The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Delay, Slip Opinion No. 2019-Ohio-2955.]
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. 2019-OHIO-2955
DISCIPLINARY COUNSEL v. DELAY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Delay, Slip Opinion No.
2019-Ohio-2955.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Indefinite suspension.
(No. 2018-1743—Submitted January 30, 2019—Decided July 23, 2019.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-046.
______________
Per Curiam.
{¶ 1} Respondent, Brendan Edward Delay, of Westlake, Ohio, Attorney
Registration No. 0036929, was admitted to the practice of law in Ohio in 1986.
{¶ 2} In an amended complaint filed with the Board of Professional
Conduct on March 30, 2018, relator, disciplinary counsel, charged Delay with
multiple violations of the Rules of Professional Conduct arising from his
representation in four separate client matters. At a hearing before a panel of the
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board, the parties presented testimony from 14 witnesses, including Delay, and
submitted more than 120 exhibits.
{¶ 3} The panel issued a report containing findings of fact and misconduct
and recommended that Delay be indefinitely suspended from the practice of law
and ordered to make restitution to his clients in three of the cases. In addition, the
panel recommended that as conditions on his reinstatement, Delay be required to
submit to an Ohio Lawyers Assistance Program (“OLAP”) evaluation and comply
with any treatment or counseling recommendations arising from that evaluation in
addition to the requirements of Gov.Bar R. V(25). The board adopted the panel’s
report in its entirety, and no objections have been filed.
{¶ 4} After reviewing the record, we accept the board’s findings of fact and
misconduct and indefinitely suspend Delay from the practice of law in Ohio.
Misconduct
Count One—The Karoub Matter
{¶ 5} In September 2015, Adam Karoub paid Delay a flat fee of $2,500 to
represent him in a breach-of-contract action filed against him in the Toledo
Municipal Court.
{¶ 6} Delay attended a court-ordered mediation in mid-October 2016 and
sought two extensions of time to respond to the plaintiff’s October 28 motion for
summary judgment. But Delay never responded to the motion, purportedly because
Karoub had no legitimate defense. Delay testified that he sent a copy of the motion
to Karoub, but Karoub and his business partner denied receiving it and the panel
found their testimony to be more credible.
{¶ 7} On December 30, the court granted summary judgment to the plaintiff
and entered a $13,000 judgment against Karoub. Delay did not inform Karoub of
the judgment. Instead, on January 3, 2017, he sent an e-mail to Karoub’s business
partner stating that the plaintiff’s settlement demand was $10,000. Karoub
discovered the judgment in February 2017 after his credit-monitoring program
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January Term, 2019
notified him of a drop in his credit score. After Delay failed to respond to Karoub’s
e-mail inquiry about the judgment, Karoub retained new counsel.
{¶ 8} In the course of relator’s investigation, Delay produced an
acknowledgment that he did not carry malpractice insurance and said that he had
sent it to Karoub and that Karoub had returned a signed copy. The signed copy that
Delay produced, however, bears a signature date of September 2, 2014, nearly a
year before Karoub first contacted Delay. And Karoub testified that the signature
was not his and that Delay did not tell him that he did not carry malpractice
insurance or ask him to sign an acknowledgment to that effect. The board found
that Delay presented a fraudulent document to relator in an attempt to substantiate
his false statement to relator. The board also found that Delay did not refund his
unearned flat fee.
{¶ 9} The board found that this conduct 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), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with
reasonable requests for information from the client), 1.16(e) (requiring a lawyer to
promptly refund any unearned fee upon the lawyer’s withdrawal from
employment), 8.1(a) (prohibiting a lawyer from knowingly making a false
statement of material fact in connection with a disciplinary matter), and 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation). Based on documentary evidence demonstrating that Delay
did not respond to relator’s initial letters of inquiry and subsequently presented a
fraudulent document to relator, the board found that he violated Prof.Cond.R. 8.1(b)
and Gov.Bar R. V(9)(G) (both requiring a lawyer to cooperate with a disciplinary
investigation). The panel unanimously dismissed one additional alleged violation
based on the insufficiency of the evidence.
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Count Two—The Baker Matter
{¶ 10} In 2014, Ashley Baker retained Delay following an automobile
accident. Baker testified that she never received a written fee agreement from
Delay. Although Delay testified that he sent her a written contingent-fee agreement
and that she told him she had signed it, he admitted that he did not possess a signed
agreement.
