Disciplinary Counsel v. Oberholtzer ( 2013 )

[Cite as Disciplinary Counsel v. Oberholtzer, 136 Ohio St. 3d 314, 2013-Ohio-3706.]
DISCIPLINARY COUNSEL v. OBERHOLTZER.
[Cite as Disciplinary Counsel v. Oberholtzer, 136 Ohio St. 3d 314,
2013-Ohio-3706.]
Attorney discipline—Neglect of client matters—Trust-account violation—Failure
to cooperate in disciplinary matter—One-year suspension, stayed on
conditions.
(No. 2012-2073—Submitted February 6, 2013—Decided September 4, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-112.
_______________________
Per Curiam.
{¶ 1} Respondent, Mattheuw William Oberholtzer of Canton, Ohio,
Attorney Registration No. 0041239, was admitted to the practice of law in Ohio in
1989.
{¶ 2} In a December 5, 2011 complaint, relator, disciplinary counsel,
charged Oberholtzer with two counts of professional misconduct, based on his
client neglect in two family-law matters. Specifically, Oberholtzer was charged
with misconduct relating to his (1) representation of David and Brenda Ward in a
custody dispute, (2) representation of Carmen Nantwi in a child-support dispute,
and (3) failure to cooperate with the investigation of both matters by relator.
(Disciplinary counsel also charged a third count of misconduct, but later withdrew
that count.)
{¶ 3} The parties stipulated that Oberholtzer’s representation of the
Wards (Count I) violated 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), 1.15(c)
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(requiring a lawyer to deposit advance legal fees and expenses into a client trust
account, to be withdrawn by the lawyer only as fees are earned or expenses
incurred), 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).
{¶ 4} They also stipulated that Oberholtzer’s representation of Nantwi
(Count II) violated Prof.Cond.R. 1.3, 1.4(a)(4) (requiring a lawyer to comply as
soon as practicable with reasonable requests for information from the client),
8.4(d), and 8.4(h).
{¶ 5} Finally, because Oberholtzer was nonresponsive and failed to
cooperate with relator’s investigation of both matters, the parties stipulated to
violations of Prof.Cond.R. 8.1(b) (prohibiting a lawyer from knowingly failing to
respond to a demand for information by a disciplinary authority during an
investigation), 8.4(d), and 8.4(h) and Gov.Bar R. V(4)(G) (prohibiting a lawyer
from neglecting or refusing to assist in a disciplinary investigation).
{¶ 6} After a hearing, a panel of the Board of Commissioners on
Grievances and Discipline accepted all but one of the stipulations. The panel
recommended dismissing the charged trust-account violation, Prof.Cond.R.
1.15(c), because it found “no evidence, whether in the record or adduced at
hearing, * * * to substantiate the charge[].”
{¶ 7} The board adopted the panel’s findings of fact, conclusions of law,
and recommendation.1 Consistent with the stipulations and panel
recommendations, the board recommends that we suspend Oberholtzer from the
practice of law for 12 months, with the entire suspension stayed on two
1. It is unclear whether the board found a violation of Prof.Cond.R. 1.15(c). In its report, the
board stated that it agreed with all of the panel’s findings of fact and conclusions of law. However,
the board mistakenly believed that “the panel determined * * * that [Oberholtzer] committed each
of the rule violations alleged in the formal complaint.”
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January Term, 2013
conditions: (1) Oberholtzer must fully cooperate with a monitoring attorney,
appointed by disciplinary counsel, for the entire period of suspension, and (2) he
must complete a three-hour continuing-legal-education course on law-office
management. Neither party filed objections to the board’s report.
{¶ 8} For the reasons that follow, we adopt the board’s findings of fact
and agree that a 12-month suspension, stayed on the two specified conditions, is
the appropriate sanction in this case.
Misconduct
Count I—The Ward Matter
{¶ 9} On August 22, 2009, David and Brenda Ward retained Oberholtzer
to represent them in a custody matter involving their granddaughter. At that time,
the Wards gave Oberholtzer a $2,500 retainer. According to the stipulations,
Oberholtzer negotiated the check but did not deposit it into his trust account.
{¶ 10} Oberholtzer prepared a complaint for legal custody of the
granddaughter and a request for oral hearing, two affidavits, and a declaration.
He sent the documents to the Wards for signatures on October 1, 2009. The
Wards returned the signed documents, along with a check made out to the
Auglaize County Juvenile Court, to Oberholtzer for filing with the court.
Oberholtzer did not file the documents.
