Opinion
D.D. No. 81-16
Decided November 18, 1981.
Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The Cincinnati Bar Association, relator herein, filed a five-count complaint with the Board of Commissioners on Grievances and Discipline, charging that respondent, Terrance A. McConnell, "engage[d] in * * * conduct that adversely reflects on his fitness to practice law" in violation of DR 1-102(A)(6); that he "neglect[ed] a legal matter entrusted to him" in violation of DR 6-101(A)(3); that he "intentionally * * * fail[ed] to carry out a contract of employment entered into with a client for professional services" in violation of DR 7-101(A)(2); and in essence, that he failed to preserve the identity of funds and property of a client and to promptly pay or deliver funds to the client in violation of DR 9-102(A)(2), (B)(1) and (B)(4).
The prayer of the complaint asked for the discipline of respondent and a finding that respondent is mentally ill.
A hearing on the complaint was held in Cincinnati, Ohio, on March 26, 1981. Respondent was not present or represented by counsel. In the absence of respondent, the hearing was conducted privately.
The evidence presented in support of the first count revealed that in the winter of 1979, respondent was engaged by Clarence Forsee to file a divorce or dissolution proceeding on Forsee's behalf. Respondent was paid $150 by Forsee for this purpose. Respondent failed to cause any divorce or dissolution proceedings to be commenced. No explanation was given to the client for this failure. Forsee made a number of fruitless efforts to contact respondent and finally reached him some four to six months later. Eventually Forsee was repaid the $150.
The witness Forsee was not certain whether he paid respondent $250 or $150 for the divorce and $100 to represent his wife in a bankruptcy proceeding.
Based on the evidence offered on the first count the board of commissioners found that respondent violated DR 6-101 (A)(3).
The evidence pertaining to the second count showed that on December 7, 1979, Barbara Ann King paid respondent $75 to manage her divorce. Respondent never instituted any proceeding on Mrs. King's behalf. Mrs. King made repeated unsuccessful attempts to contact respondent. The $75 was never returned to Mrs. King.
The board of commissioners found that the evidence offered on the second count was sufficient to sustain the charge that respondent violated DR 6-101(A)(3).
The evidence relating to the third count establishes that Betty Harcourt Smith employed respondent in July 1979 to represent her in the negotiation of an insurance settlement. Prior to contacting respondent Mrs. Smith had received an offer of $16,500 from the insurance carrier to settle a motor vehicle accident claim involving her son. Sometime after respondent's employment, and through respondent's efforts, the insurance carrier made a $24,000 settlement offer to Mrs. Smith, which she accepted.
On February 29, 1980, the carrier issued a check payable jointly to Betty Harcourt Smith and respondent in the amount of $24,000. The check was delivered to respondent. At respondent's request, on March 7, 1980, the insurance carrier issued three checks in substitution for the $24,000 check. One check was made payable to Betty Harcourt Smith in the amount of $18,664.55, as parent and natural guardian of Vernon Harcourt; a second check was made payable to Betty Harcourt Smith in the amount of $2,128, to cover her son's medical expenses; and a third check was made payable to respondent in the amount of $3,207.45, purportedly in payment of his legal fee. Respondent's check was cashed on March 10, 1980. The two checks payable to Mrs. Smith were held by respondent until July 1980 when they were delivered to Mrs. Smith without explanation for the delay and, after Mrs. Smith, having failed to reach respondent, had retained a second lawyer to obtain the sums due under the settlement agreement.
Mrs. Smith testified the legal fee was to have been $2,295.
With regard to the third count of the complaint, the board of commissioners determined that there was sufficient evidence to find that the respondent violated DR 6-101(A)(3).
The evidence presented in support of the fourth count showed that Cecilia Althouse engaged respondent to represent and advise her with regard to a proposed separation agreement. Mrs. Althouse gave respondent several papers pertaining to the separation agreement but thereafter never heard from him or was able to contact him. Furthermore, Mrs. Althouse was unable to secure the return of the documents which she left with respondent.
Based on the evidence offered on the fourth count the board of commissioners found that respondent violated DR 6-101(A)(3).
The evidence presented in support of the fifth and final count included testimony which showed that respondent was hired by Loretta Campbell to represent her son in a criminal trial in the Court of Common Pleas of Fayette County, Ohio, and following his conviction was engaged to prosecute an appeal to the Court of Appeals. Mrs. Campbell testified she paid respondent a total of $1,410 for his services. The evidence reveals that respondent filed a notice of appeal, however, no further steps were taken by him. Due to respondent's failure to prosecute the appeal, a cash appeal bond of $5,250 was forfeited and Mrs. Campbell's son was arrested and returned to jail. Thereafter, Mrs. Campbell hired a second attorney who filed a motion to vacate the entry which dismissed the appeal, a motion to issue an order reinstating the appeal, and a motion for enlargement of the time in which to perfect and prosecute the appeal. To secure her son's release from jail it was necessary for Mrs. Campbell to pay $1,250 to a bailbondsman, who posted a $9,000 bond. Throughout all the proceedings, beginning with the rearrest of Mrs. Campbell's son and the forfeiture of the $5,250 cash bond, Mrs. Campbell was unable to contact respondent.
Relator's Exhibit No. 11 purports to be a receipt from respondent for a total sum of $1,010 in payment in full for his services, including the appeal.
Based on the evidence offered on the fifth count the board of commissioners found that respondent violated DR 6-101 (A)(3).
The board also determined that the evidence did not justify an order for a medical or psychiatric examination of the respondent under Gov. R. V(10)(c). It was the recommendation of the board of commissioners that respondent be indefinitely suspended from the practice of law.
Mr. Eugene J. Utz, Mr. Clifford A. Roe, Jr., and Mr. David E.W. Chatfield, for relator.
We conclude there are sufficient facts to find that respondent violated DR 6-101(A)(3) of the Code of Professional Responsibility.
We concur with the board's recommendation herein and hereby indefinitely suspend the respondent, Terrance A. McConnell, from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.