Dayton Bar Assn. v. Brown , 124 Ohio St. 3d 221 ( 2009 )

[Cite as Dayton Bar Assn. v. Brown, 124 Ohio St. 3d 221, 2009-Ohio-6424.]
DAYTON BAR ASSOCIATION v. BROWN.
[Cite as Dayton Bar Assn. v. Brown, 124 Ohio St. 3d 221, 2009-Ohio-6424.]
Attorneys at law — Misconduct — Failure to cooperate in the disciplinary
process — Indefinite license suspension.
(No. 2009-1231 ⎯ Submitted September 16, 2009 ⎯ Decided
December 15, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-077.
__________________
Per Curiam.
{¶ 1} Respondent, Keith J. Brown of Jasper, Indiana, Attorney
Registration No. 0025640, was admitted to the practice of law in Ohio in 1981.
The Board of Commissioners on Grievances and Discipline recommends that we
indefinitely suspend respondent’s license to practice, based on findings that he
failed to transfer property into trusts for two couples and then, after one of those
clients died, failed in his duty to attest to the veracity of the signature on affidavits
of the surviving spouse and joint survivor. We accept the board’s findings that
respondent committed this professional misconduct and the recommendation for
the indefinite suspension of his license.
{¶ 2} Relator, Dayton Bar Association, charged respondent with
violations of the Disciplinary Rules of the Code of Professional Responsibility
and the current Rules of Professional Conduct.1 The board sent notice of the
original complaint and the complaint as amended by certified mail to respondent’s
1. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Code of Professional Responsibility. To the extent that both the former and current
rules are cited for the same acts, the allegations compose a single ethical violation. Disciplinary
Counsel v. Freeman, 119 Ohio St. 3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.
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last known address in Indianapolis, Indiana, the address on record for his attorney
registration. Two notices of the amended complaint were returned: one for
expiration of the forwarding address and one as undeliverable. Pursuant to
Gov.Bar R. V(11)(B), the board served the complaint on the Clerk of the Supreme
Court.
{¶ 3} Respondent did not answer either complaint, and pursuant to
Gov.Bar R. V(6)(F), relator moved for default. A master commissioner appointed
by the board made findings of fact, conclusions of law, and a recommendation for
an indefinite suspension of respondent’s license. The board adopted the master
commissioner’s findings of misconduct and recommendation.
Respondent’s Claimed Lack of Notice
{¶ 4} Respondent objects to the board’s report, arguing that he received
insufficient notice of the disciplinary proceedings and of the charges against him.
We disagree.
{¶ 5} Lawyers admitted to the Ohio bar are required under Gov.Bar R.
VI(1)(A) to register as attorneys with this court’s Office of Attorney Registration
every two years. Gov.Bar R. VI(D) requires attorneys who are registered for
active status to provide notice of their current residence and office address and to
apprise the attorney registration office of any changes in this information. During
the investigation of the grievances underlying relator’s complaint and the board’s
proceedings, respondent was registered as on active status.
{¶ 6} The board was thus entitled to rely on the address on record for
respondent in providing any required legal notices. The board did so before
affording respondent constructive notice of the charges against him by sending
copies of the complaints, in conformity with Gov.Bar R. V(11)(B), to the clerk of
this court. Relator was also entitled to rely on the registration address, and in
doing so during the investigation of the grievances, relator received telephone
calls and a letter from respondent, signaling his actual notice of that proceeding.
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{¶ 7} Respondent does not dispute these facts. He had telephone
interviews with relator’s investigator, conversations that the investigator recalled
as being combative and dismissive. And in his letter, respondent declined an
invitation to meet with the investigator, advising that the trip would be “at best an
inconvenience and at worst a huge waste of resources.” At the conclusion of the
investigation, relator’s certified grievance committee scheduled another meeting,
and on the appointed date, respondent called to inform the committee that he was
in rehabilitation for alcohol dependence. But when relator then rescheduled the
meeting as an accommodation, respondent did not appear or provide explanation.
{¶ 8} With the exception of his objections, relator has not heard from
respondent since the investigation. After filing the motion for default, the
investigator, nevertheless, located a rehabilitation facility at which he thought
respondent might be residing. The investigator called and sent to that address a
copy of the amended complaint; however, no one at the facility confirmed
respondent’s presence by accepting the call or correspondence on his behalf.
{¶ 9} Relator asserts that respondent has voluntarily made himself
inaccessible, despite his knowledge that disciplinary proceedings were underway.
We agree. In fact, respondent did not appear for oral argument after filing his
objections to the board’s report. We take from respondent’s intermittent
communications and failures to appear that he has chosen not to avail himself of
opportunities to defend. The objection is therefore overruled.
Misconduct
The First Client’s Grievance
{¶ 10} After attending a financial-planning seminar in 2004, a couple
retained respondent to prepare various estate-planning documents, including wills,
a revocable trust, and deeds to ensure that three parcels of property would not
become part of their estate. Respondent agreed to complete these transactions.
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For his services, relator charged the couple $1,650, which they paid in full. The
couple gave respondent copies of the deeds to the three properties.
