[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lorain Cty. Bar Assn. v. Nelson, Slip Opinion No. 2015-Ohio-4337.]
NOTICE
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SLIP OPINION NO. 2015-OHIO-4337
LORAIN COUNTY BAR ASSOCIATION v. NELSON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lorain Cty. Bar Assn. v. Nelson, Slip Opinion No.
2015-Ohio-4337.]
Attorneys―Misconduct―Multiple violations in representation of single client,
including neglect of client matter and failure to communicate―Public
reprimand.
(No. 2015-0301—Submitted April 14, 2015—Decided October 22, 2015.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2014-003.
_______________________
Per Curiam.
{¶ 1} Respondent, Kenneth Allen Nelson II of Avon Lake, Ohio, Attorney
Registration No. 0075834, was admitted to the practice of law in Ohio in 2003. In
February 2014, relator, the Lorain County Bar Association, charged him with
violating the Rules of Professional Conduct for allegedly neglecting a single client
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matter. Upon review of the parties’ stipulations and witness testimony at the panel
hearing, the Board of Professional Conduct issued a report finding that Nelson had
engaged in the charged misconduct and recommending that we publicly reprimand
him. We accept the board’s findings of misconduct and agree with the
recommended sanction.
Misconduct
{¶ 2} In July 2008, Mary Martinez retained Nelson to pursue a personal-
injury claim on her behalf. Although he met with Martinez twice to discuss the
claim, Nelson failed to respond to multiple e-mail and telephone messages from
Martinez’s daughter requesting updates on the matter, and he acknowledged that
he had failed to consult with Martinez about the management and status of the case.
Indeed, Nelson filed a complaint without notifying Martinez, and during the
pendency of the matter, he failed to conduct any discovery or to respond to the
defendant’s discovery request. Nelson eventually dismissed the lawsuit—again,
without Martinez’s knowledge or consent—and because he did not timely refile the
complaint, she lost the ability to pursue her claims. Additionally, Nelson failed to
inform Martinez in writing that during the course of his representation, his
malpractice insurance had lapsed, and after their attorney-client relationship ended,
he failed to return Martinez’s case file, as she had requested.
{¶ 3} In March 2013, Martinez, through her daughter, filed a grievance
against Nelson. Although Nelson communicated with relator by telephone, he did
not timely respond in writing to multiple letters from relator requesting a response
to the grievance. However, when he received relator’s notice of intent to file a
professional-misconduct complaint, he became fully cooperative in the disciplinary
process.
{¶ 4} Based on this conduct, the board found that Nelson had 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 in representing a
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January Term, 2015
client), 1.4(a)(1) through (4) (requiring a lawyer to promptly inform the client of
decisions that require the client’s informed consent, to reasonably consult with the
client about the means to accomplish the client’s objectives, to keep the client
reasonably informed about the status of the matter, and to comply as soon as
practicable with reasonable requests for information from the client), 1.4(c)
(requiring a lawyer to inform the client if the lawyer does not maintain professional
liability insurance), 1.16(d) (requiring a lawyer, as part of the termination of
representation, to deliver to the client all papers and property to which the client is
entitled), and 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a
demand for information by a disciplinary authority during an investigation) and
former Gov.Bar R. V(4)(G) (now Gov.Bar R. V(9)(G)) (requiring a lawyer to
cooperate with a disciplinary investigation). We agree with these findings of
misconduct.
Sanction
{¶ 5} When imposing sanctions for attorney misconduct, we consider
several 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
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 Gov.Bar
R. V(13). However, because each disciplinary case is unique, we are not limited to
the factors specified in Gov.Bar R. V(13) and may take into account all relevant
factors in determining which sanction to impose.
{¶ 6} As aggravating factors, the board found that Nelson initially failed to
promptly and adequately cooperate in the disciplinary process and that his client
was vulnerable and suffered harm as a result of his conduct. See Gov.Bar R.
V(13)(B)(5) and (8). In mitigation, the board found that Nelson has no prior
discipline; he did not act with a selfish motive; he did not profit, gain, or experience
any benefit as a result of the misconduct; the violations did not involve fraud,
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dishonesty, or self-dealing; his misconduct adversely affected only one client, and
therefore there was no pattern of neglect; and he accepted responsibility for his
misconduct. See Gov.Bar R. V(13)(C)(1) and (2).
{¶ 7} To support its recommended sanction, the board primarily relied upon
Lorain Cty. Bar Assn. v. Godles, 128 Ohio St.3d 279, 2010-Ohio-6274, 943 N.E.2d
988, and Disciplinary Counsel v. Boulger, 88 Ohio St.3d 325, 725 N.E.2d 1112
(2000). Similar to the facts here, both cases involved isolated incidents of neglect
or failure to communicate by attorneys who had no prior discipline and lacked a
dishonest or selfish motive. In Godles, the attorney conducted little work on a
personal-injury case, failed to communicate with his client about the management
or status of the matter, and failed to advise his client that he lacked malpractice
insurance. Godles at ¶ 12-14. In Boulger, the attorney neglected filings in a
personal-injury matter, dismissed the case without informing his client, and failed
to respond to relator’s letters of inquiry regarding grievances filed by four clients.
Boulger at 326. We publicly reprimanded the attorney in Godles, and we issued a
stayed six-month suspension in Boulger. As the board in this case noted, the most
significant difference between the two cases is that the attorney in Boulger also
failed to cooperate in the disciplinary investigation.
{¶ 8} Here, the board found that Nelson’s misconduct fell somewhere
between the attorney misconduct in Godles and Boulger. The board acknowledged
that Nelson had initially failed to timely respond to relator’s inquiries, but the board
also found it compelling that Nelson was ultimately “completely cooperative and
forthcoming on all matters.” Indeed, the board noted that at the panel hearing,
relator had indicated that it would have no serious objection if the panel dismissed
the charges relating to Nelson’s failure to cooperate. Given these comments, the
board concluded that Godles was “more instructive” and accordingly recommended
a public reprimand.
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January Term, 2015
{¶ 9} As we have often explained, this court is the ultimate arbiter of
misconduct and sanctions in attorney-discipline cases, although we often accept the
board’s conclusions “as to the propriety of an attorney’s conduct or the appropriate
sanction, and to that extent, our decisions reflect deference to [its] expertise.”
Disciplinary Counsel v. Kelly, 121 Ohio St.3d 39, 2009-Ohio-317, 901 N.E.2d 798,
¶ 11. Here, we accept the board’s reasoning and therefore agree that a public
reprimand is the appropriate sanction in this case.
Conclusion
{¶ 10} Having considered the ethical duties violated, the mitigating and
aggravating factors, and the sanctions imposed in comparable cases, we adopt the
board’s findings of misconduct and recommended sanction. Accordingly, Kenneth
Allen Nelson II is publicly reprimanded for the misconduct described herein. Costs
are taxed to Nelson.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Cook & Nicol, L.L.C., and D. Chris Cook, for relator.
Kenneth Allen Nelson II, pro se.
_________________
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