Opinion
D.D. No. 87-4
Decided July 29, 1987.
Attorneys at law — Misconduct — Six-month suspension and one-year probation — Willful failure to prosecute cases and to return fees.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
On July 31, 1986, relator, Akron Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Bar charging the respondent, Michael C. Conway, with a single count of misconduct:
" COUNT ONE
"1. In February, 1985, P.M. Weatherization Rehab Company, Inc. (hereinafter `the Company') through its Secretary-Treasurer retained the Respondent to represent the Company in two collection matters, and Respondent accepted the retainer and was given certain documents and papers.
"2. In April, 1985, the Company paid the Respondent $40.00 for a filing fee in one case, $40.00 for a filing fee for a second case, and in August, 1985, at Respondent's request the additional sum of $510.00 was paid to him.
"3. Respondent failed to prosecute these cases and his failure was willful, but falsely stated to the Company that the cases had been filed and prehearing date or dates had been set, when in fact neither case had been filed and no prehearing date or dates had been set.
"4. In January, 1986, the Company discharged the Respondent and demanded the return of documents and papers and monies advanced but Respondent failed to refund the monies and returned only some of the documents and papers.
"5. Respondent failed to deposit the retainer of $510.00 in escrow in an identifiable bank account maintained in the state of Ohio, but paid that sum directly to a personal creditor."
As a result of this conduct, relator charged that respondent had violated DR 1-102(A)(1), violating a Disciplinary Rule, DR 1-102(A)(4), engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, DR 1-102(A)(6), engaging in conduct that adversely reflects on his fitness to practice law, DR 1-110(3) [ sic — in reality, DR 2-110(A)(3)], failure to return unearned fees upon withdrawal from employment, DR 6-101(A)(3), neglect of a legal matter entrusted to him, DR 7-101(A)(2), intentionally failing to carry out a contract of employment for professional services, and DR 9-102(A), failing to segregate a client's funds in a separate bank account.
On October 2, 1986, relator filed with the board an amended complaint containing two additional counts:
" COUNT TWO
"1. In June 1985, Richard Brophy and Barbara Brophy, husband and wife, of * * * Akron, Ohio * * * retained Respondent to represent them in the adoption of their grandson.
"2. Mr. and Mrs. Brophy paid Respondent the sum of $500.00, $200.00 for court costs and $300.00 for attorney fees. They were provided with receipts for the deposit and given forms outlining the Summit County Probate Court requirements for adoption. Respondent explained to his clients that he would obtain a certified copy of their marriage license application and birth records from the courthouse that very day.
"3. Mr. and Mrs. Brophy obtained four letters of reference from their minister, employer and two long-time friends. Additionally, Mr. and Mrs. Brophy saw their physician in order to have medical examinations as required for the adoption process. They also had the medical examination for the child, Nicholas, as required. All three medical examinations [of] Mr. and Mrs. Brophy and the child, Nicholas, had to be repeated after a period of six months when this matter was not yet final.
"4. Respondent called Mr. and Mrs. Brophy on five different occasions, provided them with dates for them to be home, with the child and with their records, in order to meet with the investigator from the Summit County Probate Court for the home-study investigation. On each of these five occasions, the clients were home, prepared, anxious and nervous about the investigation, missing work and losing wages therefrom.
"5. Mr. and Mrs. Brophy repeatedly contacted respondent questioning why the Probate Court investigator never appeared for any of the scheduled meetings and were given different excuses by Respondent each time. On the first occasion, Respondent told his clients that the investigator cancelled due to the flu and on other occasions expressed disbelief that the Probate Court investigator would not appear when scheduled and told his clients on several occasions he would personally contact Judge Willard Spicer of the Summit County Probate Court to complain of their [ sic] actions.
"6. Respondent had Mr. and Mrs. Brophy and their daughter, Carol Brophy, the mother of the child to be adopted, write letters to Judge Spicer, complaining of the slowness of the Summit County Probate Court and of the failure of its investigators to appear when scheduled. When Respondent did not pick up the letters from their home as promised, the clients met Respondent at his office, personally delivered the letters to him and secured his promise to personally deliver them to Judge Spicer.
"7. Mr. and Mrs. Brophy were informed by Respondent that he personally delivered the letters to Judge Spicer and complained to him regarding the matter.
"8. In April 1986, Mr. Brophy finally contacted Summit County Probate Court himself by telephone and was informed that no adoption had been filed on their behalf.
"9. Respondent failed to file this case, his failure being willful, yet falsely stating to his clients that this adoption had been filed and investigation dates set when, in fact, the case had not been filed nor had any investigations been scheduled.
"10. Mr. and Mrs. Brophy have discharged Respondent and filed a written complaint with the Akron Bar Association with regard to this matter.
"11. Respondent has failed to acknowledge or cooperate with the investigation of the matter set forth above.
"* * *
" COUNT THREE
"13. Marion Huffman[,] mother of Joshua Huffman, employed attorney Michael C. Conway and paid him the sum of two-hundred dollars ($200.00) for the purpose of seeking post conviction relief for Joshua Huffman, which retainer Michael C. Conway accepted.
"14. Joshua Huffman was and is incarcerated in the Chillicothe Correction Institute [ sic], Inmate #146275.
"15. Michael C. Conway has failed to prosecute post conviction relief or to confer with said Joshua Huffman, and has failed to return the aforementioned retainer, or to otherwise communicate with either Marion or Joshua Huffman."
The amended complaint states that the conduct described in counts two and three violates the same provisions of DR 1-102, 6-101, and 7-101, as the conduct under count one, which the amended complaint incorporates by reference, and also violates Gov. Bar. R. V(4), neglecting or refusing to assist in an investigation.
Relator and respondent submitted stipulations of fact, which were contained in a transcript of sworn testimony of the respondent. In the transcript, respondent stipulated to basically all elements of the amended complaint, except paragraph 7 of count two and as to some non-essential matters involved in count three.
At the hearing before the board, respondent offered no explanation or excuse for his conduct. Instead, he submitted four letters of character reference, three from judges before whom he had practiced and one from an attorney familiar with his work, and expressed regret for his conduct. The board was impressed with respondent's sincerity.
The board found that respondent violated DR 1-102(A)(1), (4) and (6), 6-101(A)(3) and 7-101(A)(2) of the Code of Professional Responsibility and recommended that he be suspended from the practice of law for six months and placed on probation for one year following the suspension. The respondent did not file objections to the report of the board.
Roetzel Andress, George A. Clark, Leipply Fallis, Steven A. Fallis and Stanley A. Samad, for relator.
George M. Miller, for respondent.
Respondent admits to the facts charged in the amended complaint and this court finds respondent to have violated DR 1-102(A)(1), (4) and (6), 6-101(A)(3) and 7-101(A)(2). Accordingly, this court accepts the recommendation of the board and hereby suspends the respondent from the practice of law for six months, to be followed by a one-year probation from the termination of the suspension period. Further, the court orders as a condition of the probation that respondent maintain current registration and pay applicable fees and penalties under Gov. Bar R. VI for the period September 1, 1985 through August 31, 1987, and September 1, 1987 through August 31, 1989, within sixty days of the date of this opinion.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.