Disciplinary Counsel v. Demasi. , 152 Ohio St. 3d 360 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. DeMasi, Slip Opinion No. 2018-Ohio-7.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-7
DISCIPLINARY COUNSEL v. DEMASI.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. DeMasi, Slip Opinion No.
2018-Ohio-7.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including making a false statement to a tribunal, engaging in conduct
prejudicial to the administration of justice, engaging in conduct that
adversely reflects on the lawyer’s fitness to practice law, failing to provide
competent representation and failing to act with reasonable diligence in
representing a client, failing to communicate with a client, engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation, and
neglecting or refusing to assist in a disciplinary investigation—Indefinite
suspension with no credit for time served under interim default suspension.
(No. 2016-0994—Submitted September 13, 2017—Decided January 3, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-016.
SUPREME COURT OF OHIO
_________________
Per Curiam.
{¶ 1} Respondent, Michelle Lynn DeMasi, whose last known address was
in Akron, Ohio, Attorney Registration No. 0078628, was admitted to the practice
of law in Ohio by motion in 2005.
{¶ 2} On April 29, 2016, relator, disciplinary counsel, filed a complaint
charging DeMasi with multiple violations of the Rules of Professional Conduct
arising from her conduct as the defendant in a debt-collection proceeding and her
representation of a single client. Because DeMasi did not answer the complaint or
respond to a show-cause order, we imposed an interim default suspension under
Gov.Bar R. V(14)(B)(1) on August 4, 2016. 147 Ohio St. 3d 1211, 2016-Ohio-
5220, 63 N.E.3d 133. After DeMasi responded to an order to show cause why her
interim default suspension should not be converted to an indefinite suspension, we
remanded the matter to the Board of Professional Conduct for consideration of
mitigating evidence only. 148 Ohio St. 3d 1438, 2017-Ohio-1345, 72 N.E.3d 653.
{¶ 3} DeMasi is deemed to have committed the charged ethical violations
by virtue of her default and failure to timely move this court for leave to answer the
charges against her. See Gov.Bar R. V(14)(A) and (C). After a hearing at which
DeMasi testified regarding certain factors that she believed to be mitigating, a panel
of the board recommended that she be indefinitely suspended from the practice of
law. The panel also recommended that DeMasi receive no credit for the time served
under her interim default suspension and that she be required to satisfy certain
conditions before being reinstated to the practice of law.
{¶ 4} The board adopted the panel’s findings and recommended sanction.
We adopt the board’s report in its entirety and indefinitely suspend DeMasi from
the practice of law with no credit for time served under her interim default
suspension.
2
January Term, 2018
Misconduct
Count One
{¶ 5} The first count of the complaint arises from DeMasi’s refusal to
participate in a judgment-debtor examination after the Barberton Municipal Court
granted summary judgment to one of her creditors. She was held in contempt of
court and jailed when she disobeyed the judge’s orders to answer the questions
posed to her. The court agreed to release DeMasi the next day based on her
agreement to participate in the debtor’s exam. But following her release, she filed
an affidavit of disqualification against the judge (which was later denied) and once
again failed to appear for the debtor’s exam.
{¶ 6} When a bailiff served DeMasi with an order to show cause why she
should not be held in contempt of court, she exited her home, stood in the path of
the bailiff’s vehicle, and refused to move. Local police responded and placed
DeMasi in the back of a patrol car. From there, she called 9-1-1 to report that she
was being kidnapped. As a result of her conduct, she was charged with obstruction
of official business. She also was served with a second notice of her upcoming
contempt hearing.
{¶ 7} DeMasi appeared to be arraigned on her criminal charge on April 23,
2015, and her arraignment was rescheduled. On that same date, she unsuccessfully
sought a writ of prohibition to prevent the judge in the underlying civil case from
taking further action and was served with a third notice of the contempt hearing,
which was scheduled for the following day. Falsely claiming that she had not
previously received notice of that hearing, DeMasi requested and received a
continuance.
{¶ 8} Although DeMasi and opposing counsel both appeared at the
rescheduled contempt hearing, DeMasi left when the judge was delayed. In her
motion to dismiss the resulting arrest warrant, she falsely claimed that opposing
counsel had not been present at the hearing. DeMasi was arrested for failing to
3
SUPREME COURT OF OHIO
appear for her rescheduled arraignment on her initial criminal charge and was
released on bond. She later finally completed the debtor’s exam and her criminal
charges were dismissed upon her completion of community service.
