Disciplinary Counsel v. Bennett.

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

Disciplinary Counsel v. Bennett, Slip Opinion No. 2018-Ohio-3973.]

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. 2018-OHIO-3973

DISCIPLINARY COUNSEL v. BENNETT.

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

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

2018-Ohio-3973.]

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

including failing to provide competent representation to a client, failing to

keep a client reasonably informed about the status of a matter, and

engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation—One-year suspension.

(No. 2018-0252—Submitted April 10, 2018—Decided October 2, 2018.)

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

Court, No. 2016-065.

__________________

Per Curiam.

{¶ 1} Respondent, Clyde Bennett II, of Cincinnati, Ohio, Attorney

Registration No. 0059910, was admitted to the practice of law in Ohio in 1992.

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{¶ 2} On September 26, 2007, Bennett pleaded guilty to structuring

financial transactions to avoid federal reporting requirements for transfers in excess

of $10,000. Consequently, we suspended his license to practice law on an interim

basis on February 15, 2008. In re Bennett, 117 Ohio St.3d 1401, 2008-Ohio-594,

881 N.E.2d 270. On February 4, 2010, we indefinitely suspended him from the

practice of law with credit for time served for the conduct underlying his criminal

conviction and we reinstated him to the practice of law on April 29, 2011.

Disciplinary Counsel v. Bennett, 124 Ohio St.3d 314, 2010-Ohio-313, 921 N.E.2d

1064, reinstatement granted, 128 Ohio St.3d 1220, 2011-Ohio-2248, 946 N.E.2d

757.

{¶ 3} In a complaint certified to the Board of Professional Conduct on

December 6, 2016, relator, disciplinary counsel, charged Bennett with multiple

ethical violations arising out of his representation of a single client. Based on the

parties’ stipulations and evidence adduced at a hearing, a panel of the board issued

a report finding that Bennett violated four professional conduct rules and

recommending that three other alleged violations be dismissed and that Bennett be

suspended from the practice of law for six months. The board adopted the panel’s

report in its entirety, and no objections have been filed.

{¶ 4} We adopt the board’s findings of fact and misconduct, but find that

the appropriate sanction for Bennett’s misconduct is a one-year suspension from

the practice of law.

Misconduct

{¶ 5} On January 17, 2014, John Kelley was convicted of two counts of

attempted murder and four counts of felonious assault and sentenced to 25 years in

prison. The First District Court of Appeals affirmed Kelley’s conviction on

December 19, 2014, and he had 45 days—until February 2, 2015—to perfect his

appeal to this court. See S.Ct.Prac.R. 7.01(A).

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January Term, 2018

{¶ 6} In January 2015, Kelley’s mother asked Bennett to represent him in

that appeal. Bennett agreed to undertake the representation for a flat fee of $5,000,

but he did not reduce the agreement to writing and failed to effectively

communicate that he did not intend to begin work until the entire flat fee had been

paid. Kelley’s mother paid Bennett $2,500 on January 12, 2015. Treating the fee

as a flat fee earned upon receipt, Bennett deposited the money into his operating

account without simultaneously advising Kelley’s family of the possibility of a

refund.

{¶ 7} Bennett claimed that he had been under the mistaken belief that his

representation did not commence until the client paid the agreed retainer in full, he

filed a notice of appearance in a case, or he otherwise conducted some public legal

matter on behalf of the client. Although he began to do some preliminary work on

Kelley’s case after receiving half of the agreed retainer, he did not consider that

work to have commenced the representation.

{¶ 8} Bennett’s stated legal strategy was to pursue Kelley’s state remedies

before filing a petition for habeas corpus in federal court. But Bennett did not have

an adequate understanding of the legal requirement that prisoners exhaust all state

court remedies before raising claims in a federal habeas corpus proceeding.

Believing that a direct appeal to this court would be unsuccessful, and recognizing

that Kelley’s principal arguments required evidence outside the record, Bennett

determined that a petition for postconviction relief in state court followed by a

federal habeas petition was a better course of action. He therefore elected not to

file a timely direct appeal to this court. However, he failed to inform Kelley of that

fact during a meeting between the two men shortly after the February 2, 2015 filing

deadline had passed. Eventually, after receiving an additional $1,000 toward the

retainer—including a $500 payment from Kelley on February 3, 2015—Bennett

decided that he had received enough money to enter an appearance and undertake

the representation.

