Disciplinary Counsel v. Noel

[Cite as Disciplinary Counsel v. Noel, 134 Ohio St. 3d 157, 2012-Ohio-5456.]
DISCIPLINARY COUNSEL v. NOEL.
[Cite as Disciplinary Counsel v. Noel, 134 Ohio St. 3d 157, 2012-Ohio-5456.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including client-trust-account improprieties, dishonesty, and failure to
cooperate in a disciplinary investigation—Indefinite suspension.
(No. 2012-0656—Submitted June 6, 2012—Decided November 28, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-051.
__________________
Per Curiam.
{¶ 1} Respondent, Gerald Thomas Noel Jr. of Bexley, Ohio, Attorney
Registration No. 0063972, was admitted to the practice of law in Ohio in 1994.
On June 17, 2010, we determined that Noel had committed professional
misconduct for neglecting entrusted client matters, failing to promptly deliver a
client’s file upon request, and failing to cooperate in the disciplinary process.
Disciplinary Counsel v. Noel, 126 Ohio St. 3d 56, 2010-Ohio-2714, 930 N.E.2d
312. We suspended Noel from the practice of law for two years, with six months
stayed, on the conditions that he commit no further misconduct and complete a
law-office-management course. Id. at ¶ 27. Noel’s term of suspension has
expired, but he has not applied for reinstatement.
{¶ 2} On June 13, 2011, relator, disciplinary counsel, charged Noel in a
two-count complaint with failing to maintain client funds in a separate, interest-
bearing trust account; engaging in conduct that reflects adversely on his fitness to
practice law and involves dishonesty, fraud, deceit, or misrepresentation; and
failing to cooperate in the disciplinary process. Noel did not initially answer, and
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relator therefore moved for an entry of default. On October 11, 2011, after
requesting an extension of time to respond, Noel answered.1
{¶ 3} On January 20, 2011, a three-member panel of the board conducted
a hearing at which Noel and one of the grievants testified. The parties also
submitted stipulated facts, exhibits, and violations of the Rules of Professional
Conduct. Relator recommended a sanction of indefinite suspension, while Noel
recommended that he serve another two-year suspension, with the entire term
stayed on the condition of monitored probation. The panel accepted the parties’
stipulations, made additional findings of fact, and recommended that Noel be
indefinitely suspended, with the suspension to commence on the expiration of the
previously imposed two-year suspension. The board adopted the panel’s findings
of fact, conclusions of law, and recommended sanction. No objections have been
filed.
{¶ 4} We, in turn, accept the board’s findings of fact and misconduct and
indefinitely suspend Noel from the practice of law in Ohio.
Misconduct
Count One—The Zubaidah Matter
{¶ 5} During the summer of 2010, King Ayettey Zubaidah contacted
Noel to file a motion for judicial release on behalf of Zubaidah’s son, KC Del
McGee, who was a former client of Noel’s. Noel agreed to file the motion on
McGee’s behalf, and in early September 2010, Zubaidah sent a $350 money order
to Noel’s former office address. On September 16, 2010, Noel deposited the
money into his business checking account, even though he also maintained a
client trust account at the same bank. In early October 2010, Zubaidah sent Noel
a second $350 money order, which Noel also deposited into his business checking
1. We note that both the panel and board reports indicate that Noel filed an answer on October 11,
2011, and therefore we accept that the answer was filed. The record, however, does not include a
copy of Noel’s answer.
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January Term, 2012
account. After delivery of the second money order, Zubaidah attempted to
contact Noel several times about the status of the judicial-release motion, but
Noel did not return any of Zubaidah’s phone calls.
{¶ 6} In November 2010, Zubaidah filed a grievance against Noel. In
December 2010 and January 2011, relator sent Noel three separate letters of
inquiry by certified mail regarding Zubaidah’s grievance. Although Noel signed
for each letter, he failed to respond to any of them. Relator ultimately subpoenaed
Noel for a deposition, and he appeared on February 16, 2011.
