[Cite as Disciplinary Counsel v. Ohlin, 126 Ohio St.3d 384, 2010-Ohio-3826.]
DISCIPLINARY COUNSEL v. OHLIN.
[Cite as Disciplinary Counsel v. Ohlin, 126 Ohio St.3d 384, 2010-Ohio-3826.]
Attorneys — Misconduct — Failure to provide competent representation —
Failure to act with reasonable diligence — Failure to inform client of lack
of malpractice insurance — Neglect of entrusted legal matter — Failure to
seek client’s lawful objectives — Intentional failure to carry out contract
of employment — Failure to cooperate with disciplinary investigation —
Indefinite suspension.
(No. 2010-0287 — Submitted March 31, 2010 — Decided August 24, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-061.
__________________
Per Curiam.
{¶ 1} Respondent, Joseph David Ohlin of Warren, Ohio, Attorney
Registration No. 0031532, was admitted to the practice of law in Ohio in 1985. In
August 2009, relator, Disciplinary Counsel, filed a complaint charging him with
violations of the Code of Professional Responsibility, the Ohio Rules of
Professional Conduct, and Gov.Bar R. V(4)(G) and VI(1)(D). During the
pendency of this action, we suspended respondent’s license for his failure to
register for the 2009/2011 attorney-registration biennium. In re Ohlin, 123 Ohio
St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256. We also sanctioned and
suspended him for failing to comply with the continuing-legal-education
requirements set forth in Gov.Bar R. X(3). In re Ohlin, 124 Ohio St.3d 1402,
2009-Ohio-6833, 918 N.E.2d 1010.
{¶ 2} Although relator’s complaint was served by certified mail on
August 19, 2009, at the address respondent has registered with the Office of
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Attorney Services, he failed to file an answer. Relator filed a motion for default
supported by documentary evidence, including a deposition of respondent
conducted by relator in May 2009. A master commissioner appointed by the
board considered the motion for default and prepared a report recommending that
the board indefinitely suspend respondent. The board adopted the master
commissioner’s findings that the materials offered in support of the default
motion were sufficient and that respondent had committed multiple violations of
the ethical duties incumbent upon Ohio lawyers.
{¶ 3} In accordance with the master commissioner’s report, the board
now recommends that we (1) indefinitely suspend respondent from the practice of
law, (2) condition his reinstatement upon submission of proof that he has resolved
the problems that he claims contributed to his misconduct, and (3) require him to
complete one year of monitored probation pursuant to Gov.Bar R. V(9) upon his
reinstatement. Additionally, the board recommends that we require proof that
respondent has made full restitution to the client discussed in Count Three.
{¶ 4} We agree that respondent has committed professional misconduct
and accept the board’s recommended sanction.
Misconduct
Count One
{¶ 5} In 2002, a client retained respondent’s law firm to represent him in
a personal-injury case. Another attorney at the firm filed a lawsuit on the client’s
behalf, and when that attorney left the firm, respondent assumed the
representation. After respondent failed to reply to the defendants’ motion to
dismiss or to the defendants’ motion for summary judgment, the trial court
granted judgment in favor of the defendants.
{¶ 6} At his deposition, respondent acknowledged that he had received a
copy of a letter of inquiry from relator forwarding the client’s grievance and that
he failed to respond. He further admitted that his malpractice insurance had
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lapsed and that he had failed to inform the client of this fact. Although he agreed
to provide additional information regarding his malpractice insurance and the
client’s complete case file to the relator following the deposition, he failed to do
so.
{¶ 7} The board found that respondent’s conduct prior to February 1,
2007, violated DR 1-104(A) and (B) (requiring a lawyer to inform a client at the
time of engagement or at any time subsequent to the engagement if the lawyer
does not maintain professional-liability insurance, and to keep a copy of the
notice signed by the client for five years after the termination of representation),
and that his conduct after February 1, 2007, violated Prof.Cond.R. 1.1 (requiring a
lawyer to provide competent representation to a client), 1.3 (requiring a lawyer to
act with reasonable diligence and promptness in representing a client), and 1.4(c)
(requiring a lawyer to inform the client at the time of the engagement or at any
time subsequent to the engagement if the lawyer does not maintain professional-
liability insurance) and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with
a disciplinary investigation). We accept these findings of misconduct.
