[Cite as Cleveland Bar Assn. v. Davis, 121 Ohio St.3d 337, 2009-Ohio-764.]
CLEVELAND BAR ASSOCIATION v. DAVIS.
[Cite as Cleveland Bar Assn. v. Davis, 121 Ohio St.3d 337, 2009-Ohio-764.]
Attorneys at law — Misconduct — Default — Multiple violations of rules
governing the practice of law — Indefinite license suspension.
(No. 2008-1774 — Submitted November 19, 2008 — Decided
March 18, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-004.
__________________
Per Curiam.
{¶ 1} Respondent, Dwight E. Davis of Cuyahoga County, Ohio,
Attorney Registration No. 0029972, was admitted to the practice of law in Ohio in
1977.
{¶ 2} Respondent did not timely register for the 2007-2009 attorney
registration biennium and was suspended on December 3, 2007. He was
reinstated to the practice of law on February 22, 2008.
{¶ 3} The Board of Commissioners on Grievances and Discipline
recommends that we suspend respondent’s license indefinitely based upon the
findings that he engaged in conduct that adversely reflects on his fitness to
practice law, neglected an entrusted legal matter, intentionally failed to carry out a
contract of employment, failed to promptly deliver papers and funds belonging to
a client, intentionally failed to seek the lawful objectives of a client, and failed to
cooperate in a disciplinary investigation. We agree that respondent committed
professional misconduct as found by the board and that an indefinite suspension is
appropriate.
SUPREME COURT OF OHIO
{¶ 4} Relator, Cleveland Bar Association, charged respondent with 18
counts of professional misconduct.1 Respondent received notice of the complaint
but did not answer, and relator moved for default pursuant to Gov.Bar R. V(6)(F).
A master commissioner appointed by the board granted the motion, made findings
of misconduct, and recommended an indefinite suspension. The board adopted
the master commissioner’s findings and recommendation.
Misconduct
A. The Jones and Serra Grievance
{¶ 5} In August 2005, Bruce A. Jones and Edward D. Serra retained
respondent to file an action to quiet title to a piece of land. Respondent told Jones
and Serra that the work could be completed in six months, and Serra paid
respondent $1,000 to retain his services. In February 2006, Jones unsuccessfully
attempted to contact respondent. In May 2006, Jones and Serra retained new
counsel, who informed them that no one had made an attempt to quiet title to the
property. On May 22, 2006, Jones and Serra’s new counsel requested that
respondent refund their $1,000 retainer. Respondent never returned the retainer to
Jones or Serra.
B. The Scales Grievance
{¶ 6} In May 2006, Alvin W. Scales paid respondent $500 to represent
his daughter-in-law, Mercedes Chisolm, in a juvenile court matter. Prior to
Chisolm’s court date of July 12, 2006, Scales learned that respondent had suffered
a stroke and would not be able to represent Chisolm. When Scales spoke with
respondent on July 11, 2006, they agreed that respondent would return $400 of
1. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Code of Professional Responsibility. Though it may specify both the former and
current rule, one allegation comprises but a single ethical violation. Disciplinary Counsel v.
Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, fn. 1.
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January Term, 2009
the $500 retainer, with respondent keeping $100 for his initial meeting with
Chisolm. Respondent never returned any money to Scales.
C. The Seymour Grievance
{¶ 7} In November 2005, Josephine Seymour paid respondent $2,500 to
represent her in a matter against her insurance company and in a second matter
involving her impounded automobile. Respondent assured Seymour that she had
a good case against her insurance company and also told her that he had filed an
action for replevin to regain possession of her car. Seymour does not know
whether respondent ever did any work on her behalf. When Seymour learned that
respondent had suffered a stroke, she attempted to contact him, without success.
On October 20, 2006, Seymour sent respondent a certified letter discharging him
and asking him to return her files and refund her retainer. When she received no
response, she sent a second letter on February 7, 2007. Seymour never received
her file or her retainer.
D. The Johnson Grievance
{¶ 8} In 2002, Virginia D. Johnson retained attorney Otha Jackson to
represent her in a personal injury lawsuit. Upon Jackson’s resignation from the
practice of law, Johnson’s case file was given to respondent. Respondent told
Johnson that her case would not proceed until she had completed physical
therapy. Upon completing physical therapy in June 2005, Johnson made several
attempts to reach respondent. When she was unsuccessful, she made several
attempts to recover possession of her file from respondent’s office. Respondent
has failed to turn over Johnson’s file and has not communicated with her about
her case.
