Dayton Bar Association v. Scaccia

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

Dayton Bar Assn. v. Scaccia, Slip Opinion No. 2016-Ohio-3299.]

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-3299

DAYTON BAR ASSOCIATION v. SCACCIA.

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

may be cited as Dayton Bar Assn. v. Scaccia, Slip Opinion No.

2016-Ohio-3299.]

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

violate second clause of Prof.Cond.R. 3.4(d), an attorney must

“intentionally or habitually * * * fail to make reasonably diligent effort to

comply with a legally proper discovery request by an opposing party”—18-

month suspension with six months stayed on conditions.

(No. 2015-1628—Submitted January 6, 2016—Decided June 8, 2016.)

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

Court, No. 2015-006.

__________________

Per Curiam.

{¶ 1} Respondent, John Joseph Scaccia, of Dayton, Ohio, Attorney

Registration No. 022217, was admitted to the practice of law in Ohio in 1983.

SUPREME COURT OF OHIO

{¶ 2} This is the third disciplinary case that we have decided against Scaccia

over the past two years. On October 2, 2014, we found that he had failed to

competently manage a case, charged an improper nonrefundable fee, and failed to

properly deposit funds into and maintain records for his client trust account.

Dayton Bar Assn. v. Scaccia, 141 Ohio St.3d 35, 2014-Ohio-4278, 21 N.E.3d 290.

We suspended his license for one year with six months stayed but conditioned his

reinstatement on the payment of restitution to a number of former clients. Id. at

¶ 38. On January 6, 2016, during oral argument in the present matter, Scaccia’s

counsel indicated that Scaccia had not yet completed making restitution to his

former clients. Therefore, his first suspension remains in effect.

{¶ 3} While the first disciplinary case was pending, relator, Dayton Bar

Association, filed another complaint charging Scaccia with professional

misconduct in two different client matters. On June 25, 2015, we found that he had

again violated the rules regulating client trust accounts and that he had also failed

to properly prepare a closing statement in a contingent-fee case and failed to

properly communicate the scope of his representation to a client. Dayton Bar Assn.

v. Scaccia, 143 Ohio St.3d 144, 2015-Ohio-2487, 34 N.E.3d 919. Based on that

misconduct, we sanctioned him with another one-year suspension, with six months

stayed on conditions. However, we allowed his suspension to run concurrently with

the sanction that we imposed in his first case. Id. at ¶ 17-18.

{¶ 4} In January 2015, relator filed the current complaint, charging Scaccia

with professional misconduct in 2012 and 2013 in connection with a single client’s

case. Scaccia denied the allegations against him, and the matter proceeded to a

contested hearing before a three-member panel of the Board of Professional

Conduct. The board found that he had violated the Rules of Professional Conduct

and recommended that we suspend him for an additional 18 months, with the final

six months stayed on conditions. Scaccia objects to the board’s findings of

2

January Term, 2016

misconduct and the recommended sanction, arguing that any new suspension

should run concurrently with his previous suspension.

{¶ 5} Based upon our independent review of the record, we overrule

Scaccia’s objections and accept the board’s findings of misconduct and

recommended sanction.

Misconduct

{¶ 6} In June 2012, Scaccia filed an administrative appeal in the Van Wert

County Court of Common Pleas on behalf of a client who had been denied certain

workers’ compensation benefits by the Industrial Commission. According to

Scaccia, he thereafter had difficulty connecting with his client. Regardless, it

cannot be disputed that Scaccia failed to timely respond to discovery requests from

the defendant, V.H. Cooper & Co., Inc. (“Cooper”), or to respond to Cooper’s

ensuing motion to compel and for sanctions. Nor did Scaccia appear for a

September 20, 2012 hearing on Cooper’s motion to compel, although Scaccia

claims that he had not received timely notice of the hearing. The common pleas

court ordered that Scaccia respond to Cooper’s discovery requests within five days

or face dismissal of the complaint. The judge also ordered that Scaccia or his client

pay sanctions in the amount of $2,669.04 by October 15, 2012, to reimburse Cooper

for its expenses in having to bring the motion to compel.

