Opinion
D.D. No. 87-7
Decided July 29, 1987.
Attorneys at law — Misconduct — Permanent disbarment — Neglecting legal matters — Failure to carry out contract of employment — Conduct involving deceit.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
On August 6, 1986, the relator, Disciplinary Counsel, filed a complaint against the respondent, Darlene Donna McClellan, alleging four counts of misconduct. On September 3, 1986, relator filed an amended complaint, which added a fifth count of misconduct, and on January 29, 1987, filed a second amended complaint, which added a sixth and seventh count. Attempts to serve the complaints on respondent by certified mail and personal service failed, and service was finally made on the Clerk of the Supreme Court under Gov. Bar R. V(33) and (34). Respondent did not answer and did not attend the hearing before a panel of the Board of Commissioners on Grievances and Discipline of the Bar held on January 28, 1987.
Count I of the complaint alleges that respondent was employed by Cary Shephard to represent him in federal district court in a civil rights action. After preparing and filing interrogatories and resisting a motion for summary judgment, respondent failed to provide discovery to the defendant and failed to attend a pretrial conference. On February 18, 1986, respondent filed a motion to dismiss without prejudice, apparently without Shephard's consent, since he had not seen respondent during 1986. Ultimately the court awarded attorney fees of $1,750 plus costs in the action to the defendant. Disciplinary Counsel charged that respondent's conduct violated the following provisions of the Code of Professional Responsibility: DR 6-101(A)(3), neglecting a legal matter entrusted to her, DR 7-101(A)(2), intentionally failing to carry out a contract of employment for professional services, and DR 7-101(A)(3), causing prejudice or damage to the client during the professional relationship.
Count II of the complaint alleges that Thomas Avery retained respondent on July 3, 1985, to appeal to the Court of Appeals for Cuyahoga County a $3,000 judgment obtained against him in the Shaker Heights Municipal Court. The record shows that respondent filed motions in the trial court and filed an appeal in the court of appeals. However, she appears to have then abandoned the case. The appeal was dismissed for failure to file a praecipe as required by local rule, and Avery's bank account was subsequently attached to satisfy the judgment.
Avery testified that he paid respondent $300 on July 3, 1985, $630 on July 12, 1985, and $1,000 on September 10, 1985. He stated he was unable to contact her thereafter, although the record indicates that plaintiff, defendant, and their attorneys attended a hearing on October 30, 1985. The complaint alleges the same violations of the Code of Professional Responsibility as under Count I.
Count III alleges that respondent waw retained by Ka Saaundra Pennington to obtain a divorce, which respondent prosecuted until final hearing on January 10, 1984, but thereafter, respondent failed to file a judgment entry requested by the court, so that the action was ultimately dismissed. The Bar Association of Greater Cleveland originally investigated this matter, but transferred the case to relator. No testimony on this count was presented to the board; however, relator's Exhibit 5 contains certified copies of court records of a journal entry dated April 9, 1986, dismissing the action for failure to submit and file the final judgment entry, and certified copies of judgment entries vacating the dismissal and granting the divorce dated August 18, 1986, after Pennington had retained a new attorney. As in the two previous counts, the complaint alleges violation of DR 6-101(A)(3), 7-101(A)(2), and 7-101(A)(3). Because respondent allegedly failed to respond to two letters of the Bar Association of Greater Cleveland, this count also alleges violation of Gov. Bar R. V, failure to cooperate in an investigation.
Count IV of the complaint alleges that respondent was retained on July 17, 1985, to represent Peggy Wearren in an eviction matter, accepted $5 in partial payment of the fee, but thereafter was unavailable to the client. Wearren testified to this effect and also testified that respondent kept her rent receipts, eviction notice, and some photographs she needed to establish her claim, none of which were ever returned. The complaint alleges violations of DR 6-101(A)(3) and 7-101(A)(2) with respect to this count.
Count V of the amended complaint alleges that respondent was retained by Dennis Garner in December 1985 to represent him in a dissolution of marriage, and that respondent accepted a retainer of $200 plus $45 court costs in the matter, but never filed the action. Testimony of Garner corroborated these allegations. The complaint alleges a violation of DR 6-101(A)(3) and 7-101(A)(2) on this count.
Count VI alleges that Clarence Mitchell retained respondent to represent him in a personal injury action that was settled for $4,000, that prior to receiving the settlement respondent advanced Mitchell $1,350 in December 1985, that on January 13, 1986, she issued another check for $100 to Mitchell, which was returned for insufficient funds, and that on February 5, 1986, she issued another check to Mitchell for $937.67, which was also returned for insufficient funds. Mitchell testified that he never saw or endorsed the actual settlement check. The complaint also alleges that respondent withheld $150 from the settlement to pay a physician for services in the case, but the physician's fee was never paid. All allegations were corroborated by Mitchell's testimony.
Under this count, the complaint alleges violation of DR 1-102(A)(4), engaging in conduct involving deceit, fraud, and misrepresentation, DR 9-102(B)(1), failing to promptly notify a client of receipt of funds, and DR 9-102(B)(4), failure to pay over client funds.
Count VII alleges that Ike Whatley paid respondent a retainer of $3,320 on February 24, 1986, to represent his son in the Bedford Municipal Court on nine traffic offenses and that respondent, after filing various pleadings, failed to appear on the date set for trial. Thereafter, an attorney was appointed for Whatley's son and the case was subsequently heard. The son plead guilty and was sentenced to twenty days' imprisonment. The essential facts were corroborated by Whatley's testimony. The complaint alleges violation of DR 6-101, specifically mentioning DR 6-101(A)(3), neglecting a legal matter.
The board found that respondent had violated all Disciplinary Rules alleged in the complaint except Gov. Bar R. V under Count III, with respect to which no evidence was presented, and recommended that respondent be permanently disbarred from the practice of law.
Angelo J. Gagliardo, disciplinary counsel, and Charles T. Brown, for relator.
This court finds that respondent violated the aforementioned Disciplinary Rules. The evidence in this case amply demonstrates a clear pattern of neglect and deceit. The result, as noted by the board, was severe prejudice to some of respondent's clients. Accordingly, this court adopts the recommendation of the board and respondent is hereby ordered permanently disbarred from the practice of law in Ohio. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.