Disciplinary Counsel v. Peck

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

Disciplinary Counsel v. Peck, Slip Opinion No. 2017-Ohio-2961.]

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. 2017-OHIO-2961

DISCIPLINARY COUNSEL v. PECK.

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

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

2017-Ohio-2961.]

Attorneys—Misconduct—Failure to provide competent representation—Failure to

act with reasonable diligence—Six-month suspension, fully stayed on

conditions—Restitution ordered.

(No. 2016-1490—Submitted February 8, 2017—Decided May 30, 2017.)

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

Court, No. 2015-067.

_______________________

Per Curiam.

{¶ 1} Respondent, Gregory Lawrence Peck, of Oxford, Ohio, Attorney

Registration No. 0040211, was admitted to the practice of law in Ohio in 1988.

{¶ 2} On December 10, 2015, relator, disciplinary counsel, filed a

complaint with the Board of Professional Conduct, charging Peck with professional

SUPREME COURT OF OHIO

misconduct arising from his neglect of a client’s legal matter, which resulted in a

default judgment and the assessment of treble damages against the client.

{¶ 3} The parties entered into stipulations of fact, misconduct, and

aggravating and mitigating factors and jointly recommended that Peck be

suspended from the practice of law for six months, with the entire suspension

stayed. After hearing Peck’s testimony, a panel of the board adopted the parties’

stipulations and their recommended sanction. The board adopted the panel’s

findings and recommendation. We adopt the board’s report in its entirety and

suspend Peck from the practice of law for six months, fully stayed on the condition

that he engage in no further misconduct.

Misconduct

{¶ 4} On January 21, 2009, Ashley Needham filed a complaint in the

Middletown Municipal Court against We Sell Auto Sales (“We Sell”) alleging

breach of contract, negligence, fraud, and a violation of the Ohio Consumer Sales

Practices Act. Donald Jones, the owner of We Sell, asked Peck to represent him in

the case.

{¶ 5} Although Peck generally limited his practice to family law and

criminal defense, he had previously handled a similar civil matter and agreed to the

representation. He entered an appearance as counsel for We Sell, answered the

complaint out of time, and filed a motion to dismiss.

{¶ 6} Needham, however, twice amended the complaint—first to add her

grandfather, Charles Needham, as a plaintiff, and the second time to name Donald

Jones, d.b.a. We Sell, as a defendant. The second amended complaint was served

on Peck by e-mail and on Jones by certified mail, but Peck did not answer it.

Consequently, the Needhams moved for default judgment against Donald Jones,

d.b.a. We Sell. Peck failed to respond. Although Peck appeared at the hearing on

the default motion, the court granted the motion, finding that he had not presented

any evidence of excusable neglect or moved for leave to file an answer out of time.

2

January Term, 2017

The court issued a judgment in favor of the Needhams for $6,206.89 in

compensatory damages, trebled to $18,620.67 under the Consumer Sales Practices

Act, punitive damages of $6,206.89 on their fraud claim, attorney fees of $1,100,

and interest at the rate of 4 percent per annum. Peck did not appeal the trial court’s

decision, and the parties stipulate that the court issued a certificate of judgment for

$25,927.56.

{¶ 7} After Peck appeared at a judgment-debtor examination with Jones, the

Needhams garnished $6,054.26 from Jones’s financial accounts. Thereafter, Peck

moved the court to stay the judgment-enforcement proceedings until a Civ.R. 60(B)

hearing occurred. But neither Peck nor Jones appeared for the hearing on the

motion to stay. And because there was no Civ.R. 60(B) motion for relief from

judgment pending, the magistrate denied Peck’s request for a stay. Peck did not

file objections to the magistrate’s decision.

{¶ 8} Nearly a year after the court denied the request for a stay, Peck filed

a motion for relief from the default judgment under Civ.R. 60(B). The magistrate

denied the motion. The court overruled Peck’s objections to the magistrate’s

decision and affirmed the original default judgment in the Needhams’ favor.

{¶ 9} Peck appealed the denial of his Civ.R. 60(B) motion but then

attempted to challenge the court’s initial grant of the default judgment. The court

of appeals affirmed the judgment of the trial court, finding not only that Peck’s

appeal was untimely because the default judgment had been issued three years

earlier but that Peck had also waived any error in that judgment by failing to object

to the magistrate’s decision granting it. Needham v. Jones, 12th Dist. Butler No.

CA2012-07-135, 2013-Ohio-2965, ¶ 21-22.

{¶ 10} In addition to mishandling the representation, Peck failed to provide

Jones with information regarding his professional-liability-insurance carrier. At

the hearing, he testified that he thought he had malpractice insurance but that he

had missed the deadline to renew his policy and therefore lacked coverage.

3

SUPREME COURT OF OHIO

{¶ 11} The parties stipulated and the board agreed that Peck’s conduct

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

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

promptness in representing a client).

Sanction

{¶ 12} 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.

{¶ 13} The sole stipulated aggravating factor is that Peck caused his client

significant financial harm: Jones has had a default judgment imposed against him

for more than $25,000, he has had over $6,000 garnished from his bank accounts,

he has had a lien issued against his real property, and he has been unable to obtain

a loan. See Gov.Bar R. V(13)(B)(8). Stipulated mitigating factors include the

absence of a prior disciplinary record, the absence of a dishonest or selfish motive,

and a cooperative attitude toward the disciplinary proceedings. See Gov.Bar R.

