Toledo Bar Assn. v. Harvey

[Cite as Toledo Bar Assn. v. Harvey, 133 Ohio St. 3d 228, 2012-Ohio-4545.]
TOLEDO BAR ASSOCIATION v. HARVEY.
[Cite as Toledo Bar Assn. v. Harvey, 133 Ohio St. 3d 228, 2012-Ohio-4545.]
Attorney misconduct, including failing to act with reasonable diligence in
representing a client and engaging in conduct that is prejudicial to the
administration of justice—One-year suspension, stayed on conditions.
(No. 2011-1760—Submitted February 7, 2012—Decided October 4, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-012.
__________________
Per Curiam.
{¶ 1} Respondent, Beauregard Maximillion Harvey of Toledo, Ohio,
Attorney Registration No. 0078717, was admitted to the practice of law in Ohio in
2005. On June 22, 2011, relator, Toledo Bar Association, filed a four-count
amended complaint charging Harvey with multiple violations of 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 8.4(d) (prohibiting a lawyer from engaging in conduct that
is prejudicial to the administration of justice). All but three of the charged
violations arose from his alleged failure to timely file documents in 14 bankruptcy
cases.
{¶ 2} The parties submitted, and the panel and board adopted,
stipulations of fact and misconduct with regard to Harvey’s handling of seven
clients’ bankruptcy cases and one client’s small-claims case. The panel
conducted a hearing, however, because Harvey denied having committed
misconduct in the seven additional bankruptcy cases. In four of the seven
contested cases, the panel and board found that Harvey had committed all the
SUPREME COURT OF OHIO
charged violations; in the fifth case, they found that he had committed two of the
charged violations; and with respect to the sixth and seventh cases, they found no
misconduct.
{¶ 3} Based upon these findings of misconduct, the panel and board
recommend that we suspend Harvey for one year, with six months stayed on the
conditions that he submit to monitored probation during the stayed suspension
and that he commit no further misconduct. We adopt the board’s findings of fact
and misconduct, but in light of the significant mitigating factors present in this
case, we find that a one-year suspension fully stayed on the conditions that
Harvey satisfactorily complete a one-year period of monitored probation and
commit no further misconduct is the appropriate sanction.
Misconduct
{¶ 4} Harvey stipulates to the fact that his failure to file required
documents in seven client bankruptcy cases resulted in the closing of those cases
without discharge. In addition, Harvey was once verbally admonished on the
record and was twice sanctioned by the bankruptcy court for his failure to timely
file documents.
{¶ 5} Harvey testified that during the relevant time period, he did not
monitor whether he was receiving these documents from his clients in time to
meet the deadlines for filing them with the bankruptcy court. Instead, he relied on
his clients to provide the documents to him in a timely fashion. And even when
his clients did timely provide the forms to him, he sometimes failed to submit
them to the bankruptcy court. Those are the cases in which Harvey stipulates to
his misconduct. Harvey stipulated that this conduct resulted in the closing of
bankruptcy cases initiated on behalf of clients Kreamer, Sittler, Krieger, Yglasias,
Bowman, Gibson, and Richardson.
{¶ 6} In seven bankruptcy cases, however, Harvey claimed that his
clients were responsible for his failure to file documents. Specifically, he argued
2
January Term, 2012
that these clients were at fault because they had not given him the documents even
though they had been advised in both a packet of information he provided at the
beginning of his representation and in a document they received directly from the
bankruptcy court of the deadlines for filing the documents and the consequences
for failing to timely file them. The panel, however, rejected that argument and
placed the blame squarely on Harvey in four of the cases, finding that he violated
Prof.Cond.R. 1.3, 1.4(a)(3), and 8.4(d) in the cases involving clients Fair, Elchert,
Daughenbaugh, and Seiler. The panel noted that Harvey’s clients are laymen who
had retained Harvey for his expertise, diligence, and competence.
{¶ 7} With regard to the Freeman case, the panel found that Harvey had
had difficulty communicating with the client because Freeman did not return
telephone calls, and, therefore, the panel concluded that there was insufficient
evidence to support a violation of Prof.Cond.R. 1.4(a)(3). But because Harvey
had attended the first meeting of creditors with Freeman, the panel found that he
should have discovered that the client had completed the required financial-
management course and should have requested his certificate of completion.
Therefore, the panel concluded that Harvey’s failure to obtain the certificate and
timely file it with the court violated Prof.Cond.R. 1.3 and 8.4(d).
{¶ 8} Regarding the sixth case, involving client Gunn, the panel found
that Harvey did not violate Prof.Cond.R. 1.3, 1.4(a)(3), or 8.4(d), because the
client had terminated his representation (though Harvey never filed a motion or
notice of withdrawal with the court) and Harvey had assumed that she would file
the certificate of completion of the required financial-management course herself.
{¶ 9} In the seventh case, involving client Messenger, the panel found
that the bankruptcy court had issued three separate show-cause orders due to the
failure to timely file required documents. The client did not appear at the final
show-cause hearing, and the court closed the case. The panel found that the
3
SUPREME COURT OF OHIO
evidence was insufficient to establish that Harvey’s conduct in the Messenger
case violated the rules as alleged by relator.
{¶ 10} With respect to count four, the parties stipulated that Harvey had
failed to file an answer to a counterclaim filed against a client in a small-claims
action and that as a result, the defendant had obtained a default judgment against
the client. Although Harvey later moved the court to vacate that judgment,
neither he nor his client appeared at the scheduled hearing on the motion to
vacate, and the default judgment remained in force. The parties stipulated, and
the panel agreed, that this conduct violated Prof.Cond.R. 1.3 and 1.4(a)(3).
