Cincinnati Bar Assn. v. Hennekes , 135 Ohio St. 3d 106 ( 2012 )

[Cite as Cincinnati Bar Assn. v. Hennekes, 135 Ohio St.3d 106, 2012-Ohio-5689.]
CINCINNATI BAR ASSOCIATION v. HENNEKES.
[Cite as Cincinnati Bar Assn. v. Hennekes, 135 Ohio St.3d 106,
2012-Ohio-5689.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including requiring a lawyer to provide competent representation to a
client, prohibiting a lawyer from charging or collecting a clearly
excessive fee, and requiring a lawyer to promptly deliver funds that the
client is entitled to receive—Permanent disbarment.
(No. 2012-0991—Submitted August 22, 2012—Decided December 6, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-014.
__________________
Per Curiam.
{¶ 1} Respondent, Jason Richard Hennekes of Cincinnati, Ohio,
Attorney Registration No. 0075744, was admitted to the practice of law in Ohio in
2002. In August 2006, we suspended his license for two years after he was
convicted of conspiracy to distribute and possession with intent to distribute
cocaine, in violation of 21 U.S.C. 846. Hennekes was sentenced to 366 days in a
federal penitentiary and served approximately ten months before his release to a
halfway house. Cincinnati Bar Assn. v. Hennekes, 110 Ohio St.3d 108, 2006-
Ohio-3669, 850 N.E.2d 1201. We reinstated Hennekes’ license on September 17,
2008.
{¶ 2} Hennekes is currently under suspension for failure to register with
the Office of Attorney Services. In re Attorney Registration Suspension of
Hennekes, 130 Ohio St.3d 1441, 2011-Ohio-5890, 957 N.E.2d 302. He is also
SUPREME COURT OF OHIO
currently under a continuing-legal-education suspension. In re Continuing Legal
Education Suspension, 133 Ohio St.3d 1472, 2012-Ohio-5238, 978 N.E.2d 198.
{¶ 3} On November 14, 2011, relator, Cincinnati Bar Association,
attempted to reach Hennekes regarding a grievance filed by Judge Robert
Ruehlman by sending letters to Hennekes’ last known home address and to his
parents’ address.
{¶ 4} On February 13, 2012, relator filed a complaint with the Board of
Commissioners on Grievances and Discipline. Hennekes was served with the
complaint and given notice that he was to respond within 20 days of February 16,
2012. Notice was served by certified mail delivered on February 14, 2012.
{¶ 5} On April 17, 2012, relator sent Hennekes a letter reminding him
that he had not filed an answer to the complaint by the due date. Relator informed
Hennekes that this was to be the final effort to contact him and that the board had
instructed relator to file a default motion against him. Having received no
response from Hennekes, relator moved for an entry of default.
{¶ 6} A master commissioner appointed by the Board of Commissioners
on Grievances and Discipline prepared a report regarding relator’s motion for
default. The master commissioner found by clear and convincing evidence that
Hennekes had committed several violations of the Rules of Professional Conduct.
He found relator’s recommended sanction of disbarment too severe and
recommended that Hennekes be indefinitely suspended. The board adopted the
master commissioner’s findings of fact and conclusions of law but amended the
sanction to recommend that Hennekes be permanently disbarred. We adopt the
board’s report and permanently disbar Hennekes.
Misconduct
Count One—Gibson Grievance
{¶ 7} Hennekes agreed to represent Crystal Gibson in a criminal case on
October 2, 2011, and she paid him $500 at that time. Hennekes assured Gibson
2
January Term, 2012
that he would appear on her behalf at the arraignment, scheduled for October 6,
and that she would not need to attend, as he would file a written not-guilty plea.
{¶ 8} Hennekes failed to attend the hearing, and the court issued a
warrant for Gibson’s arrest.
{¶ 9} Gibson tried to contact Hennekes, but he did not respond for
several days. When he did respond, Hennekes told Gibson that he could not find
her records at the Hamilton County Clerk of Courts. Gibson stated that her
records were available online by September 30, 2011, several days before the
hearing.
{¶ 10} On October 11, 2011, Gibson sent Hennekes a letter by certified
mail dismissing him from the case and requesting a refund of the $500 she had
paid him, as well as an itemized bill for any portion Hennekes claimed to have
earned. Hennekes did not reply.
{¶ 11} The master commissioner found by clear and convincing evidence
that Hennekes’ conduct with regard to Gibson violated Prof.Cond.R. 1.1
(requiring a lawyer to provide competent representation to a client), 1.3 (requiring
a lawyer to act with reasonable diligence in representing a client), 1.5 (prohibiting
a lawyer from making an agreement for, charging, or collecting an illegal or
clearly excessive fee), and 1.15(d) (requiring a lawyer to promptly deliver funds
or other property that the client is entitled to receive and upon request by a client,
to promptly render a full accounting of funds or property in which a client has an
interest).
{¶ 12} The board agreed and adopted the master commissioner’s findings
of fact and conclusions of law with regard to the Gibson matter. We concur.