{¶ 7} At his deposition, Noel testified that he had picked up Zubaidah’s
money orders from his former office in December 2010. Noel further testified
that he did not return Zubaidah’s money because he believed he could not have
any contact with Zubaidah after the filing of the grievance. Instead, Noel felt he
was “protecting” the money by depositing it into his own business checking
account.
{¶ 8} After the deposition, relator sent Noel two separate follow-up
letters, each requesting a response. Noel, however, failed to respond to either
letter. Noel responded only after relator filed a complaint and motion for entry of
default, at which time Noel answered and stipulated to most of the allegations and
all the charged misconduct. By that time, November 2011, Noel was unable to
refund Zubaidah’s money because of his personal financial situation.
{¶ 9} At the January 2012 panel hearing, Noel retracted portions of his
deposition testimony. Specifically, he acknowledged that he had received and
deposited Zubaidah’s money orders in September and October 2010 before
Zubaidah filed the grievance against him. Noel further acknowledged that despite
his having accepted Zubaidah’s money in September and October, the motion for
judicial release could not have been filed until May 2011, at the earliest. Finally,
Noel could not give a reasonable justification for failing to refund Zubaidah’s
money before his own finances had depleted, although, at the hearing, he handed
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a cashier’s check to Zubaidah for $777.76, which was meant as a refund, plus
interest.
{¶ 10} The parties stipulated, the board found, and we agree that Noel’s
conduct violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold property of
clients in an interest-bearing client trust account, separate from the lawyer’s own
property), 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a
demand for information by a disciplinary authority during an investigation), 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation), and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer's fitness to practice law) and Gov.
Bar R. V(4)(G) (requiring a lawyer to cooperate with a disciplinary investigation).
Count Two—The Riley Matter
{¶ 11} On the day before Noel’s deposition in the Zubaidah matter, relator
received a grievance filed against Noel by Crystal Riley. In her grievance, Riley
claimed that Noel had represented her in a criminal matter and that she had been
trying to obtain a copy of the discovery filed in her case for the past three years.
Relator and Noel briefly discussed Riley’s grievance at the Zubaidah deposition,
and relator advised Noel that he would be receiving a formal letter of inquiry
about the new grievance.
{¶ 12} As promised, in February and again in March 2011, relator sent
Noel two separate letters of inquiry. Each letter was sent by certified mail and
requested that Noel respond in writing to Riley’s allegations. Although Noel
signed for the letters, he failed to respond. Relator ultimately determined that
there was insufficient evidence of an ethical violation relating to the merits of
Riley’s grievance, but the parties stipulated, the board found, and we agree that
Noel violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(4)(G) for failing to respond
to relator’s letters of inquiry or to otherwise cooperate in the investigation.
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Sanction
{¶ 13} 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.
{¶ 14} We have already identified Noel’s breaches of duties to his clients
and the legal profession. By failing to deposit Zubaidah’s money orders into a
client trust account, Noel violated Prof.Cond.R. 1.15(a). He violated
Prof.Cond.R. 8.4(c) and 8.4(h) by accepting and spending Zubaidah’s money,
failing to do the requested work, and giving contradictory testimony in his
deposition and at the hearing regarding when he had accepted the money orders or
why he had not returned the money. Finally, Noel violated Prof.Cond.R. 8.1(b)
and Gov.Bar R. V(4)(G) for repeatedly failing to respond to relator’s letters in the
Zubaidah and Riley matters.
{¶ 15} The board did not find any mitigating factors. The board
acknowledged that Noel attributed most of his misconduct to grief over his
younger brother’s death, which had occurred weeks before his acceptance of
Zubaidah’s first money order. At the panel hearing, Noel testified that he had
discovered his brother’s body, an experience that later caused him stress and
nightmares. Noel blamed his failure to respond to relator’s letters of inquiry on
that stress, and Noel believed that the stress continued to affect him at the time of
his February 2011 deposition. The board found, however, that because Noel had
not sought professional help for his emotional condition—and therefore had not
been diagnosed with a mental disability by a qualified health-care professional—
the stress did not qualify as a mitigating factor under BCGD Proc.Reg.