{¶ 11} In December 2004, the couple met with respondent and signed
various documents, including a revocable trust and quitclaim deeds to transfer the
real property into the trust. But after her husband’s death in June 2006, the wife
learned that respondent had still not recorded one of the quitclaim deeds.
Respondent charged an additional $166.50 to fix the problem.
{¶ 12} Then, in attempting to transfer the property, respondent told the
wife that he needed her to sign the affidavits as surviving spouse and joint
survivor to put her “ownership of the * * * properties on record.” But when he
mailed the affidavits to the wife, respondent had already notarized the blank
signature line, although the document stated that the affiant had signed in his
presence. This violated the jurat on both affidavits, and realizing the impropriety,
the wife would not sign either affidavit.
{¶ 13} The wife later hired other counsel to resolve the transfer of
property and close her husband’s estate, incurring additional attorney fees and
other expenses in the process.
{¶ 14} Because respondent had violated his duty to ensure the authenticity
of his client’s signature on two affidavits while also failing to transfer property as
promised, the board found the evidence clear and convincing that he had violated
DR 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or
misrepresentation), 1-102(A)(5) (prohibiting conduct prejudicial to the
administration of justice), 1-102(A)(6) (prohibiting conduct that adversely reflects
on the lawyer’s fitness to practice law), and 6-101(A)(3) (prohibiting the neglect
of an entrusted legal matter). We accept these findings of misconduct.
The Second Client’s Grievance
{¶ 15} After reviewing their insurance and estate-planning needs in late
2006, a second couple consulted respondent about establishing an irrevocable
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trust. Respondent agreed to create the trust and to transfer the couple’s real estate
into it. The couple paid respondent’s $2,000 fee and executed the trust document
that he prepared.
{¶ 16} On respondent’s recommendation, the couple agreed to have title
to vehicles and bank accounts transferred into the trust. They also anticipated the
transfer of their real estate, but as time passed, they continued to receive tax
notices for the property in their name rather than in the name of the trust. When
the couple asked respondent to explain, he promised to look into the matter.
{¶ 17} Respondent never spoke with the couple again, despite all their
efforts to contact him. The couple eventually retained other counsel, who in late
August 2008 completed transfer of the trust property. In doing so, the successor
counsel discovered that the declaration of trust had not been filed with the county
recorder. The successor counsel arranged for this filing, which cost the couple an
additional $150 to $200.
{¶ 18} With the irrevocable trust, this couple had hoped to facilitate their
eventual move into a nursing home and receipt of Medicaid benefits.
Respondent’s one-and-one-half-year delay in transferring their property into the
trust, however, also delayed Medicaid eligibility under that plan. Respondent did
not return any portion of the $2,000 for his failure to complete the transfer of
property into the irrevocable trust.
{¶ 19} Because respondent failed to complete work as promised and then
lost all contact with these clients, the board found the evidence clear and
convincing that he had violated Prof.Cond.R. 1.1 (requiring a lawyer to provide
competent representation with the thoroughness and preparation reasonably
necessary under the circumstances); 1.3 (requiring a lawyer to act with reasonable
diligence and promptness in representing a client) and its earlier counterpart, DR
6-101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter);
8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the
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administration of justice); and Prof.Cond.R. 8.4(h) (prohibiting conduct that
adversely reflects on the lawyer’s fitness to practice law) and its predecessor, DR
1-102(A)(6).
Sanction
{¶ 20} In recommending a sanction for respondent’s misconduct, the
board weighed the mitigating and aggravating factors listed in BCGD Proc.Reg.
10(B).
{¶ 21} As a mitigating factor under BCGD Proc.Reg. 10(B)(2)(a), the
board cited respondent’s lack of any prior disciplinary record. But the board
attributed no mitigating effect to respondent’s asserted alcohol dependence.
Though this condition might have weighed in his favor under BCGD Proc.Reg.
10(B)(2)(g), he failed to satisfy requirements of the rule, including that the
condition had been medically diagnosed and had contributed to cause his
misconduct. As aggravating factors, the board found that respondent had
committed multiple offenses, had failed to cooperate in the disciplinary process,
had harmed vulnerable victims, and had failed to make restitution. See BCGD
Proc.Reg. 10(B)(1)(d), (e), (h), and (i).
{¶ 22} We accept these findings. Moreover, because an indefinite
suspension is commensurate with sanctions imposed in similar cases, we also
accept the board’s recommendation of that sanction. A lawyer’s indifference
toward the process of discipline within the legal profession is entirely
unacceptable. Indeed, we have held that an indefinite suspension from the
practice of law “is especially fitting * * * [where] neglect of a legal matter is
coupled with a failure to cooperate in the ensuing disciplinary investigation.”
Warren Cty. Bar Assn. v. Lieser (1997), 79 Ohio St. 3d 488, 490, 683 N.E.2d
1148. The single mitigating factor that a lawyer has no previous disciplinary
record does not warrant a departure from this rule.
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{¶ 23} We therefore indefinitely suspend respondent from the practice of
law in Ohio. Pursuant to Gov.Bar R. V(10)(B), he may not apply for the
reinstatement of his license for two years from the date of this order. Costs are
taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
David M. Rickert, for relator.
______________________
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