{¶ 11} Baker authorized Delay to communicate with her mother, Brenda
Riggs, regarding her claims, and Riggs left numerous messages with Delay’s
secretary about Baker’s desire to settle the case. After Delay failed to return
Riggs’s calls, on April 4, 2015, Baker sent Delay a letter terminating his
representation. Baker sent a copy of the letter to the at-fault driver’s insurance
company.
{¶ 12} After receiving Baker’s letter, insurance-company representatives
attempted to reach Delay to confirm his termination. Delay eventually left one of
the representatives a voicemail message stating that he still represented Baker and
had an attorney’s lien on the case. On August 31 and September 15, 2015, another
representative sent Delay letters asking him to confirm the status of his
representation and to provide a copy of his lien. Ultimately, the representative
withdrew a settlement offer due to Delay’s failure to respond and the uncertainty
regarding his claimed lien.
{¶ 13} On October 5, 2015, Delay e-mailed the representative, again
claiming that he had an attorney’s lien and stating that he trusted she had received
his “earlier communication.” Although the representative responded within an
hour of receiving the e-mail—and twice more later—to request a copy of the
supposed communication, Delay did not reply.
{¶ 14} In May 2016, the representative notified Baker that the end of the
statute-of-limitations period on her personal-injury claim was approaching and that
the claim had not settled, because Delay had refused to verify his lien. Thereafter,
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January Term, 2019
relator informed the representative that Delay did not have a contingent-fee
agreement with Baker and that the representative could proceed to settle Baker’s
claim.
{¶ 15} After Baker agreed to a settlement, Delay e-mailed the
representative to request that she issue two checks—one to him for 30 percent of
the settlement amount and one to Baker for the remaining 70 percent—claiming
that he could not rely on Baker to pay his attorney fees. The representative
informed him that she was not able to honor his lien and declined his request for
information regarding the settlement amount on the ground that Baker was not his
client.
{¶ 16} Despite having received Baker’s termination letter and knowing that
her claim had settled, Delay filed a lawsuit against two other drivers involved in
the auto accident without Baker’s knowledge or consent. On October 26, 2016,
Delay called Riggs and told her that Baker needed to attend a hearing the next day.
Riggs informed him that Baker would not attend, because her claim had settled.
The next day, Baker received a copy of the hearing notice on which Delay had
written “October 16, 2016” and “Ashley: You have to be there.” Baker was then
concerned that she would be assessed court costs or held in contempt because she
had not attended the hearing.
{¶ 17} At his disciplinary hearing, Delay testified that he could not confirm
that Baker had terminated his representation, because he had not received her letter
himself and did not trust the copies forwarded to him by the insurance company.
Delay also claimed that he filed suit to protect Baker’s interests at relator’s
instruction, but the panel did not find Delay’s testimony to be credible.
{¶ 18} The board found that Delay’s conduct in the Baker matter violated
Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation to a
client), 1.2(a) (requiring a lawyer to abide by the client’s decisions concerning the
objectives of representation and to consult with the client as to the means by which
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they are to be pursued), 1.3, 1.4(a)(4), 1.5(c)(1) (requiring a lawyer to set forth a
contingent-fee agreement in a writing signed by both the client and the lawyer),
8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice). Citing Delay’s repeated failure to respond to relator’s
requests for information regarding this matter and his failure to appear for a
scheduled deposition despite having been served with a subpoena, the board also
found that he violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G). In addition,
the board found that Delay’s refusal to cooperate with his former client and the
insurance company to effectuate settlement of Baker’s claims was so egregious as
to constitute a separate violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).
See Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997
N.E.2d 500, ¶ 21.
Count Three—The Gracic Matter
{¶ 19} Mato and Bosiljka Gracic met Delay in August 2012 to discuss
concerns regarding a gas company’s lease on property they owned in Harrison
County.1 Delay told them that they had a good case and that he would prepare to
file suit on their behalf. In March 2013, the Gracics signed a fee contract and paid
Delay $3,500 of the agreed $7,000 fee and Delay stated that he would file suit in
May. Delay did not deposit their check into his client trust account even though his
fee agreement did not state that it was earned upon receipt.
{¶ 20} After signing the fee contract, the Gracics had difficulty getting
Delay to respond to their inquiries. In June 2013, they received interrogatories from
Delay that bore a caption for filing in Columbiana County but did not have a case
number. There was no cover letter explaining what, if anything, they needed to do.
After Mrs. Gracic made numerous attempts to reach him by phone and e-mail,
1. The Gracics immigrated to the United States from their native Bosnia in the 1970s. Because
English is their second language, their adult son sometimes translated for them.