{¶ 9} DeMasi’s conduct in this matter is deemed to have violated
Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly making a false
statement of fact or law 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), as alleged in relator’s complaint.
Count Two
{¶ 10} The allegations in count two of the complaint relate to DeMasi’s
representation of Pamela Craven, a client referred to her by a local bar association,
in a contract dispute. Although DeMasi filed a complaint on Craven’s behalf, she
failed to keep Craven informed about the status of the case on numerous occasions
as the case progressed, failed to respond to discovery requests multiple times, and
failed to timely respond to Craven’s communications. She also failed to respond
to a motion for summary judgment, which the court later granted against Craven.
{¶ 11} After the court had notified Craven of the judgment against her,
DeMasi finally contacted her just one day before the deadline for filing an appeal.
DeMasi demanded $1,200 to file an appeal of the judgment. Because Craven was
unable to meet DeMasi’s demand in time, an appeal was never filed. Craven
requested the return of her documents and the return of a $120 money order that
she had given DeMasi to pay the filing fee for an amended complaint that DeMasi
had never filed. DeMasi did not refund the money or place it in a client trust
account and she did not return Craven’s documents as requested. She had not
informed Craven when her malpractice insurance had lapsed, and when she
eventually informed Craven of the lapse, DeMasi falsely attributed that lapse to her
withdrawal from the bar association’s referral program.
4
January Term, 2018
{¶ 12} DeMasi’s conduct regarding this count is deemed to have violated
Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation to a
client), 1.3 (requiring a lawyer to act with reasonable diligence in representing a
client), 1.4(a)(1) (requiring a lawyer to inform the client of any decision or
circumstance with respect to which the client’s informed consent is required),
1.4(a)(4) (requiring a lawyer to comply as soon as practicable with reasonable
requests for information from the client), 1.4(c) (requiring a lawyer to inform the
client if the lawyer does not maintain professional-liability insurance), 1.15(a)
(requiring a lawyer to hold the property of clients in an interest-bearing client trust
account, separate from the lawyer’s own property), 1.16(d) (requiring a lawyer
withdrawing from representation to take steps reasonably practicable to protect a
client’s interest), 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), and 8.4(d), as alleged in relator’s
complaint.
Count Three
{¶ 13} DeMasi first overdrew her client trust account in December 2014,
and when she later again overdrew the account and failed to restore it to a zero
balance, her bank closed the account. DeMasi failed to respond to relator’s requests
for information regarding her client trust account and did not comply with a
subpoena ordering her to appear for deposition. By this conduct she is deemed to
have violated Prof.Cond.R. 8.1(b) (prohibiting a lawyer from knowingly failing to
respond to a demand for information by a disciplinary authority during an
investigation) and Gov.Bar R. V(9)(G) (prohibiting a lawyer from neglecting or
refusing to assist in a disciplinary investigation), as alleged in relator’s complaint.
Sanction
{¶ 14} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
5
SUPREME COURT OF OHIO
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 15} At the remand hearing, DeMasi stated that she had no evidence to
offer in mitigation aside from what she had provided to this court with her
objections to the proposed conversion of her interim default suspension into an
indefinite suspension. She testified that although she had not returned Craven’s
money order to her, she believed that Craven’s husband had canceled it and obtain
a refund, but she had no evidence to substantiate that belief. DeMasi also spoke
about various matters that she has been concerned about—matters that caused the
board to question her mental health. Specifically, the board found that DeMasi’s
testimony focused on what could only be described as her belief in conspiracies by
unknown persons “regarding cases referred to her by the bar association and other
events for which she could not discern a reasonable explanation.” For example,
DeMasi believed that her client trust account had been subject to fraud. But she
stated that the bank would not cooperate with her to discover how the fraud was
being perpetrated. And when asked where she currently resides, DeMasi stated that
she is a “transient” and that she could be viewed as living in different locations in
West Virginia and Ohio but that she was currently residing with a friend of a friend
in Akron.