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{¶ 9} On March 3, 2015, Bennett filed a perfunctory one-page motion for

delayed appeal in this court. His affidavit in support of that motion stated:

The Defendant did not file for an appeal on time because counsel

for Defendant was not retained until several days after the

expiration of the 45 day time period. Counsel immediately filed

the instant Motion for Delayed Appeal. Defendant’s family

could not procure funds to retain counsel until after the

expiration of the 45 day time period.

{¶ 10} Bennett has acknowledged that his affidavit intentionally omitted

relevant information and is misleading. Specifically, Bennett admitted that the

omissions were significant and designed to mislead a court considering a

subsequent habeas petition into believing that “a good faith attempt was made to

avail Mr. Kelley of his state remedies.” In his testimony before the board, Bennett

maintained that he had no expectation that the motion would be granted because it

was a pro forma filing intended only to exhaust Kelley’s state court remedies before

filing a petition to vacate Kelley’s sentence in the state trial court. He did not send

a copy of the motion to Kelley or his family, nor did he disclose his purported

litigation strategy to them.

{¶ 11} Kelley’s mother made two additional $500 payments to Bennett on

April 6 and May 4, 2015. And we denied Bennett’s motion for delayed appeal on

April 29, 2015. The following week, Bennett wrote to Kelley and stated:

Unfortunately, the Ohio Supreme Court denied our request for

a delayed appeal. This concludes my representation of you.

However, your next legal procedure is a federal habeas petition. I will

do [sic] same if your mother and/or family continues to make

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January Term, 2018

payments. The habeas petition must demonstrate that you

experienced a constitutional deprivation.

Please write back as soon as possible.

Bennett received no response and made several unsuccessful attempts to contact

Kelley’s family. But he ceased all communications after receiving Kelley’s

grievance in August 2015.

{¶ 13} Kelley retained new counsel who alleged that Bennett’s ineffective

assistance of counsel constituted good cause for the filing of Kelley’s second

motion for delayed appeal, but we denied that motion. The United States District

Court for the Southern District of Ohio, Western Division, later found that

Bennett’s deficiencies in performance excused Kelley’s failure to timely appeal his

conviction to this court, but nonetheless dismissed his habeas petition on other

grounds.

{¶ 14} The board found that the above-described conduct violated

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

client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about

the status of a matter), 1.5(d)(3) (prohibiting a lawyer from charging a fee

denominated as “earned upon receipt,” “nonrefundable,” or in any similar terms

without simultaneously advising the client in writing that the client may be entitled

to a refund of all or part of the fee if the lawyer does not complete the

representation), and 8.4(c) (prohibiting a lawyer from engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation). The parties jointly

requested that four other alleged violations be dismissed, and the board agreed.

{¶ 15} Based on the foregoing, we agree that Bennett’s conduct violated

Prof.Cond.R. 1.1, 1.4(a)(3), 1.5(d)(3), and 8.4(c) and hereby dismiss the remaining

allegations of relator’s complaint.

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Sanction

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

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.

{¶ 17} The parties stipulated and the board found that the relevant

aggravating factors include Bennett’s prior indefinite suspension from the practice

of law for conduct involving dishonesty, fraud, deceit, or misrepresentation, his

commission of multiple offenses, and the fact that his misconduct involved a

vulnerable criminal defendant. See Gov.Bar R. V(13)(1), (4), and (8).

{¶ 18} The board deemed Bennett’s misrepresentations to be “a most

serious offense” and noted that it had no way of knowing whether this court would

have exercised jurisdiction over Kelley’s direct appeal had it been timely filed. It

also found that despite Bennett’s arguments to the contrary, his misconduct caused

harm to his client by depriving him of the opportunity to directly appeal his

conviction and sentence, leaving him to retain new counsel and creating additional

procedural hurdles in his quest for federal habeas relief.

