Geauga County Bar Ass'n v. Patterson , 124 Ohio St. 3d 93 ( 2009 )

[Cite as Geauga Cty. Bar Assn. v. Patterson, 124 Ohio St. 3d 93, 2009-Ohio-6166.]
GEAUGA COUNTY BAR ASSOCIATION v. PATTERSON.
[Cite as Geauga Cty. Bar Assn. v. Patterson,
124 Ohio St. 3d 93, 2009-Ohio-6166.]
Attorneys at law — Misconduct — Multiple violations related to aiding the
unauthorized practice of law — 18-month suspension with conditional six-
month stay.
(No. 2009-1509 — Submitted September 16, 2009 — Decided
December 2, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-018.
__________________
Per Curiam.
{¶ 1} Respondent, David N. Patterson of Willoughby, Ohio, Attorney
Registration No. 0015280, was admitted to the practice of law in Ohio in 1964.
{¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that we suspend respondent’s license to practice for 18 months,
staying the last six months on condition of no further misconduct. The
recommendation is based on findings that respondent mishandled a decedent’s
estate and committed other misconduct by disregarding his duty to exercise
independent professional judgment on behalf of clients who were facing
foreclosure. We agree that respondent violated ethical duties incumbent on Ohio
lawyers and that an 18-month suspension of his license with a conditional six-
month stay is appropriate.
{¶ 3} Relator, Geauga County Bar Association, charged respondent with
three counts, alleging violations of the Disciplinary Rules of the Code of
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Professional Responsibility and the Rules of Professional Conduct.1 The board
considered the case on a consent-to-discipline agreement, filed pursuant to BCGD
Proc.Reg. Section 11, in which the parties stipulated to facts and misconduct and
proposed the 18-month license suspension and six-month conditional stay. The
board accepted the agreement and recommends the jointly proposed sanction.
Misconduct
Count One — The Mishandled Estate
{¶ 4} The parties stipulated that respondent prepared for a client in early
2004 a durable power of attorney, a trust, and a will. Respondent and a friend of
the client, another woman whom respondent also represented, were appointed
cotrustees of the trust, and the will named respondent executor of the client’s
estate. The client died in June 2004, and that July, the Geauga County Probate
Court appointed respondent as executor of her estate.
{¶ 5} In November 2005, the probate court removed respondent as the
estate’s executor, citing pending and anticipated legal action against his cotrustee,
who had apparently misappropriated assets belonging to the estate, and the
resulting conflict of interest for respondent. In August 2006, the court followed
up by finding that respondent had “neglected to secure estate assets and allowed
[his cotrustee] to exercise dominion and control over estate assets to the detriment
of the estate.”
{¶ 6} According to the court’s order, respondent had allowed his
cotrustee to “transfer an automobile owned by the decedent to his wife.” He had
also “permitted [the cotrustee] to pay him $2,500.00 out of estate assets for a debt
allegedly owed him by the decedent” without timely submitting the claim to and
obtaining the approval of the probate court as required by law. Finally, the order
1. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Code of Professional Responsibility.
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January Term, 2009
noted that respondent had been cited once for failing to file a certificate of service
of notice of probate of the will and twice for failing to timely file the inventory for
the estate. The court ordered him to reimburse the estate $1,795.40 in fiduciary
fees for his neglect.
{¶ 7} We accept respondent’s admission that he mishandled this
decedent’s estate and thereby violated DR 6-101(A)(3) (prohibiting a lawyer from
neglecting an entrusted legal matter).
Count Two — Lapses in Representing Clients in Foreclosure During 2007
{¶ 8} The parties stipulated to the facts underlying Count Two as
follows:
{¶ 9} “Respondent entered into an agreement in June of 2007 to
represent customers of Foreclosure Solutions, LLC, a company located in Ohio
which purported to serve property owners threatened with foreclosure by helping
them to cause their home loan to be re-instated and avoid foreclosure. Pursuant to
this agreement, Respondent collected a flat fee of $200.00 for each client in
exchange for his representation of them in foreclosure proceedings filed in the
Common Pleas Courts of Northeast Ohio.
{¶ 10} “The client had no choice in the Respondent’s selection when the
Respondent was hired by Foreclosure Solution’s Agents. Respondent did not
meet with clients of Foreclosure Solutions to determine their objectives or
complete financial situation or discover the facts that could be defenses to
foreclosure.
{¶ 11} “Respondent did not determine what legal action should be taken
in the client’s best interest[,] leaving that up to [the] judgment of Foreclosure
Solutions.
{¶ 12} “Respondent accepted a portion of the compensation paid to
Foreclosure Solutions for their services.
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{¶ 13} “Respondent’s misconduct consisted of his failure to meet directly
with the client, the sharing of legal fees with non-lawyers and aiding in the
unauthorized practice of law.”
