Dayton Bar Assn. v. Matlock , 134 Ohio St. 3d 276 ( 2012 )

[Cite as Dayton Bar Assn. v. Matlock, 134 Ohio St. 3d 276, 2012-Ohio-5638.]
DAYTON BAR ASSOCIATION v. MATLOCK.
[Cite as Dayton Bar Assn. v. Matlock, 134 Ohio St. 3d 276, 2012-Ohio-5638.]
Attorney misconduct—Multiple violations of the Rules of Professional Conduct—
Two-year suspension, partially stayed on conditions.
(No. 2012-1023—Submitted August 22, 2012—Decided December 5, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-003.
_____________________
Per Curiam.
{¶ 1} Respondent, Michael Duane Matlock of Dayton, Ohio, Attorney
Registration No. 0008564, was admitted to the practice of law in Ohio in 1985.
We have previously suspended Matlock from the practice of law in Ohio for
failing to comply with the continuing legal education (“CLE”) requirements of
Gov.Bar R. X. See In re Report of Comm. on Continuing Legal Edn., 88 Ohio
St.3d 1468, 726 N.E.2d 1006 (2000). We have also suspended Matlock from the
practice of law in Ohio on four separate occasions for failing to file a certificate of
registration and pay applicable fees in accordance with Gov.Bar R. VI. In re
Attorney Registration Suspension of Matlock, 107 Ohio St. 3d 1431, 2005-Ohio-
6408, 838 N.E.2d 671; In re Attorney Registration Suspension of Matlock, 116
Ohio St. 3d 1420, 2007-Ohio-6463, 877 N.E.2d 305; In re Attorney Registration
Suspension of Matlock, 123 Ohio St. 3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256;
In re Attorney Registration Suspension of Matlock, 130 Ohio St. 3d 1420, 2011-
Ohio-5627, 956 N.E.2d 310. Matlock’s most recent attorney-registration
suspension remains in effect.
{¶ 2} In this case, the Board of Commissioners on Grievances and
Discipline recommends that we suspend Matlock from the practice of law for two
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years, with one year of the suspension stayed on conditions designed to protect
the public and with reinstatement subject to specified conditions. The board’s
recommendation is based on its finding that Matlock committed professional
misconduct by failing to obtain a written contingent-fee agreement and failing to
respond to disciplinary investigative inquiries in one client matter, failing to
complete and file forms for a qualified domestic-relations order (“QDRO”) for
another client, failing to communicate with both clients regarding their legal
matters and failing to inform them that he did not maintain professional liability
insurance, and commingling private funds and client funds and failing to
document transactions for his client trust account. We agree that Matlock
committed the professional misconduct found by the board, and we also agree that
the appropriate sanction is a two-year suspension, with one year conditionally
stayed.
{¶ 3} Relator, Dayton Bar Association, charged Matlock in a six-count
second amended complaint with multiple violations of the Rules of Professional
Conduct and one violation of the Rules for the Government of the Bar in Ohio.
The parties stipulated to certain facts and mitigating factors and recommended
that Matlock be suspended from the practice of law for one year without receiving
credit for the period covered by his current attorney-registration suspension.
{¶ 4} A panel of three board members heard the case and made findings
of fact and conclusions of law. The panel recommended that Matlock be
suspended from the practice of law for two years, with one year of the suspension
stayed on certain conditions and reinstatement subject to specified conditions.
The panel added that Matlock should not receive credit for time served on his
attorney-registration suspension. The board adopted the panel’s findings,
conclusions, and recommended sanction, and so do we.
{¶ 5} The parties have not objected to the board’s report and
recommendation.
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Misconduct
Failing to Obtain Written Contingent-Fee Agreement
and Failing to Respond to Investigative Inquiries and Demands
{¶ 6} In 2008, Tommy Jones paid Matlock $35 to have him write a letter
to the client’s customer demanding payment of $1,182 for painting services.
There was no written fee agreement, but Matlock claimed that there was an oral
agreement in which he would receive a one-third contingent fee. Matlock wrote
the requested letter, and the client’s customer provided him with a check for the
$1,182 demanded.
{¶ 7} Matlock then informed Jones that he would deduct his claimed
one-third fee and forward the $788 balance to Jones, and Jones filed a complaint
with relator. Jones received a $788 check from Matlock and after depositing it,
Jones was notified by his bank that the check had been dishonored.
