Disciplinary Counsel v. Novak ( 2006 )

[Cite as Disciplinary Counsel v. Novak, 112 Ohio St. 3d 163, 2006-Ohio-6527.]
DISCIPLINARY COUNSEL v. NOVAK.
[Cite as Disciplinary Counsel v. Novak, 112 Ohio St. 3d 163, 2006-Ohio-6527.]
Attorneys – Misconduct – Engaging in conduct involving fraud, deceit,
dishonesty, or misrepresentation – Conduct prejudicial to the
administration of justice — Failure to disclose to client attorney’s failure
to carry professional-liability insurance — Neglect of entrusted legal
matter — Failure to cooperate in a disciplinary investigation — Indefinite
suspension with conditions.
(No. 2006-1622 — Submitted October 17, 2006 — Decided December 27, 2006.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 06-011.
__________________
Per Curiam.
{¶ 1} Respondent, Lawrence John Novak of Lancaster, Ohio, Attorney
Registration No. 0039794, was admitted to the practice of law in Ohio in 1988.
On August 6, 2006, we suspended respondent’s license for two years, staying the
second year on conditions, because he neglected multiple clients’ cases and also
lied at times about his progress in those cases. Disciplinary Counsel v. Novak,
110 Ohio St. 3d 134, 2006-Ohio-3823, 851 N.E.2d 498. That suspension remains
in effect.
{¶ 2} On February 13, 2006, relator charged respondent with additional
acts of professional misconduct. Respondent was served with the complaint but
did not answer, and 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 a
recommendation, which the board adopted.
SUPREME COURT OF OHIO
Misconduct
{¶ 3} The second complaint against respondent alleged that he had
neglected Rebecca M. Baird’s divorce and bankruptcy cases, misrepresented the
work he had performed, and failed to advise her that he had no malpractice
insurance. The complaint also charged that respondent had failed to respond to an
investigation of the grievance Baird filed against him.
{¶ 4} Baird retained respondent in April 2003 to pursue divorce
proceedings. She paid respondent $660 and signed a retainer agreement
providing that he would file Baird’s divorce case in Fairfield County Domestic
Relations Court and thereafter perform “[t]rial work only” on Baird’s behalf.
Respondent, a sole practitioner, did not advise Baird as required that he did not
have malpractice insurance.
{¶ 5} In completing a client information form, Baird also revealed to
respondent that foreclosure proceedings on her home were imminent and that she
might need to file for bankruptcy. Respondent promised to represent Baird in a
bankruptcy, despite his lack of experience, after he consulted another attorney
about those proceedings. In May 2003, Baird completed more paperwork and
paid respondent $750 for his services in the bankruptcy case.
{¶ 6} Respondent later filed Baird’s bankruptcy petition, but failed to
include the required schedules of her debts and assets. He then ignored the
court’s and Baird’s requests for him to supply this information. On at least one
occasion, respondent told Baird that he had filed a document in bankruptcy court
when he had not. Respondent never filed Baird’s divorce complaint.
{¶ 7} Baird retained another attorney, who completed her bankruptcy in
March 2004. In June 2005, Baird retained new counsel to assist her in obtaining a
divorce. In the meantime, respondent promised to refund Baird’s attorney fees.
As of the June 6, 2006 motion for default, respondent had repaid nothing.
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January Term, 2006
{¶ 8} The board found that in improperly representing Baird, respondent
had violated DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), 1-104 (requiring a lawyer to advise a client if the
lawyer does not carry the required professional-liability insurance), and 6-
101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter).
{¶ 9} Relator alleged and the board also found a violation of Gov.Bar R.
V(4)(G) (requiring a lawyer to cooperate in a disciplinary investigation). Baird
filed her grievance around August 16, 2005, and relator immediately sent a
certified letter of inquiry to respondent. Respondent received the letter on August
18, 2005, but did not reply. Respondent received a certified second letter of
inquiry on September 7, 2005, but did not reply. Respondent received a certified
letter on September 21, 2005, notifying him of a panel probable-cause finding for
issuing a formal complaint. Still, respondent did not reply.
Recommended Sanction
{¶ 10} In recommending a sanction for respondent’s misconduct, the
board weighed the aggravating and mitigating factors of his case. See Section 10
of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline (“BCGD
Proc.Reg.”).
{¶ 11} Of the specified aggravating factors favoring an enhanced
sanction, the board found that respondent had a prior disciplinary record for
neglect and dishonesty and had thereby engaged in a pattern of misconduct. See
BCGD Proc.Reg. 10(B)(1)(a), (b), and (c). Respondent also failed to
appropriately participate in the disciplinary process, an aggravating factor under
BCGD Proc.Reg. 10(B)(e), and thus did not acknowledge his wrongful conduct.
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SUPREME COURT OF OHIO
See BCGD Proc.Reg. 10(B)(1)(g). In addition, respondent did not make
restitution. See BCGD Proc.Reg. 10(B)(1)(i).
{¶ 12} The board noted only one arguably mitigating factor. In 2003, the
same year he agreed to represent Baird, respondent had been diagnosed with a
mental disability. See Disciplinary Counsel v. Novak, 110 Ohio St. 3d 134, 2006-
Ohio-3823, 851 N.E.2d 498, ¶ 21. This court determined that respondent suffered
from major depression and that the condition had contributed to the misconduct
committed in that case, which satisfies two of the conditions under BCGD
Proc.Reg. 10(B)(2)(g) for attributing mitigating effect. No similar evidence
warranting lenience was offered in this case.
{¶ 13} Relator recommended an indefinite suspension as the appropriate
sanction. The board accepted this recommendation, consistent with the master
commissioner’s report, because of respondent’s repeated ethical lapses and more
recent failure to participate in the disciplinary process. The latter suggested that
respondent may not be managing his mental condition. The board thus urged an
indefinite suspension, which requires further review upon a petition for
reinstatement, to protect the public and to ensure that an assessment of
respondent’s fitness to practice is a condition of any attempt to regain his license.
Review
{¶ 14} We agree that respondent violated DR 1-102(A)(4), 1-102(A)(5),
1-104, 6-101(A)(3), and Gov.Bar R.V(4)(G), as found by the board. Moreover,
when a lawyer repeatedly accepts legal fees without performing the requested
services, misrepresents the status of a case to his client, and then fails to cooperate
in an ensuing disciplinary proceeding, the combination of misconduct warrants an
indefinite suspension. Dayton Bar Assn. v. Fox, 108 Ohio St. 3d 444, 2006-Ohio-
1328, 844 N.E.2d 346. Thus, we also agree that an indefinite suspension is
appropriate.
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January Term, 2006
{¶ 15} Respondent is therefore indefinitely suspended from the practice of
law in Ohio. Respondent may not petition for reinstatement pursuant to Gov.Bar
R. V(10) for two years from the date of our order, and his petition must comply
with that rule, including containing proof of mental fitness to practice and
payment of $1,410 in restitution, with interest at the judgment rate, to Baird.
Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL and LANZINGER, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First
Assistant Disciplinary Counsel, for relator.
______________________
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