Mahoning County Bar Ass'n v. Sakmar ( 2010 )

[Cite as Mahoning Cty. Bar Assn. v. Sakmar, 127 Ohio St. 3d 244, 2010-Ohio-5720.]
MAHONING COUNTY BAR ASSOCIATION v. SAKMAR.
[Cite as Mahoning Cty. Bar Assn. v. Sakmar,
127 Ohio St. 3d 244, 2010-Ohio-5720.]
Attorneys at law — Misconduct — Failure to cooperate in disciplinary
investigation — Conduct adversely reflecting on fitness to practice law —
Conduct prejudicial to the administration of justice — Two-year
suspension, partially stayed.
(No. 2010-1201 — Submitted September 15, 2010 — Decided
December 1, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-080.
__________________
Per Curiam.
{¶ 1} Respondent, Michael A. Sakmar of Boardman, Ohio, Attorney
Registration No. 0062443, was admitted to the practice of law in Ohio in 1993.
{¶ 2} On October 12, 2009, relator, Mahoning County Bar Association,
filed a complaint charging respondent with four counts of professional
misconduct. Although respondent was served with the complaint on October 17,
2009, he did not file an answer or otherwise appear in the action. Therefore, on
April 20, 2010, relator moved for default pursuant to Gov.Bar R. V(6)(F). A
master commissioner appointed by the Board of Commissioners on Grievances
and Discipline granted the motion, making findings of misconduct and
recommending that respondent be suspended from the practice of law for 12
months, serve two years of monitored probation upon his return to the practice of
law, and be required to complete eight hours of continuing legal education in law-
office management in addition to the continuing-legal-education requirements of
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Gov.Bar R. X. The board, however, recommends a two-year suspension with one
year stayed, two years of monitored probation and eight hours of continuing legal
education in law-office management. For reasons that follow, we accept the
board’s recommendation.
Misconduct
{¶ 3} In support of its motion for default, relator submitted three
affidavits: two from Youngstown Municipal Court judges and one from the
grievance committee member assigned to investigate a grievance filed by one of
those judges. Based upon those affidavits, the master commissioner and board
found that from February 2006 to December 2008, respondent had either been
tardy or failed to appear for numerous hearings before the two municipal court
judges and that he had once left a hearing early against the judge’s specific
instruction to remain.
{¶ 4} As a result of this conduct, respondent was cited for contempt
multiple times and found guilty of contempt and fined on two separate occasions
in the Youngstown Municipal Court. And when respondent failed to appear for a
scheduled hearing in August 2007, the judge issued a capias for his arrest but
withdrew it when respondent paid the $60 capias fee.
{¶ 5} The master commissioner and board did not expressly make
factual findings regarding respondent’s failure to cooperate in the resulting
disciplinary proceeding. But the affidavit of relator’s attorney investigator
demonstrates that in January and February 2009, relator sent three separate letters
to respondent, including one by certified mail, advising him of the grievance and
asking him to submit a written response. Having received no response, in April
2009, relator sent a fourth letter advising respondent that the grievance committee
would be filing a formal complaint against him. On April 1 of the following year,
when the investigator executed his affidavit, respondent had not responded to
relator’s inquiry.
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January Term, 2010
{¶ 6} The master commissioner and board found that there was clear and
convincing evidence that respondent had violated Prof.Cond.R. 1.3 (requiring a
lawyer to act with reasonable diligence in representing a client), 3.5(a)(6)
(prohibiting a lawyer from engaging in undignified or discourteous conduct that is
degrading to a tribunal), 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) and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a
disciplinary investigation).
Sanction
{¶ 7} 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 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.
{¶ 8} Respondent has either been tardy or failed to appear on behalf of
his clients at multiple court hearings. He has left a proceeding against the
presiding judge’s express instruction to remain in the courtroom. Although
judges have given him ample opportunity to correct this behavior, respondent has
failed to do so. This conduct demonstrates a lack of diligence and a profound
disrespect not only for the tribunal, but also for the other attorneys and parties
appearing before the tribunal. It also impedes the efficient administration of
justice.
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{¶ 9} Mitigating factors in this case include the absence of a prior
disciplinary record and the absence of a dishonest or selfish motive. BCGD
Proc.Reg. 10(B)(2)(a) and (b). In aggravation, however, the master commissioner
and board found that respondent had engaged in a pattern of misconduct involving
multiple offenses and had failed to cooperate in the disciplinary process. See
BCGD Proc.Reg. 10(B)(1)(c), (d), and (e).
{¶ 10} The master commissioner recommended that the appropriate
sanction for respondent’s misconduct is a 12-month suspension, two years of
monitored probation, and eight hours of continuing legal education focusing on
law-office management. The board, however, recommends that respondent be
suspended for two years, with one year stayed.