{¶ 8} As part of its investigation of Jones’s complaint, relator requested
copies of Matlock’s trust-account statements for 2007 and 2008 and copies of any
written fee agreement or engagement letter between respondent and the client, but
Matlock failed to respond to relator’s initial three letters or to furnish the
requested materials. Matlock later informed Jones that the check he had
previously sent had been written on the wrong account, and he subsequently sent
Jones a money order for $825. Matlock ultimately provided some financial
records to relator.
{¶ 9} The board found, and we agree, that Matlock’s conduct violated
Prof.Cond.R. 1.5(b) (requiring an attorney to communicate the nature and scope
of the representation to the client and the rate of the fee, preferably in writing,
before or within a reasonable time after commencing the representation), 1.5(c)
(requiring an attorney to set forth a contingent-fee agreement in a writing signed
by the client), and 8.1(b) (prohibiting a lawyer from knowingly failing to respond
to a demand for information by a disciplinary authority during an investigation)
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and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate in a disciplinary
investigation).
Failing to Prepare and File QDRO
{¶ 10} In 1993, Matlock represented Jeraldine Pettiford in a divorce case.
In 2007, after the divorce case had concluded, it was discovered that Matlock had
failed to file a QDRO entitling Pettiford to receive a portion of her ex-husband’s
pension and an annuity. Matlock was to have performed these services as part of
his representation of Pettiford in the divorce. In 2007, Matlock demanded and
received $450 from Pettiford to file the required QDRO forms with the court, her
ex-husband’s retirement system, and the company that had the annuity. Despite
Matlock’s multiple representations to Pettiford that he had either filed or was
about to file the QDRO forms, he failed to do so, and in November 2007, the
domestic-relations court found him in contempt for failure to file the QDRO.
Pettiford then filed the QDRO forms with the court and the retirement system
herself. After Pettiford complained to Matlock about his representation of her, he
sent her a cashier’s check for $230.
{¶ 11} The board found, and we agree, that Matlock’s conduct violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client).
Use of Trust Account as Personal Account
{¶ 12} In 2007 and 2008, during Matlock’s representation of Pettiford and
Jones, Matlock deposited personal funds into his client trust account and paid
personal expenses from the trust account. Matlock did not retain sufficient
records documenting the transactions involving his client trust account.
{¶ 13} The board found, and we agree, that Matlock’s conduct violated
Prof.Cond.R. 1.15(a) (requiring a lawyer to hold funds of clients in an interest-
bearing client trust account, separate from the lawyer’s own funds).
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Failing to Communicate with Clients Regarding
Legal Matters and Failing to Inform Clients that he did not Maintain
Professional-Liability Insurance
{¶ 14} As noted previously, Matlock did not properly communicate with
Jones and Pettiford about their legal matters. In addition, during his
representation of the clients in 2007 and 2008, he did not have professional-
malpractice insurance, and he was unable to produce a written form from any
client acknowledging that he had informed the client of that fact.
{¶ 15} The board found, and we agree, that Matlock’s conduct violated
Prof.Cond.R. 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), and 1.4(c) (requiring a lawyer to give clients written notice if
the lawyer does not maintain professional-liability insurance and to have clients
sign the notice).
Sanction
{¶ 16} “When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties the lawyer violated and sanctions imposed in
similar cases.” Toledo Bar Assn. v. Weisberg, 124 Ohio St. 3d 274, 2010-Ohio-
142, 921 N.E.2d 641, ¶ 15. To determine the appropriate sanction, we also
consider the aggravating and mitigating circumstances found in BCGD Proc.Reg.
10(B). Disciplinary Counsel v. Crosby, 124 Ohio St. 3d 226, 2009-Ohio-6763,
921 N.E.2d 225, ¶ 16.
{¶ 17} The board determined that the following aggravating factors are
pertinent for Matlock’s conduct here: (1) prior disciplinary offenses for his
numerous attorney-registration suspensions, (2) a pattern of misconduct by his
admitted inattention to the details of the practice of law, (3) the commission of
multiple offenses, and (4) his initial failure to cooperate in the disciplinary
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process. BCGD Proc.Reg. 10(B)(1)(a), (c), (d), and (e). In mitigation, the board
found that Matlock (1) lacked a dishonest or selfish motive, (2) rectified the
consequences of his misconduct by returning unearned funds to the two clients
and that relator did not establish that either client had been damaged as a result of
the misconduct, (3) fully and freely disclosed and admitted his misconduct and
cooperated in the proceeding once he retained counsel, and (4) acknowledged the
wrongfulness of his conduct. BCGD Proc.Reg. 10(B)(2)(b), (c), and (d).
