Columbus Bar Assn. v. Stubbs

[Cite as Columbus Bar Assn. v. Stubbs, 134 Ohio St. 3d 162, 2012-Ohio-5481.]
COLUMBUS BAR ASSOCIATION v. STUBBS.
[Cite as Columbus Bar Assn. v. Stubbs, 134 Ohio St. 3d 162, 2012-Ohio-5481.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including practicing law in violation of jurisdictional regulations,
engaging in conduct that adversely reflects on the lawyer’s fitness to
practice law, dishonesty, fraud, deceit, or misrepresentation, and failure
to cooperate in multiple disciplinary investigations—Permanent
disbarment.
(No. 2012-0316—Submitted April 24, 2012—Decided November 29, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-010.
__________________
Per Curiam.
{¶ 1} Respondent, SaKeya MonCheree Stubbs of Columbus, Ohio,
Attorney Registration No. 0071309, was admitted to the practice of law in Ohio in
1999. On June 21, 2006, we suspended her license for six months, staying the
suspension on a condition, and placed her on a one-year monitored probation for
falsifying a document in an attempt to convince the Ohio Bureau of Motor
Vehicles that she had been properly insured at the time she received a traffic
citation. Columbus Bar Assn. v. Stubbs, 109 Ohio St. 3d 446, 2006-Ohio-2818,
848 N.E.2d 843. In December 2007, and then again in November 2009, we
imposed attorney-registration suspensions on Stubbs for her failure to register for
the 2007-2009 and 2009-2011 bienniums. In re Attorney Registration Suspension
of Stubbs, 116 Ohio St. 3d 1420, 2007-Ohio-6463, 877 N.E.2d 305; In re Attorney
Registration Suspension of Stubbs, 123 Ohio St. 3d 1475, 2009-Ohio-5786, 915
N.E.2d 1256. And on February 15, 2011, in a default proceeding, we indefinitely
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suspended Stubbs from the practice of law for failure to maintain accurate records
of the funds held in her client trust account, failure to promptly deliver funds that
a client was entitled to receive, and failure to cooperate in the disciplinary
process. Disciplinary Counsel v. Stubbs, 128 Ohio St. 3d 344, 2011-Ohio-553,
944 N.E.2d 225. That suspension remains in effect.
{¶ 2} On February 14, 2011, relator, Columbus Bar Association, charged
Stubbs in a ten-count complaint with numerous violations of the Rules of
Professional Conduct. Although the complaint was served on Stubbs by certified
mail, she did not file an answer, and relator moved for an entry of default. The
Board of Commissioners on Grievances and Discipline appointed a master
commissioner, who found that Stubbs had committed some of the charged
misconduct and recommended an indefinite suspension, to run consecutively to
Stubbs’s previous suspension. The board adopted the master commissioner’s
findings of fact and misconduct but, as a sanction, recommends permanent
disbarment. Other than the one exception noted below, we adopt the board’s
findings of fact and misconduct, and we permanently disbar Stubbs from the
practice of law in Ohio.
Misconduct
Count I—Kacey R. Noel Matter
{¶ 3} Based on the sworn affidavit of grievant Kacey R. Noel, the board
found that in early December 2007, Noel, who had been accused of writing bad
checks, gave Stubbs a $500 retainer and a $100 gift card to represent her. At that
time, Stubbs’s first attorney-registration suspension was in effect, and she
informed Noel that she needed the retainer to pay her reinstatement fee. Despite
Stubbs’s attempt to work out an agreement with Noel’s creditors, Noel was
indicted on December 19, 2007.
{¶ 4} Noel felt that Stubbs had failed to adequately represent her and
requested the return of her money and gift card. Stubbs refused, and the two
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subsequently exchanged a number of increasingly uncivil voicemail messages.
Stubbs then filed a criminal complaint against her client with the Columbus city
attorney, and according to Noel, Stubbs provided the city attorney with recordings
of Noel’s voicemail messages containing client communications to corroborate
the allegations. Noel claims that the city attorney initially charged her with
telephone harassment, but the charges were later dismissed.
{¶ 5} The master commissioner and board found that Stubbs’s conduct
violated Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation
to a client), 1.5(a) (prohibiting a lawyer from making an agreement for, charging,
or collecting an illegal or clearly excessive fee), 1.16(d) (requiring a lawyer
withdrawing from representation to take steps reasonably practicable to protect a
client’s interest, including returning all client property to which the client is
entitled), 1.6(a) (prohibiting a lawyer from revealing confidential client
information without informed consent), 5.5(a) (prohibiting a lawyer from
practicing law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction),1 and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law). We adopt
these findings of fact and of misconduct.