6
January Term, 2019
Delay finally told her that if she sent him another $1,000, he would file suit before
the Gracics went on vacation abroad. Although part of that check was intended to
cover the filing fee, after receiving it, Delay did not deposit it into his client trust
account.
{¶ 21} Unable to reach Delay after she and her husband returned to the
country, Mrs. Gracic went to the Columbiana County courthouse, where the clerk
told her that no complaint had been filed. Mrs. Gracic then drove to Delay’s office
and waited four hours to ask him about the case, but he never arrived. Delay finally
responded to her communications after she threatened to contact the news media.
During a September 2013 meeting with the Gracics and their son, Delay made
excuses for failing to work on their case but assured them that he would
communicate with them going forward.
{¶ 22} In late September or early October, Delay gave the Gracics a
complaint. They filed it in the Harrison County Court of Common Pleas and paid
the filing fee of $250. After Delay again stopped communicating with them, they
went to the courthouse and learned that a hearing had been scheduled for February
24, 2014.
{¶ 23} During the February 2014 hearing, the trial judge instructed Delay
to file a pretrial statement within seven days and issued an order memorializing the
instruction—and subsequently, two additional orders regarding the pretrial
statement—but Delay never complied. At Delay’s disciplinary hearing, Mrs.
Gracic testified that after the February 24 hearing, Delay explained that “the judge
asked him to file something else and then he was going to do that. And if it doesn’t
work we’ll have court on September 11, 2014.” For his part, Delay denied that the
court verbally ordered him to file a pretrial statement and claimed that he did not
receive any written order to do so, because the court did not have his correct
address. The panel found Delay’s testimony to be blatantly false.
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{¶ 24} In the meantime, between March and June 2014, Delay failed to
respond to several inquiries from the Gracics’ son regarding the status of their case.
In late summer, the Gracics went to the courthouse and learned that the court had
dismissed their claim on April 4, 2014. Delay never informed the Gracics that a
counterclaim had been filed against them or that their claim had been dismissed.
On September 11, 2014, Delay sent the Gracics’ son an e-mail that said, “[N]o court
today just got out of jury duty.” The Gracics never heard from him again.
{¶ 25} At the disciplinary hearing, Delay admitted that he did not act in the
Gracics’ best interest. He also acknowledged that he did not maintain any billing
records for his work on their case and that he had not returned any portion of their
$4,500 fee. He stated, however, that he was willing to refund their entire fee plus
the $250 filing fee they had paid to the court.
{¶ 26} The board found that Delay’s conduct violated Prof.Cond.R. 1.1,
1.3, 1.4(a)(3), 1.4(a)(4), 1.15(c) (requiring a lawyer to deposit into a client trust
account legal fees and expenses that have been paid in advance, to be withdrawn
by the lawyer only as fees are earned or expenses are incurred), and 1.16(e). Based
on documentary evidence demonstrating that Delay repeatedly failed to respond to
relator’s requests for information regarding this matter, the board also found that
he violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G).
Count Four—The Riggs Matter
{¶ 27} Around 2010, William and Brenda Riggs—who had a longstanding
relationship with Delay—met with Delay to discuss the modification or rescission
of an oil-and-gas lease of their property. Approximately a year and a half later,
Delay told them they had a case. They signed a written fee agreement for Delay to
“negotiat[e] * * * any replacement oil and gas lease.” Brenda testified that Delay
told them he would fight the arbitration clause in their existing lease but that he
never told them he would terminate his representation if the case went to arbitration.
The Riggses understood that he was to “finish everything.”
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January Term, 2019
{¶ 28} Delay filed suit on behalf of the Riggses on September 16, 2011. In
December, the trial court stayed the action pending arbitration of the dispute. Delay
did not inform the Riggses of the stay or that he had filed an appeal on their behalf.
In February 2014, the court of appeals determined that the Riggses’ arguments—
with the exception of a claim to quiet title—were meritless, held that any issues
regarding the validity of the lease had to be resolved in arbitration, and stayed the
quiet-title claim pending arbitration. Delay did not notify the Riggses of the court
of appeals’ decision and in a March 14, 2014 letter, he falsely told them that the
court had agreed with his argument that the issues regarding the lease “should be
decided in court not in arbitration.” He also informed them that although he had
received a $5,000 settlement offer, he would struggle to get them more money.
