Disciplinary Counsel v. Guinn

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

Disciplinary Counsel v. Guinn, Slip Opinion No. 2016-Ohio-3351.]

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-3351

DISCIPLINARY COUNSEL v. GUINN.

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

may be cited as Disciplinary Counsel v. Guinn, Slip Opinion No.

2016-Ohio-3351.]

Attorneys—Misconduct—Failure to provide competent representation, act with

reasonable diligence, and reasonably communicate with client—Charging

excessive fee—Engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation—Initiating proceeding that is unsupported by law and

fact—Engaging in conduct that is prejudicial to the administration of

justice—Two-year suspension, fully stayed on conditions.

(No. 2015-2013—Submitted January 27, 2016—Decided June 14, 2016.)

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

Court, No. 2015-018.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, Daniel Joseph Guinn of New Philadelphia, Ohio,

Attorney Registration No. 0084686, was admitted to the practice of law in Ohio in

2009. In March 2015, relator, disciplinary counsel, charged him with professional

misconduct for neglecting two client matters, misrepresenting the status of a case

to a client, filing a frivolous lawsuit, and failing to properly inform clients that he

lacked professional liability insurance. Guinn stipulated to the charges, and after a

hearing, the Board of Professional Conduct issued a report recommending that we

sanction him with a two-year suspension, stayed in its entirety on conditions.

Neither party has filed objections to the board’s report and recommendation.

{¶ 2} Based on our review of the record, we adopt the board’s findings and

recommended sanction.

Misconduct

Count one—Failing to timely file appellate briefs

{¶ 3} The board found that Guinn failed to timely file appellate briefs in

two cases in which he represented clients who had had their parental rights

terminated. In the first case, Guinn’s appellate brief was due on December 9, 2012.

Two days after missing the deadline, he requested an extension of time. On

December 17, the court of appeals denied his request but indicated that in the

interest of justice, it would consider a brief filed immediately. Guinn, however,

failed to immediately file a brief, and on January 8, 2013, the court of appeals

dismissed the appeal for lack of prosecution.

{¶ 4} Guinn later filed a motion for reconsideration with an appellate brief

attached, but the court denied his request, noting that Guinn had failed to offer any

explanation as to why a brief had not been timely filed. Months later, Guinn

informed his client that he had filed an appeal but that the court had dismissed it.

The client then obtained new counsel and was later able to reopen the appeal based

on an ineffective-assistance-of-counsel claim.

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January Term, 2016

{¶ 5} The second case of neglect occurred during the same relative time

period. After missing his deadline to file an appellate brief on December 16, 2012,

Guinn requested an extension of time. The court granted him until January 28,

2013, to file his brief but also indicated that no further extensions would be granted.

On the day of the deadline, Guinn filed a request to extend the page limit, which

the court denied. On February 12, Guinn moved for an extension of time, and he

filed his merit brief about a week later. The court, however, dismissed the appeal

due to Guinn’s failure to timely file the brief.

{¶ 6} Guinn then failed to inform this client, Nicole Betts, that her appeal

had been dismissed, and he also failed to refund the $1,000 retainer that he had

received from her. At his disciplinary hearing, Guinn testified that he had twice

attempted to send a refund check to Betts but that she had moved out of state and

had not yet negotiated the check.

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

Guinn 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 (requiring a lawyer to reasonably communicate with a

client), 1.5(a) (prohibiting a lawyer from making an agreement for, charging, or

collecting an illegal or clearly excessive fee), and 8.4(c) (prohibiting a lawyer from

engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). We

agree with these findings of misconduct.

Count two—Filing a frivolous lawsuit

{¶ 8} In 2012, Guinn represented a mother in a neglect, dependency, and

custody proceeding, and in that action, a case worker from Tuscarawas Job and

Family Services testified that Guinn’s client had permitted a registered sex offender

to live with the client’s child. Indeed, Guinn’s client had previously admitted and

stipulated to that fact. Nevertheless, Guinn, on behalf of his client, filed a

defamation complaint against the case worker, alleging that she had falsely testified

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in the prior proceeding. Guinn later dismissed the complaint and admitted that he

had filed it based only on his client’s representations and had failed to thoroughly

investigate the defamation allegations. Guinn also admitted that the filing of the

complaint was reckless.

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

Guinn violated Prof.Cond.R. 3.1 (prohibiting a lawyer from bringing a proceeding

that is unsupported by law and fact or that lacks a good-faith argument for an

extension, modification, or reversal of existing law) and 8.4(d) (prohibiting a

lawyer from engaging in conduct that is prejudicial to the administration of justice).

We agree.

Count three—Malpractice insurance

{¶ 10} Between December 28, 2010, and June 3, 2014, Guinn failed to

properly notify his clients that he lacked professional liability insurance.

Accordingly, the parties stipulated and the board found that he violated

Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client on a separate written

form that the lawyer does not maintain professional liability insurance and requiring

the client to sign the form). We agree with this finding of misconduct.

