Toledo Bar Association v. Harvey

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

Toledo Bar Assn. v. Harvey, Slip Opinion No. 2017-Ohio-4022.]

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-4022

TOLEDO BAR ASSOCIATION v. HARVEY.

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

may be cited as Toledo Bar Assn. v. Harvey, Slip Opinion No.

2017-Ohio-4022.]

Attorneys—Misconduct—Violations of the professional-conduct rules, including

neglecting client matters, engaging in conduct that is prejudicial to the

administration of justice, failing to return unearned fees, and failing to

cooperate in disciplinary investigations—Permanent disbarment.

(No. 2015-0742—Submitted March 1, 2017—Decided May 31, 2017.)

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

Court, No. 2015-004.

__________________

Per Curiam.

{¶ 1} Respondent, Beauregard Maximillion Harvey, of Sylvania, Ohio,

Attorney Registration No. 0078717, was admitted to the practice of law in Ohio in

2005. This is Harvey’s third attorney-discipline case before this court, and the

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Board of Professional Conduct recommends that we indefinitely suspend him from

the practice of law. For the reasons explained below, we hold that permanent

disbarment is the only appropriate sanction.

Prior Discipline and Procedural Background

{¶ 2} In October 2012, we suspended Harvey for one year, but stayed the

suspension on conditions, upon finding that he had committed professional

misconduct—mostly neglect—in 12 bankruptcy matters and one small-claims

action. See Toledo Bar Assn. v. Harvey, 133 Ohio St.3d 228, 2012-Ohio-4545, 977

N.E.2d 628.

{¶ 3} Less than two years later, in September 2014, we found that he had

committed misconduct in connection with four client matters, including

incompetently handling and neglecting clients’ cases, failing to maintain records

for his client trust account, improperly communicating with an opposing party

despite knowing that the party was represented by counsel, failing to cooperate in

a disciplinary investigation, and refusing to pay a fee-dispute arbitration award of

$2,500, which resulted in a default judgment against him. Toledo Bar Assn. v.

Harvey, 141 Ohio St.3d 346, 2014-Ohio-3675, 24 N.E.3d 1106. Some of the

misconduct occurred during the period of his 2012 stayed suspension. We

suspended him for two years, with six months stayed on conditions, including that

he submit proof that he had paid the default judgment against him.

{¶ 4} Harvey, however, did not comply with our 2014 suspension order.

For example, he failed to properly notify his clients of his suspension. He also

failed to submit proof of payment of the default judgment. The suspension remains

in effect.

{¶ 5} In March 2015, relator filed an amended five-count complaint against

Harvey. After he failed to answer, we imposed an interim default suspension

pursuant to Gov.Bar R. V(14)(B)(1). 143 Ohio St.3d 1241, 2015-Ohio-2173, 37

N.E.3d 163. In November 2015, we found him in contempt because he had not

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timely complied with our default-suspension order. 144 Ohio St.3d 1401, 2015-

Ohio-4738, 41 N.E.3d 441. Harvey later moved for leave to answer relator’s

amended complaint. We granted his motion and remanded the case to the board,

although we kept his interim default suspension in place. 144 Ohio St.3d 1453,

2016-Ohio-99, 43 N.E.3d 461.

{¶ 6} On remand, relator filed a second amended complaint and Harvey

stipulated to the charges against him. After a hearing, the board issued a report

finding that Harvey had engaged in most of the charged misconduct and

recommending that we indefinitely suspend him and impose conditions on any

potential reinstatement. No one objected to board’s report and recommendation.

Misconduct

Counts one and three: Neglect and failure to cooperate in disciplinary

investigations

{¶ 7} Count one of relator’s complaint involved Harvey’s 2013 and 2014

representation of Darrah Okeke, a defendant in a civil suit. Specifically, Harvey

failed to respond to discovery requests and the plaintiff’s dispositive motions,

which resulted in a judgment against Okeke and the garnishment of her wages. At

a hearing on the plaintiff’s motions for sanctions and attorney fees—to which

Harvey had also failed to respond—Okeke testified that Harvey had never

discussed with her potential responses to the plaintiff’s discovery requests or

dispositive motions. Harvey also failed to respond to relator’s eventual inquiry

about the case and to cooperate in relator’s disciplinary investigation.

{¶ 8} Count three involved Harvey’s 2012 and 2013 representation of

Renee Foels, a plaintiff in a personal-injury case. After Harvey failed to appear for

three pretrial conferences and ignored discovery requests, the court dismissed

Foels’s case. But Harvey never informed Foels that he had failed to respond to the

discovery requests and to appear for conferences and that the court had dismissed

her case. He also failed to cooperate in relator’s ensuing disciplinary investigation.

