Columbus Bar Association v. Reed

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

Columbus Bar Assn. v. Reed, Slip Opinion No. 2016-Ohio-834.]

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-834

COLUMBUS BAR ASSOCIATION v. REED.

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

may be cited as Columbus Bar Assn. v. Reed, Slip Opinion No.

2016-Ohio-834.]

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

including failing to provide competent representation and failing to respond

to demand for information by a disciplinary authority during an

investigation—Two-year suspension with 18 months stayed on conditions.

(No. 2015-0587—Submitted September 15, 2015—Decided March 8, 2016.)

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

Court, No. 2014-050.

_______________________

Per Curiam.

{¶ 1} Respondent, Joseph Dues Reed of Columbus, Ohio, Attorney

Registration No. 0025938, was admitted to the practice of law in Ohio in 1983. In

2000, we sanctioned him with a stayed six-month suspension for neglecting a client

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matter. Columbus Bar Assn. v. Reed, 88 Ohio St.3d 48, 723 N.E.2d 568 (2000). In

2006, we briefly suspended him for noncompliance with his continuing-legal-

education requirements. See In re Reed, 110 Ohio St.3d 1432, 2006-Ohio-3902,

852 N.E.2d 182. In December 2015, we suspended him again for noncompliance

with his continuing-legal-education requirements. 144 Ohio St.3d 1418, 1421,

2015-Ohio-5126, 41 N.E.3d 1256.

{¶ 2} In June 2014, relator, Columbus Bar Association, charged him with

neglecting clients, failing to cooperate in the disciplinary process, and other

professional misconduct. Based on the parties’ stipulations and Reed’s testimony

at a hearing before a three-member panel of the Board of Professional Conduct, the

panel found that he had engaged in most of the charged misconduct, dismissed

some of the charges, and recommended that we impose a two-year suspension with

six months stayed on conditions. The board adopted the panel’s findings of fact,

conclusions of law, and recommended sanction. Reed has filed objections to some

of the board’s findings and to its recommendation, arguing that his suspension

should be stayed in its entirety.

{¶ 3} Based on our review of the record, we accept the board’s findings of

misconduct but conclude that a two-year suspension, with 18 months stayed on

conditions, along with a period of monitored probation, is the appropriate sanction

in this case.

Misconduct

{¶ 4} The board found that Reed committed professional misconduct in

three client matters. First, in April 2012, Toni Gravely paid Reed $525 to file an

Ohio divorce case on her behalf. After accepting Gravely’s money, Reed had no

further contact with her—despite her repeated attempts to communicate with him.

Nor did Reed file the divorce complaint, which resulted in her being forced to

litigate the divorce in West Virginia, where her husband had later filed suit. In

November 2012, Gravely filed a grievance against Reed, but he failed to respond

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to two letters of inquiry from disciplinary counsel. Reed also failed to comply with

a subpoena seeking his appearance for a deposition concerning the grievance.

{¶ 5} In the second matter, Reed and a former client, R. Thomas Pierce,

arbitrated a fee dispute pursuant to the regulations of relator’s fee-dispute

arbitration program. In January 2013, the arbitrator required Reed to refund $1,125

to Pierce within ten days of receiving notice of the arbitration award. Reed,

however, failed to timely refund the money, and after eight months, Pierce was

forced to hire counsel to secure his money. In March 2014—14 months after the

arbitration award—Reed paid Pierce’s counsel $1,400, from which Pierce received

$1,011.85.

{¶ 6} The third matter involved another case of client neglect. In January

2013, the girlfriend of Joshua Smith, a prisoner, paid Reed $1,000 to file a motion

for judicial release and to represent Smith at any ensuing hearing. But Reed neither

contacted Smith at the prison nor conducted any work on the case; nor did he

respond to multiple communications from Smith’s father seeking information about

the matter. In July 2013, Smith’s father filed a grievance with relator, but Reed

failed to respond to relator’s letters of inquiry. In October 2013, Smith filed a

request for fee-dispute arbitration with relator, but Reed also failed to respond to

relator’s letters regarding Smith’s arbitration request.

