Cleveland Metropolitan Bar Ass'n v. Freeman ( 2011 )

[Cite as Cleveland Metro. Bar Assn. v. Freeman, 128 Ohio St. 3d 416, 2011-Ohio-1447.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. FREEMAN.
[Cite as Cleveland Metro. Bar Assn. v. Freeman,
128 Ohio St. 3d 416, 2011-Ohio-1447.]
Attorney misconduct, including failing to act with reasonable diligence in
representing a client — One-year suspension, all stayed on conditions.
(No. 2010-2144 — 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. 10-049.
__________________
Per Curiam.
{¶ 1} Respondent, Kenneth Jeff Freeman of Cleveland, Ohio, Attorney
Registration No. 0018940, was admitted to the practice of law in Ohio in 1981.
On April 24, 2002, we publicly reprimanded respondent for neglecting a client’s
bankruptcy case, handling an adversarial proceeding in another client’s
bankruptcy case without adequate preparation, and initially failing to cooperate in
the resulting disciplinary investigation. Cleveland Bar Assn. v. Freeman (2002),
95 Ohio St. 3d 117, 766 N.E.2d 152. And in June 2010, relator, Cleveland
Metropolitan Bar Association, filed a two-count complaint charging respondent
with professional misconduct arising from his neglecting two foreclosure matters,
failing to keep his clients reasonably informed of the status of their matters, and
mailing a direct advertisement that did not comply with Prof.Cond.R. 7.3(c)(3) to
one of those clients.
{¶ 2} The parties have submitted stipulations of fact and misconduct, and
pursuant to Section 3(C) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”), the matter was deemed to have been submitted
SUPREME COURT OF OHIO
without hearing. The Board of Commissioners on Grievances and Discipline has
accepted the parties’ agreed stipulations of fact and misconduct. The board has
also adopted the parties’ recommended sanction of a one-year suspension from
the practice of law, all stayed on the conditions that he complete at least 12 hours
of continuing legal education (“CLE”) in law-office management and that he
commit no further misconduct. Further, the board recommends that we require
respondent to submit proof that he has completed at least six hours of the required
CLE within the first six months of his stayed suspension.
{¶ 3} We agree that respondent has committed professional misconduct
as found by the board, except that we find that the alleged violation of
Prof.Cond.R. 7.3(c) has not been proved by clear and convincing evidence, and
therefore, we dismiss that charge. Nonetheless, we agree that a one-year
suspension, stayed on the conditions recommended by the board, is warranted.
Misconduct
Count One
{¶ 4} The stipulated facts of this case demonstrate that in August 2006, a
husband and wife who were delinquent in their mortgage payments retained
respondent to help them resolve the matter with their mortgage lender. But when
the bank filed a foreclosure action, respondent failed to file a timely answer or
move for an extension of time to answer. When the lender filed a motion for
default judgment, respondent filed an objection to the motion and also filed an
answer. The court denied the motion and permitted the late answer. The lender
later filed an amended complaint, and when respondent did not answer, filed
another motion for default judgment. Respondent did not timely oppose the
motion, but asserted that he had not been served with the amended complaint and
obtained leave to file an answer to the lender’s amended complaint.
{¶ 5} Respondent subsequently failed to timely respond to the lender’s
discovery requests, and the court granted the lender’s motion to have its requests
2
January Term, 2011
for admissions deemed admitted. Respondent failed to appear at the final pretrial
hearing on the matter and told his clients that it was not necessary for them to
attend.
{¶ 6} Having determined that the couple had no viable defense to the
foreclosure action and that they could not bring the mortgage current, respondent
ignored the court’s order to file a trial brief and exhibits. Thereafter, the court
entered judgment against the couple and ordered that their home be sold at a
sheriff’s sale.
{¶ 7} When respondent informed the couple of the impending sale, they
obtained new counsel. Although respondent did not comply with the couple’s
request for the return of their file for several months, their new attorney was able
to negotiate new mortgage terms with the lender and avoid the sheriff’s sale of
their home.
{¶ 8} The parties have stipulated and the panel and board have found
that respondent’s conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act
with reasonable diligence in representing a client), 1.4(a)(2) (requiring a lawyer to
reasonably consult with the client about the means by which the client’s
objectives are to be accomplished), 1.4(a)(3) (requiring a lawyer to keep the client
reasonably informed about the status of a matter), and 1.4(a)(4) (requiring a
lawyer to comply as soon as practicable with reasonable requests for information
from the client). We adopt these findings of fact and misconduct.
Count Two
{¶ 9} Another couple met with respondent to discuss a possible
bankruptcy filing, but ultimately retained him to help refinance their home and
defend a pending foreclosure action. Respondent timely filed answers to the
complaint and the amended complaint in the foreclosure proceeding and engaged
in discovery. When the couple attempted to contact respondent regarding the
status of their case in April 2007, he did not return their phone calls until May 10,
3
SUPREME COURT OF OHIO
2007. Without discussing the issue with his clients, he determined that they had
no defense to their lender’s motion for summary judgment. Consequently, he did
not respond to the motion.
{¶ 10} The parties have stipulated and the panel and board have found
that respondent’s conduct violated Prof.Cond.R. 1.3, 1.4(a)(4), and 7.3(c)(3)
(requiring that written communication from a lawyer soliciting professional
employment from a prospective client whom the lawyer reasonably believes to be
in need of legal services in a particular matter conspicuously state
“ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY” unless the
recipient of the communication is a lawyer or has a familial, close personal, or
prior professional relationship with the lawyer).