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

each count that Harvey 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)(1) through (3) (requiring a lawyer to

reasonably communicate with a client), 1.4(b) (requiring a lawyer to explain a

matter to the extent reasonably necessary to permit the client to make an informed

decision), 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial

to the administration of justice), and 8.1(b) and Gov.Bar R. V(9)(G) (both requiring

an attorney to cooperate with a disciplinary investigation). We adopt these findings

of misconduct.

Count two: Neglect and failure to complete legal services

{¶ 10} Count two involved Harvey’s 2010 representation of Pamela Stahl,

who paid him two retainers of $1,000 each to file a motion in her domestic-relations

case. Although a portion of the second retainer constituted unearned fees paid in

advance, Harvey did not deposit the funds into his client trust account. More

importantly, he never filed the requested motion. Nor did he communicate that

information to his client, keep her apprised of the progress—or lack thereof—of

her case, or refund any portion of the $2,000 that she had paid him.

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

Harvey violated Prof.Cond.R. 1.1, 1.3, 1.4(a)(1) through (3), 1.4(b), 1.15(c)

(requiring a lawyer to deposit into a client trust account legal fees and expenses that

have been paid in advance), and 1.16 (e) (requiring a lawyer to promptly refund

any unearned fee upon the lawyer’s withdrawal from employment). We adopt the

board’s findings of misconduct.

Counts four and five: Failure to notify clients of his suspension and failure to

return advanced, unearned fees

{¶ 12} In count four, relator alleged that Michael Smith paid Harvey a $750

retainer in August 2014 to seek judicial release for his son. Harvey did not

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subsequently notify Smith that we suspended him from the practice of law the

following month. When Smith learned of the suspension, he sent Harvey text

messages demanding the return of his retainer, but Harvey refused to refund the

money.

{¶ 13} Similarly, in count five, relator alleged that Christopher Pacer paid

Harvey $400 in August 2014 for representation in a drunk-driving case. Harvey

did not notify Pacer when we subsequently suspended him. When Pacer appeared

in court for a September 2014 hearing, the court informed him of Harvey’s

suspension. Despite Pacer’s demand for a refund, Harvey refused to return any of

the advanced fee.

{¶ 14} The parties stipulated and the board found as to each count that

Harvey violated his 2014 suspension order (requiring him to, among other things,

notify all clients in pending matters of his suspension and refund any unearned fees

paid in advance), former Gov.Bar R. V(8)(E)(1)(a) (requiring a suspended lawyer

to notify all clients being represented in pending matters of his or her suspension),1

and Prof.Cond.R. 1.16(e). We adopt the board’s misconduct findings.

Sanction

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

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

aggravating and mitigating factors involved, and the sanctions imposed in similar

cases.

Aggravating and mitigating factors

{¶ 16} The board did not find that any of the mitigating factors listed in

Gov.Bar R. V(13)(C) were applicable in this case. As aggravating factors, the

board found that Harvey has a significant disciplinary record, he demonstrated a

1

Effective January 1, 2015, the provisions previously set forth in Gov.Bar R. V(8)(E)(1) are codified

in Gov.Bar R. V(22)(A)(1). 140 Ohio St.3d CXL.

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selfish motive by accepting money from clients but then failing to perform the

agreed-upon legal services, he demonstrated a pattern of misconduct, he committed

multiple offenses, he was initially unresponsive and uncooperative in the

disciplinary process, and his misconduct negatively impacted some of his clients.

See Gov.Bar R. V(13)(B)(1) through (5) and (8).

{¶ 17} We agree with the board’s findings here, and we also find that

Harvey’s failure to pay restitution constituted an additional aggravating factor. See

Gov.Bar R. V(13)(B)(9). The board acknowledged that at the time of his

disciplinary hearing, Harvey had not made restitution to some of the clients entitled

to reimbursement of unearned fees, despite the fact that he was then employed.

Applicable precedent

{¶ 18} To support its recommended sanction, the board cited several cases

in which we indefinitely suspended attorneys for similar misconduct. We find,

however, that the totality of the circumstances here favor a more severe sanction

than we imposed in the cases relied on by the board.

{¶ 19} For example, the board cited Columbus Bar Assn. v. Boggs, 129

Ohio St.3d 190, 2011-Ohio-2637, 951 N.E.2d 65, in which we indefinitely

suspended an attorney who—similar to Harvey—neglected multiple client matters,

failed to refund unearned fees, misused his client trust account, and had two prior

discipline cases. The attorney in Boggs, however, “made full disclosures to the

board” and “exhibited a cooperative attitude” toward the disciplinary proceedings.

