Cleveland Metropolitan Bar Ass'n v. Sherman

[Cite as Cleveland Metro. Bar Assn. v. Sherman, 126 Ohio St.3d 20, 2010-Ohio-2469.]

CLEVELAND METROPOLITAN BAR ASSOCIATION v. S HERMAN.
[Cite as Cleveland Metro. Bar Assn. v. Sherman,
126 Ohio St.3d 20, 2010-Ohio-2469.]
Attorneys — Failure to act with reasonable diligence to keep a client informed
about the status of a legal matter or to inform a client that he did not
maintain professional-liability insurance — Nine-month suspension stayed
on condition.
(No. 2010-0254 — Submitted February 24, 2010 — Decided June 9, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-066.
__________________
Per Curiam.
{¶ 1} Respondent, David C. Sherman of Westlake, Ohio, Attorney
Registration No. 0031000, was admitted to the practice of law in Ohio in 1972.
On August 17, 2009, relator, Cleveland Metropolitan Bar Association, charged
respondent with multiple violations of the Rules of Professional Conduct. A
panel of the Board of Commissioners on Grievance and Discipline considered the
cause on the parties’ consent-to-discipline agreement. See Section 11 of the
Rules and Regulations Governing Procedure on Complaints and Hearings Before
the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”).
{¶ 2} The Board of Commissioners on Grievances and Discipline
adopted the agreement of the parties, including the stipulated facts, violations, and
sanction. Based upon findings that respondent violated Prof.Cond.R. 1.2(a), 1.3,
1.4(A)(3), and 1.4(c), the board recommends that we impose a nine-month
suspension, all stayed. We accept the findings that respondent violated the ethical
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standards incumbent on Ohio lawyers and agree that a nine-month suspension, all
stayed, is appropriate.
Misconduct
{¶ 3} The stipulated facts of this case show that in January 2007,
respondent agreed to represent a client in a personal-injury matter arising from a
February 2005 automobile accident. Respondent filed a complaint on the client’s
behalf in January 2007. With the court’s permission, he did not appear at a case-
management conference because he was recovering from surgery. In November
2007, believing that it was in his client’s best interest, respondent voluntarily
dismissed the client’s case. But he did so without notifying the client or obtaining
her consent.
{¶ 4} The parties stipulate that respondent’s conduct violated
Prof.Cond.R. 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
means by which they are to be pursued), 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client), and 1.4(a)(3) (requiring a lawyer to
keep the client reasonably informed about the status of a matter).
{¶ 5} Additionally, in May 2007, respondent mistakenly failed to inform
a second client that he did not maintain professional-liability insurance. The
parties stipulate that respondent’s conduct in this matter violated Prof.Cond.R.
1.4(c) (requiring a lawyer to inform the client if the lawyer does not maintain
professional-liability insurance).
Sanction
{¶ 6} In accepting the stipulated sanction, the panel and board
considered the aggravating and mitigating factors listed in BCGD Proc.Reg. 10.
Consistent with the parties’ stipulations, the panel found the following mitigating
factors: (1) respondent has no prior disciplinary record, (2) respondent has not
acted with a dishonest or selfish motive, (3) respondent provided full and free

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January Term, 2010

disclosure during relator’s investigation and has displayed a cooperative attitude
toward the disciplinary proceedings, (4) during the relevant time period,
respondent was temporarily disabled as a result of two major surgeries. BCGD
Proc.Reg. 10(B)(2)(a), (b), and (d). There was no evidence of any aggravating
factors. See BCGD Proc.Reg. 10(B)(1).
{¶ 7} Both the panel and the board accepted the parties’ consent-to-
discipline agreement, including the finding of misconduct and recommended
sanction. We accept the findings of misconduct and agree that a nine-month
suspension, all stayed, is the appropriate sanction.
{¶ 8} The recommended sanction is consistent with sanctions imposed in
other cases. In Cuyahoga Cty. Bar Assn. v. Drain, 120 Ohio St.3d 288, 2008-
Ohio-6141, 898 N.E.2d 580, we imposed a six-month stayed suspension for a
lawyer who neglected a client’s case, failed to inform the client that he had
dismissed and refiled her case, and failed to inform the client that he had canceled
his malpractice insurance. We also imposed a six-month stayed suspension for a
lawyer who violated Prof.Cond.R. 1.3, 1.4(a)(1), 1.4(a)(3), and 3.3(a)(1) by
failing to seek a client’s informed consent before dismissing her case without
prejudice, failing to timely inform the client of the dismissal, and filing a
misleading document with a court. Cleveland Metro. Bar Assn. v. Thomas, 125
Ohio St.3d 24, 2010-Ohio-1031, 925 N.E.2d 959.
{¶ 9} Based upon the foregoing, we accept the consent-to-discipline
agreement. Accordingly, respondent is hereby suspended from the practice of law
in Ohio for nine months, all stayed on the condition that respondent commit no
further misconduct. If respondent fails to comply with the terms of the stay, the
stay will be lifted, and respondent will serve the full nine-month suspension.
Costs are taxed to respondent.
Judgment accordingly.

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PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
BROWN, C.J., not participating.
__________________
Ulmer & Berne, L.L.P., Melissa L. Zujkowski, and Erika Imre Schindler,
for relator.
David C. Sherman, pro se.
______________________