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10(B)(2)(g). Similarly, the board found that because Noel did not tender
restitution to Zubaidah until the date of the panel hearing, January 20, 2012, more
than a year after Noel had accepted Zubaidah’s money, he did not make a “timely
good faith effort to make restitution or to rectify consequences of misconduct”
under BCGD Proc.Reg. 10(B)(2)(c).
{¶ 16} As to aggravating factors, the parties stipulated that Noel had been
previously disciplined, had engaged in multiple offenses, had failed to cooperate
in the disciplinary proceedings that led to his two-year suspension and to the
instant disciplinary proceedings, and had failed to make restitution to Zubaidah.
See BCGD Proc.Reg. 10(B)(1)(a), (d), (e), and (i). The board accepted the
stipulations but acknowledged that Noel ultimately refunded Zubaidah’s money,
thereby making the final aggravating factor no longer applicable. However,
because Noel was unable to justify why he spent the money after having accepted
it, the board accorded “little weight” to Noel’s eventual refund.
{¶ 17} For precedent, the board cited Disciplinary Counsel v. Davis, 130
Ohio St. 3d 440, 2011-Ohio-6016, 958 N.E.2d 1230, to support its
recommendation of an indefinite suspension. In Davis, we indefinitely suspended
a lawyer for accepting client money and not performing the work, failing to return
clients’ documents and money while under suspension, and failing to cooperate in
the disciplinary process. Id. at ¶ 3-16. We held that these violations, combined
with a profusion of aggravating factors—including previous discipline for
comparable conduct—and the lack of any mitigating factors, warranted an
indefinite suspension. Id. at ¶ 22. The board also considered four analogous
cases in which the same penalty had been levied. See, e.g., Cleveland Metro. Bar
Assn. v. Gottehrer, 124 Ohio St. 3d 519, 2010-Ohio-929, 924 N.E.2d 825
(indefinite suspension for accepting client retainers in matters in which the
respondent did not do the work, failing to respond to client communications,
failing to return client retainers, and failing to cooperate in disciplinary
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proceedings); Columbus Bar Assn. v. Clovis, 125 Ohio St. 3d 434, 2010-Ohio-
1859, 928 N.E.2d 1078 (indefinite suspension for accepting a client’s money for a
matter in which the respondent did not do the work, failing to return a client’s
documents and money, and failing to cooperate in the disciplinary proceeding);
Columbus Bar Assn. v. Van Sickle, 128 Ohio St. 3d 376, 2011-Ohio-774, 944
N.E.2d 677 (indefinite suspension for practicing while under license suspension,
failing to complete the work, and failing to respond to requests for return of funds
and documentation); and Cuyahoga Cty. Bar Assn. v. Wagner, 113 Ohio St. 3d
158, 2007-Ohio-1253, 863 N.E.2d 164 (indefinite suspension for accepting a
client’s money for matters in which respondent did not do the work, failing to
return a client’s money, and failing to cooperate in disciplinary proceedings).
{¶ 18} Having reviewed the record, the aggravating factors, and the fact
that no mitigating factors exist in this case, and having considered the sanctions
previously imposed for comparable conduct, we adopt the board’s recommended
sanction of an indefinite suspension. Accordingly, Gerald Thomas Noel Jr. is
indefinitely suspended from the practice of law in the state of Ohio, with the
suspension to commence on the date of our order. Costs are taxed to Noel.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, Lori J. Brown, Chief
Assistant Disciplinary Counsel, and Karen H. Osmond, for relator.
Gerald T. Noel Jr., pro se.
______________________
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