Akron Bar Assn. v. Dismuke , 128 Ohio St. 3d 408 ( 2011 )

[Cite as Akron Bar Assn. v. Dismuke, 128 Ohio St. 3d 408, 2011-Ohio-1444.]
AKRON BAR ASSOCIATION v. DISMUKE.
[Cite as Akron Bar Assn. v. Dismuke, 128 Ohio St. 3d 408, 2011-Ohio-1444.]
Attorneys at law — Misconduct — Neglect of client matters — Failure to
cooperate with disciplinary investigation — Failure to keep attorney-
registration information current — Two-year suspension with one year
stayed on conditions.
(No. 2010-1889 — Submitted January 19, 2011 — Decided March 31, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-090.
__________________
Per Curiam.
{¶ 1} Respondent, Daniel K. Dismuke of Stow, Ohio, Attorney
Registration No. 0074292, was admitted to the practice of law in Ohio in 2001.
On November 3, 2009, we suspended respondent from the practice of law for his
failure to register as an attorney for the 2009 to 2011 biennium. In re Attorney
Registration Suspension of Dismuke, 123 Ohio St. 3d 1475, 2009-Ohio-5786, 915
N.E.2d 1256.
{¶ 2} On December 7, 2009, relator, Akron Bar Association, filed a two-
count complaint charging respondent with violations of the Rules of Professional
Conduct arising from his neglect of two client matters, his failure to timely
register with this court and keep the court apprised of his current address, and his
failure to cooperate in the ensuing disciplinary investigation. Respondent filed an
answer admitting each of the allegations in relator’s complaint and alleging
certain facts in mitigation.
{¶ 3} At the panel hearing, the parties submitted stipulations of fact and
misconduct, relator submitted a transcript of respondent’s deposition testimony,
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and respondent offered his own testimony in mitigation. Having considered the
evidence, the panel and board found that clear and convincing evidence
demonstrated that respondent committed each of the charged violations, and they
recommend that we suspend respondent from the practice of law for two years,
with the second year stayed on conditions. We adopt these findings of fact and
misconduct and agree that a two-year suspension with the second year stayed on
the recommended conditions is the appropriate sanction for respondent’s
misconduct.
Misconduct
{¶ 4} With respect to Count 1, respondent has admitted that he received
a $1,000 retainer from a client to file a motion for judicial release and that he
never filed the motion. Although the client later terminated his representation and
requested a refund, respondent did not refund the client’s money or return his file.
At his deposition, respondent testified that he had withdrawn the retainer from his
client trust account with the intent to withdraw from representation and refund the
client’s retainer, but he kept the cash in the client’s file for some time. Relator
assisted him in returning the money to the client.
{¶ 5} In Count 2, respondent admitted that he was appointed by the
Summit County Court of Common Pleas to represent a man in a criminal matter
and that he obtained a waiver of his client’s appearance at a pretrial. When the
client failed to appear for a subsequently scheduled pretrial hearing, however, the
court issued a capias for the client’s arrest. Although respondent failed to return
many of the client’s phone calls, during one phone conversation he assured the
client that he would take care of the matter.
{¶ 6} Respondent admits that he failed to cooperate with relator’s
investigation and to respond to the allegations against him. He did not respond to
two letters of inquiry sent to him by regular mail. And, of the six letters of
inquiry that relator and disciplinary counsel sent by certified mail, three were
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January Term, 2011
returned as unclaimed, two were returned with marks indicating that they were
not deliverable as addressed, and one was returned marked “moved—left no
address—unable to forward.” A notice posted at respondent’s office indicated
that he was no longer there. Respondent admitted that he had abandoned client
files at that location, that he had failed to timely register with this court, and that
he had failed to keep the Office of Attorney Services apprised of his current
address.
{¶ 7} Respondent admits that his conduct with respect to each count
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client) and 1.4 (requiring a lawyer to reasonably communicate with
his or her client) and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a
disciplinary investigation) and VI(1)(D) (requiring attorneys to keep the Office of
Attorney Services apprised of their residence and office addresses) and that his
conduct in Count 1 also violated Prof.Cond.R. 1.15 (requiring a lawyer to
preserve the identity of client funds and property and promptly deliver funds or
other property that the client is entitled to receive).
