Disciplinary Counsel v. Dougherty (Slip Opinion)

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

Disciplinary Counsel v. Dougherty, Slip Opinion No. 2021-Ohio-1240.]

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. 2021-OHIO-1240

DISCIPLINARY COUNSEL v. DOUGHERTY.

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

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

2021-Ohio-1240.]

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

Knowingly disobeying an obligation under the rules of a tribunal—Failure

to keep a client reasonably informed about the status of a matter—Failure

to cooperate with a disciplinary investigation—Two-year suspension, with

conditions.

(No. 2020-1514—Submitted January 27, 2021—Decided April 14, 2021.)

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

Court, No. 2020-023.

______________

Per Curiam.

{¶ 1} Respondent, Timothy Raymond Dougherty, of Las Cruces, New

Mexico, Attorney Registration No. 0064500, was admitted to the practice of law

in Ohio in 1995.

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{¶ 2} On October 30, 2019, we suspended Dougherty for two years, with

the second year conditionally stayed, for multiple ethical violations after he

neglected a client’s legal matter, failed to hold client funds and property in trust,

failed to take reasonable steps to protect a client’s interests upon the termination

of his employment, and aided a suspended attorney in the unauthorized practice of

law. See Disciplinary Counsel v. Dougherty and Cicero, 157 Ohio St.3d 486,

2019-Ohio-4418, 137 N.E.3d 1174. On January 23, 2020, we found Dougherty in

contempt for failing to surrender his attorney-registration card and timely file an

affidavit of compliance. See Disciplinary Counsel v. Dougherty, 157 Ohio St.3d

1547, 2020-Ohio-179, 138 N.E.3d 1139. Several weeks later, disciplinary

counsel filed a motion to lift the stay and impose the remainder of Dougherty’s

suspension based on his failure to pay restitution ordered by this court.

Dougherty failed to respond to a show-cause order, and on April 13, 2020, we

found him in contempt for a second time, revoked the stay, and ordered him to

serve the entire two-year suspension. See Disciplinary Counsel v. Dougherty, 158

Ohio St.3d 1463, 2020-Ohio-1424, 142 N.E.3d 685.

{¶ 3} In an April 29, 2020 complaint, relator, disciplinary counsel, alleged

that Dougherty committed multiple ethical violations arising from his

abandonment of two clients’ legal matters and failure to cooperate in the ensuing

disciplinary investigation.

{¶ 4} The parties submitted stipulations of fact, misconduct, and

aggravating and mitigating factors, and Dougherty testified at a hearing before a

three-member panel of the Board of Professional Conduct. The board issued a

report finding that Dougherty had committed the charged misconduct and

recommending that he be suspended from the practice of law for two years, to run

concurrently with the suspension imposed on October 30, 2019, and that we

impose additional conditions on his reinstatement. No objections have been filed.

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{¶ 5} We adopt the board’s findings of misconduct and recommended

sanction, with the exception that the current suspension shall be deemed to have

commenced on April 13, 2020.

Facts and Misconduct

Background

{¶ 6} Dougherty moved to New Mexico on May 12, 2019—four days after

his first disciplinary case was submitted to this court. At the November 13, 2020

hearing in this disciplinary case, Dougherty testified that when he moved to New

Mexico, he delegated his professional responsibilities in his pending client

matters to two individuals with whom he had previously shared office space—

attorney Ric Daniell (who represented Dougherty in his first disciplinary case)

and suspended attorney Chris Cicero (who was also a named respondent in

Dougherty’s first disciplinary case).

Count I—The Poindexter Matter

{¶ 7} In June 2017, Dougherty entered an appearance in a criminal case

that was pending against Jashon Poindexter in the Franklin County Court of

Common Pleas. After several continuances, Dougherty appeared at a pretrial

hearing on April 9, 2019. At that hearing, the court continued Poindexter’s trial

to May 13, 2019, and informed counsel that no further continuances would be

granted.

{¶ 8} Dougherty moved to New Mexico on May 12, 2019, without

notifying the court or filing a motion to withdraw from Poindexter’s case as

required by Loc.R. 18.01 and 18.02 of the Court of Common Pleas of Franklin

County, General Division (requiring an attorney desiring to withdraw from

representation to file a motion to withdraw at least 20 days before trial or obtain

direct permission from the court in extraordinary circumstances). The next day,

Daniell appeared at Poindexter’s trial on Dougherty’s behalf but did not file a

notice of substitution of counsel. After explaining Dougherty’s absence, Daniell

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requested a continuance to prepare for the trial. Although Poindexter briefly

appeared at the courthouse, he soon fled.

