Opinion
No. DD 88-30
Submitted November 16, 1994 —
Decided December 20, 1994.
ON PETITION FOR REVOCATION OF PROBATION.
On May 23, 1990, this court determined that respondent, B. Alan Freeman of Columbus, Ohio, Attorney Registration No. 0024853, violated DR 6-101(A)(3) (neglecting an entrusted legal matter) and 1-102(A)(6) (engaging in conduct that adversely reflects on an attorney's fitness to practice law). Disciplinary Counsel v. Freeman (1990), 51 Ohio St.3d 98, 554 N.E.2d 1320. It was established, inter alia, that a default judgment had been entered against James S. and Linda Bailey due to respondent's neglect, and that respondent had agreed to pay the Baileys $20,000 in settlement of their malpractice action against him. We suspended respondent from the practice of law in Ohio for six months for his misconduct, but stayed the suspension on the condition that he satisfactorily complete a two-year monitored probation and comply with five conditions, including that he make restitution to the Baileys.
On May 18, 1993, relator filed a petition for the revocation of respondent's probation pursuant to Gov.Bar R. V(9)(E). At a hearing on the matter held before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court, the parties stipulated that respondent had complied with all the conditions of probation except for the one that he make restitution to the Baileys. The panel found that under the terms of a promissory note signed by respondent in March 1988, he was to repay the $20,000 owed to the Baileys in monthly installments of $272.32.
Under the promissory note's terms, respondent's final payment to the Baileys would have been made in April 1992. Under this court's May 23, 1990 order, respondent's probation was supposed to end on May 23, 1992. As of July 1993, respondent still owed the Baileys over $32,000 on the note, which included accrued interest. In March 1991, the Baileys' failure to make mortgage payments resulted in the foreclosure and sale of their home. The panel further found that respondent had failed to make any payments to the Baileys since March 1993 and had failed to comply with a subsequent agreement with relator to pay $100 a month towards his obligation to the Baileys. In 1993, respondent had gross income of $57,788, and he purchased a computer on time payments. He stated that he used over $23,000 in a bankruptcy fee received in October 1993 on "expenses."
Based on the foregoing, the panel concluded that respondent failed to comply with the terms of his probation by not making payments to the Baileys. The panel recommended that respondent's probation be revoked and his original six-month suspension be reinstated.
We issued an order pursuant to Gov.Bar R. V(9)(J) for respondent to show cause why the recommendation of the panel should not be confirmed. On July 1, 1994, this court issued an order pursuant to Gov.Bar R. V(9)(I) revoking respondent's probation and reinstating his suspension pending entry of a final order. Respondent subsequently filed a brief in which he asserted that he had made reasonable efforts to comply with the restitution condition of his suspension and that revocation of his probation and reinstatement of his suspension would only hinder his efforts to repay the Baileys.
Geoffrey Stern, Disciplinary Counsel, and Sally Ann Steuk, Assistant Disciplinary Counsel, for relator.
Butler, Cincione, DiCuccio Dritz and David B. Barnhart, for respondent.
Having thoroughly reviewed the record, we concur in the findings and recommendation of the panel. B. Alan Freeman's probation is revoked and his original six-month suspension is reinstated, but he is given credit for time served. He will not be reinstated until he pays the restitution to the Baileys in full. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, YOUNG, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
WILLIAM W. YOUNG, J., of the Twelfth Appellate District, sitting for WRIGHT, J.