Opinion
No. 90-400
Submitted June 5, 1990 —
Decided September 12, 1990.
Attorneys at law — Misconduct — Indefinite suspension — Neglecting an entrusted legal matter by failing to file a complaint — Failing to put client's property in place of safekeeping resulting in loss of an original invoice — Failure to cooperate in investigation of misconduct.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-40.
In a complaint filed June 26, 1989, relator, Cincinnati Bar Association, charged that respondent, Lee B. Kasson, Jr., had violated DR 1-102 (A)(4) and (6) (engaging in conduct involving fraud, deceit, dishonesty or misrepresentation, and conduct that adversely reflects on an attorney's fitness to practice law); 6-101(A)(1), (2), and (3) (failing to competently handle or prepare for client's representation and neglecting an entrusted legal matter); 7-101(A)(1), (2), and (3) (failing to seek client's lawful objective, failing to carry out a contract for employment, and causing damage or prejudice to client); 7-102(A)(5) (knowingly making a false statement of fact); and 9-102(B)(2) (failing to put client's property in a place of safekeeping). The complaint also charged that respondent had violated Gov. Bar R. V(5)(a) by failing to cooperate in relator's investigation. The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on December 1, 1989. Respondent asked for a continuance both before and during the hearing because he had only retained his present attorney two days before. The panel denied his requests and the hearing went forward as scheduled.
The evidence submitted at the hearing, which included certain stipulations, established that respondent agreed in January 1987 to represent Monica Evans and her husband in a breach of warranty claim on a one-third contingency-fee basis. Thereafter, Mrs. Evans made numerous attempts to contact respondent about his progress in her case. Her efforts were rarely successful, and when she did reach respondent, he was usually unable to give her the details she wanted. Finally, by September 1988, respondent told Mrs. Evans a case number and the name of a judge who would supposedly hear her cause of action. Mrs. Evans later learned, however, that respondent had never filed a complaint in the matter. Prior to this discovery, Mrs. Evans had had to replace an original invoice that respondent had misplaced.
Respondent, who has been a member of the Ohio Bar since 1948, admitted that he did not file a complaint for the Evanses. He explained that he has a very large collection practice, that the Evanses' case simply "fell among the cracks" and further, that he had given Mrs. Evans incorrect information about her case by mistake. However, respondent also testified that Mrs. Evans never gave him the court costs he requested and that he did not file her complaint for this reason. Mrs. Evans denied that respondent had asked her to advance court costs.
Other evidence submitted to the panel established that relator's counsel sent respondent two letters asking him to meet and discuss the Evans matter. Respondent claimed that he did not receive the first letter, but admitted that he did not reply to the second. Respondent's failure to reply caused counsel for relator to arrange for respondent's deposition on January 23, 1989. Respondent appeared at the deposition without counsel, and the proceeding was rescheduled so that respondent could retain an attorney. The deposition resumed on February 8, 1989 by agreement, but respondent again appeared without counsel. He explained that his attorney, Charles Milazzo, was in court and unavailable. However, when relator's counsel contacted Milazzo, he discovered that Milazzo was in his office, an office that Milazzo shared with respondent. Milazzo indicated that he did not know of respondent's deposition or that respondent had retained his services.
Based on the foregoing, the panel found that respondent had violated all the Disciplinary Rules cited in the complaint. In making its recommendation, the panel considered that respondent had been publicly reprimanded on May 15, 1985 for committing several of these same disciplinary infractions. (Case No. D.D. 85-3.) The panel recommended the sanction suggested by relator, an indefinite suspension. The board adopted the panel's findings and its recommendation.
Charles E. Hamilton, Timothy E. Hoberg and Baron H. Gold, for relator.
H. Fred Hoefle, for respondent.
Having thoroughly reviewed the record in this case, we agree with the board's findings of misconduct and its recommendation. We therefore reject respondent's argument, made in objections to the board's report, that relator failed to prove his misconduct by clear and convincing evidence. We also reject the proposition that a monitored probation, rather than an indefinite suspension, is appropriate here. Furthermore, although respondent cites Palomo v. State Bar of California (1984), 36 Cal.3d 786, 205 Cal.Rptr. 834, 685 P.2d 1185, that decision does not specifically support respondent's theory that the panel denied him due process of law by refusing his request for a continuance. Accordingly, we order that respondent be indefinitely suspended from the practice of law in Ohio. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.