{¶ 7} Scaccia sent Cooper’s counsel several e-mails attempting to respond

to her discovery requests. The common pleas court later found, however, that the

responses were incomplete and therefore dismissed the case with prejudice for

failure to comply with the court’s discovery deadline. Scaccia appealed, but the

court of appeals dismissed the appeal as not timely filed.

{¶ 8} Scaccia also failed to pay the court-ordered sanctions by the October

2012 deadline. In March 2013, Scaccia and Cooper’s counsel agreed to a payment

plan, but after rendering two late checks, Scaccia stopped making the scheduled

payments. In May 2013, on the day of a scheduled show-cause hearing, Scaccia

3

SUPREME COURT OF OHIO

sent Cooper’s counsel a check for the remaining amount owed, and the judge

therefore continued the hearing. The check, however, was later dishonored for

insufficient funds. In June 2013, Scaccia finally sent Cooper a certified bank check

for the remaining sanctions award—eight months after his initial deadline.

{¶ 9} Consequently, Cooper filed a motion for additional fees and expenses

incurred to secure the original sanctions award. In September 2013, the common

pleas court found that Scaccia’s dilatory conduct in the case had harmed Cooper

and therefore ordered him to pay $5,980 in additional attorney fees. Scaccia

appealed, but the appeal was dismissed because Scaccia had misidentified the

appellant as his client rather than himself in the caption of his notice of appeal. At

the time of his disciplinary hearing, Scaccia had not paid any amount of the court-

ordered judgment against him.

{¶ 10} Based on this conduct, the board found that Scaccia 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), 3.4(c) (prohibiting a lawyer from knowingly disobeying an obligation under

the rules of a tribunal), and 3.4(d) (prohibiting a lawyer, in a pretrial procedure,

from intentionally or habitually failing to make reasonably diligent effort to comply

with a legally proper discovery request by an opposing party).

{¶ 11} Scaccia objects to the board’s findings that he violated Prof.Cond.R.

3.4(c) and 3.4(d).

Scaccia’s objection to the Prof.Cond.R. 3.4(c) violation

{¶ 12} As noted above, Prof.Cond.R. 3.4(c) prohibits an attorney from

knowingly disobeying an obligation under a court’s rules. To support its finding

of a Prof.Cond.R. 3.4(c) violation, the board cited two cases involving that rule:

Akron Bar Assn. v. Shenise, 143 Ohio St.3d 134, 2015-Ohio-1548, 34 N.E.3d 910,

in which an attorney consciously ignored an order to appear at a client’s contempt

hearing, and Disciplinary Counsel v. Stafford, 128 Ohio St.3d 446, 2011-Ohio-

4

January Term, 2016

1484, 946 N.E.2d 193, in which an attorney engaged in evasive conduct during the

discovery process.

{¶ 13} In his objections, Scaccia argues that unlike the attorneys in Shenise

or Stafford, he did not consciously ignore a hearing or make misrepresentations to

opposing counsel during discovery, and he therefore asserts that the Prof.Cond.R.

3.4(c) violation “should be set aside.” But the mere fact that Scaccia’s conduct was

not identical to the misconduct in Shenise or Stafford does not mean that he did not

violate Prof.Cond.R. 3.4(c). The board specifically determined that Scaccia

violated the rule by knowingly (1) failing to comply with the trial court’s deadline

to respond to discovery, (2) failing for eight months to comply with the court order

to pay Cooper $2,669.04 in attorney fees, and (3) continuing to fail to pay the court-

ordered sanction of $5,980 in additional attorney fees. Because there is clear and

convincing evidence supporting the board’s finding that Scaccia knowingly

disobeyed three court orders, we overrule his objection to the board’s finding of a

Prof.Cond.R. 3.4(c) violation.

