[Cite as Lake Cty. Bar Assn. v. Troy, 130 Ohio St.3d 110, 2011-Ohio-4913.]
LAKE COUNTY BAR ASSOCIATION v. TROY.
[Cite as Lake Cty. Bar Assn. v. Troy, 130 Ohio St.3d 110, 2011-Ohio-4913.]
Attorneys at law—Misconduct—Multiple violations of the Rules of Professional
Conduct and refusal to cooperate—Indefinite license suspension.
(No. 2011-0697—Submitted June 21, 2011—Decided September 29, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-018.
__________________
Per Curiam.
{¶ 1} Respondent, Bartley J. Troy of Mentor, Ohio, Attorney
Registration No. 0031600, was admitted to the practice of law in Ohio in 1981. In
February 2009, we suspended respondent’s license for one year, with six months
stayed on conditions, for violating three Disciplinary Rules. Lake Cty. Bar Assn.
v. Troy, 121 Ohio St.3d 51, 2009-Ohio-502, 901 N.E.2d 809. His license remains
suspended for his failure to register with the Office of Attorney Registration for
the Supreme Court.
{¶ 2} On February 8, 2010, relator, the Lake County Bar Association,
filed a three-count complaint with the Board of Commissioners on Grievances
and Discipline. The complaint charged respondent with professional misconduct
based on his alleged neglect of client matters, failure to provide competent
representation, failure to keep clients informed about their cases, dishonest
conduct, and failure to cooperate with or respond to the resulting disciplinary
investigations. In investigating the complaint, counsel for relator made at least six
attempts to contact respondent and discuss the allegations. Respondent did not
reply to any of these contacts.
{¶ 3} The Board of Commissioners on Grievances and Discipline twice
attempted to serve respondent with a copy of the complaint by certified mail at the
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address he had registered with the Office of Attorney Registration and a
subsequent address, but the letter was returned unclaimed. Therefore, the clerk of
the Supreme Court of Ohio accepted service on respondent’s behalf on April 12,
2010, in accordance with Gov.Bar R. V(11)(B). Respondent again failed to
respond, and on July 6, 2010, relator filed a motion for default in accordance with
Gov.Bar R. V(6)(F), supported by affidavits of counsel, affidavits of the three
affected clients, and other supporting materials.
{¶ 4} The board referred the motion to a master commissioner, who
granted the motion, made findings of misconduct, and recommended respondent’s
indefinite suspension from the practice of law and payment of restitution. The
board adopted the master commissioner’s report in its entirety. We adopt the
board’s findings of facts and misconduct, order restitution, and indefinitely
suspend respondent from the practice of law in Ohio.
Misconduct
Count One
{¶ 5} In March 2006, Adrienne Merrill engaged respondent in a divorce
proceeding and paid him a $600 retainer. Respondent had the parties sign certain
documents that he was to file, along with documents to establish the paternity of
Merrill’s minor child. About two years later, respondent asked for and received
an additional $650 to finalize the proceedings.
{¶ 6} A few months later, having tried repeatedly and unsuccessfully to
contact respondent, Merrill learned from the court that legal proceedings had not
been initiated. She eventually tracked down respondent, who had moved in with
his father. He told her that he had referred the matter to an attorney who would
complete the case for no charge. When Merrill contacted this other attorney,
however, she learned that there had been no referral and that the attorney could
not handle her case.
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January Term, 2011
Count Two
{¶ 7} In February 2007, Kathryn Burke-Rosales retained respondent to
represent her in a divorce. She eventually paid him $2,270 in retainers and other
fees, including a payment to obtain a paternity test. After receiving this last
payment, respondent ceased answering the client’s communications. Burke-
Rosales then discovered that despite the payments, no filings had been made on
her behalf. And despite her requests, respondent did not deliver to her the results
of the paternity test that she had paid for.
Count Three
{¶ 8} Respondent’s misconduct in the representation that resulted in the
2009 license suspension spawned a malpractice action against him. The client,
Lacraica Barritt, won a judgment for $44,700. Respondent’s insurer, however,
advised Barritt’s counsel that it could not pay the claim, because respondent had
not maintained professional-liability insurance. While he had carried a policy in a
prior year, he had not reported any potential claims during the policy’s effective
dates. Respondent had never informed the client that he lacked professional-
liability insurance.
{¶ 9} The board concluded that the conduct described above violated
Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation), 1.3
(requiring a lawyer to act with reasonable diligence and promptness in
representing a client), 1.4 (requiring a lawyer to keep a client informed about the
status of matters for which he or she was engaged), and 8.4(c) (prohibiting
conduct involving dishonesty, fraud, deceit, or misrepresentation). The board also
concluded that respondent violated Gov.Bar R. V(4)(G) by neglecting or refusing
to assist or testify in a disciplinary investigation. We agree with the board’s
findings.
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties the lawyer violated, the lawyer’s mental
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state, and sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli,
96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in 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.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary case
is unique, we are not limited to the factors specified in the rule but may take into
account “all relevant factors” in determining what sanction to impose. BCGD
Proc.Reg. 10(B).
{¶ 11} The board recommended that respondent be indefinitely suspended
from the practice of law. As aggravating factors, the board found that respondent
had demonstrated a pattern of misconduct, engaged in multiple offenses, harmed
vulnerable clients, failed to cooperate in the disciplinary process, and failed to
make restitution. See BCGD Proc.Reg. 10(B)(1)(c), (d), (e), (g), (h), and (i).
{¶ 12} As to mitigating factors, the board stated that respondent had no
prior disciplinary record besides an attorney-registration suspension. As noted
above, however, that was not the extent of respondent’s disciplinary record; he
received a one-year suspension in February 2009 for neglecting an entrusted legal
matter and other misconduct.
{¶ 13} The board’s recommended sanction is appropriate in this case.
“ ‘A lawyer’s neglect of legal matters and failure to cooperate in the ensuing
disciplinary investigation generally warrant an indefinite suspension from the
practice of law in Ohio.’ ” Cleveland Metro. Bar Assn. v. Kaplan, 124 Ohio St.3d
278, 2010-Ohio-167, 921 N.E.2d 645, ¶ 15, quoting Akron Bar Assn. v. Goodlet,
115 Ohio St.3d 7, 2007-Ohio-4271, 873 N.E.2d 815, ¶ 20; Columbus Bar Assn. v.
Troxell, 129 Ohio St.3d 133, 2011-Ohio-3178, 950 N.E.2d 555, ¶ 16. See also,
e.g., Columbus Bar Assn. v. Van Sickle, 128 Ohio St.3d 376, 2011-Ohio-774, 944
N.E.2d 677, ¶ 16 (requiring payment of restitution). The record, the balance of
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aggravating and mitigating factors, and precedent all support the board’s
recommendation.
{¶ 14} Accordingly, Bartley J. Troy is indefinitely suspended from the
practice of law in the state of Ohio and is ordered to pay restitution. Within 30
days, he shall pay restitution as follows: to Adrienne Merrill, $2,000; to Kathryn
Burke-Rosales, $2,270; and to Lacraica Barritt, $44,700. Costs are taxed to
respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
James Koerner, for relator.
______________________
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