Cleveland Metropolitan Bar Association v. Leiken

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

Cleveland Metro. Bar Assn. v. Leiken, Slip Opinion No. 2014-Ohio-5220.]

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-5220

CLEVELAND METROPOLITAN BAR ASSOCIATION v. LEIKEN.

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

may be cited as Cleveland Metro. Bar Assn. v. Leiken,

Slip Opinion No. 2014-Ohio-5220.]

Attorneys at law—Misconduct—Violations of the Rules of Professional Conduct,

including continuing to represent a client when representation was

directly adverse to another client and failing to withdraw from

representation when the representation results of a violation of the Rules

of Professional Conduct—Public reprimand.

(No. 2014-0536—Submitted April 30, 2014—Decided December 2, 2014.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 2014-015.

____________________

Per Curiam.

{¶ 1} Respondent, Robert Stanley Leiken of Beachwood, Ohio, Attorney

Registration No. 0030666, was admitted to the practice of law in Ohio in 1971.

On January 27, 2014, relator, Cleveland Metropolitan Bar Association, charged

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Leiken with professional misconduct after Leiken was retained by a driver and his

passenger to recover damages for them for injuries they had suffered in an

automobile accident. It was subsequently alleged that the driver was

comparatively negligent in the accident. Leiken later withdrew from

representation of the driver and brought suit against him on behalf of the

passenger.

{¶ 2} A panel of the Board of Commissioners on Grievances and

Discipline considered the cause on the parties’ consent-to-discipline agreement.

See BCGD Proc.Reg. 11.

{¶ 3} In the consent-to-discipline agreement, Leiken stipulates to the facts

alleged in relator’s complaint and agrees that his conduct violated Prof.Cond.R.

1.7 (prohibiting a lawyer from accepting or continuing a client’s representation if

that representation will be directly adverse to another client), 1.9 (prohibiting a

lawyer who has formerly represented a client in a matter from representing

another person in the same matter in which that person’s interests are materially

adverse to the interests of the former client), and 1.16(a)(1) (requiring a lawyer to

withdraw from the representation of a client if the representation will result in a

violation of the Ohio Rules of Professional Conduct).

{¶ 4} The parties stipulate that mitigating factors include the absence of a

prior disciplinary record, Leiken’s cooperative attitude in the disciplinary

proceeding, and his well-respected character and reputation within the legal

profession and community. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). In

addition, the parties note that certain actions that Leiken took prior to the

initiation of any disciplinary proceeding are also mitigating factors. First, Leiken

made a timely good-faith effort to rectify the consequences of his misconduct by

withdrawing as counsel for the passenger, disgorging himself of the fee he

received, and sending letters of apology, in which he accepted responsibility for

his actions, to the driver and passenger. Second, Leiken also engaged an expert to

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January Term, 2014

advise him regarding the issues related to conflicts of interest and the duties

governing conflicts of interest under the Ohio Rules of Professional Conduct.

BCGD Proc.Reg. 10(B)(2)(c) and (h). The parties agree that there are no

aggravating factors. Based upon these factors, the parties stipulate that a public

reprimand is the appropriate sanction for Leiken’s misconduct.

{¶ 5} The panel and board found that the consent-to-discipline agreement

conforms to BCGD Proc.Reg. 11 and recommend that we adopt the agreement in

its entirety. In support of this recommendation, the panel and board refer to

Toledo Bar Assn. v. Gabriel, 57 Ohio St.3d 18, 565 N.E.2d 570 (1991) (a public

reprimand was the appropriate sanction for an attorney who represented both an

automobile driver and passenger without full disclosure and consent), and Toledo

Bar Assn. v. Tolliver, 62 Ohio St.3d 462, 584 N.E.2d 670 (1992) (a public

reprimand was the appropriate sanction for an attorney who represented two

clients whose interests were adverse to each other). We agree that Leiken

violated Prof.Cond.R. 1.7, 1.9, and 1.16(a)(1) and, as stated in the parties’

agreement and as indicated by the cited precedent, that this conduct warrants a

public reprimand. Therefore, we adopt the parties’ consent-to-discipline

agreement.

{¶ 6} Accordingly, Leiken is publicly reprimanded. Costs are taxed to

Leiken.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

____________________

Robert S. Faxon, Dean C. Williams, K. Ann Zimmerman, Bar Counsel,

and Heather M. Zirke, Assistant Bar Counsel, for relator.

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Koblentz & Penvose, L.L.C., Richard S. Koblentz, and Bryan Penvose;

and Dinn, Hochman & Potter, L.L.C., and Michael C. Hennenberg, for

respondent.

________________________

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