Id. at ¶ 24. Harvey, in contrast, refused to cooperate in two disciplinary

investigations in this case, and he initially failed to answer relator’s complaint,

which led to an interim default suspension. In addition, the board described his

demeanor at his disciplinary hearing as “less than contrite” and his testimony as “at

times needlessly evasive and combative.” Most significantly, he did not comply

with our 2014 suspension order, and we cited him for contempt for violating our

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2015 interim default-suspension order. Unlike the attorney in Boggs, Harvey has

shown very little respect for our attorney-discipline process.

{¶ 20} The board also relied on Disciplinary Counsel v. Bogdanski, 135

Ohio St.3d 235, 2013-Ohio-398, 985 N.E.2d 1251, in which we indefinitely

suspended an attorney for serious misconduct that included incompetently handling

and neglecting client matters, refusing to make restitution to one client, and failing

to cooperate in a disciplinary investigation. Bogdanski, however, had no prior

discipline. Id. at ¶ 23. Harvey had three attorney-discipline cases filed against him

in less than four years. In his first case, we reduced the board’s recommended

sanction in light of significant mitigating evidence, including that Harvey had

purportedly made changes to his law practice to prevent similar misconduct in the

future. See Harvey, 133 Ohio St.3d 228, 2012-Ohio-4545, 977 N.E.2d 628, at ¶ 13,

19-20. We also ordered that as part of his conditionally stayed suspension, he

submit to monitored probation “with particular emphasis on oversight of Harvey’s

case-management system.” Id. at ¶ 19. Those remedial measures did not work.

Harvey continued to neglect his clients’ cases and commit other misconduct—even

during his stayed suspension—which ultimately supports a conclusion that he lacks

the ability to ethically represent clients.

{¶ 21} The board also cited Mahoning Cty. Bar Assn. v. DiMartino, 147

Ohio St.3d 345, 2016-Ohio-5665, 65 N.E.3d 737, in which we imposed a second

indefinite suspension on an attorney appearing before us for the fifth time and who

had neglected a client matter and had failed to cooperate in the subsequent

disciplinary investigation. In mitigation, however, the attorney in DiMartino made

restitution, submitted numerous character letters from local judges and attorneys,

and introduced evidence from his treating psychologist. The psychologist indicated

that DiMartino’s misconduct was directly related to mental disorders, that he had

made good progress since beginning treatment for those disorders, and that he

would be able to return to the ethical practice of law. Id. at ¶ 10. Harvey did not

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present any character evidence. Nor did he rectify the consequences of his

unprofessional conduct by making restitution. And although he testified that he

had been diagnosed with attention-deficit disorder, he failed to properly present the

necessary evidence linking his condition to his misconduct.

{¶ 22} The purpose of the attorney-discipline system is to protect the public

and allow us to ascertain a lawyer’s fitness to practice law. See Disciplinary

Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10.

We have held that “accepting legal fees and then failing to carry out the contract

for employment is tantamount to theft of client funds and is also cause for

disbarment, particularly when coupled with neglect, a history of misconduct, and

other disciplinary infractions.” Disciplinary Counsel v. Frazier, 110 Ohio St.3d

288, 2006-Ohio-4481, 853 N.E.2d 295, ¶ 54, citing Columbus Bar Assn. v.

Moushey, 104 Ohio St.3d 427, 2004-Ohio-6897, 819 N.E.2d 1112, ¶ 16; see also

Disciplinary Counsel v. Henry, 127 Ohio St.3d 398, 2010-Ohio-6206, 939 N.E.2d

1255, ¶ 33 (“the presumptive sanction for attorneys who accept retainers and then

fail to carry out contracts of employment is disbarment”).

{¶ 23} Here, Harvey failed to return unearned fees, which, as indicated in

Frazier and Henry, is tantamount to theft of client funds. He has a history of

misconduct, including a pattern of not simply neglecting clients but abandoning

them. And as the board found, he “has a history of not complying with orders of

the Supreme Court of Ohio and ignoring the requirements associated with the

disciplinary process.” Considering this grievous misconduct, our precedent, the

profusion of aggravating factors, and the absence of any mitigating factors, we hold

that he is not fit to practice law in Ohio and that disbarment is therefore the only

appropriate sanction.

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Conclusion

{¶ 24} For the reasons explained above, Beauregard Maximillion Harvey is

hereby permanently disbarred from the practice of law in Ohio. Costs are taxed to

Harvey.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEWINE, JJ., concur.

KENNEDY, FRENCH, and O’NEILL, JJ., dissent and would indefinitely

suspend the respondent and deny credit for time served under any other

suspensions.

_________________

Michael A. Bonfiglio, Bar Counsel; Marshall & Melhorn, L.L.C., and John

A. Borell Jr.; and Bunda, Stutz & DeWitt, P.L.L., and Joseph P. Dawson, for relator.

Beauregard Maximillion Harvey, pro se.

_________________

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