Akron Bar Assn. v. Holda , 125 Ohio St. 3d 140 ( 2010 )

[Cite as Akron Bar Assn. v. Holda, 125 Ohio St.3d 140, 2010-Ohio-1469.]
AKRON BAR ASSOCIATION v. HOLDA.
[Cite as Akron Bar Assn. v. Holda, 125 Ohio St.3d 140, 2010-Ohio-1469.]
Attorneys at law — Misconduct — Failure to act with reasonable diligence and
promptness in representing a client — One-year stayed suspension.
(No. 2009-2080 — Submitted January 13, 2010 — Decided April 7, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-005.
__________________
Per Curiam.
{¶ 1} Respondent, Sheri Lynn Holda of Green, Ohio, Attorney
Registration No. 0073993, was admitted to the practice of law in Ohio in 2001.
On November 29, 2006, we publicly reprimanded respondent 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 of a client. Akron Bar Assn. v. Holda, 111 Ohio St.3d 418, 2006-
Ohio-5860, 856 N.E.2d 973.
{¶ 2} In this case, the Board of Commissioners on Grievances and
Discipline recommends that we suspend respondent’s license to practice law for
one year, with the suspension stayed upon certain conditions aimed at eliminating
any monetary loss to the affected clients and preventing the recurrence of future
disciplinary violations. The board’s recommendation is based on its finding that
respondent committed professional misconduct by failing to act with reasonable
diligence and promptness in her representation of two clients and failing to
promptly deliver her case file to one of the clients upon termination of her
representation. We agree that respondent committed the professional misconduct
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found by the board, and with a minor modification, we agree that the appropriate
sanction is a conditionally stayed one-year suspension.
{¶ 3} Relator, Akron Bar Association, charged respondent in a two-count
complaint with violations of several Rules of Professional Conduct. After
respondent filed an answer in which she denied that she had committed any
misconduct, the parties stipulated to certain facts and misconduct. Specifically,
the parties stipulated that in her representation of two clients, respondent violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence and
promptness in representing a client). At a hearing before a three-member panel of
the board, relator dismissed the remaining charges.
{¶ 4} Relator recommended a one-year suspension, with the entire
period stayed upon certain conditions, and respondent did not object to the
recommendation. After the hearing, the panel made findings of fact and
conclusions of law and recommended that the board impose a one-year
suspension, with the entire period stayed upon the following conditions: (1)
respondent shall contact the Ohio Lawyers Assistance Program (“OLAP”) and
sign a contract with OLAP and follow its recommendations during the period of
her stayed suspension, (2) a monitor chosen by relator shall monitor respondent
during the stayed suspension, (3) respondent shall attend a law office management
program or seminar during her stayed suspension, and (4) respondent shall refund
$1,000 to one of her clients and $1,500 to the other client. The board adopted the
panel’s findings of misconduct and recommended sanction.
{¶ 5} The parties have not objected to the board’s report.
Misconduct
Count One – Estate Matter
{¶ 6} In December 2007, a client retained respondent to handle a release
from administration of his father’s estate. The client signed probate documents
and gave his father’s will to her along with a $1,000 retainer check. Respondent
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January Term, 2010
deposited the check into her trust account and withdrew the entire amount a few
months later.
{¶ 7} Respondent never filed any estate case on behalf of her client, and
after the client terminated her representation and secured new counsel, the new
attorney asked respondent in June 2008 for her case file, including the will.
Respondent, however, did not give the file to the client’s new counsel until late
September 2008.
{¶ 8} The parties stipulated and the panel found that respondent’s
conduct violated Prof.Cond.R. 1.3. The panel further determined that based on
her admission at the hearing, respondent also violated Prof.Cond.R. 1.16(d)
(requiring a lawyer upon termination of representation to promptly deliver to the
client papers and property belonging to the client). Because respondent was
originally charged in relator’s complaint with the latter violation, relator’s
subsequent withdrawal of the charge at the disciplinary hearing did not preclude
the panel from finding that respondent’s admission at the hearing provided the
requisite clear and convincing evidence that she had violated the rule. See Dayton
Bar Assn. v. Millonig (1999), 84 Ohio St.3d 403, 405, 704 N.E.2d 568.
