Opinion
D.D. No. 80-2
Decided July 9, 1980.
Attorneys at law — Misconduct — Disbarment — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
This cause arises from the findings and recommendation filed with this court on January 28, 1980, by the Board of Commissioners on Grievances and Discipline, wherein the board, upon review of the complaint and evidence submitted by relator, the Cincinnati Bar Association, against respondent, Clifford R. Fennell, found that respondent had violated DR 1-102(A)(4) and (6), DR 2-110(B)(4), DR 6-101(A)(3), DR 7-101(A)(2), DR 7-102(A)(5), and DR 9-102(B)(4) of the Code of Professional Responsibility, and recommended that respondent be indefinitely suspended from the practice of law.
For a more clear understanding of the determination of this court in this matter, it is necessary to relate some of the facts which gave rise to the charges brought against the respondent, as well as some of the background surrounding the various hearings that were afforded the respondent and his all but complete absence of responsibility in reasonably and timely presenting his response to the charges that had been made against him.
The complaint of misconduct was filed against respondent by relator on August 15, 1978. An answer to such complaint was filed by respondent. An amended complaint was filed by relator on December 26, 1978. An answer to the amended complaint was finally filed on August 9, 1979.
At pretrial conference held on January 5, 1979, which had been requested by respondent, he agreed to supply the relator with any documents relative to the original complaint, by January 12, 1979, and any documents relative to the amended complaint, by February 1, 1979, and he agreed to be deposed at the Cincinnati Bar Association on Thursday, February 15, 1979, and to obtain legal counsel. It appears from the record that respondent failed to supply the relator with any of the documents as promised.
Although respondent was late in arriving at the deposition, unrepresented by legal counsel, and obviously unprepared to proceed, the deposition did go forward on the 15th for purposes of some of the charges. Thereafter the deposition was continued to March 20th.
At the continuance of the February 15th deposition on March 20th, respondent again failed to have the documents as promised, and again promised to supply the relator with them.
Hearing of this cause was scheduled for June 7 and 8, 1979, in the office of the Cincinnati Bar Association. Someone on respondent's behalf, on June 6th, notified John W. Berger, chairman of the hearing committee, that respondent was in the hospital in Cincinnati. Berger called the attending doctor and confirmed that Fennell was in the hospital, but that his condition was not such that he would have been prevented from attending the hearing. The hearing proceeded and testimony of certain of Fennell's former clients was taken on the record. The matter was continued until August 2nd to permit Fennell to present his evidence in support of his position. On August 1st, Norris Muldrow entered his appearance as attorney, for respondent, and also appeared at the continued hearing on August 2nd, stating that Fennell had been in the hospital for hypertension and because of such ailment was unable to attend the prior hearing.
Counsel filed a two-pronged motion: "To strike and expunge all testimony and exhibits received at ex parte hearing of June 7, 1979," and "alternatively moving to require relator to produce witnesses at June 7, 1979 hearing to allow respondent to cross examine them." Both branches of the formal motion were overruled, but the hearing was continued for the convenience of respondent's counsel until August 28, 1979, upon an additional motion for continuance.
The matter came on for final hearing on August 28, 1979. Respondent Fennell was present and represented by attorney Muldrow, and the matter was concluded on that day.
The complaint and amended complaint alleged a total of 19 separate occasions wherein respondent violated Disciplinary Rules of the Code of Professional Responsibility. Respondent, by formal answer, basically denied all the allegations which had not been previously dismissed. By stipulation, or on the motion of relator, counts 2, 7, 8, 11, 12, 14, 15, 16 and 17 were dismissed. The panel found the evidence, stipulations and admissions failed to support the allegations contained in counts 1, 3, 6, 9 and 19; however, the evidence did support counts 4, 5, 10, 13 and 18.
The counts of the complaint which were found by the board to be supported by the evidence are as follows:
Count 4.Respondent was employed and received a retainer to represent a client in a custody matter. Respondent advised the client that he was investigating the matter and proceeding with the client's representation.
The client received a letter on the stationery of the Hamilton County Juvenile Court advising the client that the change of custody hearing which had been scheduled for a certain date was continued, as the investigation was not yet complete. The client took the letter to the Juvenile Court and was advised no such letter had been forwarded to her by the Juvenile Court nor was the name and signature on the letter that of a court employee. Further, she was informed that no change of custody matter was even pending or had been instituted in the Domestic Relations Court or Juvenile Court of Hamilton County on behalf of the client.
