Summary
mitigating factors included no prior record of disciplinary action and no harm resulting from respondent's actions
Summary of this case from Mahoning Cty. Bar Assn. v. ReidOpinion
No. 91-1764
Submitted October 16, 1991 —
Decided February 5, 1992.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 91-5.
On February 13, 1991, relator, Toledo Bar Association, filed a complaint against respondent, Lafayette E. Tolliver, charging him with two counts of misconduct. Both counts relate to respondent's representation of two clients whose interests were adverse to each other in violation of DR 5-105(A), DR 5-105(B) and DR 5-105(C) (conflict of interest). On April 22, 1991, respondent filed an answer denying misconduct.
On June 24, 1991, a hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court, at which the parties presented written stipulations of fact. The parties stipulated that, in early 1988, respondent agreed to represent Jesse Ponce as a plaintiff in a wrongful discharge claim against the Economic Opportunity Planning Association of Greater Toledo, Inc. ("EOPA"). On March 10, 1988, respondent filed suit against EOPA on Ponce's behalf in the Court of Common Pleas of Lucas County. On February 16, 1989 respondent's firm, McConnell, Taylor Tolliver, submitted a bid to EOPA to become its general counsel. Respondent had knowledge of the bid. On March 1, 1989, after Ponce's case was called for trial and a jury was impaneled and sworn, the parties reached a settlement. On March 21, 1989, EOPA mailed a letter to respondent's firm, indicating that its bid had been accepted. A contract for legal services was entered into between EOPA and the firm on March 29, 1989. On April 25, 1989, respondent met with Ponce, at which time a formal settlement agreement was executed and funds were disbursed. Respondent's role as counsel for EOPA was discussed during the meeting and respondent advised Ponce that he could avoid settling and seek other counsel.
In addition to accepting the stipulation of the parties, the panel found that, throughout the pendency of Ponce's case, EOPA was represented by its former attorney, and Ponce was well represented by respondent; that there was no evidence that the bidding or contract process adversely affected such representation; and that respondent made no meaningful disclosure to Ponce prior to the scheduled date of trial about his firm's bid to EOPA.
The panel concluded that respondent's multiple representation violated DR 5-105(B), reasoning that "in the preparation for trial, trial, and settlement on behalf of Mr. Ponce, it was likely that the exercise of Respondent's independent professional judgment on behalf of Mr. Ponce was adversely affected by his relationship with EOPA." The panel further concluded that respondent did not give full and meaningful disclosure of the conflict of interest to Ponce or EOPA and that neither party thus gave the informed consent to the multiple representation as contemplated by DR 5-105(C).
Because respondent had no prior record of disciplinary action, because no harm resulted from respondent's actions, and because the respondent's violation was not flagrant, the panel recommended a public reprimand. The board adopted the findings, conclusions of law, and recommendation of the panel.
John N. MacKay and J. Jeffrey Lowenstein, for relator.
Lafayette E. Tolliver, pro se.
We agree with the board's findings and recommendation. Respondent is hereby publicly reprimanded. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.