Cleveland Metropolitan Bar Ass'n v. Gottehrer , 124 Ohio St. 3d 519 ( 2010 )

[Cite as Cleveland Metro. Bar Assn. v. Gottehrer, 124 Ohio St.3d 519, 2010-Ohio-929.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. GOTTEHRER.
[Cite as Cleveland Metro. Bar Assn. v. Gottehrer,
124 Ohio St.3d 519, 2010-Ohio-929.]
Attorney misconduct, including neglecting entrusted legal matters, charging a
clearly excessive fee, failing to promptly deliver funds or other property to
a client, and failing to cooperate in the disciplinary investigation —
Indefinite suspension.
(No. 2009-1918 — Submitted December 16, 2009 — Decided March 17, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-086.
__________________
Per Curiam.
{¶ 1} Respondent, Blaine L. Gottehrer of Cleveland, Ohio, Attorney
Registration No. 0027147, was admitted to the practice of law in Ohio in
November 1980. In December 2008, relator, Cleveland Metropolitan Bar
Association, filed a complaint charging respondent with violations of the Ohio
Rules of Professional Conduct and the Supreme Court Rules for the Government
of the Bar. Although the complaint was served upon respondent by certified mail
at his office address on December 10, 2008, he failed to file an answer.
Therefore, in June 2009, relator moved for default pursuant to Gov.Bar R.
V(6)(F).
{¶ 2} The board referred the motion to a master commissioner, who
prepared a report for the board’s review. The board adopted the master
commissioner’s findings, including that the materials offered in support of the
motion for default were sufficient, and his conclusions that respondent had
violated Gov.Bar R. V(4)(G) and five of the Rules of Professional Conduct.
SUPREME COURT OF OHIO
{¶ 3} In accordance with the master commissioner’s report, the board
recommends that this court indefinitely suspend respondent’s license to practice
law based upon its findings that respondent failed to act with reasonable diligence
and promptness in representing two clients; failed to comply as soon as
practicable with reasonable requests for information from a client; failed to keep a
client reasonably informed about the status of a legal matter; entered agreements
for, charged, or collected an illegal or clearly excessive fees; failed to promptly
deliver funds or other property to a client; and failed to cooperate in the
investigation of three disciplinary matters. We agree that respondent committed
professional misconduct as found by the board and that his conduct warrants an
indefinite suspension.
Misconduct
{¶ 4} In support of its motion for default judgment, relator submitted the
affidavits of grievants Linda Wurst and John Kaminski and of investigator
Heather Zirke, as well as a copy of the grievance filed by Sharon M. Fleming, and
a number of documents detailing relator’s efforts to correspond with respondent
and Fleming.
The Wurst Grievance
{¶ 5} The affidavit of Linda Wurst demonstrates that in March 2007,
Wurst paid respondent a retainer of $1,500 to assist her in obtaining custody of
her granddaughter, who was then living in Germany. Respondent totally
neglected his client’s case: he did not perform the requested service, did not
respond to his client’s phone calls or e-mails, and did not appear at the May 17,
2007 custody hearing or respond to his client’s repeated requests for a refund of
her retainer. As of May 16, 2009, the date of Wurst’s affidavit, respondent had
not returned the retainer. Although Wurst finally did obtain custody of her
granddaughter, respondent’s actions caused her financial and emotional hardship.
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January Term, 2010
{¶ 6} With respect to the Wurst matter, the board determined that
respondent violated Prof.Cond.R. 1.3 (a lawyer shall act with reasonable diligence
and promptness in representing a client), 1.4(a)(4) (a lawyer shall comply as soon
as practicable with reasonable requests for information from the client), 1.5 (a
lawyer shall not make an agreement for, charge, or collect an illegal or clearly
excessive fee), and 1.15(d) (a lawyer shall promptly deliver to the client or third
person any funds or other property that the client or third person is entitled to
receive).
The Kaminski Grievance
{¶ 7} The affidavit of John Kaminski demonstrates that on February 12,
2007, Kaminski paid respondent a $2,000 retainer to appeal a ruling regarding his
child-support obligations. Although respondent filed a timely notice of appeal, he
failed to cause the trial court record, including the transcript, to be filed with the
court of appeals. As a result, the appellate court dismissed the appeal sua sponte.
Respondent failed to notify Kaminski of the dismissal and ignored his request for
a refund of the retainer.
