Mahoning County Bar Ass'n v. Kish , 131 Ohio St. 3d 105 ( 2012 )

[Cite as Mahoning Cty. Bar Assn. v. Kish, 131 Ohio St.3d 105, 2012-Ohio-40.]
MAHONING COUNTY BAR ASSOCIATION v. KISH.
[Cite as Mahoning Cty. Bar Assn. v. Kish, 131 Ohio St.3d 105, 2012-Ohio-40.]
Attorneys at law—Numerous violations of the Rules of Professional Conduct—
Indefinite license suspension.
(No. 2011-0846—Submitted June 21, 2011—Decided January 11, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-020.
__________________
Per Curiam.
{¶ 1} Respondent, Brian P. Kish of Youngstown, Ohio, Attorney
Registration No. 0074488, was admitted to the practice of law in Ohio in 2001.
{¶ 2} On October 6, 2010, relator, the Mahoning County Bar
Association, filed a second amended complaint with the Board of Commissioners
on Grievances and Discipline alleging that Kish had committed multiple acts of
misconduct in 12 client relationships. Relying on the parties’ joint stipulation of
facts and violations, as well as testimony at a formal hearing, the board made
findings of fact and misconduct and recommended respondent’s indefinite
suspension from the practice of law. Other than a few exceptions noted below,
we adopt the board’s findings of facts and misconduct, order restitution, and
indefinitely suspend Kish from the practice of law in Ohio.
Misconduct
Count A
{¶ 3} After suffering a personal injury in August 2007, Norma Callen
agreed to pay Kish a contingent fee for his assistance in resolving issues
concerning the payment of insurance proceeds. By April 2009, Kish had
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performed little to no legal work on the matter despite numerous calls from
Callen, so Callen terminated the representation.
Count B
{¶ 4} In August 2007, Marilyn Mehit paid Kish $1,250 to pursue a
collection action against “Jim James.” Respondent filed a complaint, after which
he determined that the real debtor was Daniel James. Kish was unsuccessful,
however, in locating this individual. The stipulated facts state that Mehit “became
disheartened by the delay” and retained a different attorney, who located and won
a judgment against the debtor in September 2008. Mehit then filed a complaint
against Kish, who agreed to pay her a refund of $700.
{¶ 5} The board found that Kish had violated numerous Rules of
Professional Conduct in representing Mehit. While we accept the board’s finding
of facts, we are not bound by the parties’ stipulation to misconduct. See, e.g.,
Trumbull Cty. Bar Assn. v. Donlin (1996), 76 Ohio St.3d 152, 155, 666 N.E.2d
1137. We find that the stipulated facts do not clearly and convincingly show that
Kish committed the alleged misconduct and accordingly dismiss this count.
Count C
{¶ 6} The parties have agreed to dismiss Count C, and the board made
no findings with regard to it. We therefore agree that Count C should be
dismissed.
Count D
{¶ 7} In May 2009, Katherine Woods agreed to pay Kish $1,500 in three
installments to represent her after she was charged with driving while intoxicated.
Kish accepted the first $500 but performed no legal work and never spoke to
Woods again. Woods terminated Kish’s services, retained another attorney, and
asked Kish to return her money. Kish has not done so.
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Count E
{¶ 8} Faced with charges that he had violated zoning laws, Michael
Jackson paid Kish $500 to represent him. Kish promptly filed a written not-guilty
plea, but never spoke with Jackson again. Kish did not respond to Jackson’s
contacts and did not attend a scheduled hearing. Although Jackson had retained
another attorney, who notified Kish that he had been retained, Kish appeared in
court the next month on behalf of Jackson, succeeded in having the charges
dismissed, and notified Jackson by fax.
Count F
{¶ 9} In August 2009, Kish met with Keith Brooks and his wife to
discuss preparing a will. Kish accepted $350 but never prepared their will, failed
to respond to many of their communications, and did not return their money.
They eventually filed a small-claims complaint against Kish, who did not appear
and had a judgment entered against him.
