Disciplinary Counsel v. Maney. ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Maney, Slip Opinion No. 2017-Ohio-8799.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
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the opinion is published.
SLIP OPINION NO. 2017-OHIO-8799DISCIPLINARY COUNSEL v. MANEY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Maney, Slip Opinion No.
2017-Ohio-8799.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to act with reasonable diligence in representing a client,
knowingly making a false statement of material fact in connection with a
disciplinary matter, and engaging in conduct prejudicial to the
administration of justice—One-year suspension, with six months stayed and
conditions.
(No. 2016-1494—Submitted May 2, 2017—Decided December 6, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2015-074.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Thomas Patrick Maney Jr., of Columbus, Ohio, Attorney
Registration No. 0029042, was admitted to the practice of law in Ohio in 1983.
{¶ 2} In a December 1, 2015 complaint, relator, disciplinary counsel,
alleged that Maney violated several professional-conduct rules by neglecting a
single client’s matter, failing to reasonably communicate with the client about the
status of his case, and submitting false statements and evidence during the ensuing
investigation.
{¶ 3} Based on the parties’ stipulations and Maney’s hearing testimony, a
panel of the Board of Professional Conduct found that he committed all the charged
misconduct and recommended that he be suspended from the practice of law for
one year with six months stayed on conditions. The board adopted the panel’s
findings and recommendation.
{¶ 4} Maney objects to the board’s report, arguing that the panel denied him
due process by refusing to admit his counselor’s report into the record and striking
his former counsel’s closing argument as untimely filed. For the reasons that
follow, we overrule Maney’s objections, adopt the board’s findings of fact and
misconduct, and suspend Maney from the practice of law in Ohio for one year with
six months stayed on the conditions recommended by the board.
Misconduct
{¶ 5} The parties stipulated and the board found that in October 2013,
Patrick Baker retained Maney to represent him in a collection proceeding filed
against him in the Franklin County Municipal Court. Maney answered the
complaint later that month and attended a pretrial hearing. He did not, however,
respond to the plaintiff’s discovery requests or motion for summary judgment or
forward the documents to Baker. The court granted the plaintiff’s motion for
summary judgment and entered a $3,061.35 judgment against Baker on June 12,
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2014, and the court—not Maney—notified Baker of that judgment. The judgment
was later stayed after Baker filed bankruptcy.
{¶ 6} When relator sent Maney a letter of inquiry regarding Baker’s
grievance, Maney knowingly lied in his response. He falsely stated that he had sent
letters to Baker informing him of the status of his case, that he had given Baker the
plaintiff’s discovery requests, and that he had asked Baker to respond to those
discovery requests on numerous occasions. In fact, he had done none of those
things. Maney also gave relator copies of five letters that he claimed to have sent
to Baker, though he later admitted that he fabricated those letters in an effort to
conceal his neglect and abandonment of Baker’s interests in the underlying
litigation. In addition, Maney attempted to deflect blame away from himself and
toward his client by telling relator that he should have withdrawn from the
representation when Baker did not respond to his letters (that he never sent), but
that he had hoped Baker would eventually respond and provide sufficient
information for him to oppose the motion for summary judgment. Maney
perpetuated those lies during an April 27, 2015 telephone conversation with relator.
{¶ 7} Relator confronted Maney in July 2015 and told him that his story was
not believable, because Baker was adamant that his case had been neglected and
the letters Maney had purportedly sent to Baker were directed to an address where
Baker did not reside during the representation. At that point, Maney said, “[Y]ou
got me,” and he admitted that he had lied and fabricated documents during the
investigation.
{¶ 8} During Maney’s April 2016 deposition testimony, he testified that he
realized that he had “bungled” Baker’s case when he received a copy of the
grievance. He further admitted that he had put Baker’s file on a shelf and forgotten
about it. While he asserted that he had no good-faith basis on which to oppose the
plaintiff’s motion for summary judgment, he acknowledged that he had failed to
satisfy his continuing duty to communicate with his client.
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{¶ 9} The parties stipulated and the board agreed that Maney’s conduct
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably
informed about the status of a matter), 8.1(a) (prohibiting 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). The board also found that Maney violated Prof.Cond.R.
8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice) by failing to communicate with Baker or respond to the
plaintiff’s discovery requests and motion for summary judgment in Baker’s case
and by lying and submitting fabricated evidence during relator’s investigation.
{¶ 10} We adopt these findings of fact and misconduct.
Sanction
{¶ 11} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), any other relevant
factors, and the sanctions imposed in similar cases.
{¶ 12} As aggravating factors, the parties stipulated and the board found
that Maney acted with a dishonest or selfish motive and that he submitted false
statements and evidence during the disciplinary process. See Gov.Bar R.
V(13)(B)(2) and (6).