Count Two
{¶ 8} The board found that in April 2005, a second client retained
respondent and paid him $200 to pursue expungement of a federal criminal
conviction. A year and a half after he was retained, respondent sought the
assistance of another attorney. The client met with that attorney and issued a
check for $400, payable to respondent. Respondent cashed the check and gave
the money to the other attorney for the work he had performed. The board found
that respondent failed to obtain the expungement his client sought and that he
failed to return her telephone calls. At his deposition, respondent agreed to
provide the client’s file to relator, but failed to do so.
{¶ 9} Based upon its findings of fact, the board determined that
respondent’s conduct violated DR 6-101(A)(3) (prohibiting neglect of an
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entrusted legal matter) and 7-101(A)(1) (prohibiting a lawyer from intentionally
failing to seek the lawful objectives of his client) and Gov.Bar R. V(4)(G).
However, the board concluded that the record did not support relator’s allegation
that respondent’s conduct violated DR 7-101(A)(2) (prohibiting a lawyer from
intentionally failing to carry out a contract of employment for legal services).
{¶ 10} While we accept most of the board’s findings of fact, we note that
the findings regarding the respondent’s intentional failure to obtain the client’s
goal of expungement and his failure to return client telephone calls are not
supported by the record. In Dayton Bar Assn. v. Sebree, 104 Ohio St.3d 448,
2004-Ohio-6560, 820 N.E.2d 318, ¶ 5, we recognized that Gov.Bar R.
V(6)(F)(1)(b) “requires that a motion for default in a disciplinary proceeding be
supported by ‘[s]worn or certified documentary prima facie evidence in support of
the allegations made.’ ” We held that a motion for default in a disciplinary
proceeding supported only by the summary, conclusory, and hearsay-filled
affidavits of the relator’s investigator did not satisfy this requirement. Id. at ¶ 9.
Therefore, we instructed relators in future disciplinary proceedings to provide
affidavits executed by the grievants themselves to support a default motion. Id.
{¶ 11} In this case, the relator has submitted only a photocopy of the
client’s unsworn and uncertified grievance to prove that respondent failed to
return the client’s phone calls and failed to achieve the object of the
representation. Because relator has not submitted an affidavit from the grievant,
or otherwise proven these facts with sworn or certified documentary evidence, we
reject these factual findings.
{¶ 12} Nonetheless, the record contains sufficient sworn or certified
evidence to support the board’s other findings. Therefore, we agree that
respondent’s conduct violated DR 6-101(A)(3) and 7-101(A)(1) and Gov.Bar R.
V(4)(G), and we dismiss the alleged violation of DR 7-101(A)(2).
Count Three
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{¶ 13} With regard to Count Three, the board found that a third client
retained respondent to represent her in a personal-injury action. Respondent
settled the matter for $10,000 in September 2005. After having his client sign the
settlement check, he negotiated the check in November 2005. The board found
that in February 2007, more than a year after the settlement, the client threatened
to file a grievance if she did not receive her share of the settlement and that
several weeks later respondent delivered $800 in cash to her home. Although
respondent had promised to provide the client’s file to relator, he failed to do so.
{¶ 14} Based upon these factual findings, the board concluded that
respondent’s conduct before February 1, 2007, violated DR 6-101(A)(3), 7-
101(A)(1), 7-101(A)(2), and 9-102(B)(4) (requiring a lawyer to promptly pay or
deliver funds and property to which a client is entitled). The board also found that
his conduct after February 1, 2007, violated Prof.Cond.R. 1.15(a) (requiring a
lawyer to hold property of clients separate from the lawyer’s own property) and
1.15(d) (requiring a lawyer to promptly deliver funds or other property that the
client is entitled to receive) and Gov.Bar R. V(4)(G).
{¶ 15} We agree that respondent’s delay of more than a year before
delivering $800 in settlement proceeds to his client violated DR 6-101(A)(3) and
9-102(B)(4) and Prof.Cond.R. 1.15(d) and that his failure to cooperate in the
ensuing disciplinary investigation violated Gov.Bar R. V(4)(G).
