Opinion
No. 90-2533
Submitted May 21, 1991 —
Decided August 28, 1991.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-47.
In a complaint filed on August 28, 1989, relator, Cleveland Bar Association, charged respondent, Christopher F. Nardi, with multiple violations of the Disciplinary Rules. Respondent admitted violating DR 6-101(A)(3) (neglect of an entrusted legal matter) under Counts I, II, IV, VI, and X; 9-102(B)(4) (promptly pay client funds requested) under Count V; and 1-102(A)(6) (conduct adversely reflecting on fitness to practice law) under Count IX.
The matter was heard before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on July 30, 1990 upon joint stipulations and evidence adduced at the hearing.
Under Count I, respondent received a $6,000 retainer in October 1986, to pursue post-conviction relief for Thomas Jackson, who was jailed at Orient Correctional Institution. Respondent reviewed the court file and transcript and talked with Jackson by telephone. Respondent did not file any pleadings with the court, and, consequently, Jackson hired new counsel who obtained a new trial for him. After the new trial, Jackson received a reduced sentence and became eligible for parole. Respondent, at first, disputed returning the retainer but returned $5,000 in August 1988.
Under Counts II, IV, and VI, respondent agreed to represent Soheil Davati, Muhammed Alkhatib, and Mr. Azzam, respectively, concerning immigration matters. Davati paid respondent $3,500 in July 1986 to obtain a "green card" for him. Davati attempted to contact respondent numerous times over the next two years, but respondent purposely avoided this contact and frustrated Davati's attempts at communication. Finally, in February 1989, Davati obtained the return of $3,000 of his fee from respondent.
Alkhatib retained respondent in January 1986 to secure resident status for him and paid respondent a $3,000 retainer. Respondent failed to file papers Alkhatib had signed in April 1986, and the two were unable to meet thereafter. In May 1987, respondent referred the case to another attorney because he lacked the expertise to advance it. Respondent has since lost contact with Alkhatib but has pledged to refund the entire fee if he could locate him.
Azzam's brother hired respondent in January 1986 to handle Azzam's immigration application. Azzam's brother paid respondent a $3,000 retainer. However, respondent provided little or no representation and agreed, prior to August 1987, to return the retainer to Azzam's brother. In February 1989, they reached a compromise in which respondent would refund $2,000.
Ultimately, respondent concluded that "the complexity of it was beyond my scope," but was fearful of compromising the status of each of his clients by filing any documents. He admits he neglected each of these matters and should have returned the fees sooner.
In Count III, respondent received a $2,000 flat fee in May 1988 to represent Sherri Londa concerning allegations that she had embezzled money from her employer. Respondent met with Londa's parents and her fiancee and contacted her employer at least once to determine the total amount in question. However, respondent did not resolve the matter. Respondent did recall that the employer advised him of the employer's need to pursue the matter to protect an insurance bond on the money.
Respondent testified that he was involved in a major trial when retained by Londa. He claimed to have told her that he could not perform the needed representation until this trial ended.
After Londa was unable to contact respondent between June 10, 1988 and July 5, 1988, Londa discharged respondent and demanded the return of a portion of the fee. On January 11, 1989, in a compromise settlement, respondent returned $1,200 to Londa.
In Count V, Edna Harris hired respondent in July 1986 to represent Gazzie Bronson, her boyfriend. She paid respondent an $8,000 retainer to pursue post-conviction relief after Bronson's conviction for drug abuse. Respondent reviewed the court file but did not file any documents for post-conviction relief, believing that he could not accomplish much for Bronson since Bronson was under federal indictment in Michigan. In January 1989, respondent, in a compromise agreement, returned $4,000 to Harris.
In Count VII, respondent received $2,000 in April 1987 to represent Glenn Lawson on post-conviction matters. Respondent visited Lawson at the Chillicothe Correctional Institute in July 1987 and reviewed Lawson's court file. Respondent sent a letter to the Parole Board on February 7, 1989, seeking Lawson's release, but filed no motion, pleading, or brief in the case. Respondent responded to Lawson's letters only after relator contacted respondent.
