Columbus Bar Association v. McNeal. ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Columbus Bar Assn. v. McNeal, Slip Opinion No. 2017-Ohio-8775.]
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SLIP OPINION NO. 2017-OHIO-8775COLUMBUS BAR ASSOCIATION v. MCNEAL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Columbus Bar Assn. v. McNeal, Slip Opinion No.
2017-Ohio-8775.]
Attorneys—Misconduct—Failure to act with reasonable diligence in representing
client―Failure to keep client reasonably informed about status of
matter―Failure to comply as soon as practicable with client’s reasonable
requests for information―One-year suspension from practice of law, fully
stayed on conditions.
(No. 2017-0491—Submitted June 7, 2017—Decided December 5, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2016-017.
_______________________
Per Curiam.
{¶ 1} Respondent, Earl Darren McNeal, of Columbus, Ohio, Attorney
Registration No. 0059218, was admitted to the practice of law in Ohio in 1992. In
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2012, we suspended him for one year for misconduct relating to a report from the
United States Air Force Office of Special Investigations. That report found that
while McNeal served in the Air Force Reserve Judge Advocate General Corps, he
submitted false pay forms and used his military LexisNexis account for reasons
related to his private law practice. Disciplinary Counsel v. McNeal, 131 Ohio St.3d
224, 2012-Ohio-785, 963 N.E.2d 815.
{¶ 2} In April 2016, relator, Columbus Bar Association, charged him with
committing professional misconduct in a client matter. McNeal stipulated to some,
but not all, of the charges against him. After a hearing, a three-member panel of
the Board of Professional Conduct found that he engaged in the stipulated
misconduct, dismissed the other allegations against him, and recommended that he
serve a conditionally stayed one-year suspension. The board issued a report
adopting the panel’s findings and recommended sanction, and neither party
objected to the board’s report.
{¶ 3} Upon our review of the record, we accept the board’s findings of
misconduct and agree with its recommended sanction.
Misconduct
{¶ 4} McNeal is a general practitioner and represents clients in a range of
areas, including criminal defense, bankruptcy, domestic relations, and civil matters.
In August 2014, Warren Lanier Sr. and Gwendolyn Lanier retained McNeal to
investigate a water-drainage problem in their backyard, which the Laniers claimed
continued even after the builder of their home, Maronda Homes, Inc., made repairs
to the underground drainage system. The Laniers agreed to pay McNeal a $400
retainer over several installments, and he advised them that he would contact
Maronda Homes.
{¶ 5} About two or three weeks later, McNeal visited the Laniers at their
home, and in October 2014, he sent a letter to Maronda Homes informing them of
the Laniers’ drainage problem and requesting that someone contact him. Maronda
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Homes, however, did not respond. McNeal did nothing further to investigate the
issue and had no contact with the Laniers until a February 2015 telephone call, in
which he advised Mr. Lanier that he was “still looking at Maronda Homes.”
Between March and May 2015, the Laniers called McNeal’s office, e-mailed his
assistant, wrote him letters, and visited his place of business, but he did not timely
respond to their requests for information about their matter.
{¶ 6} The Laniers filed a grievance against McNeal in June 2015, and
McNeal thereafter sent a second letter to Maronda Homes and met with the Laniers
twice at their house. However, he did not perform any further work for the Laniers
after September 2015.
{¶ 7} During the disciplinary proceedings, McNeal stipulated that although
he was aware that the Laniers had a home warranty and homeowners’ insurance,
he did not contact those companies or attempt to determine whether any repairs
would be covered under those policies. He further admitted that he never made
contact with anyone at Maronda Homes with authority to discuss the Laniers’
problem, he never confirmed who was actually responsible for the drainage issue,
and he never filed any complaint on the Laniers’ behalf. Prior to his disciplinary
hearing, he refunded the $400 retainer to the Laniers.
{¶ 8} Based on this conduct, McNeal stipulated and the board found that he
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably
informed about the status of a matter), and 1.4(a)(4) (requiring a lawyer to comply
as soon as practicable with reasonable requests for information from the client).
We agree with the board’s findings of misconduct.