Scaccia’s objection to the Prof.Cond.R. 3.4(d) violation

{¶ 14} Prof.Cond.R. 3.4(d) provides that an attorney “shall not * * * in

pretrial procedure, intentionally or habitually make a frivolous motion or discovery

request or fail to make reasonably diligent effort to comply with a legally proper

discovery request by an opposing party.” Because this court has not yet had the

opportunity to apply or interpret Prof.Cond.R. 3.4(d), the board could not decide

whether the “intentionally or habitually” language in the rule applied only to the

first clause or to both clauses—that is, both to the prohibition against making a

frivolous motion or discovery request (the first clause) and to the prohibition

against failing to make a reasonably diligent effort to comply with a discovery

request (the second clause). The “intentionally or habitually” language has never

been included in Model Rule 3.4(d) of the American Bar Association’s Model

Rules of Professional Conduct, which means that this court added the language

5

SUPREME COURT OF OHIO

when it adopted the Ohio Rules of Professional Conduct in 2007. See American

Bar Association, Annotated Model Rules of Professional Conduct, Rule 3.4, at 321

(6th Ed.2007). As the board noted, this language may have been added to recognize

that enforcement of discovery rules should be left to the trial court and that only

intentional or repeated failures to comply with legally proper discovery requests

should rise to the level of a Prof.Cond.R. 3.4(d) violation.

{¶ 15} Assuming that an attorney must act “intentionally or habitually” to

violate the second clause in Prof.Cond.R. 3.4(d), the board came to the “firm

conclusion” that Scaccia’s failure to comply with Cooper’s discovery requests—

including his deliberately ignoring Cooper’s motion to compel and failing to come

close to complying with the trial court’s discovery order—amounted to intentional

conduct. Scaccia objects to any finding that he “intentionally” disregarded the

discovery process, noting that he attempted to comply, albeit late and incompletely,

with the court’s discovery deadline.

{¶ 16} We find that because “intentionally and habitually” precedes both

verb clauses in the rule, the words serve to modify each clause separately and not

just the first clause. Therefore, to violate the second clause of Prof.Cond.R. 3.4(d),

an attorney must “intentionally or habitually * * * fail to make reasonably diligent

effort to comply with a legally proper discovery request by an opposing party.” We

also defer to the board’s conclusion that Scaccia’s failure to comply with Cooper’s

discovery was deliberate. The hearing panel was in the best position to assess the

credibility of the witnesses and determine whether Scaccia’s conduct was

intentional. “[W]e typically defer to factual findings of the panel and board unless

the record weighs heavily against those determinations.” Cleveland Metro. Bar

Assn. v. Gruttadaurio, 136 Ohio St.3d 283, 2013-Ohio-3662, 995 N.E.2d 190, ¶ 31.

Here, Scaccia has not established that the record weighs heavily in his favor, and

we therefore overrule this objection.

6

January Term, 2016

{¶ 17} Accordingly, having determined that Scaccia’s objections to the

board’s misconduct findings are meritless, we adopt the board’s recommended rule

violations. We also adopt the board’s recommendation to dismiss the remaining

charged violations asserted in relator’s complaint.

Sanction

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

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

aggravating and mitigating factors, and the sanctions imposed in similar cases. See

Gov.Bar R. V(13)(A).

Aggravating and mitigating factors

{¶ 19} The board found the following aggravating factors: Scaccia has

prior discipline, he committed multiple offenses, he refused to acknowledge the

wrongful nature of his conduct, his misconduct harmed his client and the opposing

party, and he has not yet paid the court-ordered sanction of $5,980. See Gov.Bar

R. V(13)(B)(1), (4), (7), (8), and (9). In mitigation, the board found that Scaccia

lacked a dishonest or selfish motive, he had a cooperative attitude toward the board

proceedings, he submitted evidence of good character and reputation, and other

sanctions have already been imposed for some of his misconduct. See Gov.Bar R.

V(13)(C)(2), (4), (5), and (6).

{¶ 20} Scaccia objects to the board’s refusal to give him mitigating credit

for family and personal-health issues that he claims he experienced at the time of

his misconduct, including an alleged vitamin-D deficiency that led to

absentmindedness. The board found that it could not recognize Scaccia’s health as

a significant mitigating factor because he had failed to present any medical

evidence supporting his own testimony on the subject. In his objections, Scaccia

claims that the board set an “unrealistic and unattainable standard” to establish

mitigation evidence and that his own testimony about his health condition should

have been sufficient.

