Opinion
No. 92-2535
Submitted April 6, 1993 —
Decided August 11, 1993.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 91-38.
In complaints filed on October 21, 1991, and March 24, 1992, relator, Cincinnati Bar Association, charged respondent, Timothy A. Smith of Cincinnati, Ohio, Attorney Registration No. 0032087, with nine counts of disciplinary violations. In his answers, respondent admitted the facts in counts one through four and six through nine of the complaints, but denied any disciplinary infractions. Respondent denied count five, which alleged respondent aided the unauthorized practice of law. A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court held a hearing on the matter on October 12, 1992.
Respondent's admissions and evidence at the hearing established that respondent neglected post-conviction legal remedies for nine prisoners whom respondent had undertaken to represent. In late 1987, respondent met H. Wesley Robinson, who styled himself as "Director of Case Analysis and Research" of an entity known as National Legal Professional Associates ("NLPA"). NLPA's self-described purpose was "[p]roviding [a]ssistance to the [l]egal [p]rofession in presentencing, post-conviction relief, [and] [p]arole [a]nalysis * * *." Federal courts had previously convicted Robinson of several felonies, and this court permanently disbarred him from the practice of law in Ohio. See Columbus Bar Assn. v. Robinson (1985), 18 Ohio St.3d 197, 18 OBR 262, 480 N.E.2d 469.
In 1989, Robinson began referring various prisoners to respondent. In turn, respondent undertook to represent these prisoners, generally seeking to obtain post-conviction relief in federal courts. Over the next two years, Robinson referred thirty to forty clients to respondent, who agreed to represent them. Respondent then hired Robinson as a paralegal to gather the facts, research legal issues, and draft pleadings. Respondent paid Robinson up to one-half of the fees he received for Robinson's efforts on each case. Respondent consulted with another attorney in an effort to avoid improperly assisting NLPA in the unauthorized practice of law.
In the fall of 1990, a client not involved in this case complained to relator about respondent's involvement with Robinson. When relator contacted respondent, respondent learned for the first time that Robinson directly charged fees to clients, and respondent became concerned over the propriety of Robinson's conduct.
In the spring of 1991, relator contacted respondent about a complaint by Jorge Torres, a client referred by Robinson. Respondent had filed a post-conviction motion for Torres that Robinson had prepared; respondent now discovered that numerous factual assertions in that motion were untrue. Relator's representative and respondent discussed the "Robinson problem" and relator's "heavy concern[s]" about Robinson. As a result, respondent decided to sever all ties with Robinson.
The panel found that after the Spring 1991 meeting, respondent "simply neglected the cases" forming the basis for counts one through four and six through nine of the complaints. Respondent had grown "suspicious of Robinson's deception" and was "faced with a clear warning concerning continuation of that relationship." Respondent also concluded these nine "cases were frivolous or had little chance of success." Respondent received fees ranging from $1,500 to $2,500 to represent these clients. However, according to the panel, respondent failed to communicate with these clients and immediately refund unearned fees. His inaction resulted in "multiple violations" of DR 6-101(A)(3) (neglect of an entrusted legal matter).
The panel concluded that "although multiple clients were affected, [the violations] all arose out of the same set of facts * * * [and] do not constitute a pattern of behavior as the Board has used that term in other cases." The panel also found relator "has not proven by clear and convincing evidence that any client was prejudiced by Respondent's conduct" except for the delay in returning unearned fees.
The panel rejected count five of the complaint because relator did not prove by clear and convincing evidence that respondent had improperly aided the unauthorized practice of law. Robinson's activities did warrant "further investigation," but relator should pursue that unauthorized practice claim against Robinson pursuant to Gov.Bar R. VII.
In mitigation, the panel found that prior to the hearing "respondent has refunded all fees earned from any client referred by Robinson, including those for whom he had actually completed the legal work he contracted to perform." (Emphasis sic.) Also, from 1989 through 1991, respondent had been under severe financial and other pressures from litigation involving a subrogation business he had purchased. Respondent, admitted to the practice of law in 1977, had served for several years as a public defender and continued to ably assist the disadvantaged. Several character witnesses testified to respondent's dedication, honesty, and the high quality of his legal advocacy, adding he was too trusting and "usually undercharged for his services."
The panel recommended that respondent be suspended from the practice of law for one year, but that this penalty be stayed and respondent be placed on probation for one year. The board adopted the panel's findings of fact and conclusions of law, and concurred in the panel's recommendation. Before this court, relator disputes the board's findings of fact and urges a definite term of suspension be imposed.
Peter W. Swenty, James J. Condit and Edwin W. Patterson III, for relator.
John H. Burlew, for respondent.
We agree with the board's findings and recommendation and find that respondent did neglect legal matters entrusted to him and did thereby violate DR 6-101(A)(3). However, relator did not prove other allegations against respondent by "clear and convincing evidence." Former Gov.Bar.R. V(16), now Gov.Bar R. V(6)(J). Accordingly, respondent is hereby suspended from the practice of law in Ohio for one year, but this suspension is stayed and respondent is placed on probation for one year. Costs taxed to respondent.
Judgment accordingly.
A.W. SWEENEY, DOUGLAS, RESNICK and PFEIFER, JJ., concur.
MOYER, C.J., WRIGHT and F.E. SWEENEY, JJ., dissent.
I would suspend respondent from the practice of law for six months.
MOYER, C.J., and F.E. SWEENEY, J., concur in the foregoing dissenting opinion.