Under Count VIII, respondent, in 1987, had been appointed to represent Claytus Lindsey, Jr., who had been indicted for felonious assault. Respondent counseled Lindsey to change his plea to guilty to the indictment and to advise the court of his concern over becoming a chemically dependent person. Lindsey did so and was sentenced to five to fifteen years' incarceration. His motion for shock probation, filed by respondent, was denied. Respondent did not apply for nor receive a fee for this representation.
In September 1988, Lindsey's parents paid respondent a $2,500 retainer to obtain Lindsey's earlier release. On February 13, 1989, respondent filed a motion for super shock probation, which was denied, and, later, a motion for reconsideration, which also was denied.
Under Count IX, respondent represented Anthony Luccioni in a civil matter in Cuyahoga County Common Pleas Court. When respondent failed to appear at a pretrial hearing on May 16, 1983, the court dismissed the case with prejudice. Respondent disputes that Luccioni hired him to represent Luccioni at this hearing. In any event, Luccioni sued respondent for malpractice, and obtained a judgment for $24,351.80 on November 9, 1987.
In Count X, Cheryl Miller engaged respondent to represent her husband, Myron Miller, in post-conviction relief efforts. In December 1987, Mrs. Miller paid respondent a $7,500 flat fee for all intended services. Respondent visited Mr. Miller at Marion Correctional Facility and, at least once, at the Pre-release Center in Cleveland. Respondent reviewed the file and, on January 10, 1989, filed a motion to suspend further execution of sentence ("super-shock probation"), which was denied. Respondent ultimately discovered that a previous attorney had earlier filed a similar motion, which had also been denied. Respondent filed no further pleadings for Mr. Miller nor did he obtain any positive benefits for him.
Respondent received numerous telephone calls and had other contacts with Mrs. Miller. He admits he purposely avoided her. Respondent finally demanded another $5,000 from her, which she paid. The Millers later sued respondent for a return of the fees, and the suit is still pending.
In Count XI, relator contends that respondent violated Gov.Bar R. V(5)(A) (failure to cooperate in disciplinary investigation).
The panel of the board of commissioners accepted respondent's admissions of violations in Counts I, II, IV, V, VI, IX and X. The panel found that relator failed to prove that respondent neglected a legal matter in the Londa case under Count III. It further found that respondent charged and collected a clearly excessive fee in the Harris matter under Count V since he only reviewed the Bronson court file, conferred with Mrs. Harris, and talked to the Judge. However, the panel found that relator failed to prove violations in Counts VII and VIII, the Lawson and Lindsey matters.
The panel further found that respondent charged a clearly excessive fee in Count X, the Miller matter. Respondent had charged Mrs. Miller $12,500 to file a super-shock probation motion, when a casual examination of the court records would have disclosed this action to be futile. The panel also found that relator failed to prove that respondent failed to cooperate in the disciplinary investigation.
The board of commissioners adopted the above findings of the panel, but, in concluding, the board found that respondent exhibited "* * * a pattern of gouging clients and doing little or nothing in return for clearly excessive fees. On more than one occasion the [r]espondent was not honest with his clients and misrepresented the possibility of obtaining any relief for the clients. This pattern of taking large sums of money from vulnerable clients and families in immigration and post-conviction cases and doing little or nothing on their behalf was outrageous conduct and warrants an indefinite suspension." Accordingly, the board, adopting a more severe sanction than that recommended by the panel, recommended that respondent be indefinitely suspended.
Bertsch, Millican, Winslow Pilawa Co., L.P.A., Dennis M. Pilawa, Foth, Kelly, Urban West Co., L.P.A., Thomas A. Kelly, Kraus Kraus Co., L.P.A., and Keith R. Kraus, for relator.
Richard A. Damiani, for respondent.
We have thoroughly reviewed the evidence, and agree with the board's findings and recommendations. We hereby indefinitely suspend respondent from the practice of law and tax costs to him.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.