Opinion
No. D.D. 88-11
Submitted September 20, 1988 —
Decided December 30, 1988.
Attorneys at law — Misconduct — Neglect of legal matter — Two-year suspension on conditions — Readmission possible in six months — Monitoring for alcoholism.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 44-87-B.
By complaint filed December 11, 1987, relator, Cuyahoga County Bar Association, charged respondent, Michael H. Siewert, with misconduct, in that he had violated DR 6-101(A)(3) (neglecting a legal matter entrusted to him), 7-101(A)(1) (failing to seek his client's lawful objectives), 7-101(A)(2) (failing to carry out a contract of employment for professional services), 7-101(A)(3) (causing prejudice or damage to his client) and Gov. Bar R. V(5) (failing to assist in an investigation of professional misconduct). Respondent answered the complaint on December 31, 1987. The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on May 6, 1988.
The evidence presented at the hearing substantiated that, in the spring of 1985, respondent was retained to defend a retail business tenant, Steve Urban, in a suit brought by the tenant's landlord as well as to file a counterclaim against the landlord. Urban received notice from the Cleveland Municipal Court that a trial was set for September 24, 1986. After receiving this notice, Urban telephoned respondent to request that the trial date be continued because it would fall during the busy season of Urban's costume retail business. Respondent assured Urban that he would secure a continuance. Several days later, Urban telephoned respondent again and respondent told him that the continuance had been granted. In September 1986, Urban again telephoned respondent and received assurance that the continuance had been secured.
Urban made a number of calls to respondent beginning in January 1987. Respondent, however, failed to return most of Urban's calls. Urban's difficulty in reaching respondent caused him to investigate the status of his case. Urban's investigation revealed that the Cleveland Municipal Court had rendered a default judgment against him for $10,000 in September 1986. As a result, Urban forwarded a certified letter to respondent expressing his dissatisfaction with respondent's performance. Respondent did not reply to this letter.
Thereafter, relator attempted to contact respondent a number of times in order to secure his response to a complaint that Urban had filed. For the most part, these efforts were unsuccessful. Respondent eventually appeared at a hearing before the grievance committee of the Cuyahoga County Bar Association where he requested that the hearing be continued. Respondent's request for a continuance was granted on the condition that he would reconstruct Urban's file which respondent claimed had been stolen, and turn it over to the relator's investigator. Although respondent agreed to this condition, he failed to comply with it.
In his testimony before the three-member panel, respondent explained that he had told the investigator that he did not have Urban's file, but would give the investigator what he could find, if anything. Respondent admitted, however, that he had failed to get the continuance that Urban had requested and acknowledged that this failure resulted in the default judgment. Respondent unreservedly accepted responsibility for this failure. However, he had believed Urban's trial date to be September 30, 1986, not September 24, 1986, and he had been out of the state on the earlier date. Nevertheless, when he learned of the default judgment, he did not file a Civ. R. 60(B) motion for relief from the judgment as was suggested by the court. Respondent also stated that he was experiencing a severe drinking problem during this period. In fact, he intended to admit himself to an alcoholic rehabilitation center after the hearing.
Based on the foregoing, the board found that respondent had violated the Disciplinary Rules set forth in the complaint. It recommended that respondent be suspended from the practice of law in Ohio for one year.
Joseph C. Damiano and Laurie F. Starr, for relator.
Gerald Simmons and Gary M. Schweickart, for respondent.
Having thoroughly reviewed the record, this court concurs that respondent violated DR 6-101 (A)(3), 7-101(A)(1), 7-101(A)(2), 7-101(A)(3), and Gov. Bar R. V(5). However, in light of respondent's admitted alcoholism and his stated desire to obtain treatment for it, we believe the board's recommendation to be inappropriate under the circumstances. Accordingly, we order that respondent be suspended from the practice of law in Ohio for two years, but that eighteen months of this penalty be suspended so that, if a monitor of his progress recommends same, respondent may be readmitted after six months. However, even if respondent is successful in being readmitted after this initial six-month period, his performance must still be monitored for the remainder of the two-year suspension. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.