Disciplinary Counsel v. Henry , 127 Ohio St. 3d 398 ( 2010 )

[Cite as Disciplinary Counsel v. Henry, 127 Ohio St.3d 398, 2010-Ohio-6206.]
DISCIPLINARY COUNSEL v. HENRY.
[Cite as Disciplinary Counsel v. Henry, 127 Ohio St.3d 398, 2010-Ohio-6206.]
Attorneys — Misconduct — Multiple violations of the Rules of Professional
Conduct, including failing to act with reasonable diligence in representing
a client and failing to promptly refund any unearned fee upon a lawyer’s
withdrawal from representation of a client — Permanent disbarment.
(No. 2010-1507 — Submitted October 13, 2010 — Decided December 22, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-040.
__________________
Per Curiam.
{¶ 1} Respondent, James Russell Henry of Gallipolis, Ohio, Attorney
Registration No. 0076478, was admitted to the practice of law in Ohio in 2003.
{¶ 2} On April 12, 2010, relator, Disciplinary Counsel, filed a nine-count
complaint charging respondent with professional misconduct arising from his
neglect of client matters, failure to keep clients reasonably apprised about the
status of their matters, failure to return unearned fees and client documents, and
failure to respond to the resulting disciplinary investigations. The complaint was
served by certified mail at respondent’s last known address in Cincinnati, Ohio.
Respondent did not answer the complaint or otherwise appear in the proceedings,
and relator moved for default pursuant to Gov.Bar R. V(6)(F).
{¶ 3} A master commissioner appointed by the Board of Commissioners
on Grievances and Discipline granted relator’s motion, making findings of fact
and misconduct and recommending that respondent be permanently disbarred
from the practice of law in Ohio. The board adopted the master commissioner’s
report in its entirety. Having reviewed the record, we accept the board’s findings
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of fact and misconduct and agree that respondent’s misconduct warrants
permanent disbarment from the practice of law in Ohio.
Misconduct
Count One
{¶ 4} The master commissioner and board found that in May 2008, a
father retained respondent to represent him in a custody matter in the Gallia
County Court of Common Pleas, Juvenile Division, and paid a $600 retainer.
Respondent filed a motion to designate the father as the sole residential parent and
legal custodian. When the parties appeared for a hearing in December 2008, they
advised the court that they had reached an agreement and that respondent would
prepare an entry memorializing the agreement.
{¶ 5} When respondent failed to submit the entry in a timely manner, the
court set another hearing. The father traveled to Gallia County from his home in
Indianapolis for the hearing, only to discover that he was four days early because
respondent had given him the wrong date. The court denied respondent’s motion
for a continuance, and neither the parties nor their counsel appeared at the
hearing. The court ordered the parties to submit a motion for final hearing or an
agreed entry by a second deadline established by the court, and when the parties
failed to do so, the court dismissed the client’s motion. It appears, however, that
the court later granted the father’s pro se motion for immediate or emergency
change of custody.
{¶ 6} Based upon these findings, the master commissioner and board
found that respondent had violated Prof.Cond.R. 1.3 (requiring a lawyer to act
with reasonable diligence and promptness in representing a client), 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law). Because
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the record clearly and convincingly supports these findings of fact and
misconduct, we adopt them.
{¶ 7} The master commissioner and board also found that the father had
requested a refund and that the respondent agreed to provide a refund, but he
failed to do so. Based upon these findings, the master commissioner and board
concluded that respondent had also violated Prof.Cond.R. 1.16(e) (requiring a
lawyer to promptly refund any unearned fee upon the lawyer’s withdrawal from
employment). The record, however, contains no sworn or certified prima facie
evidence to support these findings. See Gov.Bar R. V(6)(F). Therefore, we reject
them and dismiss this alleged violation of Prof.Cond.R. 1.16(e) as well as an
alleged violation of Prof.Cond.R. 1.5(a) (prohibiting a lawyer from making an
agreement for, charging, or collecting an illegal or clearly excessive fee) that the
master commissioner and board had found to be unsupported by the evidence.
