[Cite as Cuyahoga Cty. Bar Assn. v. Rutherford, 112 Ohio St.3d 159, 2006-Ohio-6526.]
CUYAHOGA COUNTY BAR ASSOCIATION v. RUTHERFORD.
[Cite as Cuyahoga Cty. Bar Assn. v. Rutherford, 112 Ohio St.3d 159, 2006-
Ohio-6526.]
Attorneys — Misconduct — Neglect of entrusted legal matter — Failure to carry
out contract of employment — Failure to deliver all property to which
client is entitled — Failure to maintain separate identifiable bank
accounts for client funds — Six-month suspension, stayed on conditions.
(No. 2006-1590 — Submitted October 17, 2006 — Decided December 27, 2006.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 05-094.
__________________
Per Curiam.
{¶ 1} Respondent, Guy D. Rutherford of Cleveland, Ohio, Attorney
Registration No. 0066032, was admitted to the practice of law in Ohio in 1996.
{¶ 2} On March 13, 2006, relator, Cuyahoga County Bar Association,
charged respondent in an amended complaint with violations of the Code of
Professional Responsibility. A panel of the Board of Commissioners on
Grievances and Discipline heard the cause, including the parties’ comprehensive
stipulations, and made findings of fact, conclusions of law, and a
recommendation. The board adopted the panel’s findings of fact and
recommendation.
Misconduct
The Essex Case
{¶ 3} The first count of the complaint charged that respondent had failed
to file a bankruptcy petition on behalf of Edith Essex. Essex retained respondent
on May 4, 2004, to represent her in a Chapter 13 bankruptcy proceeding and paid
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him $498 in legal and filing fees. Respondent cashed the check for these funds,
failing to deposit the unearned portion into his client trust account as required.
{¶ 4} Respondent did not immediately file Essex’s bankruptcy, and on
February 22, 2005, she discharged him for his delay and asked for a refund of her
fees. Sometime thereafter, Essex reconsidered and agreed to have respondent
handle her bankruptcy after all. Respondent filed the bankruptcy petition but did
not include with it necessary schedules and other filings. His failures caused the
dismissal of Essex’s bankruptcy petition in May 2005.
The Ortiz Case
{¶ 5} In another count, the complaint charged that respondent had also
failed to file a divorce complaint on behalf of Agueda Ortiz. Ortiz retained
respondent on January 20, 2004, and paid him $757 in attorney fees and court
costs. After Ortiz paid him, respondent failed to deposit the unearned portion for
legal fees into his client trust account as required.
{¶ 6} Respondent later told his client that he had filed a divorce action
for her when, in fact, he had not. On September 3, 2004, respondent finally did
file the divorce complaint, but then he did nothing more in Ortiz’s case.
The Mills Case
{¶ 7} A third count in the complaint charged that respondent had acted
improperly in representing Veronica Mills, another bankruptcy client.
Respondent filed Mills’s bankruptcy petition on October 16, 2005, but again
failed to file the necessary schedules with the petition. Respondent thereafter
failed to appear and show cause why his client should not be held in contempt.
The bankruptcy court later dismissed the Mills case because of respondent’s
failures to comply with the filing requirements.
{¶ 8} Having stipulated to these facts, respondent further stipulated that
his conduct in the Essex and Ortiz cases had violated DR 6-101(A)(3) (a lawyer
shall not neglect a legal matter entrusted to him), 7-101(A)(2) (a lawyer shall not
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January Term, 2006
intentionally fail to carry out a contract of employment entered into with a client
for professional services), 9-102(A)(2) (a lawyer shall deposit in one or more
identifiable bank accounts all unearned funds paid to a lawyer or law firm, other
than advances for costs and expenses), and 9-102(B)(4) (a lawyer shall promptly
pay or deliver to a client all funds in the lawyer’s possession to which the client is
entitled). As to the Mills count, respondent stipulated to the charges that he had
violated DR 6-101(A)(3) and 7-10l(A)(2).
Recommended Sanction
{¶ 9} In recommending a sanction for respondent’s misconduct, the
board weighed the aggravating and mitigating factors in his case. See Section 10
of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline (“BCGD
Proc.Reg.”).
{¶ 10} Weighing in favor of a lenient sanction, the parties agreed and the
board found that respondent had no prior disciplinary record and had made full
restitution to Ortiz and Essex. BCGD Proc.Reg. 10(B)(2)(a) and (c). (Mills
decided not to pursue her bankruptcy, and relator did not assert that she was owed
a refund.) Respondent had also cooperated in the disciplinary proceedings.
BCGD Proc.Reg. 10(B)(2)(d). The board further found respondent’s diagnosed
mental disability to be mitigating under BCGD Proc.Reg. 10(B)(2)(g). The
evidence showed that since 2003, respondent had suffered from major depression,
a condition that contributed to his misconduct, and that he is now managing his
disability though treatment with his psychiatrist and counseling through his
minister.
