inform a client of a

decision or circumstance with respect to which the client’s informed consent is

required), and 1.4(b) (a lawyer shall not fail to explain the nature of the

representation to permit the client to make informed decisions regarding that

representation) in his representation of DuBose; 1.5(a) (a lawyer shall not charge

or collect a clearly excessive fee) in his representation of Thompson, Long, and

Gehring; 1.5(c) (a lawyer shall not enter into a contingent-fee agreement without

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a written fee contract signed by the client and the lawyer) in his representation of

Johnson; 1.15(e) (a lawyer shall not fail to maintain legal fees and expenses that

had been paid in advance in a client’s trust account until the fees are earned or the

expenses incurred) in his representation of the Pattersons; 8.4(c) (prohibiting an

attorney from engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation) by misappropriating funds from Butkovich and Crosthwaite;

and 8.4(b) (prohibiting an attorney from committing an illegal act that reflects

adversely on the lawyer’s honesty or trustworthiness) due to his criminal

conviction.

{¶ 29} We adopt the board’s findings of misconduct.

Sanction

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

several relevant factors, including the ethical duties that the lawyer violated 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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. However, because each

disciplinary case is unique, we are not limited to the factors specified in BCGD

Proc.Reg. 10(B) but may take into account all relevant factors in determining

which sanction to impose.

{¶ 31} The panel and the board found as aggravating factors that Damon

acted dishonestly or with a selfish motive, engaged in a pattern of misconduct,

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

refusing to answer specific questions or giving evasive answers, refused to

acknowledge the wrongful nature of his conduct, took advantage of clients who

were vulnerable and caused harm to clients, and failed to make restitution

voluntarily. See BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (e), (g), (h), and (i).

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{¶ 32} The panel and the board found the following mitigating factors.

First, Damon has not been previously disciplined. See BCGD Proc.Reg.

10(B)(2)(a). “Our precedent indicates that a prior interim felony suspension has

not heretofore been considered as a prior disciplinary offense.” Disciplinary

Counsel v. Cantrell, 130 Ohio St.3d 46, 2011-Ohio-4554, 955 N.E.2d 950, ¶ 16,

citing Disciplinary Counsel v. Ulinski, 106 Ohio St.3d 53, 2005-Ohio-3673, 831

N.E.2d 425, ¶ 1 and 14. Damon has also demonstrated that aside from the present

matter, he has a reputation in the community for being of good character. See

BCGD Proc.Reg. 10(B)(2)(e). Finally, Damon has received other penalties or

sanctions. See BCGD Proc.Reg. 10(B)(2)(f).

{¶ 33} Damon contends that the board ignored as a mitigating factor that

he had fully cooperated with Butkovich and Crosthwaite and that he has made

significant restitution, having paid over $55,000 to the law firm. Instead, Damon

argues, the board erroneously found in aggravation that he demonstrated a lack of

cooperation in the disciplinary process and that the amount of monies

misappropriated could not be calculated. Further, Damon asserts that the board

failed to give him any credit for remorse.

{¶ 34} As stated above, Butkovich testified that the firm was unable to

complete an accounting because Damon did not have the appropriate records.

Moreover, Damon did not make a timely, good-faith effort toward restitution.

Damon did begin making restitution to the law firm upon his termination.

However, this was only after the firm had discovered Damon’s theft and

demanded restitution. Further, Damon filed for Chapter 13 bankruptcy and listed

the law firm and the aggrieved clients as creditors. Although the bankruptcy was

dismissed because Damon was unable to make the payment required by the plan,

by pursuing it, Damon attempted to either eliminate or lessen some of these

obligations. Finally, Damon has refused to acknowledge the wrongfulness of his

actions. To the contrary, he expresses the belief that he had no duty to return

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unearned fees unless the client asked for them. Accordingly, we reject Damon’s

arguments.

{¶ 35} Damon also objects to the recommendation that he be disbarred.

Damon argues that his efforts toward restitution, his fully cooperative attitude,

including the production of financial documents to the law firm, and his lack of a

prior disciplinary record warrant an indefinite suspension.