{¶ 18} The board further noted that Matlock was not entitled to present
chemical dependency or mental disability as a mitigating factor because there was
insufficient evidence that he had completed a treatment program or that he
suffered from a mental disability at the time of the misconduct. Prior to the
hearing, pursuant to the panel’s order, David G. Bienenfeld, M.D., conducted a
psychiatric examination of respondent and concluded that Matlock does not suffer
from a mental illness. Dr. Bienenfeld did, however, diagnose Matlock as
suffering from “alcohol dependence, with physiological dependence, sustained
partial remission” and cirrhosis of the liver and noted that during Matlock’s heavy
drinking from 1993 to 2010, his marriage deteriorated, he was divorced, and he
became depressed. The board expressed particular concern regarding Dr.
Bienenfeld’s conclusion that Matlock’s alcohol-dependence remission “is
exceedingly rare without either continued outpatient treatment or Alcoholics
Anonymous” and that Matlock currently was not enrolled in a treatment program
and had exhibited an aversion to “such intervention and maintenance.”
{¶ 19} The mishandling of client funds by commingling or poor
management is of paramount importance, and this misconduct requires a
substantial sanction regardless of whether a client is harmed. See Disciplinary
Counsel v. Riek, 125 Ohio St. 3d 46, 2010-Ohio-1556, 925 N.E.2d 980, ¶ 10, and
cases cited therein. In Riek, the court held that that the recommended sanction of
an 18-month suspension with 12 months stayed was within the range of sanctions
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imposed by the court for similar misconduct involving attorneys who have failed
to properly maintain their trust accounts. Id. at ¶ 12, citing Crosby, 124 Ohio
St.3d 226, 2009-Ohio-6763, 921 N.E.2d 225, at ¶ 19 (sanctions ranging from a
stayed six-month suspension to an indefinite suspension).
{¶ 20} In recommending its sanction here of a two-year license
suspension with one year stayed upon conditions related to respondent’s alcohol
dependency, the board considered several cases, including Akron Bar Assn. v.
McNerney, 122 Ohio St. 3d 40, 2009-Ohio-2374, 907 N.E.2d 1167, in which we
imposed a similar sanction of a two-year suspension with the second year
conditionally stayed for misconduct that included trust-account and malpractice-
insurance improprieties as well as a failure to appropriately respond to the
disciplinary process. Id. at ¶ 20-23. In that case, as here, we noted that alcohol
dependence was not a mitigating factor due to the lack of competent medical
evidence establishing a causal connection between the alcoholism and the
misconduct and the questionable commitment of the attorney to a recovery
program, but we considered it in determining appropriate conditions for the stayed
portion of the suspension. Id. at ¶ 16, 21.
{¶ 21} Upon our independent review of the relevant factors, we agree that
the sanction recommended by the board is commensurate with Matlock’s
misconduct. We therefore suspend Matlock from the practice of law in Ohio for
two years, with one year of the suspension stayed on the following conditions:
(1) Matlock enters into a contract with the Ohio Lawyers Assistance Program
(“OLAP”) for such time as recommended by OLAP, (2) Matlock fully complies
with all OLAP recommendations, including regular attendance at Alcoholics
Anonymous meetings, (3) Matlock commits no further misconduct, and (4) during
the period of his stayed suspension and for one year following the stayed
suspension, Matlock is supervised by a monitor appointed by relator pursuant to
Gov.Bar R. V(9) to ensure, among other things, that he is in full compliance with
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his obligations regarding his OLAP contract and the handling of his client trust
account and the required disclosures relating to malpractice insurance. Matlock’s
reinstatement from the suspension shall be subject to the requirements of Gov.Bar
R. V(10)(A) and shall be specifically conditioned on his compliance with the
conditions specified for the stayed suspension and his presentation of a certificate
from a qualified psychiatrist that he is able to return to the competent, ethical, and
professional practice of law. Furthermore, Matlock shall engage in no further
misconduct. If Matlock fails to comply with these conditions, the stay will be
lifted, and he will serve the entire two-year suspension. Costs are taxed to
Matlock.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
_____________________
Beiser, Greer & Landis and David P. Williamson, for relator.
Mia Wortham Spells, for respondent.
_____________________
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