{¶ 11} The Wards telephoned Oberholtzer about their case on numerous
occasions, leaving messages. Oberholtzer generally returned (or attempted to
return) their calls, but was occasionally slow to do so.
{¶ 12} As of October 2010, Oberholtzer had still not filed anything for the
Wards in court. On October 6, 2010, Mrs. Ward filed a grievance with relator.
{¶ 13} Relator began to investigate. Oberholtzer did not respond to
relator’s first letter of inquiry, but he sent a brief facsimile response to relator’s
second letter of inquiry. Relator sent three additional letters to Oberholtzer
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requesting more information. Oberholtzer replied to the first two letters, but he
never answered the third.
{¶ 14} In December 2010, Oberholtzer contacted Mrs. Ward to discuss
the concerns raised in her grievance. At the end of the conversation, Oberholtzer
promised to call Mrs. Ward again the next day. Oberholtzer did not call, but on
December 16, 2010, he sent another copy of the documents the Wards had
originally signed in October 2009. The Wards again executed and returned the
documents to Oberholtzer, but he still did not file anything for the Wards until
April 2012.
{¶ 15} On April 24, 2012, Oberholtzer filed a motion to terminate or
modify the guardianship for the child in an ongoing juvenile case. He later
amended the motion and submitted a separate motion to intervene in the juvenile
case.
{¶ 16} In August 2012, the juvenile court dismissed the Wards’ motion to
terminate the guardianship for failure to serve the defendant, the child’s father.
Oberholtzer sought to vacate the court’s order and requested leave to serve the
defendant by publication. These motions were still pending at the time of the
panel’s hearing, on September 18, 2012.
{¶ 17} The parties stipulated, and the board found, that Oberholtzer had
violated the following rules during his representation of the Wards: Prof.Cond.R.
1.3, 1.4(a)(3), 8.4(d), and 8.4(h). They also found that by failing to respond to
relator’s third letter requesting additional information, Oberholtzer had violated
Prof.Cond.R. 8.1(b), 8.4(d), and 8.4(h) and Gov.Bar R. V(4)(G). On the board’s
recommendation, we adopt these stipulated findings of fact and misconduct.
{¶ 18} We also adopt the parties’ stipulation of Oberholtzer’s violation of
Prof.Cond.R. 1.15(c). The panel recommended that the board dismiss this charge,
stating that “no evidence, whether in the record or adduced at hearing, exists to
substantiate the charged IOLTA violation in Count 1.” But the board found clear
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and convincing evidence of “violations of all the disciplinary rules charged in the
formal complaint.”
{¶ 19} We agree with the board. The record indicates that Oberholtzer
cashed the Wards’ check on August 25, 2009, but he did not deposit the money in
his trust account. The record contains no other evidence about where the money
was deposited or whether it was deposited in the trust account at a later time.
Based on this evidence, the record clearly and convincingly establishes a violation
of Prof.Cond.R. 1.15(c).
Count II—The Nantwi Matter
{¶ 20} On January 13, 2011, Carmen Nantwi retained Oberholtzer to
represent her in a child-support dispute. She paid him a $1,000 retainer.
{¶ 21} That same day, Oberholtzer appeared at a preliminary hearing on
Nantwi’s behalf. During the hearing, the court scheduled an evidentiary hearing
for March 16, 2011. Oberholtzer and Nantwi discussed a strategy for the
evidentiary hearing. Oberholtzer asked Nantwi to send him evidence supporting
her position, and she did.
{¶ 22} When Nantwi arrived for the evidentiary hearing on March 16,
2011, Oberholtzer was not there. Attorney Celeste DeHoff, whom Nantwi had
never met, informed Nantwi that Oberholtzer was tied up in another hearing.
Nantwi e-mailed Oberholtzer the next day, expressing concern about his failure to
appear at the evidentiary hearing. Oberholtzer never replied.
{¶ 23} In April 2011, Nantwi filed a grievance with relator. Relator sent
Oberholtzer two letters of inquiry, but he did not respond to either.
{¶ 24} In May 2011, Nantwi contacted relator in an effort to retrieve the
evidence she had given Oberholtzer to support her position; Nantwi needed the
information for an upcoming hearing. Relator called Oberholtzer, and he
promptly sent Nantwi’s case file.
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{¶ 25} In July 2011, relator sent Oberholtzer a letter inquiring about
Nantwi’s allegations. Oberholtzer again failed to respond.
{¶ 26} Days before the panel’s hearing in this matter, Oberholtzer sent
Nantwi a letter of apology and a check refunding her $1,000 fee. Oberholtzer had
tried to return Nantwi’s money previously, but his letters had been returned
marked “undeliverable.”
