Opinion
No. 90-2535
Submitted February 13, 1991 —
Decided May 29, 1991.
Attorneys at law — Misconduct — Public reprimand — Neglect of a legal matter — Failure to carry out employment contract — Practicing law while not registered.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-60.
Relator, Cincinnati Bar Association, filed a complaint charging that respondent, Denis G. Holtmeier, had violated DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(6) (conduct adversely reflecting on fitness to practice law), 6-101(A)(3) (neglect of a legal matter), 7-101(A)(1) (intentional failure to seek client's lawful objectives), 7-101(A)(2) (failure to carry out employment contract), 7-101(A)(3) (prejudice or damage to client during course of professional relationship), 7-102(A)(5) (false statement), 9-102(A) (commingling funds), 9-102(B)(3) (failure to maintain complete records of client's property in lawyer's possession), 9-102(B)(4) (failure to promptly pay funds which client is entitled to receive), and Gov. Bar R. V(5)(a) (failure to assist investigation). Relator later amended its complaint to charge Holtmeier with violating DR 3-101(B) (unauthorized practice of law) and Gov. Bar R. VI(7) (practicing law while not registered).
In October 1987, Joseph Harper retained Holtmeier to help him file a bankruptcy petition. Holtmeier agreed to represent Harper in the bankruptcy matter for $495, on the understanding that Holtmeier would do no work until his fee was paid in full.
Harper met with Holtmeier again "[r]oughly, two or three weeks" later. Harper and his wife signed the bankruptcy petition papers at this meeting. Harper testified that the papers were blank when the Harpers signed them, but Holtmeier testified that he had filled out all the forms but one page, which required information that Harper had brought with him to the meeting. The Harpers paid Holtmeier $350 in cash. According to Harper, Holtmeier told the Harpers that he would go ahead and file the petition before they paid the rest. Holtmeier denied this, claiming that he told them only that he would prepare the paperwork.
Before his next meeting with Holtmeier on November 27, 1987, Harper moved from Forest Park, Ohio, to Washington Court House. Harper so informed Holtmeier at the November 27 meeting. Holtmeier told Harper that the move would require more paperwork in the bankruptcy action. By moving to Washington Court House, Harper had moved from the Western Division of the United States Bankruptcy Court, Southern District of Ohio, to the Eastern Division. Thus, in order to file his bankruptcy petition in the Western Division, Harper needed to file an affidavit and motion for the court to accept jurisdiction.
At the November 27 meeting, Harper believed that his bankruptcy petition had already been filed. Holtmeier said nothing to suggest that it had not been. In fact, Holtmeier never filed Harper's petition, nor did he prepare the motion to accept jurisdiction. At the meeting, Harper gave Holtmeier a check for the balance of the fee, $145.
After the November 27 meeting, Harper wrote and phoned Holtmeier's office numerous times. Harper testified that Holtmeier never replied to his calls or letters. Holtmeier testified that he spoke to Harper once or twice over the phone but admitted that he did not return Harper's subsequent calls. Holtmeier also claimed that he received no letters from Harper until April 1988.
According to Holtmeier, in December 1987, Harper fired him by leaving a message to that effect with Holtmeier's secretary. Harper denied this. Although Holtmeier made no effort to confirm his firing or to return Harper's file, he stopped working on Harper's bankruptcy. However, he kept the fee.
In early 1988, Mellon Financial foreclosed on Harper's Forest Park house. Harper tried but failed to reach Holtmeier. Harper then called Mellon Financial and was told that Holtmeier had not filed a bankruptcy petition. Harper confirmed this by checking the bankruptcy court's files in Cincinnati.
On March 15, 1988, Harper sent Holtmeier a certified letter complaining about Holtmeier's failure to file the bankruptcy petition and threatening to file a complaint if he did not respond. Holtmeier denied getting this letter. Although Harper could not produce the return receipt, he thought he recalled getting one.
Shortly afterwards, Harper obtained new counsel. On April 4, 1988, Harper sent Holtmeier a certified letter firing Holtmeier as his lawyer on a workers' compensation claim. Holtmeier received it and considered it "consistent with being fired" on the bankruptcy matter, but still did not send back the fee.
On May 9, 1988, Harper's new counsel filed Harper's bankruptcy petition in the United States Bankruptcy Court, Eastern Division.
In August 1988, Holtmeier moved his office from Northland Boulevard to Kemper Meadow Drive. The post office forwarded his mail to his new address. Holtmeier practiced law at the new address until October 1, when he went to work for the Hamilton County Child Support Enforcement Agency ("CSEA"). However, he maintained a desk at the Kemper Meadow office and returned periodically to pick up his mail.
On December 5, 1988, Harper's new counsel wrote Holtmeier to demand restitution. Holtmeier received this letter. However, he still did not return the $495.
Harper filed a complaint with the Cincinnati Bar Association Grievance Committee, which assigned Barbara Barden to investigate. On March 27 and April 11, 1989, Barden wrote Holtmeier asking him to contact her about Harper's complaint. Both letters were addressed to Holtmeier's former Northland address. (Barden knew, but had forgotten, that Holtmeier had gone to work for CSEA.) These letters were forwarded to the Kemper Meadow office, but by then, Holtmeier returned only infrequently to Kemper Meadow to check his mail; consequently, he did not see them right away.
Eventually, Barden asked a former partner of Holtmeier's for his whereabouts and was reminded that Holtmeier now worked for CSEA. She called him there and left a message, but he did not return her call.
On April 18, Barden sent a certified letter to Holtmeier's home. When Holtmeier received this letter, he was so embarrassed that he delayed calling Barden for a week. He eventually called her twice, but failed to reach her; the second time, he left a message. After that, he made no further efforts to contact Barden.
Finally, Barden had Holtmeier subpoenaed to appear at a deposition. She deposed him on May 10, 1989. In June, Holtmeier finally returned the $495 fee.
Holtmeier admitted that he should have refunded Harper's money sooner. He explained that he had not done so because nobody asked him to until December 1988. Similarly, he had kept Harper's file because neither Harper nor Harper's new counsel had asked him for it. Furthermore, having done between seven and nine hours' work on Harper's bankruptcy, Holtmeier felt entitled to the $495.
Holtmeier testified that, had his practice been more profitable, he probably would have returned Harper's money anyway, if only to protect himself; however, he conceded that he did not need the money "to put bread on the table * * *."
While representing Harper, Holtmeier was not registered as an attorney in the state of Ohio. The record shows that Holtmeier did not register for the 1987-1989 biennium until December 11, 1989, more than three months after the biennium expired.
A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court found that Holtmeier violated DR 6-101(A)(3), 7-101(A)(2), and Gov. Bar R. VI. The panel further found that these violations were isolated incidents, unlikely to recur. The panel cleared Holtmeier of failing to cooperate with the investigation, but made no specific findings on the other charges.
The panel recommended that Holtmeier be publicly reprimanded. The board adopted the panel's findings and recommendation.
Charles S. Kamine and Edwin W. Patterson III, for relator.
Sidney C. Lieberman, for respondent.
We agree with the board's findings and recommendation. Denis G. Holtmeier is publicly reprimanded for violating DR 6-101(A)(3), 7-101(A)(2), and Gov. Bar R. VI. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.