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 9} As aggravating factors, the panel and board found that respondent
had committed multiple offenses, that he had initially failed to cooperate in
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relator’s investigation, and that he had abandoned client files. BCGD Proc.Reg.
10(B)(1)(d) and (e). As mitigating factors, they found that respondent had no
prior disciplinary record or selfish motive, that he had eventually cooperated with
the disciplinary investigation, and that he had made restitution to the client
affected by his conduct in Count 1. See BCGD Proc.Reg. 10(B)(2)(a), (b), (c),
and (d).
{¶ 10} Although respondent testified that he suffered from depression and
other medical conditions that left him tired and unable to focus on his work, those
conditions do not qualify as mitigating factors because he has failed to (1) submit
a diagnosis from a qualified health-care professional, (2) demonstrate that the
conditions contributed to his misconduct, (3) demonstrate a sustained period of
successful treatment, and (4) submit a prognosis from a qualified health-care
professional that he will be able to return to the competent, ethical, professional
practice of law. BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv).
{¶ 11} Relator recommended at least a one-year suspension from the
practice of law with six months stayed on the conditions that respondent serve a
period of monitored probation, bring his continuing legal education (“CLE”)
credits under Gov.Bar R. X current, complete six hours of CLE in law-office
management, and enter into a contract with the Ohio Lawyers Assistance Program
(“OLAP”) and comply with its terms.
{¶ 12} The panel and board, however, recommend that we suspend
respondent from the practice of law for two years, with the second year stayed on
the conditions recommended by relator, and that his suspension not commence
until he has properly registered with this court and his registration suspension has
been terminated.
{¶ 13} In Cleveland Metro. Bar Assn. v. Gresley, 127 Ohio St. 3d 430,
2010-Ohio-6208, 940 N.E.2d 945, we imposed a two-year suspension with the
final six months stayed on conditions for conduct similar to that of respondent.
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January Term, 2011
Gresley had neglected a number of client matters, failed to reasonably
communicate with his clients, failed to return unearned fees, and failed to
cooperate in the resulting disciplinary investigations. Id. at ¶ 4-20. Because it
involved dishonesty and the failure to pay restitution and affected seven clients,
Gresley’s conduct was more egregious than that of respondent. Id. at ¶ 17, 26.
And in Akron Bar Assn. v. McNerney, 122 Ohio St. 3d 40, 2009-Ohio-2374, 907
N.E.2d 1167, we imposed a two-year suspension with the second year stayed on
conditions for an attorney’s failure to preserve the identity of client funds, failure
to keep complete client trust account records, failure to notify clients that the
attorney’s malpractice insurance had lapsed, and failure to properly register as an
attorney.
{¶ 14} Having considered respondent’s conduct, the aggravating and
mitigating factors, and the sanctions imposed for comparable conduct, we adopt
the sanction recommended by the board. And because respondent has testified
that he has underlying mental-health issues that may have contributed to his
misconduct, not only must respondent comply with the requirements for
reinstatement set forth in Gov.Bar R. V(10), but he must also provide proof that
to a reasonable degree of medical certainty, he is mentally fit to return to the
competent, professional, and ethical practice of law.
{¶ 15} Accordingly, Daniel K. Dismuke is hereby suspended from the
practice of law for two years, with the second year stayed on the conditions that
respondent complete one year of probation, monitored by an attorney appointed
by relator pursuant to Gov.Bar R. V(9), bring his CLE credits required under
Gov.Bar R. X current, complete six hours of CLE in law-office management in
addition to the CLE credits under Gov.Bar R. X, enter into an OLAP contract, and
comply with all treatment recommendations. This suspension shall commence
after respondent has satisfied all requirements for the termination of his current
suspension for failure to comply with the registration requirements of Gov.Bar R.
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VI. Any application for reinstatement shall be conditioned upon proof to a
reasonable degree of medical certainty that respondent is mentally fit to return to
the competent, professional, and ethical practice of law. Costs are taxed to
respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Anderson & Miller, L.P.A., and Dreama Anderson; Kisling, Nestico &
Redick, L.L.C., and Robert W. Redick; and William G. Chris, Bar Counsel, for
relator.
Daniel K. Dismuke, pro se.
______________________
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