{¶ 27} The parties stipulated, and the board found, that Oberholtzer had
violated the following rules during his representation of Nantwi: Prof.Cond.R.
1.3, 1.4(a)(4), 8.4(d), and 8.4(h). They also found that by failing to respond to
relator’s three letters, Oberholtzer had violated Prof.Cond.R. 8.1(b), 8.4(d), and
8.4(h) and Gov.Bar R. V(4)(G).
{¶ 28} On the recommendation of the board, we adopt the stipulated
findings of fact and misconduct as to Count II.
Sanction
{¶ 29} 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 BCGD Proc.Reg. 10(B). 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).
{¶ 30} As to aggravating factors, the board accepted the parties’
stipulation of three aggravating factors: Oberholtzer engaged in a pattern of
misconduct, he committed multiple offenses, and he did not initially cooperate in
the disciplinary process. See BCGD Proc.Reg. 10(B)(1)(c), (d), and (e).
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{¶ 31} The parties stipulated to three mitigating factors, which we accept.
Oberholtzer had no prior disciplinary record, he lacked a selfish or dishonest
motive, and he cooperated at later stages of the disciplinary proceedings by
agreeing to stipulations, appearing at the hearing, and expressing remorse. See
BCGD Proc.Reg. 10(B)(2)(a), (b), and (d).
{¶ 32} At the hearing, Oberholtzer explained serious personal and family
medical issues that affected his representation of the Wards and Nantwi.
Oberholtzer is the primary caregiver for his permanently disabled wife. In early
2009, Oberholtzer underwent four spinal surgeries in the span of nine weeks. He
then suffered life-threatening staph and MRSA infections. As Oberholtzer and his
brother-in-law, attorney Steven Okey, testified, Oberholtzer was in very poor
health through 2011. As Okey put it, Oberholtzer attempted to “soldier on” with
his law practice during this period, with great difficulty.
{¶ 33} Oberholtzer apologized to the hearing panel for his “less than
acceptable service.” According to Oberholtzer, he has taken actions to improve
his office procedures and client communications. He apologized to Nantwi and
the Wards, and he has repaired his relationship with the Wards; indeed, he still
represented them at the time of his disciplinary hearing. Oberholtzer also
submitted a favorable character reference from another client.
{¶ 34} The parties have stipulated, and the board recommends, that the
appropriate sanction for Oberholtzer’s misconduct is a 12-month suspension, with
the entire suspension stayed on two conditions. First, Oberholtzer must fully
cooperate with a monitoring attorney, appointed by disciplinary counsel, for the
entire period of suspension. Second, he must complete a three-hour continuing-
legal-education course on law-office management.
{¶ 35} Our decisions in cases involving similar violations indicate that a
12-month suspension, stayed upon these conditions, is appropriate here. In other
cases in which an attorney has neglected more than one client matter and failed to
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respond to disciplinary investigations, we have issued six-month suspensions,
stayed on conditions. E.g., Disciplinary Counsel v. Shuler, 129 Ohio St. 3d 509,
2011-Ohio-4198, 954 N.E.2d 593; Cleveland Bar Assn. v. Norton, 116 Ohio St. 3d
226, 2007-Ohio-6038, 877 N.E.2d 964. However, in some cases of client neglect,
we have issued longer suspensions based on the aggravation and mitigation
presented. E.g., Allen Cty. Bar Assn. v. Brown, 124 Ohio St. 3d 530, 2010-Ohio-
580, 925 N.E.2d 112 (12-month suspension, stayed); Toledo Bar Assn. v. Farah,
125 Ohio St. 3d 455, 2010-Ohio-2116, 928 N.E.2d 1097 (same). In each case, we
tailor the conditions for staying a suspension to the causes of the attorney’s
misconduct. Brown at ¶ 16. Given the circumstances of this case, we find that a
12-month suspension, stayed on the conditions recommended by the board, is
appropriate.
{¶ 36} Accordingly, we suspend Mattheuw William Oberholtzer from the
practice of law for 12 months, and we stay the suspension on the conditions that
he serve a 12-month period of monitored probation, in accordance with Gov.Bar
R. V(9), that he complete a three-hour continuing-legal-education course on law-
office management within 90 days, and that he commit no further misconduct. If
Oberholtzer fails to comply with the conditions of the stay, the stay will be lifted
and he will serve the entire 12-month suspension. Costs are taxed to Oberholtzer.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________________
Jonathan E. Coughlan, Disciplinary Counsel, and Stacey Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
Mattheuw William Oberholtzer, pro se.
_________________________
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