Cleveland Metropolitan Bar Association v. Sweeney

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

Cleveland Metro. Bar Assn. v. Sweeney, Slip Opinion No. 2016-Ohio-469.]

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. 2016-OHIO-469

CLEVELAND METROPOLITAN BAR ASSOCIATION v. SWEENEY.

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

may be cited as Cleveland Metro. Bar Assn. v. Sweeney, Slip Opinion No.

2016-Ohio-469.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Public

reprimand.

(No. 2015-0591—Submitted May 20, 2015—Decided February 11, 2016.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2014-026.

_______________________

Per Curiam.

{¶ 1} Respondent, Francis Edward Sweeney Jr., of Mayfield Heights, Ohio,

Attorney Registration No. 0058723, was admitted to the practice of law in Ohio in

1992. On April 7, 2014, relator, Cleveland Metropolitan Bar Association, filed a

complaint alleging that Sweeney neglected a client matter, failed to communicate

with the client, failed to effectuate his withdrawal from representation with minimal

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adverse effects on the clients, and failed to take reasonable steps to protect his

clients’ interests when terminating the attorney-client relationship. A panel of the

Board of Commissioners on Grievances and Discipline1 held a hearing at which the

parties submitted exhibits and the client, her Florida counsel, Sweeney, and a

character witness testified. The panel recommended that a fully stayed six-month

suspension was the appropriate sanction for Sweeney’s misconduct. The board

adopted the panel report in its entirety.

{¶ 2} After reviewing the record, we adopt the board’s findings of fact and

misconduct, but we reject the recommended sanction. We instead conclude that a

public reprimand is appropriate under these circumstances.

Misconduct

{¶ 3} Sweeney was retained in April 2005 to represent Heidi DeCaprio and

her minor daughter, who were injured in an automobile accident in Florida. He

performed substantial work but was unable to settle the matter, so in May 2006, he

referred his clients to Florida attorney James Magazine. Magazine’s firm filed a

lawsuit in January 2009 and remained as counsel until May 2011, when the firm

withdrew due to a conflict of interest. The clients were then referred to Michael

Walker of Walker Law Group, another Florida firm.

{¶ 4} Three months later, in August 2011 and more than six years after the

accident, the Walker firm withdrew because of DeCaprio’s failure to cooperate. In

particular, the Walker firm’s case notes indicated that DeCaprio failed to return

counsel’s calls, was verbally abusive and rude in telephone conversations with

attorneys and staff, refused to work with staff to get her deposition scheduled, and

had an unrealistic view of the value of her case. At the time of Walker’s

withdrawal, the firm had presented to DeCaprio an offer of settlement, which

DeCaprio never acted upon. Following Walker’s withdrawal, DeCaprio contacted

1

Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been

renamed the Board of Professional Conduct. See Gov.Bar. R. V(1)(A), 140 Ohio St.3d CII.

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January Term, 2016

Sweeney and in December 2011, Sweeney personally resumed his efforts to settle

the case from Ohio.

{¶ 5} The issue before us is whether and when, in the history of this matter,

an attorney-client relationship existed between Sweeney and DeCaprio and her

daughter, and if one did exist, whether Sweeney committed any misconduct in that

representation.

{¶ 6} Relator did not show that Sweeney committed any misconduct during

the period when the lawsuit was handled by the Florida firms. In the wake of the

Walker firm’s withdrawal, however, Sweeney’s activity in the case arose again.

DeCaprio sought Sweeney’s counsel. They communicated through text messages.

She faxed legal documents to him, including, on December 1, 2011, the defendant’s

motion to dismiss her case—based on DeCaprio’s failure to respond to discovery

requests—and proposals for settlement.

{¶ 7} Sweeney was aware in mid-December that Walker’s motion to

withdraw had been granted. Sweeney requested copies of DeCaprio’s medical bills

from the Walker firm, which sent them to him on December 20, 2011. The firm’s

contemporaneous notes from Sweeney’s mid-December contact with the firm

stated that the staff had received a call “from atty * * * Sweeney who was

approached by Ms. DeCaprio to handle her case again.” Sweeney placed a call to

the insurance adjuster in late December to try to settle the matter. And in late

December, Sweeney texted DeCaprio that he was “trying to settle it.”

{¶ 8} A hearing on the motion to dismiss had been set for January 10, 2012.

Sweeney texted DeCaprio on December 30, 2011: “Got it covered. U don’t have

to be there. I am coordinating it thru Magazine. No worries. Happy new year.”

On the day of the hearing, Sweeney texted: “We will work it out. No worries.”

The next day, after the motion to dismiss had been granted, he texted: “Patience”

and “[Magazine] will be calling u and explaining what we are going to do. I’m

pretty sure we are going to be ok. Just don’t freak out yet!”

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{¶ 9} On January 12, 2012, however, the relationship changed. Sweeney

texted DeCaprio, “I just found out you ignored several motions to compel answers

to intterroigatorries [sic] over 2 years ago. Not only have you not been listening to

me and Magazine U screwed yourself by no [sic] listening to anyone. I can’t help

u anymore. Call walker if u have questions. Sorry.”

{¶ 10} The panel and board found from these and other communications

that Sweeney had become actively involved in DeCaprio’s case and that he took

several concrete actions on her behalf in December 2011 and January 2012. The

board also found that Sweeney gave DeCaprio flawed advice not to attend the

dismissal hearing and that after the January 12 message, Sweeney—after having

already failed to arrange for an attorney to attend the dismissal hearing—failed to

apprise DeCaprio that she could petition the court for reconsideration or appeal the

dismissal.