{¶ 7} Based on this conduct, the parties stipulated and the board found that

Reed had violated Prof.Cond.R. 1.1 (requiring a lawyer to provide competent

representation to a client), 1.3 (requiring a lawyer to act with reasonable diligence

in representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably

informed about the status of a matter), 1.4(a)(4) (requiring a lawyer to comply as

soon as practicable with reasonable requests for information from the client), 8.1(b)

(prohibiting a lawyer from knowingly failing to respond to a demand for

information by a disciplinary authority during an investigation), and 8.4(h)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the

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lawyer’s fitness to practice law) and former Gov.Bar R. V(4)(G)1 (requiring a

lawyer to cooperate in a certified grievance committee’s alternative-dispute-

resolution procedures). Consistent with our opinion in Disciplinary Counsel v.

Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21, the board

expressly found that Reed’s failure to comply with the regulations of relator’s fee-

dispute arbitration program and his failure to cooperate in the disciplinary process,

including his ignoring a subpoena to appear for a deposition, was sufficiently

egregious to support a finding that he violated Prof.Cond.R. 8.4(h). We agree with

the board’s findings of misconduct.

{¶ 8} Finally, the board’s report indicates that Reed continues to owe

restitution in the amounts of $375 to Gravely, $113.15 to Pierce,2 and $1,000 to

Smith or the Lawyer’s Fund for Client Protection, which the board noted had

received a claim regarding the Smith matter.

Sanction

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

several relevant factors, including the ethical duties that the lawyer violated, the

sanctions imposed in similar cases, and the aggravating and mitigating factors listed

in Gov.Bar R. V(13).

Aggravating and mitigating factors

{¶ 10} The board found the following aggravating factors: prior

disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct,

multiple offenses, a lack of cooperation in the disciplinary process, harm to the

1

Effective January 1, 2015, the provisions previously set forth in Gov.Bar R. V(4)(G) are codified

in Gov.Bar R. V(9)(G). 140 Ohio St.3d CXIX.

2

The board’s report indicates that Reed owes Pierce $114.85. But the difference between the

amount awarded to Pierce by the arbitrator ($1,125) and the actual amount that Pierce received from

Reed ($1,011.85) is $113.15—not $114.85. Thus, it appears that the board slightly miscalculated

the outstanding restitution amount in Pierce’s case.

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January Term, 2016

victims of the misconduct, and a failure to make restitution. See Gov.Bar R.

V(13)(B)(1) through (5), (8), and (9). The board found no mitigating factors.

{¶ 11} Reed objects to these findings, arguing that there are factors that the

board should have considered in mitigation, rather than in aggravation, and

therefore his suspension should be stayed in its entirety. He argues that because he

entered into written stipulations with relator, he should be given mitigating credit

for cooperating in the disciplinary process. He similarly claims that he did not act

with a dishonest or selfish motive. Reed states that he is a solo practitioner and that

during the time period of his misconduct, he suffered from serious health

challenges. He acknowledges that a few cases “fell through the cracks,” but he

maintains that his misconduct was neither intentional nor motivated by dishonesty

or selfishness.

{¶ 12} We cannot conclude that the board erred in finding that Reed’s

failure to cooperate in the disciplinary process was an aggravating factor. Although

it is true that he ultimately stipulated to the charged misconduct, he initially failed

to respond to multiple letters of inquiry and he ignored a subpoena to appear for a

deposition. However, we agree with Reed that the record does not clearly and

convincingly demonstrate that he had a dishonest or selfish motive. Reed testified

that in 2012, pain in his hip made it difficult for him to work throughout the day,

which led to hip-replacement surgery in August 2012. Reed acknowledged that

during this time period, he was taking prescription painkillers, and although he did

not abuse the drugs, he had problems weaning himself off the medication.

