Cleveland Metropolitan Bar Ass'n v. Gresley , 127 Ohio St. 3d 430 ( 2010 )

[Cite as Cleveland Metro. Bar Assn. v. Gresley, 127 Ohio St.3d 430, 2010-Ohio-6208.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. GRESLEY.
[Cite as Cleveland Metro. Bar Assn. v. Gresley,
127 Ohio St.3d 430, 2010-Ohio-6208.]
Attorneys at law — Misconduct — Multiple violations of Rules of Professional
Conduct — Failure to cooperate with disciplinary investigation — Two-
year suspension with six months stayed on conditions.
(No. 2010-1460 — Submitted September 28, 2010 — Decided
December 22, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-017.
__________________
Per Curiam.
{¶ 1} Respondent, Frank X. Gresley of Middleburg Heights, Ohio,
Attorney Registration No. 0079530, was admitted to the practice of law in Ohio in
2005. On February 8, 2010, relator, Cleveland Metropolitan Bar Association,
filed an eight-count complaint charging him with violations of the Ohio Rules of
Professional Conduct and Gov.Bar R. V(4)(G) arising from his pattern of
accepting fees from ten clients and failing to perform the agreed legal work and
failing to cooperate in relator’s investigation of that conduct.
{¶ 2} The matter was set for a hearing before a panel of the Board of
Commissioners on Grievances and Discipline on September 21, 2010. The
parties, however, filed stipulated findings of fact and misconduct on August 11,
2010. The parties also stipulated to the applicable aggravating and mitigating
factors and jointly recommended a two-year suspension from the practice of law
with the final six months stayed on conditions. Because no material facts were in
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dispute, the panel canceled the hearing and considered the cause on the
stipulations.
{¶ 3} Having adopted the parties’ stipulations of fact, misconduct, and
aggravating and mitigating circumstances, the panel and board agree that the
appropriate sanction for respondent’s misconduct is a two-year suspension with
the final six months stayed on the conditions that respondent make a full
accounting to each of the clients named in the complaint, make full restitution to
his clients for unearned fees, return to his clients the files and materials to which
they are entitled, and engage in no further professional misconduct. The board
further recommended that a monitor be appointed by relator to ensure
respondent’s payment of restitution.
Misconduct
Count One
{¶ 4} In January 2009, a man retained respondent to represent him in a
divorce action and paid him $1,500. Although the February invoice respondent
sent him reflected a $1,026.25 credit balance, it was accompanied by a letter
demanding a check. During the course of the representation, respondent failed to
appear at a spousal-support hearing and a client meeting and failed to return the
client’s telephone calls. Respondent has not responded to the client’s requests for
an accounting, a refund, or the return of his file. The client cannot afford to retain
another attorney.
{¶ 5} The parties have stipulated, the panel and board have found, and
we agree that respondent’s conduct violates Prof.Cond.R. 1.3 (requiring a lawyer
to act with reasonable diligence in representing a client), 1.4(a)(3) (requiring a
lawyer to keep the client reasonably informed about the status of a matter),
1.4(a)(4) (requiring a lawyer to comply as soon as practicable with reasonable
requests for information from the client), 1.15(d) (requiring a lawyer to promptly
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deliver funds or other property that the client is entitled to receive), 1.16(e)1
(requiring a lawyer to promptly refund any unearned fee upon the lawyer’s
withdrawal from employment), 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).
Count Two
{¶ 6} In April 2009, a husband and wife retained respondent to file a
Chapter 13 bankruptcy on their behalf. Although respondent promised to file the
bankruptcy petition on April 3, 2009, he did not do so until May 26, 2009. He
failed to attend two hearings before the bankruptcy court and failed to return
numerous calls from the couple. When the couple requested a refund, the
receptionist at respondent’s office informed the couple that she was unable to
assist them. The couple retained new counsel in August 2009, and respondent
complied with the bankruptcy court’s order to refund their money.
{¶ 7} The parties have stipulated, the panel and board have found, and
we agree that this conduct violates Prof.Cond.R. 1.3, 1.4(a)(3) and (4), and 8.4(d)
and (h).