{¶ 11} The board found that Sweeney’s conduct violated Prof.Cond.R. 1.3

(requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)

(requiring a lawyer to reasonably communicate with a client), 1.16(b)(1)

(permitting a lawyer to withdraw from representation if the withdrawal can be

accomplished without material adverse effect on the interests of the client), and

1.16(d) (requiring a lawyer withdrawing from representation to take steps

reasonably practicable to protect a client’s interest). We adopt the board’s findings

of fact and misconduct.

Sanction

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

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 Gov.Bar

R. V(13).

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January Term, 2016

{¶ 13} The board found as aggravating factors that Sweeney committed

multiple offenses that caused harm to multiple victims who were vulnerable. See

Gov.Bar R. V(13)(B)(4) and (8). As mitigating factors, the board found that

Sweeney had no prior disciplinary record, had displayed a cooperative attitude

toward these proceedings, and had presented abundant evidence of his good

character and of his reputation for, and record of, professionalism and service to his

clients and the greater community. See Gov.Bar R. V(13)(C)(1), (4) and (5).

{¶ 14} Relator recommends that Sweeney receive a fully stayed six-month

suspension from the practice of law. In support of that recommendation, relator

cites several cases involving comparable conduct in which we imposed a

comparable sanction, including Cleveland Metro. Bar Assn. v. Fonda, 138 Ohio

St.3d 399, 2014-Ohio-850, 7 N.E.3d 1164, and Dayton Bar Assn. v. Hooks, 139

Ohio St.3d 462, 2014-Ohio-2596, 12 N.E.3d 1212. In Fonda, we imposed a stayed

one-year suspension for a violation of Prof.Cond.R. 1.3, 1.4(a)(3) and (4), and

1.16(d) where the respondent had neglected two clients’ cases, as opposed to the

single matter here, and had failed to take reasonable steps to protect one client’s

interests when he withdrew as counsel. And in Hooks, we imposed a stayed six-

month suspension and 12 hours of continuing legal education for a violation of

Prof.Cond.R. 1.3 and 1.4 where the respondent had failed to file documents

regarding modification of a client’s child-support obligation and had failed to keep

the client reasonably informed as to the status of his case. The respondent there

admitted that he had been charged with operating a vehicle while intoxicated, which

was a charge that was not one of the disciplinary charges against him, and we

required that he submit to an evaluation by the Ohio Lawyers Assistance Program

to ensure that no underlying problems existed. Neither of those factors is present

here.

{¶ 15} Sweeney argues that his conduct warrants a public reprimand, and

we are inclined to agree. In Akron Bar Assn. v. Freedman, 128 Ohio St.3d 497,

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2011-Ohio-1959, 946 N.E.2d 753, the respondent failed to timely communicate

with a couple who had retained him, failed to keep them reasonably informed about

the status of their case, failed to inform them that he did not maintain professional

liability insurance, and failed to advise them that if he did not complete the

representation, they could be entitled to a refund of part or all of the flat fee they

had paid him, thus violating Prof.Cond.R. 1.4, 1.4(c), and 1.5(d)(3). The mitigation

factors were similar to those here, including that the respondent had practiced for

nearly 30 years without a disciplinary record. Id. at ¶ 8. We determined that the

respondent’s conduct warranted a public reprimand. Id. at ¶ 12.

{¶ 16} In Columbus Bar Assn. v. Smith, 143 Ohio St.3d 436, 2015-Ohio-

2000, 39 N.E.3d 488, ¶ 5-6, the respondent violated Prof.Cond.R. 1.3, 1.4(a)(2)

through (4), and 1.16(d) by filing a responsive pleading late, failing to present all

of a client’s claims, not taking steps to protect a client’s interests after moving to

withdraw as counsel, and not timely communicating with a client about or

providing copies of a federal magistrate judge’s recommendation. The mitigating

factors were similar to those here, see id. at ¶ 8, and we publicly reprimanded Smith

for her misconduct, id. at ¶ 11. And in Columbus Bar Assn. v. Ryan, 143 Ohio St.3d

73, 2015-Ohio-2069, 34 N.E.3d 120, ¶ 1, the respondent was difficult to contact,

did not timely file court papers although she represented to the client that they had

been filed, and failed to communicate with the client in a domestic-relations matter.

With similar mitigating and aggravating factors as here, see id. at ¶ 4, we

determined that the conduct warranted a public reprimand, id. at ¶ 7.

{¶ 17} We adopt the board’s findings and conclude that Sweeney’s conduct

violated Prof.Cond.R. 1.3, 1.4(a), 1.16(b)(1), and 1.16(d). Considering Sweeney’s

long career with no previous disciplinary action, the appropriate sanction here is a

public reprimand.

{¶ 18} Accordingly, Francis Edward Sweeney Jr. is hereby publicly

reprimanded. Costs are taxed to Sweeney.

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January Term, 2016

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

_________________

Tucker Ellis, L.L.P., Matthew P. Moriarty, and Paul W. Smith; and Heather

M. Zirke, Assistant Bar Counsel, for relator.

Kegler, Brown, Hill & Ritter Co., L.P.A., and Jonathan E. Coughlan, for

respondent.

_________________

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