{¶ 13} In mitigation, the parties stipulated and the board found that Maney
did not have a prior disciplinary record, that he had cooperated with relator and the
board in all proceedings subsequent to the filing of the formal complaint, and that
he had submitted 14 letters from individuals attesting to his good character and
competence as an attorney. See Gov.Bar R. V(13)(C)(1), (4), and (5).
{¶ 14} Maney testified that he began drinking “way too much” sometime
between April and July 2012. He claimed that his drinking caused or contributed
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to the lies that he told relator and that it continued until April 22, 2016—two days
after his deposition—when he sought assistance from the Ohio Lawyers Assistance
Program (“OLAP”). The board acknowledged that Maney voluntarily entered into
a two-year OLAP contract that required him to attend 90 Alcoholics Anonymous
meetings in 90 days and no less than three meetings per week thereafter. Pursuant
to that contract, he was evaluated by and began treatment with a professional
counselor. And on August 8, 2016, OLAP reported that Maney was in compliance
with his contract.
{¶ 15} The board found, however, that Maney had neither satisfied nor
claimed to have satisfied all of the factors required to qualify his substance-use
disorder as an independent mitigating factor. Gov.Bar R. V(13)(C)(7) provides that
a substance-use disorder will qualify as a mitigating factor when an attorney
demonstrates the following: (a) the diagnosis of a disorder by a qualified healthcare
or chemical-dependency professional, (b) the disorder contributed to cause the
misconduct, (c) certification of successful completion of an approved treatment
program, and (d) a prognosis from a qualified healthcare or chemical-dependency
professional that the attorney will be able to return to the competent, ethical, and
professional practice of law.
{¶ 16} The board afforded some mitigating effect to Maney’s alcoholism,
noting that we sometimes afford some mitigating effect to a contributing mental or
substance-use disorder in the absence of evidence of each of those factors, see, e.g.,
Cleveland Metro. Bar Assn. v. Lemieux, 139 Ohio St.3d 320, 2014-Ohio-2127, 11
N.E.3d 1157, ¶ 36, 39 (affording some mitigating effect to attorney’s diagnosed
chemical dependency given evidence of his sustained period of compliance with an
OLAP contract and ongoing treatment); Disciplinary Counsel v. Anthony, 138 Ohio
St.3d 129, 2013-Ohio-5502, 4 N.E.3d 1006, ¶ 13 (affording some mitigating effect
to diagnosed pathological gambling disorder given evidence of attorney’s existing
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OLAP contract, commencement of psychological treatment, and participation in
Gamblers Anonymous).
{¶ 17} The parties did not stipulate to a recommended sanction and agreed
to submit posthearing briefs in lieu of closing arguments by September 6, 2016.
Relator recommends that Maney be suspended from the practice of law for six
months. But Maney did not file a posthearing brief or seek an extension of time to
do so before the deadline passed. Although he filed a motion for leave to file his
brief the day after it was due, the panel chairperson overruled that motion and struck
the untimely tendered brief from the record.
{¶ 18} Of the five cases the board considered in determining the appropriate
sanction for Maney’s misconduct, it found Disciplinary Counsel v. Broeren, 115
Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, and Butler Cty. Bar Assn. v.
Derivan, 81 Ohio St.3d 300, 691 N.E.2d 256 (1998), to be most instructive.
{¶ 19} Like Maney, Broeren neglected a client’s case and later fabricated
correspondence in an attempt to conceal his neglect. As aggravating factors, we
found that Broeren failed to timely respond to the ensuing disciplinary
investigation, though he eventually cooperated, failed to acknowledge all of his
misconduct, and caused financial harm to a client. Id. at ¶ 23. Mitigating factors
included the absence of a prior disciplinary record and evidence of Broeren’s good
character and professional reputation apart from his misconduct. Id. Finding that
the mitigating factors did not outweigh Broeren’s attempt to conceal his misconduct
by submitting false evidence, id., we suspended him from the practice of law for
six months and ordered him to pay restitution of $1,000 to his client, id. at ¶ 23, 28.
{¶ 20} We likewise suspended Derivan from the practice of law for six
months for failing to file a client’s case before the applicable statute of limitations
and attempting to exonerate himself by manufacturing and submitting false
documents to the certified grievance committee. Derivan at 301-302.
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{¶ 21} Citing Maney’s neglect of his client’s legal matter and “his extensive
and prolonged attempts” to cover up his neglect by fabricating evidence and
submitting it to relator, and affording some mitigating effect to his substance-use
disorder, the board recommended that he be suspended from the practice of law for
one year with six months stayed on conditions.
Objections
{¶ 22} Maney objects to the board’s recommended sanction and argues that
the board committed two procedural errors that substantially impaired his defense
and deprived him of due process.