Count G
{¶ 10} In June 2009, Kish met with Carol Venardos to discuss preparing a
will and power of attorney and accepted $450 to perform the work. Venardos’s
niece made numerous attempts to reach Kish, asking him either to advise when
the work would be completed or to return the money. Kish never responded to
these communications.
Count H
{¶ 11} In October 2007, Dennis Barr paid Kish a retainer on behalf of a
friend. At their initial meeting, Kish, who had just left a local law firm,
commented on his financial hardships; in response, Barr offered to help him and
lent Kish $3,000. Barr later hired Kish to represent him in a pair of actions, for
which he paid Kish another $2,000. At a pretrial conference for one of the
actions, Kish repaid Barr $1,500, and a hearing was set for six months later.
From that point forward, Kish ceased responding to Barr’s efforts to reach him,
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and although Barr appeared for the scheduled hearing, Kish did not. Barr then
sent letters terminating Kish’s services and demanding repayment of the loan, but
Kish has not repaid the money.
Count I
{¶ 12} In June 2009, Keith Carter paid Kish $1,500 to represent him in a
drunk-driving matter. Kish advised Carter that he could not drive for 15 days,
after which he could apply for limited driving privileges. Kish filed a not-guilty
plea, and a trial was set for November. Kish never filed a request for driving
privileges. After using two weeks’ vacation, Carter was called in to work, and he
drove despite his suspended license. He was pulled over and arrested and spent
the night in jail. After learning that Kish had not filed a motion to restore his
driving privileges, Carter made numerous, unsuccessful attempts to contact Kish.
Thereafter, Carter retained a new attorney and terminated Kish’s services. Kish
has not returned any of Carter’s money.
Count J
{¶ 13} In February 2008, Susan Walters retained Kish to defend her
against a personal-injury claim. Walters paid Kish $1,500 up front and agreed to
pay him $100 per hour. Kish attended a pretrial, but then failed to answer a
discovery request, even after being ordered by the court to respond. The court
sanctioned him. Kish also failed to respond to a motion for judgment on the
pleadings, which was granted, resulting in a judgment of $11,000 against Walters,
plus costs and interest. Walters subsequently lost her driver’s license and is
unemployed. Throughout this time, Walters made numerous attempts to contact
Kish, but had little success. Kish has not returned any part of the $1,500 retainer.
Count K
{¶ 14} In March 2008, David Williams paid Kish $500 to defend him in a
lawsuit. Kish did not enter an appearance in the case, which had been ongoing,
but entered directly into negotiations with opposing counsel. The resulting
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settlement required Williams to pay $1,455. Williams, however, never heard
from Kish after he accepted the fee and did not know the status of his case until
after he filed a grievance with the bar association.
{¶ 15} The board found that Kish had violated Prof.Cond.R. 1.4(a)(3) and
(4). We agree that the evidence clearly and convincingly shows a violation of
Prof.Cond.R. 1.4(a)(3), which required Kish to keep Williams “reasonably
informed about the status of the matter”; the stipulation states that after accepting
the fee, Williams “never heard from the Respondent.” But the evidence does not
show a violation of Prof.Cond.R. 1.4(a)(4). That rule requires lawyers to “comply
as soon as practicable with reasonable requests for information from the client,”
but the stipulated facts do not disclose any requests for information from
Williams. Accordingly, we dismiss that finding of misconduct.
Count L
{¶ 16} In April 2009, the Glenmoor Volunteer Fire Department paid Kish
a retainer of $3,000 to represent it in a breach-of-contract action. Kish performed
six to eight hours of work on the case, but then ceased responding to calls and e-
mails. That August, the president of the department e-mailed Kish seeking an
update and asking him to return the retainer if he did not have time to handle the
case. Kish neither responded nor returned the fee, and the department filed a
grievance.
Rule Violations
{¶ 17} The board concluded that the conduct described above amounted
to violations of Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable
diligence and promptness in representing a client), 1.4, 1.5(a) (requiring a lawyer
not to charge an illegal or clearly excessive fee), 1.15(d) (requiring a lawyer to
promptly deliver client funds and provide a full accounting of such funds), and
1.16(e) (requiring a lawyer to promptly return unearned fees).