{¶ 11} We have previously recognized that neglect of an entrusted legal
matter coupled with a failure to cooperate in the ensuing disciplinary investigation
warrants an indefinite suspension. E.g., Cleveland Metro. Bar Assn. v. Gottehrer,
124 Ohio St. 3d 519, 2010-Ohio-929, 924 N.E.2d 825, ¶ 16; Disciplinary Counsel
v. Hoff, 124 Ohio St. 3d 269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10. In Gottehrer,
we imposed an indefinite suspension for conduct that violated Prof.Cond.R. 1.3
(requiring a lawyer to act with reasonable diligence and promptness in
representing a client), 1.4(a)(3) (requiring a lawyer to keep clients reasonably
informed about the status of their matters), 1.4(a)(4) (requiring a lawyer to
comply as soon as practicable with reasonable requests for information from the
client), 1.5(a) (prohibiting a lawyer from making an agreement for, charging, or
collecting an illegal or clearly excessive fee), 1.15(d) (requiring a lawyer to
promptly deliver to the client any funds or other property that the client is entitled
to receive), and 8.1(b) (prohibiting an attorney from knowingly failing to respond
to a demand for information by a disciplinary authority during an investigation)
and Gov.Bar R. V(4)(G). Gottehrer, 124 Ohio St. 3d 519, 2010-Ohio-929, 924
N.E.2d 825, at ¶ 17. In Gottehrer, however, the record demonstrated not only that
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the attorney had neglected a client matter, but also that his neglect resulted in the
dismissal of the client’s appeal and economic harm to the client from the
attorney’s retention of an unearned fee. Id. at ¶ 7.
{¶ 12} At the other end of the spectrum is a case in which we imposed a
six-month suspension upon an attorney for deliberately disobeying a court order
and then lying to the court about it. Disciplinary Counsel v. Rohrer, 124 Ohio
St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180. Id. at ¶ 26, 54. In mitigation, the
attorney had no prior disciplinary record, displayed a cooperative attitude in the
disciplinary proceedings, had already had sanctions imposed on him by the
juvenile court, and had presented evidence attesting to his good character and
reputation. Id. at ¶ 32. Aggravating factors included the attorney’s commission
of multiple offenses and a selfish or dishonest motive. Id. at ¶ 34, 36.
{¶ 13} Another case resulted in a sanction between the two. Disciplinary
Counsel v. Nicks, 124 Ohio St. 3d 460, 2010-Ohio-600, 923 N.E.2d 598. In Nicks,
we imposed a two-year suspension, with 18 months stayed on conditions for
violations of Prof.Cond.R. 1.3, 3.4(c) (prohibiting a lawyer from knowingly
disobeying an obligation under the rules of a tribunal), 8.4(c) (prohibiting a
lawyer from engaging in conduct involving fraud, deceit, dishonesty, or
misrepresentation), 8.4(d), and 8.4(h). Id. at ¶ 8. The attorney had collected fees
for a probate matter on two separate occasions without first obtaining the court’s
approval, retained fees in excess of those approved by the court, and failed to file
an estate-tax return while retaining the funds his client remitted for estate taxes.
Id. at ¶ 4-6. In a second matter, the attorney was found to be in contempt of court
for his failure to file an estate-distribution report or appear at a status conference
on the case. Id. at ¶ 11. Although the attorney had engaged in multiple offenses
and failed to make restitution, in mitigation we found that he had no prior
disciplinary record, had cooperated fully in the disciplinary process, and had a
chemical dependence that had contributed to his misconduct. Id. at ¶ 15-16, citing
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BCGD Proc.Reg. 10(B)(1)(d) and (i) and 10(B)(2)(a), (d), and (g). The attorney
had also acknowledged the wrongful nature of his conduct and accepted full
responsibility for its consequences. Id. at ¶ 16.
{¶ 14} This case is different from two of the three cases cited above. The
record does not demonstrate that any of respondent’s clients suffered economic
harm or prejudice as a result of his tardiness or failure to appear at scheduled
hearings as the clients did in Gottehrer. But respondent engaged in a pattern of
misconduct by arriving late or failing to attend numerous hearings for various
clients over a period of several years, while the misconduct in Rohrer was a single
occurrence and the attorney cooperated in the disciplinary proceeding and
presented evidence in mitigation.
{¶ 15} The case involving misconduct most comparable to respondent’s
tardiness and failure to attend scheduled hearings is Nicks, which involved
multiple violations of a local court rule. Nicks’s conduct, however, was arguably
more egregious than respondent’s because he engaged in conduct involving fraud,
deceit, dishonesty, or misrepresentation and retained client funds intended to pay
estate taxes. But the severity of his misconduct was also tempered by his
cooperation in the disciplinary proceedings, acknowledgement of the
wrongfulness of his misconduct, and his diagnosed chemical dependence.
{¶ 16} Having reviewed the record, weighed the aggravating and
mitigating factors, and considered the sanctions imposed for comparable conduct,
we adopt the board’s recommended sanction of a two-year suspension from the
practice of law, with the second year stayed on condition of no further violations,
two years of monitored probation upon respondent’s return to the practice of law,
and eight hours of continuing legal education in law-office management in
addition to the continuing-legal-education requirements of Gov.Bar R. X.
{¶ 17} Accordingly, Michael A. Sakmar is suspended from the practice of
law in Ohio for two years, with the second year of the suspension stayed on
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condition of no further violations. If respondent fails to comply with the
condition of the stay, the stay will be lifted, and he will serve the entire two-year
suspension. Upon his reinstatement to the practice of law, he shall serve two
years of monitored probation in accordance with Gov.Bar R. V(9) and complete
eight hours of continuing legal education in law-office management in addition to
the continuing-legal-education requirements of Gov.Bar R. X. Costs are taxed to
respondent.
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Ronald E. Slipski and David C. Comstock Jr., for relator.
______________________
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