V(13)(C)(1), (2), and (4).

{¶ 14} In weighing the appropriate sanction for Peck’s misconduct, the

board considered several cases in which we imposed sanctions ranging from a

public reprimand to a six-month actual suspension for similar misconduct. It found

the facts of Lorain Cty. Bar Assn. v. Nelson, 144 Ohio St.3d 414, 2015-Ohio-4337,

44 N.E.3d 268, and Cleveland Metro. Bar Assn. v. Dawson, 124 Ohio St.3d 22,

2009-Ohio-5959, 918 N.E.2d 519, to be most instructive.

{¶ 15} In Nelson, the attorney failed to consult with a client regarding the

status and management of the client’s personal-injury case. He filed a complaint

without the client’s knowledge, failed to conduct discovery on her behalf, and failed

to respond to the defendant’s discovery requests. Nelson ultimately dismissed the

lawsuit without the client’s knowledge or consent, failed to timely refile it, and

4

January Term, 2017

failed to advise the client that his malpractice insurance had lapsed. Thus, the client

lost not only the ability to pursue her personal-injury claim but also a source of

recovery for a malpractice action. Aggravating factors included Nelson’s initial

failure to cooperate in the disciplinary process and the harm to his client. But we

found that a public reprimand was the appropriate sanction because Nelson

accepted responsibility for his misconduct and did not (1) have prior discipline, (2)

act with a selfish motive, (3) engage in fraud, dishonesty, or self-dealing, (4) engage

in a pattern of neglect, or (5) profit from his misconduct. Nelson at ¶ 6-9.

{¶ 16} In Dawson, the attorney neglected an age-discrimination action filed

against two of his clients. Specifically, Dawson failed to respond to the plaintiff’s

discovery requests and motion for partial summary judgment. Consequently, the

court granted a default judgment against Dawson’s clients and awarded the plaintiff

more than $180,000 in damages. Dawson did not appeal that judgment, but the

parties later settled the case for $27,000. Dawson failed to inform the affected

clients that he did not carry professional-liability insurance, and after settling their

legal-malpractice claim for $22,000, he defaulted after paying just $5,500 and

ultimately discharged the obligation in bankruptcy.

{¶ 17} The sole aggravating factor in Dawson was a brief attorney-

registration suspension. Mitigating factors included the absence of a dishonest or

selfish motive and Dawson’s cooperation throughout the disciplinary proceedings.

But in light of the substantial default judgment entered against Dawson’s clients as

a result of his misconduct, and his failure to abide by the terms of the malpractice

settlement, we suspended Dawson from the practice of law for six months, with no

stay. Dawson, 124 Ohio St.3d 22, 2009-Ohio-5959, 918 N.E.2d 519, at ¶ 24-25.

{¶ 18} In this case, the board determined that Peck’s misconduct was more

egregious than Nelson’s because the client suffered an actual monetary loss, unlike

Nelson’s client, who lost the ability to pursue a legal claim that may or may not

have been successful. Because Peck did not have a prior suspension and had neither

5

SUPREME COURT OF OHIO

violated the terms of a malpractice settlement nor discharged his financial

obligation to his client in bankruptcy as Dawson had, the board found that Peck’s

conduct was less egregious than Dawson’s.

{¶ 19} Citing the measurable harm to Jones, the board recommends that we

adopt the parties’ stipulated sanction of a six-month suspension from the practice

of law, fully stayed.

{¶ 20} Having thoroughly reviewed the record, we adopt the board’s

findings of fact, misconduct, and aggravating and mitigating factors. In addition to

the cases cited by the board, we note that in Cuyahoga Cty. Bar Assn. v. Drain, 120

Ohio St.3d 288, 2008-Ohio-6141, 898 N.E.2d 580, ¶ 2, we imposed a six-month

suspension, fully stayed on conditions, on an attorney who neglected a single client

matter, intentionally prejudiced the client’s interests by repeatedly missing

established deadlines, missed the statute of limitations for refiling the client’s case,

and canceled his professional-liability insurance without warning the client.

Therefore, we agree that a six-month suspension, fully stayed on the condition that

Peck engage in no further misconduct, is the appropriate sanction in this case. We

note that the parties made no mention of restitution to Jones in their stipulations

and that the board concluded that no restitution was owed. However, we find that

restitution equal to the amount of the judgment entered against Jones, d.b.a. We

Sell, is necessary and appropriate in this case in light of Peck’s failure to answer

the second amended complaint, to respond to the motion for default judgment, and

to either move the court for leave to file an answer out of rule or present evidence

of excusable neglect during his appearance at the default hearing.

{¶ 21} Accordingly, Gregory Lawrence Peck is suspended from the practice

of law in Ohio for six months, with the entire suspension stayed on the conditions

that he make full restitution of $25,927.56, plus interest at the rate of four percent

per annum from May 17, 2010, to Donald Jones, d.b.a. We Sell Auto Sales, and

6

January Term, 2017

commit no further misconduct. If Peck violates the conditions, the stay will be

lifted and he will serve the entire suspension. Costs are taxed to Peck.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, FRENCH, O’NEILL, FISCHER, and

DEWINE, JJ., concur.

KENNEDY, J., not participating.

_________________

Scott J. Drexel, Disciplinary Counsel, and Michelle R. Bowman, Assistant

Disciplinary Counsel, for relator.

Gregory Lawrence Peck, pro se.

_________________

7