{¶ 9} After filing a grievance with the Cleveland Bar Association,
Johnson discovered that a lawsuit had been filed on her behalf in 2002 and had
been voluntarily dismissed by respondent on July 5, 2003. Respondent did not
inform Johnson that the case had been filed or dismissed.
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SUPREME COURT OF OHIO
E. Failure to Cooperate
{¶ 10} Respondent has failed to cooperate in the investigation of the
complaints in violation of Gov.Bar R. V(4)(G). Between October 2006 and
December 2007, relator sent respondent a series of letters asking for written
responses to the claims against him. While the certified letters were all either
delivered or returned as undeliverable, none of the letters sent via regular mail
were returned as refused, unclaimed, or otherwise undelivered.
{¶ 11} On July 2, 2007, respondent appeared in relator’s offices. He
informed General Counsel K. Ann Zimmerman that he had suffered a stroke in
June 2006, which paralyzed the right side of his body. He said that he intended to
refund money to Jones and Scales and that he would work with the other clients to
resolve their grievances.
{¶ 12} Despite all of the correspondence that was sent to respondent over
a period of months, respondent has never provided a written response, produced
his client files, or made any kind of restitution. The board found that respondent’s
conduct with regard to the grievances described above violated the following
provisions of the Code of Professional Responsibility, the Rules of Professional
Conduct, and the Rules for the Government of the Bar: DR 1-102(A)(6)
(engaging in conduct adversely reflecting on the lawyer’s fitness to practice law),
6-101(A)(3) (neglecting an entrusted legal matter), 7-101(A)(1) (intentionally
failing to seek the lawful objective of his client), 7-101(A)(2) (intentionally
failing to carry out a contract of employment), and 9-102(B)(4) (failing to
promptly deliver to a client the papers and funds belonging to the client),
Prof.Cond.R. 1.4(a)(4) (failing to comply as soon as practicable with reasonable
requests for information from the client), 1.15(d) (failing to promptly notify his
client upon receiving funds or other property in which the client has an interest),
8.1(b) (in response to a demand for information from an admission or disciplinary
authority, failing to disclose a material fact or knowingly failing to respond), and
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January Term, 2009
8.4(h) (engaging in conduct adversely reflecting on the lawyer’s fitness to practice
law), and Gov.Bar R. V(4)(G) (neglecting to assist or testify in an investigation or
hearing).
{¶ 13} We agree with the board’s findings.
Sanction
{¶ 14} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties violated by the lawyer in question and the
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(B)(1) and (2) 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.
{¶ 15} Two mitigating circumstances are present: respondent’s previous
disciplinary record involved attorney-registration noncompliance only, and he has
suffered a stroke. BCGD Proc.Reg. 10(B) (in determining the sanction, the board
shall consider all relevant factors). However, we note that while respondent
indicated to General Counsel Zimmerman that he had suffered a stroke in June
2006, his failure to cooperate with the investigation prevented the board from
determining the extent to which the stroke affected his ability to practice law. We
also note that most of the conduct resulting in grievances took place before June
2006.
{¶ 16} At least six of the nine aggravating factors set forth in BCGD
Proc.Reg. 10(B)(1) are present here: (c) a pattern of misconduct, (d) multiple
offenses, (e) lack of cooperation in the disciplinary process, (g) refusal to
acknowledge the wrongful nature of his conduct, (h) the vulnerability and
resulting harm to his victims, and (i) failure to make restitution.
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SUPREME COURT OF OHIO
{¶ 17} A lawyer’s neglect of legal matters and failure to cooperate in the
ensuing disciplinary investigation generally warrants an indefinite suspension
from the practice of law in Ohio. See Cleveland Bar Assn. v. Verbiski (1999), 86
Ohio St.3d 627, 628, 716 N.E.2d 702 (lawyer suspended indefinitely for keeping
her client’s retainer after failing to perfect service in a divorce proceeding).
Respondent similarly neglected several of his clients and failed to refund retainers
for work he did not perform. His misconduct and failure to cooperate in the
disciplinary investigation warrant this sanction.
{¶ 18} Respondent is indefinitely suspended from the practice of law in
Ohio.
{¶ 19} Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
K. Ann Zimmerman and Heather M. Zirke, for relator.
______________________
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