{¶ 9} While the judge attempted to call Dougherty, Daniell left a motion

for a continuance that did not include Poindexter’s signature or indicate his

approval with the bailiff and departed the courthouse. Unable to reach

Dougherty, the judge denied the motion and issued a warrant for Poindexter’s

arrest. The next day, the judge e-mailed Dougherty to inform him of what had

transpired. The judge also advised Dougherty that if he did not receive a response

within 24 hours, he would schedule a show-cause hearing to determine whether

Dougherty should be held in contempt of court.

{¶ 10} Cicero responded to the judge’s e-mail from Dougherty’s e-mail

account. He explained the circumstances of Dougherty’s move and represented

that Daniell planned to file a substitution of counsel later that day—though

Daniell never filed the document.

{¶ 11} Dougherty did not respond to the judge’s communications. Nor did

he comply with our October 30, 2019 suspension order, which required him to file

a notice of disqualification within 30 days with any court in which he had pending

litigation. Nearly ten months after we suspended his license to practice law,

Dougherty filed a motion to withdraw from Poindexter’s case and the court

granted the motion. In September 2020, Poindexter remained at large.

{¶ 12} The parties stipulated and the board found that Dougherty’s

conduct violated Prof.Cond.R. 1.16(c) (a lawyer shall not withdraw from

representation in a proceeding without leave of court if the rules of the tribunal so

require), 1.16(d) (requiring a lawyer withdrawing from representation to take

steps reasonably practicable to protect a client’s interest), 3.4(c) (prohibiting a

lawyer from knowingly disobeying an obligation under the rules of a tribunal),

and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to

the administration of justice).

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Count II—The McGonigle Matter

{¶ 13} On December 6, 2018, Dixie McGonigle hired Dougherty to

represent her in a custody case and paid him a $500 retainer. Dougherty entered a

notice of appearance that day. He later filed a motion to modify temporary orders

and twice appeared in court on McGonigle’s behalf. On March 12, 2019,

Dougherty was present in court and signed a continuance order that set the next

hearing for May 8, 2019. Dougherty failed to appear for the May 8, 2019 hearing

and did not inform his client that he could not continue the representation. Nor

did he file a motion to continue the hearing or withdraw from the case. The court

granted McGonigle a continuance to retain new counsel. The next day,

McGonigle sent Dougherty a text message requesting a refund, but he did not

timely respond to her request. However, the parties have stipulated that

Dougherty earned McGonigle’s entire $500 payment.

{¶ 14} The parties stipulated and 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), 1.16(d), and 8.4(d).

Count III—Failure to Cooperate

{¶ 15} In October and November 2019, relator sent Dougherty letters of

inquiry regarding the Poindexter and McGonigle matters. Dougherty signed for

both certified mailings but failed to respond. In January 2020, Dougherty sent

relator an e-mail regarding his failure to pay the restitution that was ordered in his

prior disciplinary matter, but he did not address the new allegations against him.

Relator replied to that e-mail and advised Dougherty that his failure to respond to

the new allegations could result in the filing of a formal disciplinary complaint.

Later that day, Daniell e-mailed relator asking that the letters of inquiry be

forwarded to him so that he could respond on Dougherty’s behalf. Relator

forwarded both letters of inquiry to Daniell and responded to his request for

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additional information, but neither Dougherty nor Daniell responded to the letters

of inquiry.

{¶ 16} The parties stipulated and the board found that Dougherty’s

conduct during the disciplinary investigation violated Prof.Cond.R. 8.1(b) and

Gov.Bar R. V(9)(G) (requiring a lawyer to cooperate with a disciplinary

investigation).

{¶ 17} We adopt the board’s findings of misconduct with respect to each

of these three counts.

Sanction

{¶ 18} 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. We have consistently stated that “in determining the

appropriate length of the suspension and any attendant conditions, we must

recognize that the primary purpose of disciplinary sanctions is not to punish the

offender, but to protect the public.” Disciplinary Counsel v. O’Neill, 103 Ohio

St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53.

{¶ 19} As aggravating factors, the parties stipulated and the board found

that Dougherty has a prior disciplinary record and that he committed multiple

offenses and failed to cooperate in relator’s investigation. See Gov.Bar R.