{¶ 11} The board adopted the panel’s findings of fact and misconduct, as
do we.
Sanction
{¶ 12} 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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 13} As aggravating factors, the panel and board found that Harvey had
engaged in a pattern of misconduct involving multiple offenses, and, in some
instances, had attempted to justify his missing filing deadlines by blaming his
clients. See BCGD Proc.Reg. 10(B)(1)(c), (d), and (g). They found the following
factors to be mitigating: the absence of a prior disciplinary record, the absence of
a dishonest or selfish motive, Harvey’s cooperative attitude toward the
disciplinary proceedings, his stipulation to numerous violations, and his timely
and good-faith effort to both rectify the consequences of his misconduct and alter
his office practices to prevent future misconduct. See BCGD Proc.Reg.
4
January Term, 2012
10(B)(2)(a), (b), (c), and (d). The panel and board noted that in most of the cases,
Harvey had voluntarily paid the costs for reopening the bankruptcy cases that had
been closed due to his failure to timely file documents and that he had charged no
additional fee for his services. After relator began investigating this case, Harvey
hired a paralegal and purchased a computer program to track his bankruptcy
cases. These office changes make it easier for him to remind bankruptcy clients
about impending deadlines.
{¶ 14} Relying primarily upon Cleveland Metro. Bar Assn. v. Nance, 124
Ohio St. 3d 57, 2009-Ohio-5957, 918 N.E.2d 1000, relator argued before the panel
that Harvey’s misconduct warrants a one-year suspension with six months stayed
on conditions. In Nance, we imposed that sanction on an attorney who
mistakenly represented to a bankruptcy court that he had paid the requisite filing
fee in a case, failed to timely file required documents in two additional
bankruptcy cases, and was found in contempt for failing to disgorge fees paid in
each of those cases. Id. at ¶ 5-10.
{¶ 15} Harvey argued that his case is different from Nance’s because he
does not have a disciplinary record, he promptly paid the fees to refile his client’s
bankruptcy cases and completed their cases, and he made Dickerson whole.
Nance, in contrast, waited more than three years to comply with the bankruptcy
court’s first disgorgement order, and his contempt fines remained outstanding at
the time of his disciplinary hearing. Id. at ¶12, 16.
{¶ 16} The panel and board adopted relator’s proposed sanction. Harvey
filed objections to the board’s recommended sanction. He asserts that the
sanction is too harsh and that the board erred in not giving mitigating weight to
the events in his life at the time of the misconduct—his mother’s death and his
protracted divorce. Relator, however, contends that these life events do not
satisfy the stringent requirements of BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv)
for a mitigating mental disability.
5
SUPREME COURT OF OHIO
{¶ 17} We agree with relator’s contention that Harvey’s stress due to the
sudden death of his mother at the age of 58 and his protracted divorce proceeding
do not qualify as a mitigating mental disability. We note that in light of the fact
that there are unique circumstances in each disciplinary case, BCGD Proc.Reg.
10(B) directs the board to consider “all relevant factors,” including, but not
limited to, the factors specifically enumerated in the rule.
{¶ 18} On at least two occasions, we have accepted the board’s
recommended sanction in cases in which the board considered stress as a factor in
mitigation. In Cincinnati Bar Assn. v. Fidler, 83 Ohio St. 3d 396, 700 N.E.2d 323
(1998), the panel received evidence that the respondent was under great personal
stress at the time he committed two minor theft offenses. And in Disciplinary
Counsel v. Spencer, 71 Ohio St. 3d 316, 643 N.E.2d 1086 (1994), we adopted
panel findings that the attorney’s in-laws had been living with him for about five
months, refusing to work, and causing marital discord. While we do not accord
evidence of stressful life events as much weight as evidence of a qualifying
mental disability, they are, nonetheless, relevant factors that may be considered in
determining the appropriate sanction for an attorney’s misconduct.
{¶ 19} The primary purpose of the disciplinary process is not to punish
the offender but to protect the public from lawyers who are unworthy of the trust
and confidence essential to the attorney-client relationship. Disciplinary Counsel
v. Agopian, 112 Ohio St. 3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10.
Harvey’s misconduct caused, at the very least, unnecessary aggravation and delay
to his clients. But in light of the significant mitigating factors in this case—
including the stress caused by his divorce and the sudden death of his mother, but
most importantly, Harvey’s efforts to remedy the effects of his mistakes and
ensure that he does not make similar mistakes in the future—we believe that a
one-year suspension, all stayed on the conditions that he commit no further
misconduct and submit to a one-year period of monitored probation in accordance
6
January Term, 2012
with Gov.Bar R. V(9), with particular emphasis on the oversight of Harvey’s
case-management system, will sufficiently protect the public.
{¶ 20} Accordingly, Beauregard Maximillion Harvey is hereby suspended
from the practice of law in Ohio for one year, but the suspension is stayed on the
conditions that he commit no further misconduct and submit to a one-year period
of monitored probation in accordance with Gov.Bar R. V(9). If Harvey fails to
comply with the conditions of the stay, the stay will be lifted, and he will serve
the entire one-year suspension. Costs are taxed to Harvey.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Michael A. Bonfiglio, Bar Counsel; and Barry & Feit and Gordon R.
Barry, for relator.
Beauregard Maximillion Harvey, pro se.
______________________
7