Opinion
No. 81
Decided November 22, 1967.
Attorneys at law — Misconduct — Acts warranting suspension indefinitely from practice of law — Misrepresenting facts to clients.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
On December 23, 1964 (D.D. No. 63, Cleveland Bar Association v. O'Malley), this court publicly reprimanded respondent, William R. O'Malley, for professional misconduct in connection with the commingling of certain guardianship funds. The journal entry in D.D. No. 63 said, in part:
"* * * this entry shall constitute the public reprimand, provided, however, that should the respondent, William R. O'Malley, be found guilty of subsequent misconduct, he shall be suspended for an indefinite period from the practice of law or permanently disbarred, depending upon the seriousness of such misconduct."
Relator, Cleveland Bar Association, filed a complaint against respondent charging him with misconduct subsequent to that for which he has already been publicly reprimanded. Relator's complaint alleged that respondent misrepresented to three clients in unrelated matters that he had filed and was diligently prosecuting legal actions in their behalf when, in fact, he had not filed such actions.
The Board of Commissioners on Grievances and Discipline found, in two of the cases involving conduct subsequent to December 23, 1964, that respondent agreed to render legal services to the complaining witnesses, accepted fees or retainers from them, and told them that he was diligently prosecuting their cases, when, in fact, he had not instituted legal action in behalf of any of them. This deception was carried on over a period of many months causing substantial detriment to the clients' causes. Respondent told one client that he had lost the case in the Court of Common Pleas and had taken an appeal to the Court of Appeals. On two occasions when the clients were beginning to doubt him, he gave them docket numbers which he represented to be their case docket numbers. It was only upon checking these docket numbers at the court that these clients learned no actions had been filed.
The board found that respondent was guilty of misconduct as defined in Section 5(a) of Rule XVIII of the Rules of Practice of the Supreme Court in that he had violated the Canons of Professional Ethics by lying to his clients, by not being faithful to private trusts and not conducting himself as an honest man (Canon 32), and that he had thereby violated his duty as a lawyer to uphold the honor of the profession (Canon 29). The board recommended that respondent be suspended for an indefinite period from the practice of law.
The matter is now before this court for consideration of the report of the board and the objections of respondent.
Mr. Wilton S. Sogg, Mr. Thomas P. Meaney, Jr., and Mr. James G. Gowan, for relator.
Mr. William R. O'Malley, in propria persona.
Respondent attacks the findings of fact made by the Board of Commissioners on Grievances and Discipline on the ground that relator presented no witnesses other than the complaining witnesses, and that the board resolved all questions of credibility against respondent in favor of the complaining witnesses. Section 2 of Rule XVIII of the Rules of Practice of the Supreme Court authorizes the Board of Commissioners on Grievances and Discipline to "take evidence, make findings and submit recommendations" to the court concerning complaints of professional misconduct. We are of the opinion that the record fully sustains the findings made by the board.
Respondent contends that he was prevented from instituting legal action in these cases because he encountered unforeseen legal problems. Assuming this to be true, it cannot excuse his lies and misrepresentations to his clients concerning the state of their affairs. The Canons of Professional Ethics place the burden on the lawyer to explain, in terms the client can understand, what the lawyer is doing in the client's behalf or why he is doing nothing.
The court finds that respondent is guilty of professional misconduct subsequent to that for which he was reprimanded on December 23, 1964, and judgment is therefore rendered suspending him indefinitely from the practice of law.
Report confirmed and judgment accordingly.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.