Stark County Bar Ass'n v. McKinney ( 2003 )

[Cite as Stark Cty. Bar Assn. v. McKinney, 101 Ohio St. 3d 23, 2003-Ohio-6743.]
STARK COUNTY BAR ASSOCIATION v. MCKINNEY.
[Cite as Stark Cty. Bar Assn. v. McKinney, 101 Ohio St. 3d 23, 2003-Ohio-
6743.]
Attorneys at law — Misconduct — Indefinite suspension, effective July 1, 2002
— Engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation — Neglecting an entrusted legal matter — Failing to
seek client’s lawful objectives — Failing to carry out contract for
professional services — Prejudicing or damaging client during course of
professional relationship — Failing to render appropriate accounts to
clients.
(No. 2003-1110 — Submitted August 26, 2003 — Decided December 31, 2003.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 02-54.
__________________
Per Curiam.
{¶1} Respondent, Patrick McKinney of Canton, Ohio, Attorney
Registration No. 0058443, was admitted to the practice of law in Ohio in 1992.
On January 27, 2003, relator, Stark County Bar Association, charged respondent
in an amended multicount complaint with various violations of the Code of
Professional Responsibility. A panel appointed by the Board of Commissioners
on Grievances and Discipline heard the cause on May 16, 2003, and, based
largely on comprehensive stipulations, made findings of fact, conclusions of law,
and a recommendation.
{¶2} The parties stipulated to respondent’s neglect and other misconduct
in the course of representing eight different clients. With respect to the first
client, the panel found that in August 2000, respondent accepted a $750 retainer
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to defend the client against a citation for driving under the influence of alcohol.
Respondent provided some legal services but failed to notify the client of hearings
in the case, and the client, as a result, was served with an arrest warrant. The
client ultimately forfeited his $200 cash bond and incurred $1,250 in legal
expenses to retain new counsel. The panel found that respondent had thereby
violated DR 6-101(A)(3) (neglecting an entrusted legal matter), 7-101(A)(1)
(failing to seek the client’s lawful objectives), 7-101(A)(2) (failing to carry out a
contract for professional services), and 7-101(A)(3) (causing a client damage or
prejudice during course of professional relationship).
{¶3} As to the second client, the panel found that in August 2001,
respondent accepted a $200 retainer to represent the client in an action for forcible
entry and detainer. Respondent failed to file the client’s action and did not return
the client’s telephone calls or account for his retainer. This client was also forced
to engage new counsel to pursue his claim and incurred an additional $300 in
legal fees. The panel found that respondent had thereby violated DR 6-101(A)(3);
7-101(A)(1), (2), and (3); and 9-102(B)(3) (failing to render appropriate
accounts).
{¶4} With respect to the third client, the panel found that in October
2000, respondent accepted $600 from the client to complete a separation
agreement and file accompanying dissolution documents. Respondent prepared
the separation agreement but did not file anything in court. Respondent also
repeatedly failed to return the client’s telephone calls and did not account for the
client’s retainer. The panel found that respondent had thereby violated DR 6-
101(A)(3); 7-101(A)(1), (2), and (3); and 9-102(B)(3).
{¶5} As to the fourth client, the panel found that in June 2001,
respondent accepted $200 from the client to secure the expungement of a 1985
misdemeanor conviction in Alaska. Respondent stopped communicating with his
client, did not obtain the expungement, and never accounted for the client’s
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January Term, 2003
retainer. The panel found that respondent had thereby violated DR 6-101(A)(3);
7-101(A)(1), (2) and (3); and 9-102(B)(3).
{¶6} With respect to the fifth client, the panel found that in January
2000, respondent accepted $500 to file for divorce on the client’s behalf.
Respondent promised to file the divorce many times, but he never did, nor did he
account for the client’s retainer. Respondent also once told the client that he had
filed for the divorce when he had not. The panel found that respondent had
thereby violated DR 1-102(A)(4) (engaging in conduct involving dishonesty,
fraud, deceit or misrepresentation); 6-101(A)(3); 7-101(A)(1), (2), and (3); and 9-
102(B)(3).
{¶7} As to the sixth client, the panel found that in August 2001,
respondent accepted $380 to represent the client in postdivorce custody
proceedings. Respondent did perform some other legal services on the client’s
behalf; however, he never completed the custody work for which he had been
engaged, and he did not account for her money. The panel found that respondent
had thereby violated DR 6-101(A)(3); 7-101(A)(1), (2), and (3); and 9-102(B)(3).
{¶8} With respect to the seventh client, the panel found that in July
2001, respondent accepted $500 to initiate a foreclosure action on the client’s
behalf and a $210 check made out for the necessary filing fees. Respondent never
filed the foreclosure suit and did not account for the client’s retainer. Respondent
also told the client that he had filed suit when he had not. The panel found that
respondent had thereby violated DR 1-102(A)(4); 6-101(A)(3); 7-101(A)(1), (2),
and (3); and 9-102(B)(3).