{¶ 19} Moreover, the board could not reconcile Bennett’s testimony

regarding his litigation strategy with his actions. He testified that he intended to

file a delayed appeal followed by a petition for postconviction relief on Kelley’s

behalf. Yet he received payments totaling $4,500, filed a single-page motion for

delayed appeal with a one-page supporting affidavit, and then told his client that

his representation was complete—without even mentioning the possibility of filing

a petition for post-conviction relief in state court.

{¶ 20} Mitigating factors include Bennett’s cooperative attitude toward the

disciplinary proceedings and strong evidence of his character and reputation from

a significant number of lawyers and judges, though few of those letters suggest that

their authors have specific knowledge of the misconduct alleged in this case. See

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January Term, 2018

Gov.Bar R. V(13)(C)(4) and (5). The board also attributed mitigating effect to

Bennett’s payment of $4,500 in full restitution to Kelley’s family, see Gov.Bar R.

V(13)(C)(3), the fact that his misconduct did not procedurally bar his client’s

federal habeas action, his sincere and contrite appearance during his hearing

testimony, and his acceptance of responsibility for his misconduct.

{¶ 21} The board recommends that the appropriate sanction for Bennett’s

misconduct is a six-month suspension from the practice of law. In support of that

sanction, the board cites six cases in which we have imposed one-year suspensions

with six months stayed on conditions on attorneys who, like Bennett, made false or

misleading statements to a court. See Disciplinary Counsel v. Schuman, 152 Ohio

St.3d 47, 2017-Ohio-8800, 92 N.E.3d 850; Disciplinary Counsel v. Shaffer, 98

Ohio St.3d 342, 2003-Ohio-1008, 785 N.E.2d 429; Toledo Bar Assn. v. Miller, 132

Ohio St.3d 63, 2012-Ohio-1880, 969 N.E.2d 239; Disciplinary Counsel v. Rohrer,

124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180; Toledo Bar Assn. v.

DeMarco, 144 Ohio St.3d 248, 2015-Ohio-4549, 41 N.E.3d 1237; and Warren Cty.

Bar Assn. v. Vardiman, 146 Ohio St.3d 23, 2016-Ohio-352, 51 N.E.3d 587.

{¶ 22} While each of those attorneys engaged in conduct similar to

Bennett’s, we find that just one of them had prior discipline—for a brief attorney-

registration suspension—and none of them had committed prior offenses involving

dishonesty, fraud, deceit, or misrepresentation, as Bennett has. Vardiman at ¶ 13.

{¶ 23} We have recognized that the primary purpose of a disciplinary

sanction is not to punish the offender, but to protect the public by demonstrating

that this type of conduct will not be tolerated. See, e.g., Schuman at ¶ 17. But we

have also acknowledged:

If a prior attempt at discipline has been ineffective to provide the

protection intended for the public, then such further safeguards

should be imposed as will either tend to effect the reformation of the

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offender or remove him entirely from the practice. The discipline

for a repeated offense may be much greater than would have been

imposed were it a first offense, yet such greater discipline is not a

meting out of further punishment for prior acts but is a determination

of the attorney’s fitness to practice.

In re Disbarment of Lieberman, 163 Ohio St. 35, 41, 125 N.E.2d 328 (1955); see

also Disciplinary Counsel v. Dann, 134 Ohio St.3d 68, 2012-Ohio-5337, 979

N.E.2d 1263, ¶ 20.

{¶ 24} Here, Bennett has a prior indefinite suspension for engaging in

dishonest conduct that also resulted in a felony conviction and a two-year prison

term, and he has gone on to engage in additional dishonesty and misrepresentation

just four years after being reinstated to the practice of law. Therefore, we conclude

that this misconduct warrants a greater sanction than the six-month suspension

recommended by the board or the one-year suspensions with six months stayed on

conditions that we imposed in the cases relied upon by the board.

{¶ 25} Accordingly, Clyde Bennett II is suspended from the practice of law

in Ohio for one year. Costs are taxed to Bennett.

Judgment accordingly.

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

KENNEDY, FRENCH, and DEWINE, JJ., dissent and would suspend the

respondent from the practice of law for six months.

_________________

Scott J. Drexel, Disciplinary Counsel, and Donald M. Sheetz, Assistant

Disciplinary Counsel, for relator.

Montgomery, Rennie, and Jonson, L.P.A., George D. Jonson, and Lisa M.

Zaring, for respondent.

_________________

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