{¶ 23} First, Maney asserts that the board erred by refusing to either admit
into evidence or permit him to proffer an e-mail from his counselor that “could have
satisfied” the remaining criteria to qualify his substance-use disorder as a mitigating
factor. Second, he argues that the board unduly punished him by prohibiting his
former counsel from filing his posthearing brief one day after the established
deadline.
{¶ 24} “[D]ue process requirements in attorney-discipline proceedings have
been satisfied when the respondent is afforded a hearing, the right to issue
subpoenas and depose witnesses, and an opportunity for preparation to explain the
circumstances surrounding his actions.” Disciplinary Counsel v. Character, 129
Ohio St.3d 60, 2011-Ohio-2902, 950 N.E.2d 177, ¶ 76, citing Cleveland Bar Assn.
v. Acker, 29 Ohio St.2d 18, 20, 278 N.E.2d 32 (1972).
{¶ 25} In this case, the board has afforded Maney all the process that he is
due. The hearing in this case was originally scheduled on May 13, 2016. But on
April 1, 2016, the panel chairperson granted the parties’ joint motion to extend the
discovery deadline to permit time for the parties to depose Maney and relator’s
witnesses.
{¶ 26} At Maney’s April 20, 2016 deposition, he testified that he had no
problems with drugs or alcohol. Just three weeks later—and five days before his
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scheduled disciplinary hearing—Maney disclosed that he had entered into an
OLAP chemical-dependency contract and stated his intention to call an OLAP
representative as a witness at his upcoming hearing. Following those belated
disclosures, the panel chairperson delayed Maney’s disciplinary hearing for three
months.
{¶ 27} One day before the August 16, 2016 hearing, the parties stipulated
to the authenticity and admissibility of a report detailing Maney’s compliance with
his OLAP contract and of a letter from an attorney who agreed to serve as Maney’s
mentor. Those exhibits were admitted to the record at the hearing. But the parties
did not stipulate to the admissibility of the e-mail that Maney now claims is
essential to his defense. Nor did Maney’s counsel depose Maney’s counselor or
call him as a witness—though he had ample opportunity to do so. Therefore, we
find that the panel chairperson properly excluded the e-mail on the grounds that it
was hearsay.
{¶ 28} In addition, Maney, through his counsel, failed to comply with the
deadline established for the submission of posthearing briefs in this matter. “[I]t is
well established that failure to follow procedural rules can result in forfeiture of
rights,” and due process does not require us to afford Maney a second chance to
argue his case. Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099(1997). Therefore, we overrule Maney’s objections.
{¶ 29} Having reviewed the record evidence, we are not persuaded that the
outcome of this case would be any different if Maney successfully demonstrated
that his substance-use disorder qualified as an independent mitigating factor. In
fact, we have previously imposed a one-year suspension with six months stayed on
conditions on an attorney who filed several fraudulent documents in court—despite
proof of that attorney’s recently diagnosed mitigating mental disorder. See Warren
Cty. Bar Assn. v. Vardiman, 146 Ohio St.3d 23, 2016-Ohio-352, 51 N.E.3d 587,
¶ 7-8, 14, 21. The recommended sanction is even more appropriate in this case
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given that OLAP’s August 8, 2016 report suggests that approximately four months
before his disciplinary hearing, Maney was diagnosed with three mental disorders
in addition to his substance-use disorder. See, e.g., Cleveland Metro. Bar Assn. v.
Fonda, 138 Ohio St.3d 399, 2014-Ohio-850, 7 N.E.3d 1164, ¶ 31 (finding that just
over three months of treatment was not a sustained period of successful treatment
for purposes of establishing a mitigating mental disorder); Disciplinary Counsel v.
Anthony, 138 Ohio St.3d 129, 2013-Ohio-5502, 4 N.E.3d 1006, ¶ 13 (finding that
three-month period between execution of OLAP contract and panel hearing was
insufficient to establish sustained period of successful treatment for gambling
addiction).
{¶ 30} Given his misconduct, the applicable aggravating and mitigating
factors, and the sanctions we have imposed for comparable misconduct, we agree
that a one-year suspension with six months stayed on the conditions recommended
by the board is necessary and appropriate in this case.
{¶ 31} Accordingly, we suspend Thomas Patrick Maney Jr. from the
practice of law for one year with six months stayed on the conditions that he remain
in compliance with his existing OLAP contract, engage in no further misconduct,
and pay the costs of these proceedings. If Maney violates any condition of the stay,
the stay will be lifted and he will serve the entire one-year suspension.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
O’NEILL, J., dissents.
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Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant
Disciplinary Counsel, and Michelle R. Bowman, Assistant Disciplinary Counsel,
for relator.
Charles J. Kettlewell, L.L.C., and Charles J. Kettlewell, for respondent.
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