{¶ 36} We conclude that disbarment is the appropriate sanction under the

circumstances. We have held that in most instances, “[t]he continuing public

confidence in the judicial system and the bar requires that the strictest discipline

be imposed in misappropriation cases.” Cleveland Bar Assn. v. Belock, 82 Ohio

St.3d 98, 100, 694 N.E.2d 897 (1998). Damon committed two distinct courses of

misconduct, each of which carry the presumption of disbarment. First, Damon

was convicted of theft for misappropriating funds from his employer. We have

determined that disbarment is warranted when an attorney is convicted of theft

offenses. See, e.g., Cincinnati Bar Assn. v. Banks, 94 Ohio St.3d 428, 763 N.E.2d

1166 (2002) (attorney convicted of interstate transportation of stolen laptop

computers disbarred for violations of former DR 1-102(A)(3) [a lawyer shall not

engage in illegal conduct involving moral turpitude], (4) [a lawyer shall not

engage in conduct involving dishonesty, fraud, deceit, or misrepresentation], and

(5) [a lawyer shall not engage in conduct that is prejudicial to the administration

of justice]).

{¶ 37} Second, we have recognized that accepting legal fees but failing to

carry out contracts of employment is tantamount to theft of the fee from the client

and that the presumptive sanction for that offense is disbarment. See, e.g.,

Columbus Bar Assn. v. Moushey, 104 Ohio St.3d 427, 2004-Ohio-6897, 819

N.E.2d 1112, ¶ 16, citing Disciplinary Counsel v. Sigall, 14 Ohio St.3d 15, 17,

470 N.E.2d 886 (1984), and Disciplinary Counsel v. France, 97 Ohio St.3d 240,

2002-Ohio-5945, 778 N.E.2d 573, ¶ 11. Damon knowingly accepted and kept

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retainers that were intended to be used for pursuing claims that he knew or should

have known were frivolous. He also accepted a $2,500 retainer from Long for a

claim that he should have known was meritless. The same is true with respect to

the action he filed for Thompson in federal court. Second, he took fees from

clients and failed to do any work. Gehring paid him $1,500, he did nothing, and

he failed to return any of the money. Robinson paid him $25,000, but he failed to

account for his work and failed to return any of the money.

{¶ 38} Further, the harm caused by Damon goes beyond the sum of

money he stole from the law firm and the fees he has yet to return to his clients.

The law firm spent more than $60,000 in an attempt to calculate the amount

Damon stole and to defend malpractice suits filed against the firm arising from

Damon’s misconduct. Additionally, as a result of Damon’s misconduct, the firm

suffered increased unemployment-compensation expenses, a 40 percent increase

in its malpractice-insurance premiums, and a reduction in work force and was

forced to spend countless hours dealing with disgruntled clients.

{¶ 39} Finally, Damon relies upon a number of cases in support of his

argument for an indefinite suspension. However, these cases are distinguishable.

For example, in Cincinnati Bar Assn. v. Britt, 133 Ohio St.3d 217, 2012-Ohio-

4541, 977 N.E.2d 620, which was cited by Damon at the hearing, the wrongdoing

engaged in and the rules violated by Curtis Britt parallel Damon’s wrongdoing

and violations. However, Britt was not charged with or convicted of a crime, and

the mitigating evidence in Britt’s case exceeds that presented by Damon. Further,

his conduct was not dishonest or selfish. Id. at ¶ 27. Instead, “[i]t was born of his

inexperience and lack of guidance * * *.” Id. Additionally, Britt, in a letter to

each of the affected clients, openly acknowledged his misconduct, sincerely

apologized, and made arrangements for substitute counsel for his clients if they

decided to accept it. Id. at ¶ 30-32. Moreover, in contrast to Damon, Britt

provided documentation indicating the amount of money he had accepted from

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his clients, which allowed for an accurate calculation of the amount

misappropriated. Id. at ¶ 13. Finally, Britt “expressed both his remorse and his

desire to make amends for his misconduct.” Id. at ¶ 33.

{¶ 40} Accordingly, we find that the aggravating facts significantly

outweigh the mitigating factors present in this case. Therefore, we overrule

Damon’s objection to the recommended sanction and adopt the board’s

recommendation of disbarment.

{¶ 41} This court hereby disbars Damon from the practice of law. Costs

are taxed to Damon.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, FRENCH, and

O’NEILL, JJ., concur.

____________________

Robert J. Hollingsworth, E. Hanlin Bavely, and Edwin W. Patterson III,

for relator.

Reminger Co., L.P.A., and Joseph W. Borchelt, for respondent.

_________________________

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