Sanction
{¶ 9} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
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aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
Aggravating and mitigating factors
{¶ 10} The board found one aggravating factor—that McNeal has prior
disciplinary offenses. See Gov.Bar R. V(13)(B)(1). In mitigation, the board
determined that McNeal lacked a dishonest or selfish motive and that he provided
full and free disclosures to the board and had a cooperative attitude toward the
proceedings. See Gov.Bar R. V(13)(C)(2) and (4). In addition, the board observed
that he openly acknowledged the wrongful nature of his stipulated misconduct, he
appeared genuinely contrite and remorseful, and he charged the Laniers a fairly
small fee and made some attempts to assist them, although ineffectual. We also
note that he submitted several letters from attorneys and a judge attesting to his
character or reputation in the legal community. See Gov.Bar R. V(13)(C)(5).
Applicable precedent
{¶ 11} The board cited several cases to support its recommended sanction
of a conditionally stayed one-year suspension, including Columbus Bar Assn. v.
Reed, 145 Ohio St.3d 464, 2016-Ohio-834, 50 N.E.3d 516, Mahoning Cty. Bar
Assn. v. Hanni, 145 Ohio St.3d 492, 2016-Ohio-1174, 50 N.E.3d 542, and
Mahoning Cty. Bar Assn. v. Malvasi, 143 Ohio St.3d 140, 2015-Ohio-2361, 34
N.E.3d 916.
{¶ 12} In Reed, the attorney neglected two client matters and initially failed
to cooperate in the ensuing disciplinary investigations. He also refused to promptly
pay an arbitration award made against him in a bar association’s fee-dispute
program. We found no mitigating factors in the case, and aggravating factors
included prior discipline, failure to make restitution, and harm to his clients. Based
on these facts, we suspended the attorney for two years but stayed the final 18
months on conditions.
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{¶ 13} In Hanni, the attorney neglected a child-custody matter by failing to
appear for three scheduled client meetings and by seeking to continue two hearings
without giving adequate notice to her clients or the court. When the attorney failed
to appear for the second hearing, the clients elected to proceed pro se rather than
delay the matter any further. We found several mitigating factors, including the
absence of a dishonest or selfish motive, cooperation in the disciplinary process,
payment of restitution, and evidence of good character. The only aggravating factor
was that we had previously disciplined the attorney for similar misconduct. We
suspended her for one year but stayed the suspension in its entirety on conditions.
{¶ 14} In Malvasi, a couple paid an attorney $2,500 to represent them in an
action against the seller of their home. But over the next 11 months, the attorney
failed to contact the potential defendants about a settlement or file a complaint, and
he had little contact with his clients. He also failed to deposit their funds in his
client trust account. We found no aggravating factors in the case, and mitigating
factors included lack of prior discipline, absence of a dishonest or selfish motive,
cooperation in the disciplinary process, and timely restitution. We sanctioned the
attorney with a conditionally stayed six-month suspension.
{¶ 15} McNeal’s misconduct here—neglect of one client matter—
resembles the misconduct in Malvasi and Hanni rather than the more egregious
and varied misconduct in Reed, which resulted in Reed’s actual suspension from
the practice of law. And similar to the circumstances in Hanni, McNeal has a prior
disciplinary record, but he also presented significant mitigating evidence that
outweighs the lone aggravating factor. Accordingly, we conclude that the board’s
recommended sanction is consistent with Hanni and the other cases cited by the
board and is the appropriate sanction in this case.
Conclusion
{¶ 16} Having considered McNeal’s misconduct, the applicable
aggravating and mitigating factors, and the sanctions imposed for similar
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misconduct, we adopt the board’s recommended sanction. Earl Darren McNeal is
suspended from the practice of law for one year, fully stayed on the conditions that
he (1) complete six hours of continuing legal education on law-office management
in each of the next three years, commencing with the date of this court’s disciplinary
order, (2) pay the costs of these proceedings, and (3) engage in no further
misconduct. If McNeal fails to comply with the conditions of the stay, the stay will
be lifted, and he will serve the full one-year suspension.
Judgment accordingly.
O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER, and DEWINE, JJ.,
concur.
O’CONNOR, C.J., dissents and would stay six months of respondent’s
suspension.
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A. Alysha Clous and Lori Brown, Bar Counsel; Vicki L. Jenkins; and
Freund, Freeze & Arnold, L.P.A., and Jennifer L. Wilson, for relator.
Law Office of Philip A. King, L.L.C., and Philip A. King, for respondent.
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