7

SUPREME COURT OF OHIO

{¶ 21} We disagree. Gov.Bar R. V(13)(C)(7) provides that a disorder may

be a mitigating factor when there has been all of the following: a diagnosis by a

qualified health-care professional, a determination that the disorder contributed to

the cause of the misconduct, a certification of successful completion of an approved

treatment program, and a prognosis from a qualified health-care professional that

the attorney will be able to return to the competent, ethical practice of law. Contrary

to Scaccia’s argument, the board did not set an “unrealistic or unattainable”

standard by merely requiring him to set forth the necessary medical evidence

required by Gov.Bar R. V(13)(C)(7). Accordingly, we overrule this objection.

Applicable precedent

{¶ 22} The board recommends that we suspend Scaccia for 18 months, with

the final six months stayed on conditions, including that he pay the outstanding

court judgment against him. To support its recommendation, the board cited Akron

Bar Assn. v. DeLoach, 143 Ohio St.3d 39, 2015-Ohio-494, 34 N.E.3d 88, and Ohio

State Bar Assn. v. Trivers, 134 Ohio St.3d 139, 2012-Ohio-5389, 980 N.E.2d 992.

{¶ 23} In DeLoach, the attorney had failed to diligently represent a client,

failed to promptly return the unearned portion of that client’s retainer, and failed to

deposit that client’s retainer in her client trust account. In aggravation, we noted

that the attorney had been disciplined on two prior occasions over a relatively short

period of time and that she had failed to make timely restitution. Id. at ¶ 1, 12. In

Trivers, the attorney had failed to competently and diligently represent a client,

disregarded a court order to disgorge attorney fees, and failed to file required

documents in numerous bankruptcy proceedings. In aggravation, the attorney had

prior discipline, and the panel noted that he had placed a majority of the blame for

his wrongdoing on others rather than his own carelessness. Id. at ¶ 17-19. In both

DeLoach and Trivers, we suspended the attorneys for two years, with one year

stayed on conditions. DeLoach at ¶ 20; Trivers at ¶ 22.

8

January Term, 2016

{¶ 24} Scaccia argues that the board’s recommended sanction is too severe

for his misconduct in this case and that the more analogous precedent is Toledo Bar

Assn. v. Royer, 133 Ohio St.3d 545, 2012-Ohio-5147, 979 N.E.2d 329. In Royer,

the attorney had neglected multiple matters for a single client and failed to deposit

a client’s retainer into and maintain records for his client trust account. We noted

that the attorney’s misconduct appeared to be the result of bad time management

and recordkeeping, and we therefore imposed a one-year suspension, fully stayed

on conditions. Id. at ¶ 15. Scaccia suggests that the same rationale should apply

here and that he should not serve another actual suspension.

{¶ 25} We find, however, that DeLoach and Trivers are more applicable to

Scaccia’s circumstances than is Royer. The attorney in Royer had no prior

discipline and had made restitution to his former clients. Royer at ¶ 12. But

Scaccia—similar to the attorney in DeLoach—has been twice disciplined by this

court and has not completed timely restitution (in this case or his first disciplinary

case). And similar to the attorney in Trivers, Scaccia disregarded a court’s orders

and has refused to acknowledge the wrongful nature of his misconduct. Thus,

although the misconduct in DeLoach and Trivers was more widespread than

Scaccia’s misconduct in this case, we agree with the board that based on the

relevant misconduct and aggravating factors, DeLoach and Trivers are instructive.

Conclusion

{¶ 26} Having considered the ethical duties violated, the mitigating and

aggravating factors, and the sanctions imposed in comparable cases, we overrule

Scaccia’s objections and accept the board’s recommended sanction. Accordingly,

John Joseph Scaccia is hereby suspended from the practice of law for 18 months,

with the final six months stayed on the conditions that he (1) pay V.H. Cooper &

Co., Inc., $5,980 plus interest at the statutory rate from September 27, 2013, as

ordered in the September 27, 2013 judgment of the Van Wert County Court of

Common Pleas and (2) engage in no further misconduct. Costs are taxed to Scaccia.

9

SUPREME COURT OF OHIO

Judgment accordingly.

PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.

O’CONNOR, C.J., and O’DONNELL and LANZINGER, JJ., dissent, and would

not stay any portion of the 18-month suspension imposed on respondent and would

order that the suspension be served consecutively to respondent’s suspensions in

other cases.

_________________

Brian D. Weaver, for relator.

Beiser, Greer & Landis, L.L.P., and David P. Williamson, for respondent.

_________________

10