Opinion
D.D. No. 86-16
Decided August 19, 1987.
Attorneys at law — Misconduct — Indefinite suspension — Failure tocarry out contract of employment — Neglect of legal matter.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
This disciplinary action came before the Board of Commissioners on Grievances and Discipline of the Bar on a complaint and amended complaint filed by relator, the Bar Association of Greater Cleveland, against respondent, James K. Sheehan. This matter was first heard before a panel of the board in Cleveland, Ohio, on July 12, 1985. Respondent was present at the hearing without benefit of counsel. At the hearing, respondent alleged that he had not received a copy of the complaint filed against him. However, respondent acknowledged his receipt of the notice of filing of the complaint.
At the outset of the hearing, respondent was provided with a copy of the complaint and given time in which to review its contests. In lieu of a formal answer, the panel entered a general denial on respondent's behalf.
Respondent opened the hearing by making an unsworn statement in which he admitted to the allegations set forth in Counts One, Four and Five of the complaint. Respondent further stated that he intended to submit his resignation rather than go through a hearing. The panel declined to accept respondent's resignation on the grounds that respondent was not currently represented nor previously advised by counsel. In light of the fact that relator was prepared to present its case and the witnesses were already available, the panel elected to proceed with the hearing. Respondent was advised to retain counsel and was informed that the panel would reconvene to hear any presentation which respondent would thereafter desire to make. Respondent represented that he was in agreement with this procedure.
Count One of the complaint concerned respondent's representation of Ronald R. Carman. Carman had been convicted of grand theft in the Court of Common Pleas of Cuyahoga County. In December 1982, respondent was appointed to act as appellate counsel for Carman. The record reveals that respondent failed to timely file a notice of appeal. Some six months after the notice of appeal was due, respondent filed on behalf of Carman a motion for leave to appeal, which was subsequently denied by the Eighth Appellate District. The board found that respondent's representation in this matter violated DR 7-101(A)(1), failing to seek the lawful objectives of a client; DR 7-101(A)(2), failing to carry out a contract of employment; DR 7-101(A)(3), prejudicing and damaging his client during the course of the representation; and DR 6-101(A)(3), neglecting a legal matter entrusted to him.
Count Two of the complaint involved respondent's representation of Dorothy Petak in a personal injury case. In August 1982, another attorney in respondent's office turned this case over to respondent. During the ensuing months Petak attempted to reach respondent on several occasions to learn of the developments in her case, but was never able to get through to him and her calls were never returned. Petak's last contact with respondent was in September or October 1982, at which time Petak was informed that her case would be coming to trial after the first of the year in 1983. Respondent had failed to inform Petak that on September 15, 1982, a summary judgment had been entered against her. The record demonstrates that respondent had failed to file a response to the defendant's motion for summary judgment. It was not until December 1984 that Petak found out through another attorney that her case had been dismissed. The board found that respondent's representation in this manner was in violation of DR 7-101(A)(1), 7-101(A)(2), and 6-101(A)(3).
Count Three of the complaint addressed respondent's representation of Stanford Washkewicz in a dispute over the disposition of the assets of a business in which Washkewicz had been a part-owner. In August 1981, respondent filed an action for Washkewicz in the Court of Common Pleas of Cuyahoga County. Washkewicz testified that he was dissatisfied with respondent's representation and did not feel that respondent was sufficiently prepared for trial which was scheduled for October 1, 1984. Washkewicz discharged respondent on September 17, 1984. Respondent had been paid a retainer of $4,500 and was to receive a contingency of fifteen percent of any recovery in the case. Respondent did not answer Washkewicz's request for the return of any money received. During the hearing on this matter, Washkewicz's own testimony established that respondent had done a substantial amount of work in this case. The board ultimately concluded that there was not sufficient evidence to find that respondent violated the Code of Professional Responsibility and this count was dismissed.
Count Four of the complaint alleged that respondent failed to cooperate with the board during its investigation of this matter. This allegation was premised upon respondent's failure to respond to a number of phone calls and letters relating to this disciplinary action. The board found that this behavior was in violation of Gov. Bar R.V.
Count Five of the complaint (Count Seven of the amended complaint) alleged that respondent had been previously subject to a public reprimand by the Supreme Court of Ohio on December 12, 1984, in a disciplinary action styled, Cuyahoga County Bar Assn. v. James K. Sheehan, D.D. No. 84-27.
At the conclusion of the hearing, respondent was advised to obtain representation in this matter and notify the Bar Association of Greater Cleveland and the panel of this development.
Prior to the board's submission of its recommendation to the Supreme Court, attorney John D. Cannell of Cleveland, representing respondent, filed a motion to return the file to the panel of three commissioners for further proceedings and examination. Pursuant to the motion, the board remanded respondent's file to the panel for further proceedings.
Respondent's motion indicated that respondent was currently under the care of Norman L. Roulet, M.D., a psychiatrist. The panel directed respondent's attorney to submit a report of Dr. Roulet's opinion so that the panel could determine whether further or independent psychiatric examination was necessary. Dr. Roulet's reports dated October 16, 1985 and January 20, 1986 were submitted. By letter of January 24, 1986, the parties were advised that the panel would accept Dr. Roulet's reports as the best evidence of respondent's mental condition.
On February 7, 1986, relator filed an amended complaint adding two new counts to the original complaint, denoted Counts Five and Six. The matter was set for hearing on March 25, 1986, but the hearing was continued at Cannell's request until May 2, 1986.
A few days before the hearing, Cannell advised the panel chairman by phone that he had been directed by respondent to neither file an answer to the amended complaint nor make an appearance on respondent's behalf at the hearing. Cannell confirmed this representation in a letter dated April 29, 1986 to the chairman, which letter also sought a continuance. The letter was treated as a motion, which was denied. Thus, the May 2, 1986 hearing was conducted in respondent's absence.
Count Five of the amended complaint alleged that respondent acted improperly in his role as guardian of Brian P. Sheehan (his own son), then a minor. Respondent's ex-wife had been killed in an airplane accident and respondent received $312,500 on Brian's behalf from insurance proceeds and a wrongful death claim. No accounting of these funds was made when due in October 1984. Respondent's failure to respond to the probate court ultimately resulted in his removal as a guardian and judgment against him for $33,250, representing funds for which he was unable to make an accounting. Cannell, respondent's attorney, informally advised the board in his letter of April 29 that this judgment had been satisfied by respondent's bonding company and that upon reaching the age of eighteen, Brian would repay the bonding company. Cannell further alleged that this matter was settled amicably among the family members. The board found that respondent's representation in this matter was in violation of DR 1-102, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and DR 9-102, failing to promptly deliver to the client the property and funds to which the client is entitled.
Count Six of the amended complaint alleged that respondent failed to register with the Supreme Court, as required by Gov. Bar R. VI. A letter dated January 2, 1986 from Joseph N. Rosenthal, Deputy Clerk of the Supreme Court of Ohio, advised the board that respondent failed to register with the Supreme Court for both the September 1983 and September 1985 registration periods. The board found that respondent had violated Gov. Bar R. VI.
The board recommended that respondent be indefinitely suspended from the practice of law in Ohio.
Douglas H. Glenn, Kenneth S. Kabb and Robert R. Soltis for relator.
John D. Cannell, for respondent.
Based upon a review of the evidence presented, this court concurs with the findings of the board that respondent violated the aforementioned Disciplinary Rules and Gov. Bar R. V and VI. The court accepts the recommendation of the board and respondent is hereby indefinitely suspended from the practice of law in Ohio. Costs of the proceedings shall be taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.