Lorain County Bar Ass'n v. Godles , 128 Ohio St. 3d 279 ( 2010 )

[Cite as Lorain Cty. Bar Assn. v. Godles, 128 Ohio St.3d 279, 2010-Ohio-6274.]
LORAIN COUNTY BAR ASSOCIATION v. GODLES.
[Cite as Lorain Cty. Bar Assn. v. Godles, 128 Ohio St.3d 279, 2010-Ohio-6274.]
Attorneys at law — Misconduct — Failure to communicate with client and notify
him of failure to maintain liability insurance — Public reprimand.
(No. 2010-1139  Submitted September 15, 2010  Decided
December 27, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-073.
__________________
Per Curiam.
{¶ 1} Respondent, Michael J. Godles of Elyria, Ohio, Attorney
Registration No. 0042398, was admitted to the practice of law in Ohio in 1989.
{¶ 2} Relator, the Lorain County Bar Association, filed a complaint
against respondent for his conduct in representing a client in a personal-injury
case and for not informing his client about his lack of professional-liability
insurance.
{¶ 3} A panel of the Board of Commissioners on Grievances and
Discipline heard the case, issued findings of fact and conclusions of law, and
found that respondent had violated Prof.Cond.R. 1.4(a)(1) (requiring a lawyer to
inform the client of any decision or circumstance for which the client’s informed
consent is required), 1.4(a)(2) (requiring a lawyer to reasonably consult with the
client about the means by which the client’s objectives are to be accomplished),
1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the
status of a matter), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable
with the client’s reasonable requests for information), and 1.4(a)(5) (requiring a
lawyer to consult with the client about any relevant limitation on the lawyer’s
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conduct when the lawyer knows that the client expects assistance not permitted),
1.4(b) (requiring a lawyer to explain matters to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation), and
1.4(c) (requiring a lawyer to inform the client at the time of the engagement or at
any time subsequent to the engagement if the lawyer does not maintain
professional-liability insurance) and DR 1-104(A) (requiring a lawyer to disclose
to the client that the lawyer lacks professional-liability insurance).1 The panel
recommended that respondent be suspended from the practice of law in Ohio for
six months with all six months stayed. The board adopted the panel’s findings
and conclusions, except that it recommended reducing the sanction to a public
reprimand. No objections were filed to the board’s report.
{¶ 4} We adopt the findings and conclusions of the board, and we
publicly reprimand Michael J. Godles for his misconduct in this matter.
Facts
{¶ 5} In August 2006, a client hired respondent to represent him in
regard to a personal-injury claim arising out of an accident that had occurred in
2004. At the time respondent was hired, only five days remained on the statute of
limitations for the client’s claim, so respondent quickly filed a lawsuit in the
Ashland County Court of Common Pleas. He communicated with the opposing
counsel regarding a settlement before filing the suit, but the two sides were far
apart on a settlement value.
{¶ 6} In September, opposing counsel filed an answer, interrogatories,
and a request for documents. Respondent did not file a response to the discovery
request, because he knew that the client was still receiving medical treatment and
that he would eventually be filing a motion for a voluntary dismissal without
1. On February 1, 2007, the Rules of Professional Conduct became effective, replacing the Code
of Professional Responsibility in Ohio. Respondent’s conduct before February 1, 2007, is
governed by the Code of Professional Responsibility, and conduct after that date is governed by
the Rules of Professional Conduct.
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January Term, 2010
prejudice. The following February, opposing counsel filed a motion to compel a
response to the discovery requests. The court ordered respondent to respond to the
discovery request by May 2007, but respondent voluntarily dismissed the case at
the end of April. The voluntary dismissal gave the client one year to refile the
case.
{¶ 7} Respondent testified that he called the client in January 2008 to
inform him that respondent was going to discontinue his representation of the
client. He testified that he explained how long the client had to refile the case.
He then sent a letter to the client in February to confirm. The client testified that
this conversation never occurred and that he never received the letter.
{¶ 8} Neither respondent nor the client refiled the case before the time to
do so expired in May 2008. The client tried calling respondent several times
starting in July 2008, but respondent did not respond until October. During the
October discussion, the client stated that he was totally unaware of what was
happening with his case and had not known that the case had been dismissed.
Respondent said that he had explained everything to the client in previous
discussions. Within a week of that October conversation, the client hired a new
attorney to handle his case.