{¶ 18} Except as noted above, we adopt the board’s findings.
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Sanction
{¶ 19} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties the lawyer violated, the lawyer’s mental
state, and 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. Because each disciplinary case
is unique, we are not limited to the factors specified in the rule but may take into
account “all relevant factors” in determining what sanction to impose. BCGD
Proc.Reg. 10(B).
{¶ 20} As aggravating factors, the parties stipulated and the board found
that respondent had demonstrated a pattern of misconduct, committed multiple
offenses, and failed to make restitution. See BCGD Proc.Reg. 10(B)(1)(c), (d),
and (i).
{¶ 21} As to mitigating factors, the board found that respondent lacked a
prior disciplinary record, had fully and freely disclosed his misconduct, had been
cooperative after the institution of formal proceedings, and had presented
evidence of good character and reputation. See BCGD Proc.Reg. 10(B)(2)(a), (d),
and (e). The board did not accept the parties’ stipulation to mental-health
mitigation, however. Although the board was impressed with Kish’s candor and
noted “the depth of [his] mental illness”—a prolonged, deep depression following
his brother’s coma and permanently disabling injuries in 1987, his father’s death
in 1994, and his wife’s attempted suicide and demand for divorce in 2009—it did
not agree that Kish had sustained a period of successful treatment. And contrary
to the board’s findings, Kish does have a prior disciplinary violation—he was
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briefly suspended from the practice of law in December 2005 for failing to
register with the Supreme Court Office of Attorney Registration. In re Attorney
Registration of Kish, 107 Ohio St.3d. 1431, 2005-Ohio-6408, 838 N.E.2d 671.
{¶ 22} Before the board, respondent argued for a one-year suspension
with conditions, but the board recommended that respondent be indefinitely
suspended from the practice of law. The board was “not convinced there is a
prognosis that [Kish] will be able to return to competent, ethical practice under
specific conditions.” And Kish himself, the panel noted, had “testified that he did
not know when and if he would be able to return to the practice of law.”
{¶ 23} The board recommended that respondent “be indefinitely
suspended from the practice of law” and that restitution be ordered. We adopt the
board’s recommended sanction, which is appropriate in this case. See, e.g.,
Disciplinary Counsel v. Pullins, 127 Ohio St.3d 436, 2010-Ohio-6241, 940
N.E.2d 952, ¶ 88 (imposing indefinite suspension when respondent’s misconduct
is related to underlying mental-health issues); Disciplinary Counsel v. Andrews,
124 Ohio St.3d 523, 2010-Ohio-931, 924 N.E.2d 829, ¶ 18 (imposing indefinite
suspension when respondent had no aggravating factors but committed multiple
violations); see also, e.g., Disciplinary Counsel v. Holland, 106 Ohio St.3d 372,
2005-Ohio-5322, 835 N.E.2d 361, ¶ 25 (requiring payment of restitution as
determined by relator). The record, the balance of aggravating and mitigating
factors, and precedent all support the board’s recommendation.
{¶ 24} Accordingly, Brian P. Kish is indefinitely suspended from the
practice of law in the state of Ohio and is ordered to make restitution within 30
days as follows: $700 to Marilyn Mehit, $500 to Katherine Woods, $500 to
Michael Jackson, $350 to Keith Brooks, $450 to Carol Venardos, $3,500 to
Dennis Barr, $1,500 to Keith Carter, $1,500 to Susan Walters, $500 to David
Williams, and $3,000 to the Glenmoor Volunteer Fire Department. Additionally,
prior to reinstatement, Kish must demonstrate that he has fulfilled the following
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conditions: (1) he must provide proof of continuing mental-health counseling and
proof that he is fully competent to return to the practice of law, (2) he must
comply with all requirements of his treating physician during the suspension
period, (3) he must comply with all CLE requirements, and (4) he shall be subject
to a two-year probationary period, during which he must (a) continue to abide by
the foregoing requirements to the extent they are of a continuing nature, (b) be
monitored by relator, and (c) permit relator to monitor his attorney trust account.
Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Ronald Slipski and David Comstock Jr., for relator.
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