Count Two—Lacey Grievance
{¶ 13} On October 24, 2011, Hennekes was scheduled to represent Barton
Lacey at his criminal trial before Hamilton County Common Pleas Judge Robert
P. Ruehlman. Lacey was charged with three felonies. Hennekes failed to appear
3
SUPREME COURT OF OHIO
for the trial. The transcript of proceedings shows that Lacey and the police
witnesses were in attendance. Lacey was being held in jail, and his cases had
been set numerous times, but Hennekes had not appeared. Lacey stated that he
had paid Hennekes to represent him, but had had little contact with him since.
{¶ 14} Laura Noth, Judge Ruehlman’s bailiff, called Hennekes on the
telephone the morning of October 24 to remind him of the trial. Noth states that
Hennekes responded “What?” and hung up the phone. Noth attempted to call him
back six or seven times, but Hennekes allowed the calls to go to voicemail and did
not call back.
{¶ 15} Judge Ruehlman also stated that he was aware of Hennekes’ prior
drug conviction and also that Hennekes had had “problems around the courthouse
of not showing up.” He speculated that Hennekes had a substance-abuse problem
and that he might have relapsed. Judge Ruehlman stated that he would no longer
permit Hennekes to practice in his courtroom and continued the trial to allow
Lacey to get a new lawyer.
{¶ 16} The master commissioner found by clear and convincing evidence
that Hennekes’ conduct with regard to Lacey violated Prof.Cond.R. 1.1, 1.3, 1.5,
and 3.5(a)(6) (prohibiting a lawyer from engaging in undignified or discourteous
conduct that is degrading to a tribunal).
{¶ 17} The board agreed and adopted the master commissioner’s findings
of fact and conclusions of law with regard to the Lacey matter. We concur.
Sanction
{¶ 18} 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 on sanctions, we also weigh evidence of the aggravating and
4
January Term, 2012
mitigating factors listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v.
Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 19} In Hennekes’ previous disciplinary matter, Cincinnati Bar Assn. v.
Hennekes, 110 Ohio St.3d 108, 2006-Ohio-3669, 850 N.E.2d 1201, we suspended
him from the practice of law for two years after he was convicted in federal court
of conspiracy to distribute and possession with intent to distribute cocaine. Id. at
¶ 3. In that case we found that in the past, attorneys have been disbarred for
similar conduct. Id. at ¶ 14. However, we declined to disbar Hennekes and
instead imposed a two-year suspension. Mitigating factors in that case were that
Hennekes had paid or was paying the criminal penalty and did not use narcotics or
have other substance-abuse problems. Id. at ¶ 9. At that time, Hennekes had no
prior discipline, had a good reputation, had cooperated with the investigation, and
did not benefit financially from the conspiracy. Id.
{¶ 20} In contrast, here the record does not contain evidence of any
mitigating factors. Aggravating factors, however, include at least four of the nine
factors set forth in BCGD Proc.Reg. 10(B). Specifically, Hennekes has a prior
disciplinary offense, has committed multiple offenses, did not cooperate in the
disciplinary process, and has failed to make restitution. See BCGD Proc.Reg.
10(B)(a), (d), (e), and (i).
{¶ 21} Relator recommended that Hennekes be permanently disbarred
from the practice of law in Ohio. The master commissioner noted that we have
frequently held that the presumptive sanction for neglect of legal matters is
indefinite suspension, citing Cleveland Metro. Bar Assn. v. Kaplan, 124 Ohio
St.3d 278, 2010-Ohio-167, 921 N.E.2d 645. The master commissioner also
pointed out that we have found that taking retainers and failing to perform
services is tantamount to theft of the fee from the client and therefore the
presumptive sanction is permanent disbarment. Disciplinary Counsel v. Horan,
123 Ohio St.3d 60, 2009-Ohio-4177, 914 N.E.2d 175. Although he noted the
5
SUPREME COURT OF OHIO
seriousness of Hennekes’ misconduct, the master commissioner found permanent
disbarment too severe a sanction and recommended that Hennekes be indefinitely
suspended.
{¶ 22} The board adopted the master commissioner’s findings of fact and
conclusions of law, but amended the sanction to recommend that Hennekes be
permanently disbarred.
{¶ 23} We agree with the board. Disbarment is the appropriate sanction
for Hennekes’ misconduct because he not only had a previous serious disciplinary
offense—for which he could have been disbarred at that time—but he also took
his clients’ money, failed to render any services to clients, failed to return the
clients’ money, and failed to cooperate in the disciplinary investigation. See
Columbus Bar Assn. v. Moushey, 104 Ohio St.3d 427, 2004-Ohio-6897, 819
N.E.2d 1112.
{¶ 24} Accordingly, Jason Richard Hennekes is disbarred in Ohio. He is
further ordered to make restitution of $500 to Crystal Gibson within 30 days of
the date of the order in this case and to make restitution to the Client Security
Fund within 90 days of any award by that fund for any amount applied for and
paid to Barton Lacey with regard to Hennekes’ representation of Lacey. Costs are
taxed to Hennekes.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Ernest F. McAdams Jr.; and Edwin Patterson III, for relator.
______________________
6