Count Four
{¶ 8} In March 2009, a woman paid respondent $500 and retained him to
assist her in obtaining grandparent visitation rights. On April 6 and May 29,
2009, respondent requested additional fees, and the woman paid him an additional
$650. Respondent never completed any work on her behalf. Each time the
woman spoke with respondent by telephone, he explained that he was with
another client and assured her that he would call her back, but he never did. In
November 2009, she discovered that respondent’s office telephone number had
been disconnected.
{¶ 9} The master commissioner and board found that this conduct
violated Prof.Cond.R. 1.3 and 8.4(d). We accept these findings of fact and
misconduct.
Count Five
{¶ 10} In April 2009, a husband and wife hired respondent to prepare a
trust for them. Respondent advised them that the fee for his representation would
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be $1,500. On June 1, 2009, the husband paid respondent $750 and signed some
papers. In early July, respondent missed a scheduled meeting with the couple and
failed to notify them that he would be unable to attend. Two days later, the
husband paid respondent $778, representing the remainder of his fee plus filing
fees. In late July, respondent arrived two hours late for a meeting at the couple’s
home. He then told them that he was going to go home, change clothes, and
return to meet with them, but he never did. Although the couple tried to call
respondent numerous times, his voicemail box was always full. The couple left
messages on four occasions when someone did answer respondent’s phone, but
respondent never returned their calls. Because respondent had not completed the
couple’s trust documents, they sent him a certified letter terminating his services
and asking him to return their documents and money. Respondent received the
letter, but he did not comply with the couple’s request. The master commissioner
and board found that this conduct violated Prof.Cond.R. 1.3, 1.16(d) (requiring a
lawyer upon termination of representation to take reasonably practicable steps to
protect a client’s interest, including giving due notice to the client, allowing
reasonable time for employment of other counsel, and delivering to the client all
papers and property to which the client is entitled), 1.16(e), 8.4(d), and 8.4(h) but
concluded that an alleged violation of Prof.Cond.R. 1.5(a) was not supported by
clear and convincing evidence. We accept these findings of fact and misconduct.
Count Six
{¶ 11} In February 2009, a father hired respondent to represent him in a
custody matter and paid a $750 retainer. The following August, the father paid
him an additional $150 to prepare a motion for a protective order.
{¶ 12} Respondent filed a complaint to allocate parental rights and
responsibilities on the father’s behalf on March 27, 2009. At the conclusion of
the August 31, 2009 pretrial, the court ordered respondent to prepare a decision
and submit it for the magistrate’s signature no later than September 18, 2009. It
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appears that respondent did not complete that entry, because the court scheduled
the case for mediation in October 2009. Although the court later rescheduled the
mediation session for November 2, 2009, respondent did not notify the father of
this change. Because respondent failed to complete the objectives of the
representation, the father sent him a certified letter requesting a refund. Although
respondent received the letter, he did not return the father’s money.
{¶ 13} Based upon these findings of fact, the master commissioner and
board found, and we agree, that respondent violated Prof.Cond.R. 1.3 and 1.16(e).
Count Seven
{¶ 14} In February 2007, a man hired respondent to represent him in a
case against his former employer and paid a retainer of $2,500. In September
2009, the client attempted to call respondent to discuss the status of the case but
discovered that respondent’s telephone number had been disconnected. The client
has been unable to locate respondent and is unaware of any work that respondent
may have done on his behalf.
{¶ 15} Based upon these facts, the master commissioner and board found,
and we agree, that respondent violated Prof.Cond.R. 1.3, 1.4(a)(3) (requiring a
lawyer to keep the client reasonably informed about the status of a matter), 8.4(d),
and 8.4(h).
Count Eight
{¶ 16} In April 2007, a family met at respondent’s office to read a
deceased family member’s will. At that time, an heir retained respondent to
probate the will and paid him $200.