{¶ 11} As aggravating factors favoring severity, the board noted that
respondent’s clients, while they had been repaid, had nevertheless not received
their promised legal services in a timely way. But while those clients had no
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doubt been inconvenienced, the board further found no evidence that respondent’s
misconduct had had any devastating effects.
{¶ 12} The parties proposed and the panel recommended that respondent’s
license to practice be suspended for six months and that the suspension be stayed
on the conditions that respondent remain in treatment for his mental disability,
including entering a recovery contract with the Ohio Lawyers’ Assistance
Program (“OLAP”), and that he cooperate with procedures to monitor his practice
and assure compliance with ethical and professional standards. The board
adopted the recommendation for a six-month suspension, stayed on the suggested
conditions.
Review
{¶ 13} In determining the appropriate sanction for professional
misconduct, we consider the duties violated, the actual or potential injury caused,
the lawyer's mental state, the existence of aggravating or mitigating
circumstances, and the sanctions imposed in similar cases. Disciplinary Counsel
v. Connors, 97 Ohio St.3d 479, 2002-Ohio-6722, 780 N.E.2d 567, ¶ 16; Stark Cty.
Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶
16.
{¶ 14} Respondent violated his duties to carefully attend to his clients’
cases, perform work as promised, and properly account to clients for his earnings
and expenses. We thus agree that he violated DR 6-101(A)(3), 7-10l(A)(2), 9-
l02(A)(2), and 9-102(B)(4). We further agree that the recommended six-month,
conditionally stayed suspension is an appropriate sanction based on the strength
of mitigation evidence and precedent.
{¶ 15} We reached a similar result in Toledo Bar Assn. v. DiLabbio, 101
Ohio St.3d 147, 2004-Ohio-338, 803 N.E.2d 389, where a lawyer failed to
provide one client with promised legal services in a child-support dispute and
failed to pursue personal-injury actions for three other clients as agreed. As to the
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January Term, 2006
first client, the lawyer delayed in filing a motion to modify child support for so
long that the client reconsidered the need for it, yet the lawyer did not return an
unused $150 filing fee. The second client’s case was lost to a statute of
limitations, and because of a lapse in his malpractice insurance, the lawyer made
restitution by personally paying $10,000 in settlement to the client. The third and
fourth clients sued the lawyer for his neglect of their claims and obtained $25,000
and $35,000 malpractice judgments against him.
{¶ 16} Despite the seriousness of this misconduct, we accept the board’s
recommendation to impose a six-month suspension and to stay the suspension on
conditions of monitoring and medical treatment. We note, as did the board, that
the lawyer was committed to making restitution despite his own financial distress
and that he was working to overcome a depressive disorder from which he
suffered at the time of his misconduct. The lawyer also has no prior disciplinary
record and ultimately cooperated with the disciplinary process.
{¶ 17} We acknowledge respondent’s candor, his commitment to
recovery, his complete restitution, and on review, his appreciation for the gravity
of his situation. We thus accept the board’s recommended sanction.
{¶ 18} Respondent is therefore suspended from the practice of law in
Ohio for six months; however, the suspension is stayed on the conditions that he
serve a six-month probation pursuant to Gov.Bar R. V(9), during which he shall
remain in treatment for his mental disability, including entering a recovery
contract with OLAP, and cooperate with procedures to monitor his practice and
assure compliance with ethical and professional standards. If respondent fails to
comply with the conditions of the stay, the stay shall be lifted, and respondent
shall serve the full six-month suspension. Costs are taxed to respondent.
Judgment accordingly.
RESNICK, PFEIFER, LUNDBERG STRATTON and LANZINGER, JJ., concur.
O’DONNELL, J., concurs in judgment only.
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MOYER, C.J., and O’CONNOR, J., dissent.
__________________
MOYER, C.J., dissenting.
{¶ 19} I respectfully dissent from the sanction imposed on the respondent
by the majority. The respondent stipulated to conduct that involved repeated
instances of the neglect of legal matters and dishonest behavior. I am not
unmindful of respondent’s mitigation evidence. However, “we have consistently
held lawyers to a high standard of honesty and trust and have suspended lawyers
who have failed to adhere to that standard.” Columbus Bar Assn. v. Dougherty,
105 Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094, ¶ 20 (Moyer, C.J.,
dissenting).
{¶ 20} While the mitigating factors in this case support permitting the
suspension to be stayed on the conditions articulated in the majority opinion, the
respondent’s multiple counts of misconduct warrant a longer suspension. In my
view, the court should impose a one-year suspension, stayed on the conditions
that respondent serve a one-year probation, during which he shall remain in
treatment for his mental disability, including entering a recovery contract with the
Ohio Lawyers’ Assistance Program, and cooperate with procedures to monitor his
practice and assure compliance with ethical and professional standards.
O’CONNOR, J., concurs in the foregoing opinion.
__________________
Steven M. Ott, Fred C. Crosby, and Ellen S. Mandell, Bar Counsel, for
relator.
William H. Smith & Associates, L.P.A., and William H. Smith, for
respondent.
______________________
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