{¶ 16} However, the relator has failed to satisfy its burden of proving the
remaining allegations by clear and convincing evidence. Specifically, we observe
that the record contains no sworn or certified evidence tending to demonstrate that
respondent intentionally failed to seek the lawful objectives of the client,
intentionally failed to carry out a contract of employment, failed to hold the
client’s funds separate from his own, or failed to deliver all of the settlement
proceeds that the client was entitled to receive.
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{¶ 17} On the contrary, respondent’s uncontroverted, sworn deposition
testimony demonstrates that he (1) filed a complaint on the client’s behalf, (2)
obtained a $10,000 settlement, (3) deposited the settlement check into his trust
account, (4) paid the client’s “very high” medical bills from the settlement
proceeds, (5) distributed more than $800 to the client, and (6) did not use any of
the money for his own expenses, with the exception of his one-third contingency
fee. Accordingly, we dismiss the alleged violations of DR 7-101(A)(1) and
(A)(2) and Prof.Cond.R. 1.15(a).
Count Four
{¶ 18} Despite having received a letter from relator seeking respondent’s
reply to a fourth grievance, respondent did not participate in the disciplinary
investigation of that grievance. Furthermore, at his deposition, respondent agreed
to provide relator with a copy of the client’s file, but he failed to do so.
Therefore, the board found, and we agree, that respondent has violated Gov.Bar
R. V(4)(G).
Count Five
{¶ 19} With regard to Count Five, the board found that respondent moved
in the fall of 2008 and failed to provide his new residence and business addresses
to the Office of Attorney Services. As a result of this failure, respondent did not
receive several of the letters that relator sent him. At his deposition, respondent
agreed to update his attorney-registration records, but to date, he has not done so.
Accordingly, we agree that respondent’s conduct violates Gov.Bar R. VI(1)(D)
(requiring attorneys to keep the Office of Attorney Services apprised of their
residence and office addresses).
Sanction
{¶ 20} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
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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(B) 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.
{¶ 21} As aggravating factors, the board found that respondent had
committed multiple offenses, failed to cooperate in the disciplinary process,
refused to acknowledge the wrongful nature of his conduct, and caused harm to
vulnerable clients. BCGD Proc.Reg. 10(B)(1)(d), (e), (g), and (h). Respondent
claimed to suffer from alcohol dependence and a mental disability. But the board
declined to consider those factors in mitigation because respondent did not
introduce any competent medical evidence to establish either the diagnoses or
their causal connection to his misconduct. See BCGD Proc.Reg. 10(B)(2)(g)(i)
and (ii). The board found no other factors weighing in favor of a lesser sanction.
{¶ 22} We have previously recognized that neglect of an entrusted legal
matter and failure to cooperate in the ensuing disciplinary investigation generally
warrant an indefinite suspension. Disciplinary Counsel v. Hoff, 124 Ohio St.3d
269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10; Disciplinary Counsel v. Mathewson,
113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891, ¶ 19.
{¶ 23} Having reviewed the record, weighed the aggravating and
mitigating factors, and considered the sanctions imposed for comparable conduct,
we adopt the board’s recommended sanction of an indefinite suspension.
{¶ 24} Accordingly, Joseph David Ohlin is indefinitely suspended from
the practice of law in the state of Ohio. Respondent’s reinstatement is
conditioned upon his submission of proof that (1) any alcohol dependence and
mental-health problems have been resolved, (2) he has followed all treatment
recommendations, including compliance with his existing contract with the Ohio
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Lawyers Assistance Program, (3) he is able to return to the competent, ethical,
and professional practice of law, and (4) he has paid the client discussed in Count
Three all monies that she is entitled to receive from the proceeds of her
settlement. Furthermore, upon his reinstatement to the practice of law, respondent
shall complete one year of monitored probation pursuant to Gov.Bar R. V(9).
Costs are taxed to respondent.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
BROWN, C.J., not participating.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa,
Assistant Disciplinary Counsel, for relator.
______________________
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