{¶ 17} In May 2008, respondent filed an application to probate the will
and an application for authority to administer the estate. He filed the inventory
and appraisal the following month, but he did little or no additional work on the
matter. In January 2009, the heir spoke with respondent regarding the status of
the estate. Respondent indicated that he would complete the matter “this year”
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and asked for an additional $1,500. The heir sent him a cashier’s check for that
amount and never heard from him again.
{¶ 18} Although the heir attempted to call respondent’s office, he was
never there. When the heir stopped at respondent’s office in September 2009, he
was advised that respondent was out of the office “indefinitely.” The heir
eventually contacted another attorney, who advised him that respondent should
not have been paid for the administration of the decedent’s estate until it was
completed. See Sup.R. 71(B).
{¶ 19} The master commissioner and board found that respondent’s
conduct with respect to this count violated Prof.Cond.R. 1.3, 1.5(a), 8.4(d), and
8.4(h). We accept these findings of fact and misconduct.
Count Nine
{¶ 20} In February 2009, a woman retained respondent to represent her in
the probate of her deceased husband’s estate. At that time, she paid a $500
retainer and gave respondent numerous original documents, including vehicle
titles, property deeds, bank records, and her husband’s death certificate.
{¶ 21} After trying to reach respondent for several weeks, the woman met
with him on April 10, 2009. He had not prepared any of the estate documents but
asked the woman to sign blank documents, which he assured her he would
complete and file in the next two weeks.
{¶ 22} When the woman had not heard from respondent after five weeks,
she began to call him. When she finally reached him on May 21, 2009, he
apologized for not having the matter completed and promised he would take
action by the second week of June. He made a similar promise in July. When the
woman called in mid-September, she was told that he would not be in the office
that week. She tried to call him several times after that, but his phone went
unanswered. When the woman attempted to retrieve her paperwork from
respondent’s office in December 2010, she discovered that his office was no
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longer there. She averred that respondent still has all of the documents for the
estate and that she cannot afford to hire another attorney to handle the matter.
{¶ 23} The master commissioner and board found that respondent had
accepted attorney fees for handling the estate in violation of Sup.R. 71(B),
performed little if any work on the estate, retained the woman’s original
documents, and closed his office without providing any notice to her.
{¶ 24} Having made these factual findings, the master commissioner and
board concluded, and we agree, that respondent’s conduct violated Prof.Cond.R.
1.3, 1.5(a), 1.16(d), 1.16(e), 8.4(d), and 8.4(h).
Counts Two and Three
{¶ 25} Because relator was unable to obtain affidavits from the grievants
involved in Counts Two and Three of the complaint, he has withdrawn the
allegations of misconduct associated with respondent’s representation of those
former clients. Because respondent failed to respond to relator’s inquiries
regarding those grievances, however, allegations of respondent’s failure to
cooperate in these disciplinary investigations remain.
Failure to Cooperate
{¶ 26} Of the 11 letters of inquiry that relator sent by certified mail from
September 1, 2009, to December 28, 2009, respondent received the first four. The
remaining certified letters were returned to relator marked unclaimed. Despite
having received four letters of inquiry, respondent never responded to the
complaints lodged against him.
{¶ 27} In early January 2010, respondent called to advise relator that he
was in a rehabilitation program in Cincinnati, Ohio. At respondent’s request,
relator sent copies of each of the grievances to respondent in Cincinnati on
January 4, 2010, followed by another letter on January 13, 2010, but respondent
did not respond to either letter.
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{¶ 28} On February 25, 2010, relator sent respondent a notice of intent to
file its formal complaint by certified and regular mail to the address on file with
the Office of Attorney Services, as well as to the Cincinnati address that
respondent had provided to the investigator, but the certified letters were returned
unclaimed. The board issued a notice of the filing of the complaint to respondent
by certified mail on April 12, 2010. The certified-mail receipt indicates that the
letter was delivered. Before filing his default motion, relator attempted to reach
respondent by mail, e-mail, and telephone.
