Columbus Bar Association v. McNeal.

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

Columbus Bar Assn. v. McNeal, Slip Opinion No. 2017-Ohio-8775.]

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-8775

COLUMBUS BAR ASSOCIATION v. MCNEAL.

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

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

2017-Ohio-8775.]

Attorneys—Misconduct—Failure to act with reasonable diligence in representing

client―Failure to keep client reasonably informed about status of

matter―Failure to comply as soon as practicable with client’s reasonable

requests for information―One-year suspension from practice of law, fully

stayed on conditions.

(No. 2017-0491—Submitted June 7, 2017—Decided December 5, 2017.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the

Supreme Court, No. 2016-017.

_______________________

Per Curiam.

{¶ 1} Respondent, Earl Darren McNeal, of Columbus, Ohio, Attorney

Registration No. 0059218, was admitted to the practice of law in Ohio in 1992. In

SUPREME COURT OF OHIO

2012, we suspended him for one year for misconduct relating to a report from the

United States Air Force Office of Special Investigations. That report found that

while McNeal served in the Air Force Reserve Judge Advocate General Corps, he

submitted false pay forms and used his military LexisNexis account for reasons

related to his private law practice. Disciplinary Counsel v. McNeal, 131 Ohio St.3d

224, 2012-Ohio-785, 963 N.E.2d 815.

{¶ 2} In April 2016, relator, Columbus Bar Association, charged him with

committing professional misconduct in a client matter. McNeal stipulated to some,

but not all, of the charges against him. After a hearing, a three-member panel of

the Board of Professional Conduct found that he engaged in the stipulated

misconduct, dismissed the other allegations against him, and recommended that he

serve a conditionally stayed one-year suspension. The board issued a report

adopting the panel’s findings and recommended sanction, and neither party

objected to the board’s report.

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

misconduct and agree with its recommended sanction.

Misconduct

{¶ 4} McNeal is a general practitioner and represents clients in a range of

areas, including criminal defense, bankruptcy, domestic relations, and civil matters.

In August 2014, Warren Lanier Sr. and Gwendolyn Lanier retained McNeal to

investigate a water-drainage problem in their backyard, which the Laniers claimed

continued even after the builder of their home, Maronda Homes, Inc., made repairs

to the underground drainage system. The Laniers agreed to pay McNeal a $400

retainer over several installments, and he advised them that he would contact

Maronda Homes.

{¶ 5} About two or three weeks later, McNeal visited the Laniers at their

home, and in October 2014, he sent a letter to Maronda Homes informing them of

the Laniers’ drainage problem and requesting that someone contact him. Maronda

2

January Term, 2017

Homes, however, did not respond. McNeal did nothing further to investigate the

issue and had no contact with the Laniers until a February 2015 telephone call, in

which he advised Mr. Lanier that he was “still looking at Maronda Homes.”

Between March and May 2015, the Laniers called McNeal’s office, e-mailed his

assistant, wrote him letters, and visited his place of business, but he did not timely

respond to their requests for information about their matter.

{¶ 6} The Laniers filed a grievance against McNeal in June 2015, and

McNeal thereafter sent a second letter to Maronda Homes and met with the Laniers

twice at their house. However, he did not perform any further work for the Laniers

after September 2015.

{¶ 7} During the disciplinary proceedings, McNeal stipulated that although

he was aware that the Laniers had a home warranty and homeowners’ insurance,

he did not contact those companies or attempt to determine whether any repairs

would be covered under those policies. He further admitted that he never made

contact with anyone at Maronda Homes with authority to discuss the Laniers’

problem, he never confirmed who was actually responsible for the drainage issue,

and he never filed any complaint on the Laniers’ behalf. Prior to his disciplinary

hearing, he refunded the $400 retainer to the Laniers.

{¶ 8} Based on this conduct, McNeal stipulated and the board found that he

violated Prof.Cond.R. 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), and 1.4(a)(4) (requiring a lawyer to comply

as soon as practicable with reasonable requests for information from the client).

We agree with the board’s findings of misconduct.

Sanction

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

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

3

SUPREME COURT OF OHIO

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

imposed in similar cases.

