Opinion
D.D. No. 82-35
Decided April 27, 1983.
Attorneys at law — Misconduct — Indefinite suspension — Neglect of clients' affairs — Failure to return retainers although professional services not performed.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
On May 27, 1982, relator, Mahoning County Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline (hereinafter "board") charging respondent, Ben F. Kelly, with violations of DR 1-102(A)(1), (4) and (6), DR 6-101(A)(3), and DR 7-101(A)(2) of the Code of Professional Responsibility. On August 9, 1982, a supplemental complaint was filed against respondent by relator charging an additional violation of these same rules.
The complaints charged respondent with misconduct concerning four separate legal matters entrusted to him. The complaints also alleged that respondent failed to cooperate with the bar association's investigation into these matters.
The charge relating to the respondent's mishandling of Mark V. Warren's case was dismissed after relator failed to offer any evidence on the matter.
A hearing before a panel of the board was held on relator's complaint in October 1982, at which time the following testimony was elicited:
I. Dean T. Morris, a former client of respondent, testified that he paid respondent a retainer of $70 for the purpose of having him file a motion for reduction of child support payments. During the ensuing months, Morris made numerous attempts to contact respondent but these endeavors were to no avail. Eventually, Morris obtained another attorney, who succeeded in having the amount of child support payments reduced to zero. However, during the period in which respondent was supposedly acting on his behalf, Morris was charged with $350 to $375 in additional child support payments. Moreover, Morris has never received a refund of the $70.
II. Willie R. Williams testified that his brother, Milton Williams, paid respondent $100 to $120 on Williams' behalf to attempt to have Williams released from jail. Respondent told the brother if he were unable to obtain Williams' release, he would return the money. At the time respondent was retained, Williams had been in jail for approximately two weeks. Williams served his full six months. Despite repeated efforts by members of Williams' family to contact respondent for a refund of the $100 to $120, according to Williams, no response was ever received. Respondent has yet to return the money.
Upon being questioned by the board on the application of DR 2-106(C) which prohibits a contingent fee arrangement in a criminal case, respondent admitted he was unaware of the prohibition and further indicated difficulty grasping the difference between a contingent fee and a retainer or payment in advance.
III. Norma J. Brocious, another former client of respondent testified that she and her husband paid respondent $300 to obtain a dissolution. After two and one-half months passed in which no action was taken by respondent, and during which time she attempted to reach respondent to question him about the delay, Mrs. Brocious unexpectedly encountered respondent in Girard Municipal Court. At that time, respondent told her he would file for the dissolution the next day. Mrs. Brocious, however, has had no further contact with respondent and has never received a refund.
IV. James C. Evans, secretary of the Grievance Committee of the relator, testified that both personal and written attempts to obtain the cooperation of the respondent in the investigation of the above matters were ignored. After the institution of the present cause, respondent promised on numerous occasions to refund the various fees which he had collected but never carried out his promises.
Before the board, respondent Kelly admitted that he was very frequently neglectful of matters entrusted to him and that it was common practice for him to disregard such matters until pressure from the irate clients would spur him into action. He stated as to three other complaints previously filed with the relator, that they had been settled either by his merely refunding the various amounts of money to his disgruntled clients or by his actually doing the legal work requested. He felt the pending complaints could be handled in like manner.
Respondent stated: "* * * [I]f a client tells me that he's impatient about the time going on and he's highly disgruntled and he's going to do something about it if I don't get off my butt and get going, then it spurs me into action. Until I get such a call, I don't know that the time is all that important to the client * * *."
Respondent admitted, however, that it would be necessary for him to borrow money in order to make restitution.
After noting that respondent suffered from a drinking problem, the board recommended that he be indefinitely suspended from the practice of law until such problem could be resolved.
Mr. Richard G. Zellers and Mr. Joseph W. Gardner, for relator.
Mr. Ben F. Kelly, pro se.
After a careful examination of the evidence in this cause, this court concurs with the findings of the board that respondent violated DR 1-102(A)(1), (4) and (6), DR 6-101(A)(3), and DR 7-101(A)(2) of the Code of Professional Responsibility. Accordingly, it is the judgment of this court that respondent be indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.