Additionally, Reed testified that in early 2013, he sustained additional injuries from

an automobile accident. Reed conceded that these health problems and the

prescription medication may have affected his representation of clients.

Accordingly, despite the fact that Reed initially stipulated to the aggravating factor

of having a dishonest or selfish motive, we agree with Reed that the evidence

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ultimately presented did not clearly establish that aggravating factor. Reed’s

objections are otherwise overruled.

Applicable precedent

{¶ 13} To support its recommended sanction, the board cited Trumbull Cty.

Bar Assn. v. Large, 134 Ohio St.3d 172, 2012-Ohio-5482, 980 N.E.2d 1021, and

Toledo Bar Assn. v. Harvey, 141 Ohio St.3d 346, 2014-Ohio-3675, 24 N.E.3d 1106.

In both cases, the attorneys neglected multiple client matters and failed to fully

cooperate in the initial disciplinary investigation. Both cases also involved a

profusion of aggravating factors, including prior discipline, and no mitigating

factors. We suspended the attorneys for two years but stayed the final six months

on conditions, including that the attorneys make restitution to their former clients.

See Large at ¶ 4-5, 11-12, 16, 29, 38; Harvey at ¶ 10, 13-14, 18, 30, 37.

{¶ 14} We agree with the board that Large and Harvey are instructive to

this case. However, the attorneys’ misconduct in those cases was slightly more

varied than Reed’s. For example, in both Large and Harvey, the attorneys also

violated the rules regulating client trust accounts. See Large at ¶ 10, 16, 22; Harvey

at ¶ 18-22. Additionally, the attorney in Large engaged in dishonest conduct and

made a false statement to a court. See Large at ¶ 10, 23-28. And the attorney in

Harvey improperly communicated with a person that he knew was represented by

counsel in a matter. See Harvey at ¶ 28. The board did not find that Reed engaged

in any similar conduct, which suggests that a lesser sanction is warranted here.

Conclusion

{¶ 15} As we have often explained, “the goal of disciplinary proceedings is

not to punish the errant lawyer, but to protect the public.” Toledo Bar Assn. v.

Hales, 120 Ohio St.3d 340, 2008-Ohio-6201, 899 N.E.2d 130, ¶ 21. And “[w]hile

consistency is also a goal, ‘we examine each case individually and impose the

discipline we believe appropriate based on the unique circumstances of each case.’

” Id., quoting In re Disciplinary Action Against Ruffenach, 486 N.W.2d 387

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January Term, 2016

(Minn.1992). Here, the board recommends that we suspend Reed for two years but

stay the final six months of his suspension on the conditions that he complete a

contract with the Ohio Lawyers Assistance Program (“OLAP”) and make

restitution to all clients. We find, however, that reducing the time period of his

actual suspension, and instead requiring that he serve a period of monitored

probation upon his reinstatement, would best accomplish the goals of the

disciplinary system.

{¶ 16} Accordingly, Joseph Dues Reed is suspended from the practice of

law for two years with the final 18 months stayed on the conditions that he (1) make

restitution to Gravely, Pierce, and Smith, or, if applicable, the Lawyers’ Fund for

Client Protection, before the end of the stayed period of his suspension, (2) enter

into and comply with an OLAP contract, and (3) commit no further misconduct.

Upon reinstatement from his actual suspension, Reed shall serve 18 months of

monitored probation. If Reed fails to comply with the conditions of the stay, the

stay will be lifted and Reed will serve the entire two-year suspension. Costs are

taxed to Reed.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, and FRENCH, JJ.,

concur.

LANZINGER and O’NEILL, JJ., and would adopt the position of the board and

panel and impose a two-year suspension with six months stayed on conditions.

_________________

Jeffrey C. Rogers; Tyack, Blackmore & Liston Co., L.P.A., and James P.

Tyack; and Lori J. Brown, Bar Counsel, and A. Alysha Clous, Assistant Bar

Counsel, for relator.

Joseph Dues Reed, pro se.

_________________

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