{¶ 29} The Riggses eventually received a November 12, 2014 order from
the trial court that dismissed their case for want of prosecution. Delay did not return
the Riggses’ telephone calls over the next several days. When Mrs. Riggs finally
reached him, he told her that the case was not over—but the Riggses never heard
from him again. The Riggses paid $400.86 in court costs following the dismissal
of their complaint.
{¶ 30} In defending the grievance, Delay produced three letters that he
purportedly had sent to the Riggses to inform them that they needed to decide
whether to pursue arbitration and pay the associated fees—but Mrs. Riggs testified
that she did not receive those letters. And at the disciplinary hearing, an attorney
for the defendants in the underlying action testified and produced e-mails
demonstrating that he had offered to settle the case for $9,000. Although Delay
claimed that he had conveyed the offer to the Riggses in person, he acknowledged
that he did not send them written confirmation of that offer or document their
rejection in writing.
{¶ 31} The board found that Delay’s conduct in this matter violated
Prof.Cond.R. 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), and 8.1(a). Citing Delay’s repeated
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failure to respond to relator’s requests for information regarding this matter and his
failure to appear for a scheduled deposition, the board also found that he violated
Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G). The panel unanimously dismissed
one additional alleged violation.
Sanction
{¶ 32} 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.
{¶ 33} The board found that eight of the nine aggravating factors
enumerated in Gov.Bar R. V(13)(B) are present—a dishonest or selfish motive; a
pattern of misconduct; multiple offenses; lack of cooperation in the disciplinary
process, including Delay’s failure to comply with a subpoena for his deposition;
the submission of false evidence, false statements, or other deceptive practices
during the disciplinary process; Delay’s refusal to acknowledge the wrongful nature
of his misconduct; the vulnerability of and resulting harm to the victims of his
misconduct; and the failure to make restitution. See Gov.Bar R. V(13)(B)(2)
through (9). In addition, the board found that Delay was unrepentant and
unremorseful about his misconduct and the harm he had caused to his clients.
Delay’s only concessions in that regard were that he “[f]elt bad” when he saw Mrs.
Gracic cry during the hearing and his admission that he had let her down.
{¶ 34} The board found that just one mitigating factor is present—that
Delay does not have a prior disciplinary record. See Gov.Bar R. V(13)(C)(1).
Although Delay called one witness to testify regarding his character and reputation,
that person testified that he had not interacted with Delay in a professional capacity
in more than 12 years. The witness was also unaware of the allegations in the
complaint until he testified and stated that his opinion regarding Delay’s
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competence as an attorney would change if those allegations were proved in this
proceeding.
{¶ 35} In his closing argument, Delay suggested that he should be required
to make restitution to Karoub and the Gracics and that he should be publicly
reprimanded for failing to keep the Gracics informed about the status of the matter
and failing to provide them with written notification that he would no longer be
representing them. Delay did not comply with the panel’s request that he provide
a written closing brief.
{¶ 36} Relator, in contrast, argued that Delay should be permanently
disbarred. In support, relator cited Columbus Bar Assn. v. Nyce, 152 Ohio St.3d
501, 2018-Ohio-9, 98 N.E.3d 501, for the proposition that “ ‘when a lawyer testifies
falsely during the disciplinary process, attempts to impede, obstruct, or protract the
disciplinary process, or persistently refuses to accept responsibility for his or her
conduct * * * he or she may no longer be worthy of the trust and confidence of the
public and the courts.’ ” (Ellipsis sic.) Relator’s closing brief at 18, quoting id. at
¶ 39.
{¶ 37} Delay denied having used any substance that would have affected
his memory or judgment from 2013 until the disciplinary hearing and stated that
during that period, there had been no events in his life that would have affected his
ability to handle his clients’ affairs in a professional manner. Nonetheless, the panel
recognized that Delay had a tendency to focus on “unimportant minutia” and
expressed concern that underlying psychological or emotional issues may have
impaired his judgment and affected his ability to recognize the wrongfulness and
seriousness of his actions. Therefore, the panel recommended that the appropriate
sanction for Delay’s misconduct is an indefinite suspension, combined with
conditions on his reinstatement—namely, that he submit to an OLAP evaluation
and comply with any treatment or counseling recommendations from OLAP. The
panel further recommended that Delay be ordered to make full restitution of $4,750
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to the Gracics, $4,048.75 to Karoub (representing the $2,500 flat fee he paid Delay
and the $1,548.75 in additional legal fees Karoub incurred in resolving the
judgment against him), and $400.86 to the Riggses.
