Opinion
D.D. No. 86-15
Decided June 17, 1987.
Attorneys at law — Misconduct — Indefinite suspension — Neglect of legal matters and handling legal matters without adequate preparation.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Relator's complaint before the Board of Commissioners on Grievances and Discipline of the Bar ("board") charges respondent, C. Thomas Gruhler, with four counts of misconduct. Count I charges respondent with a violation of DR 6-101(A)(3), neglect of a legal matter entrusted to him. Counts II, III, and IV charge respondent with violations of DR 6-101(A)(3) and 6-101(A)(2), handling a legal matter without adequate preparation.
In the case involved in Count I of the complaint, respondent was retained by Robert Hyott on May 1, 1984, to file an action to secure visitation rights for Hyott with his grandchildren. Hyott paid respondent $225 as a retainer fee and court costs of $25. Respondent never filed a petition in the case, never returned the fee and costs, and in fact never communicated with Hyott after May 1, 1984, except that respondent claims that he wrote Hyott a letter on October 11, 1984, after Hyott had filed a complaint with the relator, Toledo Bar Association. The letter stated that respondent would return the retainer or continue his services at the client's election. In March 1985, respondent was suspended from the practice of law for one year by this court. Hyott, who was recuperating from open heart surgery, did not testify before the board. His wife testified that she had never seen the letter respondent claims to have sent offering to return the retainer or continue services and that the retainer and fees advanced were never returned.
With regard to Count III of the complaint, respondent was retained to represent Columbus Parker in an action arising out of an automobile accident that occurred in December 1979. On December 17, 1981, respondent filed suit against the driver of the automobile involved and the driver's mother. Respondent failed to obtain service upon the defendant-driver of the car within one year after the filing of the complaint.
On April 29, 1983, respondent filed a motion to dismiss the case without prejudice, and the motion was subsequently granted. However, on July 6, 1984, upon motion to reconsider filed by the defendant, the court found plaintiff's motion to dismiss without prejudice not well-taken and sustained a motion of the defendant-driver to dismiss with prejudice.
Respondent stated that he wrote to Parker on May 25, 1983, advising Parker that the court had sustained his motion to dismiss without prejudice and stating that respondent would no longer represent him. Parker denied receiving the letter.
Respondent testified that he made several attempts to obtain service on the defendant-driver in this case, but was unable to locate her. He admitted failing to submit interrogatories to the defendant's mother, who had been served, and he did not take the mother's deposition. Attached to the defendant-driver's motion to dismiss was an affidavit stating that she had lived at a particular address in Toledo, Ohio, continually from the filing of the action until the date of her affidavit, April 18, 1983.
Parker testified that he had been offered $1,000 by an insurance company to settle the claim, but that respondent advised him not to accept the settlement because respondent could obtain more for Parker. This conversation allegedly occurred in 1979.
Parker testified that he attempted to contact respondent many times thereafter between 1979 and 1984, but was always told that respondent was unavailable, except for one occasion in 1984 when he managed to see respondent in the office and was told by respondent that he, respondent, was waiting to hear from the insurance company, that everything was "set" and that it was "just a matter of time." Later in 1984, Parker was advised by respondent's secretary that his case had been "thrown out" of court. In April 1985, Parker filed a complaint with the Toledo Bar Association.
Count IV of the complaint alleges that respondent was retained by Mr. and Mrs. Robert Kaiser to represent them in the adoption of Mrs. Kaiser's son. The respondent was paid a retainer fee of $300. This apparently occurred on July 14, 1983. On May 29, 1984, respondent filed the adoption petition. A hearing was scheduled for July 25, 1984, but was cancelled because the proper steps had not been taken to serve the natural father by publication. Respondent took no further steps to complete the adoption until October 15, 1984, when respondent wrote the Kaisers a letter after they had filed a complaint with the Toledo Bar Association. The letter advised the Kaisers that he was still their counsel and would proceed with the adoption proceedings, but they could, at their election, obtain other counsel and he would return a portion of the retainer fee. Respondent later offered to return $100 of the retainer fee but the Kaisers refused that amount. The Kaisers ultimately engaged another attorney to complete the adoption and paid him several hundred dollars. The adoption was completed in June 1985, approximately twenty-three months after they first contacted respondent.
Mr. Kaiser also testified that the couple repeatedly attempted to contact the respondent when six months had passed after they first retained him, but that respondent would not return their phone calls.
The board found that the respondent did violate DR 6-101(A)(3) under Counts I and IV. Under Count III, the board found that the respondent violated DR 6-101(A)(2) and DR 6-101(A)(3). The board dismissed Count II.
The board recommended that the respondent be indefinitely suspended from the practice of law. The respondent did not file objections to the report of the board.
Robison, Curphey O'Connell, James E. Brazeau; Williams, Jilek Lafferty and Michael F. Jilek, Sr., for relator.
Britz Zemmelman and Harland M. Britz, for respondent.
It is clear from respondent's actions concerning the matters specified on Counts I, III and IV of the complaint that respondent neglected legal matters entrusted to him. Moreover, by failing to take depositions or file interrogatories in the case involved under Count III, the respondent clearly attempted to handle a legal matter without preparation adequate in the circumstances, a violation of DR 6-101(A)(2).
Accordingly, we adopt the findings, conclusions and recommendation of the board and hereby suspend respondent from the practice of law for an indefinite period.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.