{¶ 11} We accept the stipulated facts of the parties and the board’s finding
that respondent violated Prof.Cond.R. 1.3 and 1.4(a)(4). We conclude, however,
that the stipulated facts do not clearly and convincingly demonstrate that
respondent’s conduct in mailing a solicitation letter to these clients violated
Prof.Cond.R. 7.3(c)(3). That rule provides:
{¶ 12} “Unless the recipient of the communication is a person specified in
division (a)(1) or (2) of this rule, every written, recorded, or electronic
communication from a lawyer soliciting professional employment from a
prospective client whom the lawyer reasonably believes to be in need of legal
services in a particular matter shall comply with all of the following:
{¶ 13} “* * *
{¶ 14} “(3) Conspicuously include in its text and on the outside envelope,
if any, and at the beginning and ending of any recorded or electronic
communication the recital—‘ADVERTISING MATERIAL’ or
‘ADVERTISEMENT ONLY.’ ”
{¶ 15} The persons specified in division (a)(1) and (2) of Prof.Cond.R. 7.3
include persons with a prior professional relationship with the lawyer. Because
4
January Term, 2011
respondent already had a professional relationship with the couple—the only
persons to whom respondent has stipulated sending such a solicitation—the letter
he sent to them falls within one of the exceptions to Prof.Cond.R. 7.3(c)(3).
Therefore, relator has failed to satisfy its burden of proving by clear and
convincing evidence that respondent’s conduct violated that rule. See Gov.Bar R.
V(6)(J); Ohio State Bar Assn. v. Reid (1999), 85 Ohio St. 3d 327, 331, 708 N.E.2d
193; Trumbull Cty. Bar Assn. v. Donlin (1996), 76 Ohio St. 3d 152, 155, 666
N.E.2d 1137 (a respondent is not bound by a stipulation that he had committed
misconduct when the stipulated facts and evidence presented at the hearing
demonstrated that his conduct did not constitute a violation of the rule).
{¶ 16} Accordingly, we dismiss the charge alleging a violation of
Prof.Cond.R. 7.3(c)(3).
Sanction
{¶ 17} 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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 18} Although the parties did not stipulate to any aggravating factors,
the panel and board found that respondent has a prior disciplinary offense and that
his conduct in this instance involved multiple offenses. BCGD Proc.Reg.
10(B)(1)(a) and (d); Cleveland Bar Assn. v. Freeman, 95 Ohio St. 3d 117, 766
N.E.2d 152. As mitigating factors, the parties stipulated and the panel and board
found that respondent did not act with a dishonest or selfish motive and has
cooperated in relator’s investigation and the resulting disciplinary proceeding.
See BCGD Proc.Reg. 10(B)(2)(b) and (d).
5
SUPREME COURT OF OHIO
{¶ 19} Relying on Akron Bar Assn. v. Holda, 125 Ohio St. 3d 140, 2010-
Ohio-1469, 926 N.E.2d 626, the parties have stipulated that the appropriate
sanction for respondent’s misconduct is a one-year suspension from the practice
of law, all stayed on the conditions that he complete at least 12 hours of CLE in
law-office management and that he commit no further misconduct. The panel and
board adopted this stipulated sanction with the additional condition that
respondent submit proof that he has completed at least six hours of the required
CLE within the first six months of his stayed suspension. The parties have not
objected to the board’s report.
{¶ 20} In Holda, we imposed a one-year suspension, all stayed on
conditions, on an attorney who failed to act with reasonable diligence and
promptness in her representation of two clients and failed to promptly deliver her
case file to one of those clients upon termination of her representation. In Holda,
the sole aggravating factor found by the board was the respondent’s prior public
reprimand for failing to maintain a retainer in a separate trust account, neglecting
an entrusted legal matter, and failing to properly refund a retainer upon the
termination of her representation. Id. at ¶ 1 and 13, citing Akron Bar Assn. v.
Holda, 111 Ohio St. 3d 418, 2006-Ohio-5860, 856 N.E.2d 973. We observe,
however, that Holda’s conduct, like respondent’s, involved multiple offenses
during two separate representations. Holda at ¶ 6-12.
{¶ 21} Similarly, we imposed a one-year license suspension stayed upon
conditions in Disciplinary Counsel v. Pfundstein, 128 Ohio St. 3d 61, 2010-Ohio-
6150, 941 N.E.2d 1180, on an attorney who committed the following violations in
each of two cases: Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c) (prohibiting a
lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), and 8.4(h) (prohibiting a lawyer from engaging in conduct
that adversely reflects on the lawyer's fitness to practice law). Id. at ¶ 9, 13.
Although Pfundstein did not have a prior disciplinary record, his conduct was
6
January Term, 2011
more egregious than respondent’s in that it involved dishonesty, deceit, and
misrepresentation. Id. at ¶ 16.
{¶ 22} Having considered respondent’s conduct, the applicable
aggravating and mitigating factors, and sanctions imposed in comparable cases,
we agree that a one-year stayed suspension is the appropriate sanction for
respondent’s misconduct.
{¶ 23} Accordingly, we suspend Kenneth Jeff Freeman from the practice
of law in Ohio for one year, all stayed on the conditions that he complete at least
12 hours of CLE in law-office management in addition to the CLE requirement of
Gov.Bar R. X, submit proof that he has completed at least six hours of that CLE
within the first six months of his stayed suspension, and commit no further
misconduct. If respondent fails to comply with the conditions, the stay will be
lifted, and respondent will serve the entire one-year suspension. Costs are taxed
to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Squire, Sanders & Dempsey, L.L.P., Colin R. Jennings, and David A.
Landman, for relator.
Gallagher Sharp, Alan M. Petrov, and Catherine F. Peters, for respondent.
______________________
7