{¶ 38} The panel found that an indefinite suspension would be consistent
with this court’s general rule that “an attorney’s neglect of legal matters and failure
to cooperate in the ensuing disciplinary investigation warrant an indefinite
suspension,” Disciplinary Counsel v. Mathewson, 113 Ohio St.3d 365, 2007-Ohio-
2076, 865 N.E.2d 891, ¶ 19. In support, the panel cited five additional cases in
which we indefinitely suspended attorneys who had engaged in misconduct that
included combinations of providing incompetent representation, neglecting client
matters, failing to reasonably communicate with clients about their representation,
various trust-account violations, and failing to fully cooperate in the resulting
disciplinary investigations.
{¶ 39} For example, in Lorain Cty. Bar Assn. v. Johnson, 151 Ohio St.3d
448, 2017-Ohio-6869, 90 N.E.3d 837, we indefinitely suspended an attorney and
ordered him to pay restitution of approximately $13,000 to 15 former clients.
Johnson’s misconduct included multiple instances of neglecting client matters,
failing to reasonably communicate with clients, failing to notify clients that he did
not carry professional-liability insurance, failing to refund unearned fees to clients
on the termination of his representation, and failing to cooperate in disciplinary
investigations. Aggravating factors included a dishonest and selfish motive, a
pattern of misconduct, multiple offenses, failure to cooperate in the investigatory
process, harm to multiple clients, failure to make restitution, and Johnson’s
admission that in his 20 years of practice, he had never properly documented client
funds in his possession and rarely used his client trust account. The only mitigating
factors were Johnson’s lack of a prior disciplinary record and his eventual
cooperation in the disciplinary proceeding.
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January Term, 2019
{¶ 40} And in Mahoning Cty. Bar Assn. v. DiMartino, 145 Ohio St.3d 391,
2016-Ohio-536, 49 N.E.3d 1280, we indefinitely suspended an attorney who had
engaged in professional misconduct in two client matters and ordered him to pay
restitution to one client. In the first case, DiMartino had failed to pay a subrogation
claim and to account for $4,600 in settlement proceeds set aside for that purpose
and had assured the client that he would correct the problem but never did. And in
the second case, he had failed to have his client sign a contingent-fee agreement,
return the client’s phone calls, appear for hearings, oppose a motion for summary
judgment, and notify the clients that the court had dismissed the case. DiMartino
also had failed to cooperate in the ensuing disciplinary investigation. Aggravating
factors included three prior impositions of discipline, a dishonest or selfish motive,
a pattern of misconduct, multiple offenses, a lack of cooperation in the disciplinary
process, and failure to make restitution. We found that no mitigating factors were
present.
{¶ 41} We also find Cincinnati Bar Assn. v. Hoskins, 149 Ohio St.3d 645,
2016-Ohio-4576, 77 N.E.3d 899, to be instructive. Like Delay, Hoskins had
provided incompetent representation, neglected two legal matters, failed to
reasonably communicate with several clients, failed to deposit an unearned fee into
his client trust account, and engaged in dishonesty during the disciplinary
proceeding. No mitigating factors were present, but aggravating factors included a
prior disciplinary record, multiple counts of misconduct, Hoskins’s refusal to
acknowledge the wrongful nature of his conduct, his failure to make timely
restitution to one client, false statements and other deceptive practices, and his
failure to cooperate in the disciplinary process. We indefinitely suspended Hoskins
for that misconduct and conditioned reinstatement on his completion of continuing
legal education focused on law-office management and the achievement of a
passing score on the Multistate Professional Responsibility Examination.
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{¶ 42} Based on our review of the record and our precedent, we accept the
board’s findings of fact and misconduct and agree that an indefinite suspension
from the practice of law is the appropriate sanction in this case.
{¶ 43} Accordingly, Brendan Edward Delay is indefinitely suspended from
the practice of law and shall be required to make the following restitution within 90
days of this decision: $4,048.75 to Adam Karoub, $4,750 to Mato and Bosiljka
Gracic, and $400.86 to William and Brenda Riggs. In addition to the reinstatement
requirements set forth in Gov.Bar R. V(25), Delay shall be required to demonstrate
that he has submitted to an OLAP evaluation and complied with any treatment or
counseling recommendations arising from that evaluation. Costs are taxed to
Delay.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Scott J. Drexel, Disciplinary Counsel, and Audrey E. Varwig, Assistant
Disciplinary Counsel, for relator.
Brendan Edward Delay, pro se.
_________________
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