Cleveland Bar Assn. v. Sterling , 1998 Ohio 302 ( 1998 )

CLEVELAND BAR ASSOCIATION v. STERLING.
[Cite as Cleveland Bar Assn. v. Sterling (1998), ___ Ohio St.3d ___.]
Attorneys at law — Misconduct — Indefinite suspension — Forging client’s
signature on an affidavit and notarizing it — Handling a legal matter that
attorney knows or should have known he is not competent to handle —
Neglect of an entrusted legal matter — Failing to carry out contract of
employment — Prejudicing or damaging client during course of
professional relationship — Handling a legal matter without adequate
preparation — Practicing law in a jurisdiction where to do so would violate
the regulations of the profession in that jurisdiction — Practicing law while
under suspension.
(No. 98-1709 — Submitted September 29, 1998 — Decided December 30, 1998.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 97-59.
In November 1975, respondent, Howard Thomas Sterling of University
Heights, Ohio, Attorney Registration No. 0034274, was admitted to the practice of
law in Ohio. In March 1994, we suspended respondent from the practice of law
for two years because he had violated several provisions of the Code of
Professional Responsibility. Cleveland Bar Assn. v. Sterling (1994), 68 Ohio
St.3d 528, 629 N.E.2d 400. We stayed the final eighteen months of the
suspension, with respondent to be placed on monitored probation under certain
conditions. We also suspended respondent from the practice of law and imposed
sanctions upon him in May 1994 for his noncompliance with the continuing legal
education requirements of Gov.Bar R. X. 69 Ohio St. 3d 1457, 634 N.E.2d 219.
In June 1997, relator, Cleveland Bar Association, filed a three-count
complaint charging respondent with violating various Disciplinary Rules and one
of the Rules for the Government of the Bar. After respondent filed an answer
admitting most of the complaint’s factual allegations, a panel of the Board of
Commissioners on Grievances and Discipline of the Supreme Court (“board”)
heard the matter.
The panel found that respondent represented Olga Bryant, the plaintiff in an
employment discrimination case in a federal district court in Pennsylvania. In
opposing a dismissal motion, respondent filed a brief and an affidavit, which
purported to be signed by Bryant. At the hearing on the dismissal motion,
respondent admitted that, although certain of the statements in the affidavit were
not true, he forged his client’s signature on the affidavit and then notarized it.
According to respondent, because he had to file the brief and affidavit in a short
period of time, he drafted the affidavit based on his notes from conversations with
Bryant, and he did not intend to defraud either the court or his client by filing the
affidavit.
The panel concluded that respondent’s conduct in the employment
discrimination case violated DR 1-102(A)(4) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct
prejudicial to the administration of justice), and 1-102(A)(6) (engaging in any
other conduct adversely reflecting on his fitness to practice law).
The panel further found that in December 1987, Charlotte Whiting hired
respondent under a contingent-fee agreement to prosecute a wrongful death action
on behalf of the estate of her mother and paid him $450 to cover deposition costs.
After several months passed without being advised of the status of her case,
Whiting repeatedly telephoned respondent’s office, but she received no reply.
Whiting eventually was able to speak with respondent only when she posed as a
new client. During that conversation, respondent assured her that he had filed a
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complaint in her case in both Erie and Crawford Counties in Pennsylvania.
Whiting then contacted the clerk’s offices in those counties and was advised that
no such complaint had been filed. After several more unsuccessful attempts by
Whiting to contact respondent, respondent then advised her that he would file the
complaint.
In June 1989, respondent filed the complaint for Whiting in Erie and
Crawford Counties in Pennsylvania, but never perfected service of the complaint,
as required under Pennsylvania procedural rules. Respondent claimed that he had
forgotten the Pennsylvania requirements concerning perfection of service. A
Pennsylvania attorney subsequently informed Whiting that the complaint had not
been served and that she had no genuine likelihood of prevailing in the suit.
The panel concluded that respondent’s conduct in the Pennsylvania case
violated DR 1-102(A)(4), 1-102(A)(5), 6-101(A)(1) (handling a legal matter that
he knows or should know that he is not competent to handle, without associating
with him a lawyer who is competent to handle it), 6-101(A)(3) (neglecting a legal
matter entrusted to him), 7-101(A)(2) (failing to carry out a contract of
employment entered into with a client for professional services), and 7-101(A)(3)
(prejudicing or damaging his client during the course of the professional
relationship).
The panel additionally found that in September 1991, Linda Williams
retained respondent to represent her in the purchase of property located in
Cleveland. Lester Collins, the owner of the property, resided in a nursing home,
and respondent was to prepare a deed and check with the probate court to
determine whether Collins was under a guardianship. After respondent assured
Williams that Collins was not under a guardianship, Williams paid off the existing
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mortgage and obtained possession of the property. She then made substantial
improvements to the premises and used it as a rental property.
After Collins died, his estate brought a legal action against Williams for
concealment of assets. Collins had actually been under a guardianship at the time
of the sale and did not have the capacity to sell the property. Respondent claimed
that he had relied on erroneous information from the probate court clerk’s office to
conclude that Collins was not under a guardianship when he advised Williams.
Although he realized that he was under suspension, respondent represented
Williams in the ensuing probate court litigation. Williams discharged him in
September 1995.
The panel concluded that respondent’s conduct in the probate matter
violated DR 6-101(A)(2) (handling a legal matter without adequate preparation),
3-101(B) (practicing law in a jurisdiction where to do so would violate the
regulations of the profession in that jurisdiction), and Gov.Bar R. V(8) (practicing
law while under suspension).
In mitigation, relator’s counsel noted that respondent is a Vietnam War
veteran suffering from post-traumatic stress syndrome, that he had battled
alcoholism, and that he had gone through a divorce. As part of the court’s
previous suspension, respondent entered into the Ohio Lawyers Assistance
Program, Inc. (“OLAP”) in May 1994 to treat his alcohol dependence and
emotional problems. Relator found that Sterling had fully complied with the
court’s previous conditions of the 1994 Gov.Bar R. V suspension. He also
obtained over ninety hours of CLE credit in the year before the panel hearing.
Relator’s counsel advised the panel that respondent had been a respected
adversary for over twenty years and that respondent had fully cooperated with
relator in the disciplinary proceeding. Relator informed the panel that an
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indefinite suspension would be an appropriate sanction. The panel agreed with
relator, noted that respondent “could be a credit to the profession,” and
recommended an indefinite suspension from the practice of law.
The board adopted the panel’s findings, and recommended that respondent
be indefinitely suspended from the practice of law and that he comply with OLAP
requirements as a condition for his reinstatement.
__________________
Hennenberg & Brown and Michael C. Hennenberg; and James Flaherty, for
relator.
Howard T. Sterling, pro se.
__________________
Per Curiam. Upon review of the record, we adopt the findings,
conclusions, and recommendation of the board. We hereby indefinitely suspend
respondent from the practice of law in Ohio and order that he comply with OLAP
requirements as a condition of his reinstatement. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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