Sanction

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

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

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

Aggravating and mitigating factors

{¶ 12} The board found only one aggravating factor—that Guinn engaged

in a pattern of misconduct. See Gov.Bar R. V(13)(B)(3). In mitigation, the board

found that Guinn has no prior discipline, lacked a selfish motive, and made full and

free disclosures to the board and had a cooperative attitude toward the proceedings.

See Gov.Bar R. V(13)(C)(1), (2), and (4). The board noted that Guinn is

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January Term, 2016

undergoing treatment for depression and anxiety and that he has entered into a

three-year contract with the Ohio Lawyers Assistance Program (“OLAP”);

however, the board could not conclude that Guinn’s mental disorder qualified as a

mitigating factor, because Guinn had failed to submit the necessary medical

evidence under Gov.Bar R. V(13)(C)(7). The board also noted that Guinn appeared

remorseful, that he openly acknowledged that his actions were improper, and that

his testimony was “genuine.” We defer to the board’s credibility assessment of

Guinn, as the hearing panel’s members saw and heard the witness firsthand. See

Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d

35, ¶ 24.

Applicable precedent

{¶ 13} The board recommends that we impose a two-year suspension,

stayed on conditions, including that Guinn serve a period of monitored probation,

pay restitution to Betts, and comply with the treatment recommendations of his

counselor and OLAP. To support its proposed sanction, the board cited cases with

similar instances of neglect and misrepresentations to clients, including

Disciplinary Counsel v. Hilburn, 135 Ohio St.3d 1, 2012-Ohio-5528, 984 N.E.2d

940, and Disciplinary Counsel v. Pfundstein, 128 Ohio St.3d 61, 2010-Ohio-6150,

941 N.E.2d 1180.

{¶ 14} In Hilburn, the attorney failed to diligently represent clients in four

separate matters, made misrepresentations to her clients and to a court in one of

those matters, failed to obtain a client’s consent to dismiss a case, and failed to

cooperate in the ensuing disciplinary investigation. Hilburn at ¶ 4-23. In

mitigation, the attorney had no prior discipline, lacked a selfish motive, and

suffered from depression. Id. at ¶ 25-33. Weighing all these factors, we imposed

an 18-month suspension, with 12 months stayed on conditions, including that

Hilburn continue treatment for her mental disorder and serve a period of monitored

probation. Id. at ¶ 35-36.

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{¶ 15} In Pfundstein, an attorney neglected two matters for the same client

and made multiple misrepresentations about the status of those matters to his client.

Pfundstein at ¶ 6-13. In mitigation, the attorney had no prior discipline, fully

cooperated in the disciplinary process, displayed remorse, and suffered from

depression, which we found had contributed to his misconduct. Id. at ¶ 16-23. We

sanctioned the attorney with a 12-month suspension, stayed in its entirety on

conditions, including that he comply with his OLAP contract and serve a period of

monitored probation. Id. at ¶ 30.

{¶ 16} We have previously explained that “in determining the appropriate

length of the suspension and any attendant conditions, we must recognize that the

primary purpose of disciplinary sanctions is not to punish the offender, but to

protect the public.” Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-

Ohio-4704, 815 N.E.2d 286, ¶ 53. That purpose is served by accepting the board’s

recommended sanction in this case. Guinn has no prior discipline, he fully

cooperated in the disciplinary process, and he acknowledged his wrongdoing.

Although significant, his misconduct is not as egregious or as widespread as the

misconduct in Hilburn, and the totality of the circumstances here is more analogous

to Pfundstein. Accordingly, a fully stayed suspension, as in Pfundstein, is

appropriate. Further, the conditions of monitored probation and compliance with

his OLAP contract and his counselor’s treatment recommendations should allow

Guinn to practice law without posing a threat to the public. Thus, we agree with

the board that the length and attendant conditions in its recommended sanction are

consistent with supporting case law.

Conclusion

{¶ 17} Having considered Guinn’s ethical infractions, the aggravating and

mitigating factors, and the sanctions imposed in comparable cases, we adopt the

board’s recommended sanction. Daniel Joseph Guinn is hereby suspended from

the practice of law for two years, with the suspension stayed in its entirety on the

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January Term, 2016

conditions that he (1) serve a two-year period of monitored probation, (2) within 90

days of the court’s disciplinary order, pay restitution in the amount of $1,000 to

Nicole Betts, (3) extend the term of his OLAP contract to coincide with the term of

his monitored probation and follow all recommendations of his counselor and

OLAP, and (4) pay the costs of these proceedings. If Guinn fails to comply with

any condition of the stay, the stay will be lifted and he will serve the entire two-

year suspension.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

_________________

Scott J. Drexel, Disciplinary Counsel, and Dionne DeNunzio and Catherine

Russo, Assistant Disciplinary Counsel, for relator.

Daniel Joseph Guinn, pro se.

_________________

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