{¶ 8} With respect to the Kaminski grievance, the board determined that
respondent violated Prof.Cond.R. 1.3, 1.4(a)(3) (a lawyer shall keep his clients
reasonably informed about the status of their matters), and 1.5.
The Fleming Grievance
{¶ 9} In December 2007, relator received a grievance from Sharon
Fleming against respondent arising from his representation in a child-support-
enforcement matter. The board noted that Fleming did not cooperate with relator
by signing an affidavit in support of her allegations and concluded that the
allegations contained in her unsworn grievance were insufficient to support the
alleged misconduct. See Gov.Bar R. V(6)(F)(1)(b) (a motion for default shall
contain sworn or certified documentary prima facie evidence in support of the
allegations made).
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SUPREME COURT OF OHIO
Failure to Cooperate
{¶ 10} In December 2007, relator sent respondent a certified letter
requesting his written response to Fleming’s grievance, but never received the
return receipt to document its delivery and never received a response from
respondent. Nor did relator receive a response to a second letter sent via regular
mail.
{¶ 11} Then, in April 2008, relator sent two letters to respondent at his
business address requesting a written response regarding Wurst’s grievance—a
certified letter, which was signed for on April 7, 2008, and a letter sent by regular
mail on April 22, 2008. Respondent never provided a written response to Wurst’s
complaint.
{¶ 12} Similarly, in June 2008, relator sent respondent a letter via certified
mail requesting a written response to Kaminski’s grievance. When the receipt for
that letter was returned unsigned, relator sent a second letter via regular mail that
was not returned. Once again, respondent failed to respond to the grievance.
{¶ 13} In each of these three grievances, the board found that respondent
had violated Gov.Bar R. V(4)(G) (no attorney shall neglect or refuse to assist or
testify in an investigation or hearing) and Prof.Cond.R. 8.1(b) (no attorney shall
fail to disclose a material fact or knowingly fail to respond to a demand for
information from a disciplinary authority).
Sanction
{¶ 14} 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 Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
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January Term, 2010
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 15} The board determined that the following aggravating factors were
involved here: dishonest or selfish motive, a pattern of misconduct, multiple
offenses, lack of cooperation in the disciplinary process, resulting harm to the
victims of the misconduct, and failure to make restitution. See BCGD Proc.Reg.
10(B)(1)(b), (c), (d), (e), (h), and (i). In mitigation, the board found that
respondent has no prior disciplinary record. See BCGD Proc.Reg. 10(B)(2)(a).
Having weighed these factors, the board recommends that we indefinitely suspend
respondent from the practice of law.
{¶ 16} We have recognized that “ ‘[a] lawyer’s neglect of legal matters
and failure to cooperate in the ensuing disciplinary investigation generally warrant
an indefinite suspension from the practice of law in Ohio.’ ” Cleveland Metro.
Bar Assn. v. Kaplan, 124 Ohio St.3d 278, 2010-Ohio-167, 921 N.E.2d 645, ¶ 15,
quoting Akron Bar Assn. v. Goodlet, 115 Ohio St.3d 7, 2007-Ohio-4271, 873
N.E.2d 815, ¶ 20; see also Disciplinary Counsel v. Gosling, 114 Ohio St.3d 474,
2007-Ohio-4267, 873 N.E.2d 282, ¶ 12; Cuyahoga Cty. Bar Assn. v. Wagner, 113
Ohio St.3d 158, 2007-Ohio-1253, 863 N.E.2d 164, ¶ 13-14.
{¶ 17} Here, the record demonstrates by clear and convincing evidence
that respondent neglected client matters, failed to promptly comply with
reasonable client requests for information, made agreements for, charged, or
collected illegal or clearly excessive fees, failed to timely deliver funds or other
property to a client, and failed to cooperate in a disciplinary proceeding, thereby
violating Gov.Bar R. V(4)(G) and Prof.Cond.R. 1.3, 1.4(a)(3) and (4), 1.5,
1.15(d), and 8.1(b).
{¶ 18} Having weighed the aggravating and mitigating factors and having
considered the sanctions imposed for comparable conduct, we adopt the board’s
recommended sanction of an indefinite suspension. Accordingly, Blaine L.
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SUPREME COURT OF OHIO
Gottehrer is hereby indefinitely suspended from the practice of law in the state of
Ohio. Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
McCarthy, Lebit, Crystal & Liffman Co., L.P.A., Daniel M. Singerman,
and Richard A. Rabb, for relator.
______________________
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