{¶ 9} Respondent had met the client in person only at their initial
meeting. Except for the letter terminating representation, he did not have any
written correspondence with the client. All conversations happened over the
telephone. Respondent did not send the client copies of the answer, the discovery
request, the motion to compel, or the dismissal order. Respondent never requested
or obtained the client’s medical records.
{¶ 10} The parties stipulated that at all times relevant to the proceedings,
respondent failed to maintain professional-liability insurance. The parties also
stipulated that respondent failed to advise the client that respondent did not
maintain professional-liability insurance.
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Conclusions of Law
{¶ 11} Relator charged respondent with violating Prof.Cond.R. 1.2(a)
(requiring a lawyer to abide by the client’s decisions concerning the objectives of
representation and to consult with the client as to means by which they are to be
pursued), 1.3 (requiring a lawyer to act with reasonable diligence in representing a
client), 1.4(a), 1.4(b), and 1.16(d) (requiring a lawyer withdrawing from
representation to take steps reasonably practicable to protect a client’s interest).
{¶ 12} The panel and board found that respondent had violated
Prof.Cond.R. 1.4(a)(1) through (5) and 1.4(b). It is unclear how many times
respondent and the client communicated and what respondent communicated to
the client. The panel found that neither respondent nor the client was completely
credible in their conflicting testimony. What is clear is that respondent did very
little work on the case and failed to fully communicate with the client regarding
how the case was being managed and the status of the case. Therefore, we agree
with the panel and board that respondent violated Prof.Cond.R. 1.4(a)(1) through
(5) and 1.4(b).
{¶ 13} The panel and board recommended dismissing the alleged
violations of Prof.Cond.R. 1.2(a), 1.3, and 1.16(d) because those violations were
not proven by clear and convincing evidence. We agree and dismiss those
charges.
{¶ 14} The panel and board also found violations of DR 1-104(A) and
Prof.Cond.R. 1.4(c). The parties stipulated to respondent’s lack of professional-
liability insurance and his failure to advise the client of that fact. Therefore, we
also find a violation of DR 1-104(A) and Prof.Cond.R. 1.4(c).
Sanction
{¶ 15} When imposing sanctions for attorney misconduct, we consider all
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
4January Term, 2010
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(A) and (B).
{¶ 16} As mitigating factors, the panel and board found that respondent
has no prior disciplinary record, that he did not act with a dishonest or selfish
motive, and that respondent has had other penalties imposed because a
malpractice action is pending against him. BCGD Proc. Reg. 10(B)(2) (a), (b),
and (f). The mere fact that a malpractice suit was pending should not have been
considered as a mitigating factor, as the suit itself is not a penalty. Respondent
has since submitted a notice of restitution, but we do not accept this as a
mitigating factor either, because he settled the case with no admission of
malpractice, which means that respondent did not admit the misconduct and is not
technically being penalized for it. See Disciplinary Counsel v. McCord, 121 Ohio
St.3d 497, 2009-Ohio-1517, 905 N.E.2d 1182, ¶ 47-48 (giving no consideration
for a separate suspension from the practice of law for the same conduct because
respondent received legal fees during that suspension and did not appear to learn
anything from the suspension).
{¶ 17} As an aggravating factor, the panel and board found that the client
was vulnerable due to his lack of sophistication regarding legal matters. BCGD
Proc.Reg. 10(B)(1)(h). The panel further found that the client lost the opportunity
to pursue damages for his injury.
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{¶ 18} The panel recommended a six-month suspension from the practice
of law in Ohio, with all six months stayed. The board recommended a public
reprimand. Considering respondent’s long career with no previous disciplinary
action, we agree with the board. See Cuyahoga Cty Bar Assn. v. Johnson, 123
Ohio St.3d 65, 2009-Ohio-4178, 914 N.E.2d 180 (public reprimand for an
attorney who, in an isolated instance, failed to notify a client of her lack of
malpractice insurance and neglected a legal matter entrusted to her). Respondent
is hereby publicly reprimanded for violating Prof.Cond.R. 1.4(a)(1) through (5),
1.4(b), and 1.4(c) and DR 1-104(A). Costs are taxed to respondent.
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Wickens, Herzer, Panza, Cook & Batista Co., and Daniel A. Cook, for
relator.
Michael J. Godles, pro se.
______________________
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