{¶ 14} We accept respondent’s admissions that in representing clients
facing foreclosure during 2007, he violated the following Rules of Professional
Conduct:
{¶ 15} • 1.2(a) (requiring a lawyer to “abide by a client’s decisions
concerning the objectives of representation and, as required by Rule 1.4, [to]
consult with the client as to the means by which they are to be pursued”);
{¶ 16} • 1.4(a) (requiring a lawyer to (1) promptly inform clients as to
matters needing informed consent, (2) reasonably consult with clients about the
means to accomplish clients’ objectives, (3) keep clients reasonably informed
about the status of a matter, (4) comply as soon as practicable with clients’
reasonable requests for information, and (5) consult with clients about any
relevant limitation on the lawyer’s conduct when the lawyer knows that the client
expects assistance not permitted by law);
{¶ 17} • 1.4(b) (requiring a lawyer to explain matters to clients to the
extent reasonably necessary for clients to make informed decisions regarding the
representation);
{¶ 18} • 5.4(a) (with exceptions not relevant here, prohibiting a lawyer
from sharing legal fees with a nonlawyer); and
{¶ 19} • 5.4(c) (prohibiting a lawyer from permitting a person who
recommends, employs, or pays the lawyer to render legal services for another to
direct or regulate the lawyer’s professional judgment in rendering those legal
services).
Count Three ⎯ Lapses in Representing a Client in Foreclosure
During 2006
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January Term, 2009
{¶ 20} The parties stipulated to the facts underlying Count Three as
follows:
{¶ 21} “Respondent accepted a referral from Foreclosure Alternatives on
June 7, 2006 to represent [a client] in a foreclosure matter pending before the
Clermont County Court of Common Pleas * * *. Foreclosure Alternatives is a
company which purported to serve property owners threatened with foreclosure
by helping them cause their home loan to be re-instated and avoid foreclosure.
Respondent collected a flat fee from Foreclosure Alternatives in exchange for his
representation of [the client] in the Common Pleas Court of Clermont County.
{¶ 22} “[The client] had no choice in the Respondent’s selection, when he
was hired by Foreclosure Alternative’s Agents. Respondent did not meet with
[the client] to determine his objectives or complete financial situation or discover
the facts that could be defenses to the foreclosure. As a matter of fact, [the client]
did not learn Respondent’s identity until more than six (6) months after
Respondent filed an Answer to the Complaint for Foreclosure in the Clermont
County Court of Common Pleas.
{¶ 23} “Respondent did nothing to determine what legal action should be
taken in [the client’s] best interest[,] leaving it up to Foreclosure Alternatives.
{¶ 24} “[The client] filed a Voluntary Petition for Bankruptcy in March of
2007 * * * and eventually lost his home.
{¶ 25} “Respondent accepted a portion of compensation paid to
Foreclosure Alternatives for their services as his fees.
{¶ 26} “Respondent’s misconduct consisted of his failure to meet directly
with the client, the sharing of legal fees with non-lawyers and aiding in the
unauthorized practice of law.”
{¶ 27} We accept respondent’s admissions that in representing this client
during 2006, he violated the following Disciplinary Rules:
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{¶ 28} • 2-103(C) (with exceptions not relevant here, prohibiting a
lawyer from requesting a person or organization to recommend or promote the use
of the lawyer’s services as a private practitioner);
{¶ 29} • 3-101(A) (prohibiting a lawyer from aiding a nonlawyer in the
unauthorized practice of law);
{¶ 30} • 3-102(A) (with exceptions not relevant here, prohibiting a
lawyer from sharing legal fees with a nonlawyer);
{¶ 31} • 6-101(A)(2) (prohibiting a lawyer from handling legal
representation without adequate preparation under the circumstances); and
{¶ 32} • 7-101(A)(1) (with exceptions not relevant here, requiring a
lawyer to seek the lawful objectives of clients).
Sanction
{¶ 33} In Disciplinary Counsel v. Willard, 123 Ohio St. 3d 15, 2009-Ohio-
3629, 913 N.E.2d 960, we considered another lawyer who partnered with a
nonattorney organization to represent clients in mortgage-foreclosure
proceedings. That association presented the same ills as have respondent’s
alliances⎯insufficient attorney-client communication and case preparation,
nonattorney promotion of the lawyer’s legal services, the aiding of the
unauthorized practice of law, and the sharing of legal fees. Together, these
failings signal the surrender of an attorney’s ability to exercise independent
professional judgment on a client’s behalf and manifest an overarching breach of
the lawyer’s duty of loyalty to the client.
{¶ 34} We ordered the actual suspension of Willard’s license for his
infractions, suspending him from practice for one year, but staying the last six
months on remedial conditions. Id. at ¶ 31. The parties in this case, however,
have agreed that a longer suspension period is warranted because respondent’s
prior disciplinary record weighs against him. See BCGD Proc.Reg. 10(B)(1)(a).
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January Term, 2009
Respondent received public reprimands for ethical lapses in Lake Cty. Bar Assn.
v. Patterson (1980), 64 Ohio St. 2d 163, 18 O.O.3d 382, 413 N.E.2d 840, and
Geauga Cty. Bar Assn. v. Patterson, 111 Ohio St. 3d 228, 2006-Ohio-5488, 855
N.E.2d 871.
{¶ 35} We agree that the recommended sanction is appropriate based on
the combination of misconduct in this case and respondent’s prior disciplinary
record. We therefore suspend respondent from the practice of law in Ohio for 18
months; however, the last six months of the suspension are stayed on the
condition that respondent commit no further misconduct. If respondent violates
the condition of the stay, the stay will be lifted, and he will serve the full
suspension period. Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Joseph H. Weiss Jr. and Edward T. Brice, for relator.
Koblentz & Koblentz, Richard S. Koblentz, and Bryan L. Penvose, for
respondent.
______________________
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