The evidence presented at the hearing indicated the respondent had in fact not filed any action in either the Domestic Relations Court or Juvenile Court of Hamilton County on behalf of his client as purported. Relator presented the testimony of James R. Dibowski, a handwriting expert and examiner of questioned documents. The expert concluded that the similarity in design of type, plus similarity in defects, led him to reach the conclusion the letter and a complaint for divorce (the latter admitted by respondent to have been prepared in his office) were both typed on the same make and model of machine. The evidence indicated the two documents were prepared within nine days of each other.
Upon consideration of the evidence, it was the finding of the board that respondent did violate DR 1-102(A)(4) and (6), in that he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and that such conduct adversely reflected on his fitness to practice law.
The board further found that the evidence also indicated the respondent violated DR 6-101(A)(3), in that he did neglect a legal matter entrusted to him, and that respondent violated DR 7-102(A)(5), as he made false statements of fact to his client concerning the status and progress of the case.
Count 5.The board further found that evidence indicated the respondent did in fact fail to appear or produce documents after having been properly subpoenaed to do so by relator, and therefore violated DR 1-102(A)(6).
Count 10.Respondent was charged with accepting employment and receiving a retainer fee to be applied toward his services in an adoption matter. The fee was received in October 1977. It was alleged respondent advised his client on numerous occasions that everything pertaining to the adoption was nearing completion when in fact respondent had not done anything on the client's case. The client demanded her money be refunded, and as of the date of the hearing the money had not been refunded. The board found that the evidence and admissions of respondent supported these allegations.
The board found the respondent did act in a manner which violated DR 1-102(A)(4), and further found that respondent violated DR 7-101(A)(2), in that he failed to carry out a contract of employment entered into with a client for professional services.
Count 13.Respondent was employed to represent a client in a personal injury case resulting from an auto accident. The case was settled and respondent made distribution to his client, retaining his fee and, at the client's request, a sufficient amount to pay the outstanding medical bills which his client owed to various doctors and hospitals. The client began receiving telephone calls and letters indicating that the bills had not been paid. The client approached the respondent and advised him of this fact. Respondent advised her he would see that the bills were paid.
The telephone calls and letters continued and the client again returned to inquire as to whether the medical expenses had been paid. Respondent then wrote a check to the client for the amount of the outstanding medical and doctor bills. The check was returned for "insufficient funds." The client then advised relator of respondent's conduct; and the respondent then made the check good.
The board found that based upon such evidence the respondent did engage in conduct in violation of DR 1-102(A)(4) and (6). The board additionally found that respondent further violated DR 7-101(A)(2), and also DR 9-102(B)(4), in that he did not properly pay or deliver to the client, or the client's creditors, funds requested by the client which the client or his creditors were entitled to receive.
Count 18.Respondent was employed by a client to represent her in a products liability matter involving a contaminated orange drink which the client consumed. During the course of his employment, respondent lost the client's file but produced a letter he had allegedly received from the insurance company which contained an offer of settlement in the amount of $6,000. A copy of the letter, which contained no letterhead, was entered in evidence. The client testified that respondent failed to return her telephone calls on numerous occasions, allowed her to remain in his office for extended periods of time and then refused to talk with her about her case, and went so far as to have her forcibly evicted from his office. The client became concerned about her case and called the insurance company which informed her they had never made such an offer of settlement and that they had placed the matter in the inactive file because they had only one communication from respondent. The client demanded she be given her file so she could obtain other counsel to handle the matter for her; but respondent refused to release the client's file to her.
The case was taken to arbitration, and the arbitrators found in favor of the defendant, inasmuch as respondent had failed to produce any evidence to support his client's claim.
The board found that the evidence supported the allegations and found that respondent violated DR 1-102(A)(4) and (6). The board further found that respondent was guilty of violating DR 2-110(B)(4), in that he was discharged by his client from representation in the case and refused to surrender the client's file upon notice of discharge, and of violating DR 6-101(A)(3).
Based upon all the evidence adduced, it was the recommendation of the board of commissioners that respondent be suspended from the practice of law for an indefinite period.
Mr. Robert R. Lavercombe, Mr. James J. Geygan and Ms. Mary Lou Marks, for relator.