Count Three
{¶ 8} In September 2007, another couple hired respondent to file a
Chapter 13 bankruptcy proceeding. Respondent filed the petition in January
2008, and the court confirmed the bankruptcy plan. In June 2009, after the
husband’s employer reduced his hours and consequently his income, the couple
attempted to reach respondent to discuss a modification of the plan, but
respondent did not return their calls. In mid-July, they discovered that his office
1. In their stipulations regarding the violations in Counts One, Four, Five, Six, and Seven, the
parties describe a violation of Prof.Cond.R. 1.16(e), but erroneously cite the rule as Prof.Cond.R.
1.16(c).
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telephone had been disconnected and his cellphone voicemail was full. A few
days later, respondent contacted them and advised them that their only option was
to convert their bankruptcy to Chapter 7. Although he promised to file the
necessary paperwork the next day, he did not do so. The clients have not heard
from respondent since then and cannot afford to hire another attorney.
{¶ 9} The parties have stipulated, the panel and board have found, and
we agree that this conduct violates Prof.Cond.R. 1.3, 1.4(a)(3) and (4), 1.15, and
8.4(d) and (h).
Count Four
{¶ 10} In December 2008, another couple paid respondent a $1,500
retainer to represent them in proceedings to obtain permanent custody of the
husband’s children from a prior marriage. Respondent provided copies of several
pleadings he had filed on their behalf, but by March 2009, he had stopped
returning their telephone calls. He failed to attend a hearing on the custody matter
in the summer of 2009. Respondent has not responded to their numerous
telephone calls or their written demand for a refund and the return of their file.
{¶ 11} The parties have stipulated, the panel and board have found, and
we agree that respondent’s conduct violates Prof.Cond.R. 1.3, 1.4(a)(3) and (4),
1.15, 1.16(e), and 8.4(h).
Count Five
{¶ 12} In the spring of 2007, a woman retained respondent to resolve
certain accounting discrepancies in her existing Chapter 13 bankruptcy
proceedings and to challenge her mortgage company’s efforts to obtain relief
from the bankruptcy stay in order to foreclose on her home. Respondent filed a
new bankruptcy petition on the woman’s behalf in 2008 but did not respond to her
letters and telephone calls advising him of several inaccuracies in that filing. In
July 2009, after complaining to relator, the woman sent respondent a written
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notice terminating his representation and requesting the return of her file. He has
not responded.
{¶ 13} The parties have stipulated, the panel and board have found, and
we agree that this conduct violates Prof.Cond.R. 1.3, 1.4(a)(3) and (4), 1.15,
1.16(d) (requiring a lawyer withdrawing from representation to take steps
reasonably practicable to protect a client’s interest), 1.16(e), and 8.4(d) and (h).
Count Six
{¶ 14} In March 2009, a man paid respondent a $900 fee to file a
bankruptcy petition on his behalf. He discovered in August 2009 that respondent
had not taken any action on his behalf. When he attempted to contact respondent,
he discovered that respondent’s cellphone had been disconnected and that
respondent had not appeared at his office in months. Respondent has not
performed any work on the client’s behalf, nor has he refunded any portion of his
fee.
{¶ 15} The parties have stipulated, the panel and board have found, and
we agree that this conduct violates Prof.Cond.R. 1.3, 1.4(a)(3) and (4), 1.16(e),
and 8.4(h).
Count Seven
{¶ 16} In July 2008, a woman paid respondent $935 to file a Chapter 7
bankruptcy petition on her behalf. Despite her frequent telephone calls and visits
to his office, the client never heard from respondent again. Respondent has not
performed any work on the woman’s behalf and has not refunded any portion of
her fee.
{¶ 17} The parties have stipulated, the panel and board have found, and
we agree that this conduct violates Prof.Cond.R. 1.3, 1.4(a)(3) and (4), 1.16(e),
8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation), and 8.4(h).
Count Eight
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{¶ 18} With respect to Counts One through Seven, relator attempted to
communicate with respondent by certified mail and telephone messages
requesting a response to each of the client grievances. He did not respond to
those communications, with the exception of a single telephone conversation in
which he advised that he was preparing a response and planned to mail it
promptly. Even then, he failed to provide the promised response.
{¶ 19} Relator issued a subpoena duces tecum commanding respondent to
appear for his deposition and produce all of his files relating to his representation
of these clients and documents relating to his client trust account and professional
liability insurance. Although relator agreed to continue the deposition for two
weeks at respondent’s request, he failed to appear or offer any excuse for his
absence.