{¶ 9} The board adopted the panel’s findings of misconduct, as do we.
Count Two – Custody Case
{¶ 10} In June 2008, a client paid respondent a $1,500 retainer fee to
pursue custody of the client’s grandchild. Respondent filed a motion on behalf of
her client and was notified of the date and time of a status hearing on the matter.
She did not appear at the status hearing and did not advise either the court or her
client that she would be arriving late.
{¶ 11} Following the hearing, respondent agreed to file objections to the
magistrate’s order in the case. However, she failed to file timely objections to the
order.
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{¶ 12} Respondent stipulated and the panel and board found that her
conduct violated Prof.Cond.R. 1.3. We adopt the board’s finding of misconduct.
Sanction
{¶ 13} In recommending a sanction for this misconduct, the board
weighed the aggravating and mitigating factors in respondent’s case and reviewed
sanctions imposed in similar cases. The sole aggravating factor found by the
board was respondent’s prior public reprimand. See Rules and Regulations
Governing Procedure on Complaints and Hearings Before the Board of
Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”) 10(B)(1)(a).
{¶ 14} In mitigation, the board determined that respondent established the
absence of a dishonest or selfish motive, agreed to make restitution to each client
by refunding their retainer fees, exhibited a cooperative attitude toward the
disciplinary proceedings, and submitted letters and testimony from various
individuals, including judges, attorneys, and clients, attesting to her good
character. BCGD Proc.Reg. 10(B)(2)(b), (c), (d), and (e). Most significantly, the
board gave credit to respondent’s testimony that she had taken steps to prevent
similar situations from occurring in the future by moving her practice into an
office with another attorney who will monitor her work and provide a structured
environment and support staff to assist her.
{¶ 15} The board determined that a conditionally stayed one-year
suspension was appropriate based on comparable cases involving multiple
offenses. Cf. Toledo Bar Assn. v. Lowden, 105 Ohio St.3d 377, 2005-Ohio-2162,
826 N.E.2d 836 (two-year conditionally stayed suspension for conduct involving
dishonesty, fraud, deceit, or misrepresentation and failure to cooperate with a
disciplinary investigation in addition to neglecting entrusted legal matters);
Columbus Bar Assn. v. Watson. 106 Ohio St.3d 298, 2005-Ohio-4983, 834 N.E.2d
809 (six-month conditionally stayed suspension for misconduct including
neglecting an entrusted legal matter).
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January Term, 2010
{¶ 16} We agree with the board’s recommended sanction but add the
requirement that respondent shall refund the retainer fees paid by the clients by
June 1, 2010, or the stay of the suspension will be lifted. This case involves less
egregious misconduct than that involved in Lowden but warrants a harsher
sanction than that imposed on the attorney in Watson due to respondent’s previous
discipline for similar misconduct.
{¶ 17} Respondent is hereby suspended from the practice of law in Ohio
for one year, with the entire suspension stayed on the conditions that respondent
shall (1) contact and sign a contract with OLAP and follow its recommendations
during the period of the stayed suspension, (2) report to an attorney chosen by
relator to monitor respondent during the stayed suspension, (3) attend a law office
management program or seminar during the stayed suspension, and (4) refund
$1,000 to her client in the estate matter and $1,500 to her client in the custody
case by June 1, 2010. If respondent fails to comply with the terms of the stay, the
stay will be lifted, and respondent will serve the entire one-year suspension.
Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J.,1 and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
James M. Campbell; Patricia A. Vance; and Hardesty, Kaffen &
Zimmerman and David Friedman, for relator.
Buckingham, Doolittle & Burroughs, L.L.P., Peter T. Cahoon, and Dennis
J. Bartek, for respondent.
_____________________
1. The late Chief Justice Thomas J. Moyer participated in the deliberations in, and the final
resolution of, this case prior to his death.
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