Mr. Clifford R. Fennell, pro se.
Respondent has filed objections to the findings of fact and recommendation of the board, setting forth the following:
"I. Respondent was denied his rights under the Fourteenth Amendment of the United States Constitution, of equal protection and his rights of due process of law. Respondent was denied his rights to cross-exam [ sic] witnesses who testified against him.
"II. The evidence did not support the panel findings on Counts 4, 5, 10, 13 and 18 of the complaint. There was insufficient evidence to support a finding against respondent as to those counts and the findings and decision of the panel was against the weight of the evidence.
"III. There were serious prejudicial errors at the hearings which respondent had no opportunity to correct and as a direct result the findings and decision of the panel was prejudicial [ sic] effected."
A review of this rather lengthy record will show that the respondent has been consistently dilatory and uncooperative in supplying information and documents related to these charges. Conversely, relator showed a great deal of concern and understanding in providing respondent every opportunity to show that the charges leveled against him were unfounded.
Respondent had initially been advised that he should obtain legal counsel to represent him; yet at the February 15th deposition he had not obtained same, nor did he do so until the second continued hearing on August 2nd.
Respondent had been served with notice that a number of witnesses, including some of his former clients, would be deposed on the day of his deposition, February 15th, and the following day, February 16th. Respondent was present for one of these depositions on the day of his own deposition, but chose not to appear for any of the depositions held on February 16th. Further, respondent was served with notice that eight witnesses would be deposed on May 1, 1979. Respondent failed to appear in person or by counsel for these depositions.
At the conclusion of the hearing on June 7th, respondent, failing to appear, was given an opportunity to later appear and present his cause. Additionally, in accommodation to respondent, the chairman of the hearing panel ordered that a transcript of such hearing be furnished to respondent. At the time of such reconvened hearing, respondent was represented by counsel for the first time, and was again granted a continuance until August 28th to present any evidence that he wished by way of his own witnesses or by way of subpoena of those who had previously testified as to the complaints against him. On August 28, testimony of a number of witnesses was presented by respondent, and the respondent himself testified.
Here, the respondent was afforded the use of a transcript of the prior hearing of June 7th, and the right to subpoena the witnesses who had testified concerning the charges; which would have indeed afforded respondent and his counsel a greater advantage of preparation for such cross-examination of these witnesses than if such had been conducted initially. However, respondent only chose to subpoena one of the prior witnesses, James R. Dibowski, who had testified as to various typewriters. In sum, it may be concluded that respondent elected to refrain from exercising his right to cross-examine the other witnesses who had previously testified.
Respondent, in his second proposition of law, asks the court to reject the findings of fact and recommendation of the board of commissioners. The findings of fact and the recommendation of the board are generally followed by this court, unless such findings and recommendation are manifestly against the weight of the evidence. Here we have no quarrel with the findings of the board, but do have significant difficulty with the recommendation. The board has recommended indefinite suspension of respondent. We are unable to square such a recommendation with the significant quantum of evidence presented herein to the effect that respondent had been guilty of violating a number of the Disciplinary Rules of the Code of Professional Responsibility.
It is our view that respondent has shown by his misfeasance and nonfeasance that he is professionally and ethically not reasonably equipped to continue in the practice of law. As stated, the record not only amply supports the findings and recommendations of the board, but also speaks out quite clearly in support of an order by this court that the respondent be prevented from further practicing law in this state.
As to the third proposition of law, it has been previously alluded to, that respondent was indeed provided a fair and impartial opportunity to present his case in response to the evidence presented against him. And, we find that the evidence presented in chief by the relator was presented in such a manner as not to prejudice the respondent.
Based upon all the foregoing, a review of the record in this matter supports the board's findings that respondent violated DR 1-102(A)(4) and (6), DR 2-110(B)(4), DR 6-101(A)(3), DR 7-101(A)(2), DR 7-102(A)(5), and DR 9-102(B)(4) of the Code of Professional Responsibility. Accordingly, based upon the record and all the evidence herein adduced, we order that respondent be permanently disbarred from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., HERBERT, W. BROWN, O'NEILL, SWEENEY, LOCHER and HOLMES, JJ., concur.
O'NEILL, J., of the Seventh Appellate District, sitting for P. BROWN, J.