{¶ 16} Aggravating factors found by the board include DeMasi’s pattern of
misconduct, multiple offenses, lack of cooperation in the disciplinary process,
refusal to acknowledge the wrongful nature of her misconduct, and failure to make
restitution. See Gov.Bar R. V(13)(B)(3), (4), (5), (7), and (9). The only mitigating
factor is the absence of a prior disciplinary record. See Gov.Bar R. V(13)(C)(1).
{¶ 17} Based on the foregoing, the board found that DeMasi is not ready to
resume the practice of law and recommended that she be indefinitely suspended
with no credit for time served during the interim default suspension. The board
also recommended that in addition to making restitution of $120 to Craven, she
6
January Term, 2018
should be required to submit proof that she has completed a mental-health
evaluation, complied with any treatment recommendations arising from that
evaluation, and is able to return to the competent, ethical, and professional practice
of law as conditions for reinstatement. In support of that sanction, the board
considered the sanctions we imposed for similar misconduct in two other default
disciplinary proceedings.
{¶ 18} In Mahoning Cty. Bar Assn. v. Marrelli, 144 Ohio St. 3d 253, 2015-
Ohio-4614, 41 N.E.3d 1242, the attorney was deemed to have charged a clearly
excessive fee, improperly shared a legal fee with a lawyer outside of her firm, failed
to hold client funds in an interest-bearing client trust account, engaged in
dishonesty, and failed to cooperate in the ensuing disciplinary investigation. But
there were no aggravating factors present and just one mitigating factor—the
absence of a dishonest or selfish motive. Therefore, we adopted the board’s
recommendation and indefinitely suspended Marrelli from the practice of law with
credit for time served under her interim default suspension.
{¶ 19} In Akron Bar Assn. v. Bednarski, 148 Ohio St. 3d 615, 2017-Ohio-
522, 71 N.E.3d 1093, the attorney neglected and failed to provide competent
representation to a single client, failed to reasonably communicate with that client,
and charged a flat fee without properly advising the client of the potential for a full
or partial refund if the representation was not completed. She also failed to deposit
unearned fees from two clients into her client trust account and to advise those
clients in writing that she did not carry professional-liability insurance. On remand
for the consideration of mitigating evidence, Bednarski stipulated to aggravating
factors that included a pattern of misconduct, multiple offenses, a lack of
cooperation in the disciplinary process, the vulnerability of and resulting harm to
her clients, and her failure to make restitution to one of those clients. She also
stipulated to two relevant mitigating factors—the absence of a prior disciplinary
record and the absence of a dishonest or selfish motive.
7
SUPREME COURT OF OHIO
{¶ 20} Based on additional findings that Bednarski had a longstanding and
untreated drinking problem, failed to fully cooperate in the disciplinary process on
remand, and lacked the basic organizational skills necessary to handle the financial
and management aspects of her law practice, we suspended her from the practice
of law for two years. We did not grant her credit for the time served under her
interim default suspension, but we agreed to stay the final six months of that
suspension on conditions that included participation in mental-health and
substance-abuse assessments, compliance with all treatment recommendations, and
the payment of restitution.
{¶ 21} DeMasi’s client-related misconduct is comparable to that of Marrelli
and Bednarski. But DeMasi’s disobedience of multiple court orders in her own
judgment-debtor proceeding was also prejudicial to the administration of justice
and raises significant concerns about her mental health and her ability to obey the
law and manage her own affairs—let alone the affairs of her clients. DeMasi’s
testimony before the hearing panel serves only to heighten those concerns. In the
absence of any additional mitigating evidence, we agree that the appropriate
sanction for DeMasi’s misconduct is an indefinite suspension with no credit for
time served under the interim default suspension.
{¶ 22} Accordingly, Michelle Lynn DeMasi is indefinitely suspended from
the practice of law in Ohio with no credit for time served under the interim default
suspension. In addition to the conditions of reinstatement set forth in Gov.Bar R.
V(25), DeMasi shall be required to submit proof that she (1) has refunded $120 to
Craven, (2) has been evaluated by a qualified health-care professional for the
existence of any mental, substance-use, or nonsubstance-related disorders, (3) has
complied with any treatment recommendations made as a result of that evaluation,
and (4) is able to return to the competent, ethical, and professional practice of law.
Costs are taxed to DeMasi.
Judgment accordingly.
8
January Term, 2018
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
_________________
Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant
Disciplinary Counsel, for relator.
Michelle Lynn DeMasi, pro se.
_________________
9