{¶9} The panel found that the eighth client retained respondent in March
2001 to represent her and her husband in an auto accident claim. Respondent
falsely told the client that he had been in contact with insurance company
representatives and was awaiting a settlement offer. Thereafter, respondent
stopped returning the client’s telephone calls. The client ultimately resolved the
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claim with the insurance company on her own. The panel found that respondent
had thereby violated DR 1-102(A)(4), 6-101(A)(3), and 7-101(A)(1) and (2).
{¶10} In recommending a sanction for this misconduct, the panel
reviewed the mitigating and aggravating considerations listed in Section 10 of the
Rules and Regulations Governing Procedure on Complaints and Hearings Before
the Board of Commissioners on Grievances and Discipline. As aggravating
features, the panel found multiple offenses, a pattern of misconduct, and failure to
cooperate in relator’s investigation, although respondent did participate fully in
the panel hearing. The panel also found that several of respondent’s clients were
of modest means and particularly vulnerable to the monetary harm respondent
caused them, including one client who represented that she became physically ill
from the effects of his neglect. As mitigating features, the panel found that
respondent had no prior history of disciplinary infractions and had not acted out
of self-interest. Moreover, respondent had promised to repay the first client’s
$1,150, the second client’s $500, the third client’s $600, the fourth client’s $200,
the fifth client’s $500, the sixth client’s $380, and the seventh client’s $500,
although he had not yet done so.
{¶11} In addition, respondent testified that a doctor treated him in
February 2002 for chest and abdominal pain, that his symptoms were related to
stress-induced anxiety, and that these symptoms had contributed to his decision to
close his law practice in June 2002 and to pursue a career in sales. To corroborate
this testimony, respondent provided a letter from his family physician, advising
that respondent suffered from an anxiety disorder during this time and that closing
his practice was a plausible reaction to the stress respondent reported.
{¶12} Respondent did not offer any other medical evidence. Thus, he did
not show that he had completed a sustained period of successful treatment or that
his medical prognosis would allow him, with conditions if necessary, to return to
the competent, ethical, and professional practice of law. See Section 10(B)(2)(g)
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January Term, 2003
of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline. Moreover,
although respondent’s doctor had referred him to a psychiatrist, respondent
testified that he had scheduled an appointment but had not yet gone. This and the
lack of evidence specific to respondent’s treatment and prognosis prevented the
panel from finding respondent’s medical condition especially mitigating.
{¶13} The parties offered a joint recommendation—that respondent be
suspended from the practice of law for one year, with a six-month stay on the
condition that he engage in no further misconduct and successfully complete
treatment for his anxiety disorder. However, the panel found the medical
evidence before it insufficiently mitigating and recommended that respondent’s
license to practice law be suspended indefinitely, effective July 1, 2002. The
panel recommended that respondent be required to show in any petition for
reinstatement that (1) he has undergone a sustained period of successful treatment
for his disorder; (2) he is able to return to the competent and ethical practice of
law, according to a qualified health care professional; and (3) he has made
restitution in the amounts of $1,150, $500, $600, $200, $500, $380, and $500, and
returned the $210 check, to the appropriate clients. The board adopted the panel’s
findings of misconduct and recommendation.
{¶14} Respondent has not objected to the board’s report, and we see no
reason to depart from it. Based on respondent’s conceded neglect and other
misconduct, we agree that respondent violated DR 1-102(A)(4); 6-101(A)(3); 7-
101(A)(1), (2), and (3); and 9-102(B)(3) as found by the board relative to the
eight clients previously described. We also find the recommended sanction and
conditions appropriate, inasmuch as we have imposed an indefinite suspension,
with conditions, for a pervasive pattern of neglect, uncooperativeness, and
dishonesty, even where mental disability has been established. Disciplinary
Counsel v. Golden, 97 Ohio St. 3d 230, 2002-Ohio-5934, 778 N.E.2d 564.
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{¶15} Accordingly, respondent is hereby suspended indefinitely from the
practice of law in Ohio, effective July 1, 2002. In any petition for reinstatement
that he files pursuant to Gov.Bar R. V(10), respondent shall show, in addition to
the requirements of that rule, that (1) he has undergone a sustained period of
successful treatment for his disorder; (2) he is, in the opinion of a qualified health-
care professional, able to return to the competent and ethical practice of law, with
conditions, if necessary; and (3) he has made restitution in the amounts of $1,150,
$500, $600, $200, $500, $380, and $500, and has returned the $210 check to the
appropriate clients. Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON,
O’CONNOR and O’DONNELL, JJ., concur.
__________________
Richard S. Milligan, and Gregory A. Beck, for relator.
Patrick McKinney, pro se.
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