{¶ 29} Despite relator’s numerous efforts to communicate with
respondent, he did not answer the complaint or respond to the default motion.
Therefore, the master commissioner concluded that his conduct violated
Prof.Cond.R. 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a
demand for information by a disciplinary authority during an investigation) and
Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a disciplinary
investigation) with respect to each of the nine counts. The board accepted these
findings, except that it did not find violations of Prof.Cond.R. 8.1(b) with respect
to Counts Two and Three. The evidence, however, clearly and convincingly
demonstrates that respondent has knowingly failed to respond to relator’s demand
for information during the investigation of each count alleged in the complaint, as
charged by relator. Therefore, we conclude that respondent has violated both
Prof.Cond.R. 8.1(b) and Gov.Bar R. V(4)(G) with respect to each of the nine
counts discussed herein.
Sanction
{¶ 30} 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
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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.
{¶ 31} The evidence submitted with respondent’s motion for default
clearly and convincingly demonstrates that respondent has failed to act with
reasonable diligence in representing multiple clients over a period of
approximately three years, has failed to keep two clients reasonably informed
about the status of a legal matter, has failed to return unearned fees, has twice
failed to return papers and property to his clients upon the termination of his
representation, and has charged a clearly excessive fee. Moreover, he has
knowingly failed to respond to nine separate disciplinary investigations. Through
his actions and his inaction, he has engaged in conduct that is prejudicial to the
administration of justice and adversely reflects on his fitness to practice law.
{¶ 32} As aggravating factors, the board found that respondent has
engaged in a pattern of misconduct involving multiple offenses. BCGD Proc.Reg.
10(B)(1)(c) and (d). He has failed to cooperate in the disciplinary process, has
refused to acknowledge the wrongful nature of his misconduct, and has caused
harm to vulnerable clients. BCGD Proc.Reg. 10(B)(1)(e), (g), and (h).
Furthermore, he has failed to return unearned fees to his former clients. BCGD
Proc.Reg. 10(B)(1)(i). The sole factor in mitigation is respondent’s lack of a prior
disciplinary record. BCGD Proc.Reg. 10(B)(2)(a). While the board found that
respondent has claimed to suffer from a chemical dependency, it observed that the
record contains no competent medical evidence to establish a diagnosed chemical
dependency, let alone a causal connection between the condition and respondent’s
misconduct. Therefore, the board accorded no mitigating effect to this purported
chemical dependency. See BCGD Proc.Reg. 10(B)(2)(g). Moreover, we observe
that relator’s investigator has averred only that respondent “called to advise [him]
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that he was in a rehabilitation program in Cincinnati, Ohio” and that there is no
evidence in the record to prove what type of rehabilitation program that was.
{¶ 33} Relator argued and the master commissioner and board agreed that
disbarment is the appropriate sanction for respondent’s misconduct. This sanction
is consistent with our precedent, which holds that the presumptive sanction for
attorneys who accept retainers and then fail to carry out contracts of employment
is disbarment. Columbus Bar Assn. v. Moushey, 104 Ohio St.3d 427, 2004-Ohio-
6897, 819 N.E.2d 1112, ¶ 16. This is so because “[t]aking retainers and failing to
carry out contracts of employment is tantamount to theft of the fee from the
client.” Cincinnati Bar Assn. v. Weaver, 102 Ohio St.3d 264, 2004-Ohio-2683,
809 N.E.2d 1113, ¶ 16. As in Weaver, respondent’s pattern of neglect and failure
to perform as promised, followed by his failure to return unearned fees and client
documents and his complete disregard for the ensuing disciplinary proceedings,
warrants his permanent disbarment.
{¶ 34} Accordingly, James Russell Henry is permanently disbarred from
the practice of law in Ohio. Costs are taxed to respondent.
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
______________________
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