{¶ 20} The parties have stipulated, the panel and board have found, and
we agree that this conduct violates Prof.Cond.R. 8.4(h) and 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).
Sanction
{¶ 21} 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
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
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{¶ 22} As factors in aggravation, the parties have stipulated, and the panel
and board have found, that respondent has acted with a selfish motive, has
engaged in a pattern of misconduct, has caused harm to vulnerable clients, and
initially failed to cooperate in the disciplinary investigation. See BCGD
Proc.Reg. 10(B)(1)(b), (c), (e), and (h). As factors in mitigation, the parties have
stipulated, and the panel and board have found, that respondent has no
disciplinary record, has relinquished his bankruptcy court electronic case filing
privileges for one year effective March 2010, and has complied with other
bankruptcy-sanction orders, including the disgorgement of unearned fees to one
grievant, and that he ultimately cooperated in the disciplinary process after the
complaint was certified. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (f). We
accept these findings in aggravation and mitigation of respondent’s sanction.
{¶ 23} We have previously recognized that neglect of an entrusted legal
matter and failure to cooperate in the ensuing disciplinary investigation generally
warrant an indefinite suspension. Disciplinary Counsel v. Hoff, 124 Ohio St.3d
269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10; Disciplinary Counsel v. Mathewson,
113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891, ¶ 19.
{¶ 24} In Cincinnati Bar Assn. v. Baas (1997), 79 Ohio St.3d 293, 681
N.E.2d 421, we sanctioned an attorney for conduct similar to that of respondent.
Baas had neglected six client matters, failed to carry out employment contracts
with four separate clients, failed to deposit client funds in a separate account,
failed to maintain complete records of all client funds, failed to maintain a trust
account, failed to promptly return unearned fees to three clients, failed to take
steps upon her withdrawal to ensure that a client was not prejudiced, failed to
return property that a client was entitled to receive, engaged in conduct involving
dishonesty, fraud, deceit, or misrepresentation, knowingly made a false statement
of law or fact while representing a client, and engaged in conduct that adversely
reflected upon her fitness to practice law. Although we considered Baas’s
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alcoholism to be a mitigating factor, we rejected the board’s recommended
sanction of a two-year stayed suspension and instead imposed a two-year
suspension with the last 18 months stayed on conditions. Id. at 296-297.
{¶ 25} We also imposed a two-year suspension with 18 months stayed on
conditions for similar conduct in Stark Cty. Bar Assn. v. Marosan, 106 Ohio St.3d
430, 2005-Ohio-5412, 835 N.E.2d 718. Marosan had neglected the entrusted
legal matters of multiple clients, failed to promptly return unearned fees to those
clients, failed to maintain a client trust account, and failed to cooperate in the
ensuing disciplinary investigation. Aggravating factors included a pattern of
misconduct involving multiple offenses, lack of cooperation in the disciplinary
process, and failure to pay restitution. Id. at ¶ 20. Mitigating factors included the
absence of prior discipline and the absence of a dishonest or selfish motive. Id. at
¶ 21.
{¶ 26} Because respondent’s conduct here is similar to that of the
respondents in both Baas and Marosan, and in light of respondent’s eventual
cooperation in the disciplinary process through his stipulation of facts and
misconduct, we agree that the appropriate sanction is a two-year suspension with
the final six months of that suspension stayed on the conditions that respondent
make a full accounting to the affected clients for the fees paid to him, that he
make full restitution to the affected clients for unearned fees, and that he return to
his clients all files and other materials to which they are entitled.
{¶ 27} Accordingly, respondent, Frank X. Gresley, is suspended from the
practice of law in Ohio for two years. The last six months of his suspension will
be stayed, however, on the conditions that within 90 days from the date of this
opinion, respondent shall (1) make a full accounting to the affected clients for the
fees paid to him, (2) make full restitution to the affected clients for unearned fees,
and (3) return to his clients all files and other materials to which they are entitled.
Relator will appoint a monitor within 30 days hereof to ensure respondent’s
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payment of restitution. Respondent shall not be reinstated to the practice of law
until he has made a full accounting and restitution to the affected clients and
returned all files and materials. Costs are taxed to respondent.
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Michael M. Hughes and Karen E. Rubin, for relator.
Frank X. Gresley, pro se.
______________________
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