Toledo Bar Ass'n v. Dzienny

Moyer, C.J.,

dissenting. On March 11, 1991, respondent committed an act of negligence when he permitted the statute of limitations governing a client’s action to pass without filing a complaint. Rather than limit his misconduct to a single act of malpractice, respondent engaged in a lengthy course of fraud and deception designed to cover up his mistake.

On May 10, 1991, the named defendant in the underlying lawsuit moved to dismiss and the respondent did not inform his clients of his error. On September 12, the defendant’s motion was granted and respondent did not inform his clients. On that same day, respondent moved to amend the complaint so that some claim might survive and again he did not inform his clients. On November 24, 1992, respondent finally communicated with his clients but still failed to be truthful.

Respondent admitted to missing the statute of limitations and to failing to inform his clients in a “timely manner.” Even this admission is not totally honest. Respondent never informed his clients; in fact he misled them. It was not until respondent had been discharged and new counsel retained that respondent’s failures were discovered. Respondent now argues that his cover-up was the result of unusual circumstances unique to this case. He attempts to justify his conduct rather than accept personal responsibility for his actions.

Respondent argues that a public reprimand is the appropriate sanction because his malpractice was committed on a matter involving the relative of a former associate whose performance he had criticized when he suggested the associate leave the law firm. He suggests that his desire to avoid the embarrassment of admitting malpractice under these circumstances is “a justification for a public reprimand.”

The majority adopts the board’s recommendation for a six-month suspended suspension without any provision for monitoring or continuing review of respondent’s conduct. I cannot accept such an inadequate sanction for respondent’s conduct. We should all be troubled by the increasing number of cases in which attorneys have deceived or lied to their clients. In my view there are few violations of the Code of Professional Responsibility that are more severe than a violation of DR 1 — 102(A)(4). As the majority indicates, we have stayed suspensions of attorneys’ licenses even where the attorneys’ conduct constituted a violation of DR 1-102(A)(4). However, the case before us is an excellent example of why that disposition is no longer appropriate, where the attorney engages in a course of conduct involving dishonesty, deceit, or misrepresentation.

Had their lawsuit gone forward, the clients of respondent in this case might have received no more than the amount of the settlement. It was not because *178respondent came forward and admitted his deceit that his clients received something more than that; it was because they were forced to seek new counsel in order to discover that their attorney had violated his oath of office and the Code of Professional Responsibility to their detriment. And for that, our disciplinary system tells respondent not to do that again.

It is time for a clear message from this court that when a lawyer engages in a course of conduct that violates DR 1-102(A)(4), we will impose a sanction which actually suspends the attorney from the practice of law for an appropriate period of time. That message should be sent to those who question why lawyers who lie to clients are permitted to continue practicing law without interruption, and to lawyers who apparently are assuming that the benefit for deceiving clients is worth the risk of our sanction.

For the foregoing reasons I would suspend respondent from the practice of law for six months.

F.E. Sweeney and Cook, JJ., concur in the foregoing dissenting opinion.