V(13)(B)(1), (4), and (5). In mitigation, the board accepted the parties’

stipulations that Dougherty did not act with a dishonest or selfish motive and

made full and free disclosure to the board and exhibited a cooperative attitude

toward the disciplinary proceedings after relator filed the formal complaint. See

Gov.Bar R. V(13)(C)(2) and (4). The board acknowledged Dougherty’s

testimony that he alone was responsible for complying with all of the

requirements for withdrawing from the Poindexter and McGonigle matters, that

he has not worked in the legal profession since he moved to New Mexico, and

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that he presently has no plans to return to Ohio. The board also attributed

mitigating effect to Dougherty’s sincere expression of remorse for his

misconduct.

{¶ 20} The parties jointly recommended that Dougherty be suspended for

two years and that his suspension run concurrently with the suspension imposed

in his first disciplinary case. In support of the concurrent suspension, the parties

relied on Columbus Bar Assn. v. Roseman, 156 Ohio St.3d 485, 2019-Ohio-1850,

129 N.E.3d 422. Roseman neglected a couple’s personal-injury matter, failed to

reasonably communicate with the clients, settled their case without their consent,

and effectively abandoned their case without performing the work necessary to

collect the settlement proceeds. He also failed to cooperate in the resulting

disciplinary investigation. No mitigating factors were present, and we attributed

aggravating effect to Roseman’s prior discipline, multiple rule violations, and

harm to vulnerable clients. We imposed a two-year suspension for Roseman’s

misconduct and ordered it to be served concurrently with the one-year partially

stayed suspension that we had imposed in his prior discipline case nearly three

years earlier, from which he had not yet been reinstated. Id. at ¶ 2, 27.

{¶ 21} The board also considered two cases in which we imposed two-

year suspensions with 18 months conditionally stayed on attorneys who, like

Dougherty, effectively abandoned their clients. In Disciplinary Counsel v.

Brueggeman, 160 Ohio St.3d 198, 2020-Ohio-1578, 155 N.E.3d 833, an attorney

neglected the legal matters of two clients, failed to reasonably communicate with

those clients, and failed to provide one of them with competent representation.

And in Disciplinary Counsel v. Hoppel, 129 Ohio St.3d 53, 2011-Ohio-2672, 950

N.E.2d 171, the attorney accepted retainers from 14 separate clients, converted

that money to his own use, failed to perform the contracted work, and failed to

appear at multiple hearings on behalf of the affected clients.

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{¶ 22} The board found that the jointly recommended sanction in this case

fell well within the parameters of the sanctions imposed in comparable cases and

that running the two-year suspension concurrently with Dougherty’s earlier

suspension would achieve an outcome similar to that of Brueggeman and Hoppel.

In addition, the board recommends Dougherty’s reinstatement be conditioned

upon the completion of 12 hours of continuing legal education (“CLE”) on the

subject of law-office management and payment of the costs of this proceeding and

that upon reinstatement, he be required to serve a two-year period of monitored

probation, also focused on law-office management.

{¶ 23} After independently reviewing the record and our precedent, we

adopt the board’s recommended sanction, with the exception that the suspension

shall be deemed to have commenced on April 13, 2020—the date that we revoked

the stay of the two-year suspension imposed on October 30, 2019 in case No.

2018-1766.

Conclusion

{¶ 24} Accordingly, Timothy Raymond Dougherty is suspended from the

practice of law in Ohio for two years, which suspension shall be deemed to have

commenced on April 13, 2020. In addition to the conditions set forth in our

October 30, 2019 suspension order in case No. 2018-1766 and the requirements of

Gov.Bar R. V(24), Dougherty’s reinstatement shall be conditioned on the

completion of 12 hours of CLE on the subject of law-office management. Upon

reinstatement to the practice of law, Dougherty shall serve a two-year period of

monitored probation pursuant to Gov.Bar R. V(21), with monitoring focused on

law-office management. Costs are taxed to Dougherty.

Judgment accordingly.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,

and BRUNNER, JJ., concur.

_________________

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January Term, 2021

Joseph M. Caligiuri, Disciplinary Counsel, and Lia J. Meehan and

Matthew A. Kanai, Assistant Disciplinary Counsel, for relator.

Timothy Raymond Dougherty, pro se.

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