Aggravating and mitigating factors

{¶ 10} The board found one aggravating factor—that McNeal has prior

disciplinary offenses. See Gov.Bar R. V(13)(B)(1). In mitigation, the board

determined that McNeal lacked a dishonest or selfish motive and that he provided

full and free disclosures to the board and had a cooperative attitude toward the

proceedings. See Gov.Bar R. V(13)(C)(2) and (4). In addition, the board observed

that he openly acknowledged the wrongful nature of his stipulated misconduct, he

appeared genuinely contrite and remorseful, and he charged the Laniers a fairly

small fee and made some attempts to assist them, although ineffectual. We also

note that he submitted several letters from attorneys and a judge attesting to his

character or reputation in the legal community. See Gov.Bar R. V(13)(C)(5).

Applicable precedent

{¶ 11} The board cited several cases to support its recommended sanction

of a conditionally stayed one-year suspension, including Columbus Bar Assn. v.

Reed, 145 Ohio St.3d 464, 2016-Ohio-834, 50 N.E.3d 516, Mahoning Cty. Bar

Assn. v. Hanni, 145 Ohio St.3d 492, 2016-Ohio-1174, 50 N.E.3d 542, and

Mahoning Cty. Bar Assn. v. Malvasi, 143 Ohio St.3d 140, 2015-Ohio-2361, 34

N.E.3d 916.

{¶ 12} In Reed, the attorney neglected two client matters and initially failed

to cooperate in the ensuing disciplinary investigations. He also refused to promptly

pay an arbitration award made against him in a bar association’s fee-dispute

program. We found no mitigating factors in the case, and aggravating factors

included prior discipline, failure to make restitution, and harm to his clients. Based

on these facts, we suspended the attorney for two years but stayed the final 18

months on conditions.

4

January Term, 2017

{¶ 13} In Hanni, the attorney neglected a child-custody matter by failing to

appear for three scheduled client meetings and by seeking to continue two hearings

without giving adequate notice to her clients or the court. When the attorney failed

to appear for the second hearing, the clients elected to proceed pro se rather than

delay the matter any further. We found several mitigating factors, including the

absence of a dishonest or selfish motive, cooperation in the disciplinary process,

payment of restitution, and evidence of good character. The only aggravating factor

was that we had previously disciplined the attorney for similar misconduct. We

suspended her for one year but stayed the suspension in its entirety on conditions.

{¶ 14} In Malvasi, a couple paid an attorney $2,500 to represent them in an

action against the seller of their home. But over the next 11 months, the attorney

failed to contact the potential defendants about a settlement or file a complaint, and

he had little contact with his clients. He also failed to deposit their funds in his

client trust account. We found no aggravating factors in the case, and mitigating

factors included lack of prior discipline, absence of a dishonest or selfish motive,

cooperation in the disciplinary process, and timely restitution. We sanctioned the

attorney with a conditionally stayed six-month suspension.

{¶ 15} McNeal’s misconduct here—neglect of one client matter—

resembles the misconduct in Malvasi and Hanni rather than the more egregious

and varied misconduct in Reed, which resulted in Reed’s actual suspension from

the practice of law. And similar to the circumstances in Hanni, McNeal has a prior

disciplinary record, but he also presented significant mitigating evidence that

outweighs the lone aggravating factor. Accordingly, we conclude that the board’s

recommended sanction is consistent with Hanni and the other cases cited by the

board and is the appropriate sanction in this case.

Conclusion

{¶ 16} Having considered McNeal’s misconduct, the applicable

aggravating and mitigating factors, and the sanctions imposed for similar

5

SUPREME COURT OF OHIO

misconduct, we adopt the board’s recommended sanction. Earl Darren McNeal is

suspended from the practice of law for one year, fully stayed on the conditions that

he (1) complete six hours of continuing legal education on law-office management

in each of the next three years, commencing with the date of this court’s disciplinary

order, (2) pay the costs of these proceedings, and (3) engage in no further

misconduct. If McNeal fails to comply with the conditions of the stay, the stay will

be lifted, and he will serve the full one-year suspension.

Judgment accordingly.

O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER, and DEWINE, JJ.,

concur.

O’CONNOR, C.J., dissents and would stay six months of respondent’s

suspension.

_________________

A. Alysha Clous and Lori Brown, Bar Counsel; Vicki L. Jenkins; and

Freund, Freeze & Arnold, L.P.A., and Jennifer L. Wilson, for relator.

Law Office of Philip A. King, L.L.C., and Philip A. King, for respondent.

_________________

6