Opinion
No. 85-27
Decided May 21, 1986.
Attorneys at law — Misconduct — Indefinite suspension — Neglect of legal matters — Improper withdrawal from case — Failure to account for funds.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Respondent, Edward L. Kornowski, was admitted to the practice of law in the state of Ohio in October 1960. Relator, the Office of Disciplinary Counsel, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Bar ("board"), alleging several incidents of misconduct on the part of respondent.
In August 1981, respondent was retained by Mr. and Mrs. Robert A. Gau to represent them in an action for fraud concerning the purchase of real estate. The record indicates that respondent was paid various sums by the Gaus in order to maintain the suit. Respondent filed the action in 1982, but ended up dismissing the action in November 1983, apparently because of three motions filed against him: two requesting sanctions for failing to provide discovery; the other seeking to bar testimony at trial for failure to respond to discovery. During the pendency of the litigation, several settlement offers were made by the various defendants named in the action, but none of the settlement offers was communicated to the Gaus by respondent. The record indicates that respondent's dismissal was undertaken without consultation with or authority from the Gaus, and that respondent refused to return their phone calls and never gave them an explanation for the dismissal of their action.
The record further indicates that respondent has made no accounting to the Gaus of the monies they paid to him in order to pursue the action, and that an appraiser employed for the maintenance of their action was not fully compensated, even though the Gaus paid respondent the full amount of the appraiser's fee. Eventually the Gaus were required to obtain other counsel in order to pursue their action.
Early in March 1984, Ms. Judith Straus called respondent's office in order to retain him to prepare her 1983 federal income tax return. The record indicates that respondent prepared Straus' federal income tax returns for 1981 and 1982. While in respondent's office, Straus used respondent's adding machine to prepare certain totals for her 1983 tax return. By the time she had finished, it is alleged that respondent was asleep in his private office. Therefore, Straus put all of her records into an envelope which was then placed under the door to respondent's private office and departed. Subsequently, she talked to respondent concerning the preparation of the tax return, and respondent advised her that he would have no problem completing the return for her.
As the deadline for filing the return approached, Straus left many calls for respondent which went unanswered, and she even left a note on his car. The tax return was never filed and Straus has not been able to contact respondent or secure the return of her tax records. The record indicates that the Internal Revenue Service has been pursuing Straus for her 1983 return; however, she claims she cannot prepare the return since she does not have her records and cannot obtain them from the respondent.
In another incident, respondent was retained by Jeanette Fealkovich in order to represent her in a personal injury action arising out of an automobile accident. Fealkovich executed a contingent fee arrangement with respondent, and her action was filed in April 1982. Sometime thereafter, respondent advised her that the insurance company was willing to settle the case for $4,800, and she indicated to him that this was acceptable to her. He told her to call in five days; however, her numerous attempts to contact him were fruitless. Approximately six months later, respondent wrote to her to come to his office. Respondent then informed her that the insurance company would only pay half of the $4,800 settlement offer. Fealkovich informed him that this was still agreeable to her. This same type of scenario between respondent and Fealkovich occurred several more times. The fact remains, however, that the insurance company had never made an offer with respect to settling Fealkovich's claim.
The record reveals that three separate pretrials were scheduled for Fealkovich's action, but respondent failed to attend any of these proceedings. When the bailiff involved in the last scheduled pretrial contacted respondent's office, the bailiff was informed that respondent was no longer counsel of record for Fealkovich. Thereupon, the court dismissed the action without prejudice. As a result, Fealkovich had to retain other counsel and has ultimately settled her case.
The final allegations set forth in relator's complaints indicate that the respondent, a former secretary of the Cuyahoga Bar Association Grievance Committee, was contacted on two occasions by the Bar Association of Greater Cleveland for his response to the Gau complaint and other grievances, but he failed to respond either time. Respondent was also contacted on three occasions by certified mail from relator for his explanation of the Gau and Fealkovich complaints, but no response by respondent was made. The last letter from the Disciplinary Counsel was returned, marked by the U.S. Post Office with the legend "refused." A subpoena duces tecum was served upon respondent by certified mail by the secretary of the board, but this was returned unclaimed. After the filing of the complaint by relator, four communications were directed to respondent bearing the return address of the board, but all of these communications were returned with the legend "refused" appearing on the envelopes.
On May 10, 1985, a hearing was held by the board, in Cleveland, concerning the foregoing allegations. The respondent failed to answer or appear in person or by counsel, even though proper service of notice of the hearing was perfected upon respondent pursuant to Gov. Bar R.V.
The board found that as to the Gaus, Straus and Fealkovich, respondent's conduct was in violation of DR 1-102(A)(4) and (6); 6-101(A)(3); and 7-101(A)(1), (2) and (3). The board also found that with respect to Fealkovich, respondent violated DR 2-110(A)(2) by improperly withdrawing from her case. In addition, while not specifically charged, the board found respondent in violation of DR 9-102(B)(4), for failing to account for the funds received from his clients (the Gaus). Lastly, the board found the respondent violated Gov. Bar R. V(4) by failing to communicate with the Greater Cleveland Bar Association and the Disciplinary Counsel's office.
Based upon the foregoing, the board recommended that respondent be indefinitely suspended from the practice of law in the state of Ohio.
Angelo J. Gagliardo, disciplinary counsel, Carl J. Corletzi and Charles T. Brown, for relator.
Upon a careful and considered review of the record, this court finds that respondent has violated DR 1-102(A)(4), a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; DR 1-102(A)(6), a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law; DR 6-101(A)(3), a lawyer shall not neglect a legal matter entrusted to him; DR 7-101(A)(1), a lawyer shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules; DR 7-101(A)(2), a lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services; DR 7-101(A)(3), a lawyer shall not intentionally prejudice or damage his client during the course of the professional relationship; DR 2-110(A)(2); 9-102(B)(4); and Gov. Bar R. V(4).
We concur in the board's conclusion that respondent's cavalier attitude in failing to appear at any stage of this disciplinary proceeding should not be countenanced, and that his misfeasance, malfeasance and nonfeasance in the representation of his clients reflect adversely upon the entire bar, and must be accorded appropriate punishment.
Therefore, it is the order of this court that respondent be indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.