Disciplinary Counsel v. Smith. , 152 Ohio St. 3d 131 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Smith, Slip Opinion No. 2017-Ohio-8821.]
NOTICE
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SLIP OPINION NO. 2017-OHIO-8821DISCIPLINARY COUNSEL v. SMITH.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Smith, Slip Opinion No.
2017-Ohio-8821.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—18-
month suspension with 12 months stayed on condition.
(No. 2017-0487—Submitted May 3, 3017—Decided December 6, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-068.
_______________________
Per Curiam.
{¶ 1} Respondent, Samuel Ray Smith II, of Cleveland, Ohio, Attorney
Registration No. 0076242, was admitted to the practice of law in Ohio in 2003. On
November 28, 2016, relator, disciplinary counsel, charged Smith with professional
misconduct following his representation of Horace K. Vinson Jr. Smith was
initially retained by Darlene Beesley to prepare and file a petition for
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postconviction relief for Vinson, Beesley’s stepson. After the petition was denied,
Smith was contacted by Terri L. Lamb, Vinson’s mother, about appealing the
decision. On January 21, 2015, Lamb delivered a personal check to Smith for
$1,800, the full amount of the flat fee that Smith had requested to handle the appeal,
which Smith proceeded to deposit into his personal bank account. Smith, however,
failed to file the notice of appeal by the February 2, 2015 deadline. Instead, on
February 12, 2015, he filed in the court of appeals a motion for leave to file a
delayed appeal. In his motion, Smith falsely represented to the court that he had
been retained on February 2, 2015. The court of appeals denied the motion and
dismissed the appeal. Smith then informed Lamb that he would prepare another
petition for postconviction relief. After many months during which Smith failed to
file any pleading or other document on Vinson’s behalf, Vinson filed a grievance
against Smith.
{¶ 2} On May 31, 2016, Smith replied to relator’s inquiry into Vinson’s
grievance. His response included a copy of a draft appellate brief that he claimed
he had intended to file on Vinson’s behalf and a copy of a draft motion for new trial
that he had prepared. An itemized billing statement that Smith also provided
indicated that he had researched and drafted the appellate brief on January 5 and
20, 2015, and had drafted the motion for new trial on October 13 and 19, 2015.
Smith’s response stated that “[t]he date, description of activities, and amount of
time reflected in [his] billing statements are accurate to the best of his knowledge
and belief.” The underlying metadata for the draft appellate brief that Smith
claimed to have prepared in January 2015 and the draft motion for new trial that
Smith claimed to have prepared in October 2015, however, reflected that the
documents were actually created on May 30, 2016, the day prior to Smith’s written
response to relator. Smith then admitted that he had created the documents in order
to submit them with his response.
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January Term, 2017
{¶ 3} A panel of the Board of Professional Conduct considered this cause
on the parties’ consent-to-discipline agreement. See Gov.Bar R. V(16).
{¶ 4} In the consent-to-discipline agreement, Smith stipulates to most of the
facts alleged in relator’s complaint and agrees that his conduct violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.15(c) (requiring a lawyer to deposit advance legal fees and
expenses into a client trust account, to be withdrawn by the lawyer only as fees are
earned or expenses incurred), 3.3(a) (prohibiting a lawyer from knowingly making
a false statement of fact or law to a tribunal), 8.1(a) prohibiting a lawyer from
knowingly making a false statement of material fact in connection with a
disciplinary matter), and 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation).
{¶ 5} The parties stipulate that the applicable mitigating factors include the
absence of a prior disciplinary record, a timely, good-faith effort to make restitution
or to rectify the consequences of Smith’s misconduct, a remorseful and cooperative
attitude toward the proceedings, and evidence of good character and reputation.
See Gov.Bar R. V(13)(C)(1), (3), (4), and (5). The parties agree that the applicable
aggravating factors are that Smith acted with a dishonest or selfish motive,
committed multiple offenses, and submitted false evidence, made false statements,
or engaged in other deceptive practices during the disciplinary process. See
Gov.Bar R. V(13)(B)(2), (4), and (6). Based on Smith’s stipulated misconduct and
the mitigating and aggravating factors, the parties stipulate that the appropriate
sanction for Smith’s misconduct is an 18-month suspension from the practice of
law with the final 12 months stayed.
{¶ 6} The panel and the board found that the consent-to-discipline
agreement conforms to Gov.Bar R. V(16) and recommend that we adopt the
agreement in its entirety. In support of the stipulated sanction, the parties cited
Akron Bar Assn. v. Markovich, 117 Ohio St.3d 313, 2008-Ohio-862, 883 N.E.2d
3SUPREME COURT OF OHIO
1046 (one-year suspension with six months stayed on conditions was the
appropriate sanction for an attorney who engaged in multiple acts of misconduct,
including neglecting one client’s legal matter and abandoning another, filing a
misleading dismissal entry with a court, and commingling personal and client
funds), Toledo Bar Assn. v. Miller, 132 Ohio St.3d 63, 2012-Ohio-1880, 969 N.E.2d
239 (one-year suspension with six months stayed was the appropriate sanction for
an attorney who lied to two courts and mishandled his law firm’s trust accounts),
Cleveland Metro. Bar Assn. v. Kealy, 125 Ohio St.3d 238, 2010-Ohio-1554, 927
N.E.2d 591 (18-month suspension with 12 months stayed was the appropriate
sanction for an attorney who, among other things, neglected a legal matter and
knowingly made a false statement of material fact during the disciplinary
investigation), and Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-
Ohio-5251, 875 N.E.2d 935 (six-month suspension was the appropriate sanction
for an attorney who neglected a client’s case, attempted to cover up the neglect by
fabricating letters, failed to return the client’s file on request, and failed to cooperate
in the ensuing disciplinary investigation).
{¶ 7} We agree that Smith violated Prof.Cond.R. 1.3, 1.15(c), 3.3(a), 8.1(a),
and 8.4(c) and, as stated in the parties’ agreement and as indicated by the cited
precedents, that this conduct warrants an 18-month suspension, with the final 12
months stayed. Therefore, we adopt the parties’ consent-to-discipline agreement.
{¶ 8} Accordingly, Samuel Ray Smith II is hereby suspended from the
practice of law for a period of 18 months, with the final 12 months stayed on the
condition that he engage in no further misconduct. If Smith violates the condition
of the stay, the stay will be lifted and he will serve the entire 18-month suspension.
{¶ 9} Costs are taxed to Smith.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
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January Term, 2017
_________________
Scott J. Drexel, Disciplinary Counsel, and Audrey E. Varwig, Assistant
Disciplinary Counsel, for relator.
James E. Arnold & Associates, L.P.A., and Alvin Earl Mathews Jr., for
respondent.
_________________
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