Count IV—Roland Pschibul Matter
{¶ 6} Based on the sworn affidavit of grievant Roland Pschibul, the
board found that in May 2009, Stubbs represented Pschibul’s wife in a custody
1. In count I of its complaint, as well as in counts VI and VII, relator charged Stubbs with a
violation of “Rule 5.5(b) [unauthorized practice of law].” For all three counts, the master
commissioner and board determined that Stubbs had engaged in the unauthorized practice of law;
however, they determined that her conduct violated Prof.Cond.R. 5.5(a), rather than 5.5(b). From
the misconduct described, it is clear that relator meant to cite Prof.Cond.R. 5.5(a). We agree with
the master commissioner and board’s determination that Stubbs’s charged misconduct here—i.e.,
the unauthorized practice of law—violates Prof.Cond.R. 5.5(a). See, e.g., Disciplinary Counsel v.
Meehan, 133 Ohio St. 3d 51, 2012-Ohio-3894, 975 N.E.2d 972, ¶ 5 (attorney violated Prof.Cond.R.
5.5(a) for practicing while under attorney-registration suspension).
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matter regarding his minor daughter. During that representation, Stubbs
improperly notarized and filed a falsified affidavit. Specifically, Stubbs filed an
affidavit purportedly signed by the minor child, but the child did not sign the
document and was not in Stubbs’s presence when she notarized it. The master
commissioner and board found that Stubbs’s conduct violated Prof.Cond.R.
8.4(h), and we agree.
{¶ 7} Although relator’s complaint alleged that Stubbs also violated
Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that
reflects adversely on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting
a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct
that is prejudicial to the administration of justice), neither the master
commissioner nor the board made any findings with respect to these allegations.
Because the board did not address these violations, we dismiss the charges.
Count VI—Patricia Hall Matter
{¶ 8} Based on the sworn affidavit of grievant Patricia Hall, the board
found that on November 10, 2010, Hall paid Stubbs a $285 retainer to represent
her in a divorce case. Stubbs, however, never filed the divorce case, and
whenever Hall inquired as to the date on which the action would be filed, Stubbs
either failed to return her phone calls or gave her a false date. Although Stubbs
initially agreed to refund Hall’s money, she never returned it. The master
commissioner and board found that Stubbs’s conduct violated Prof.Cond.R. 1.1,
1.5(a), 1.16(d), and 8.4(h). We agree.
{¶ 9} We disagree, however, with the master commissioner and board’s
finding that sufficient evidence exists to conclude that Stubbs violated
Prof.Cond.R. 5.5(a) for representing Hall while her license was suspended.
Stubbs was suspended from the practice of law between November 3, 2009, and
March 5, 2010, for failure to register. The master commissioner and board found
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that Stubbs accepted Hall’s retainer during this time period. While Hall’s
grievance states that she paid Stubbs on “November 10, 2009,” relator’s
complaint and Hall’s sworn affidavit state that she hired Stubbs on “November
10, 2010.” Accordingly, we find that the sworn evidence in the record does not
clearly and convincingly show that Stubbs committed the charged misconduct,
and we therefore dismiss the violation. We also dismiss relator’s charges for
violations of Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence
in representing a client) and 1.4 (requiring a lawyer to reasonably communicate
with a client) because the master commissioner and board made no findings with
respect to these charges.
Count VII—Adoption Matter
{¶ 10} Based on the sworn affidavit of grievant Kelly C. Patton, the board
found that in October 2009, Stubbs filed an adoption petition on behalf of a
prospective parent in the Franklin County Probate Court. The matter was
scheduled for a hearing before Magistrate Patton on December 8, 2009. As noted
above, Stubbs’s license was suspended at that time. Stubbs unsuccessfully
attempted to continue the hearing, and on the day of the hearing, her client
appeared in court alone. After questioning from the magistrate, the client stated
that she was unaware of Stubbs’s suspension. Stubbs then appeared and
proceeded to counsel her client and a representative from Franklin County
Children Services about the need for a continuance due to a factual matter. The
magistrate continued the matter until January 2010, at which time the client
appeared with new counsel.
{¶ 11} The master commissioner and board found, and we agree, that
Stubbs’s conduct violated Prof.Cond.R. 1.1, 1.3, 1.4(a)(3) (requiring a lawyer to
keep the client reasonably informed about the status of a matter), 5.5(a), 8.4(c),
and 8.4(h).
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Count VIII—Reana Allen Matter
{¶ 12} Based on the sworn affidavit of grievant Reana Allen, the board
found that in September 2009, Allen paid Stubbs an initial retainer of $150 to
represent her in a divorce action. Stubbs later informed Allen that she had made
several court appearances in the case and that the trial was set for March 23, 2010.
Stubbs, however, had not scheduled any hearings or otherwise appeared in the
case after filing the complaint, and when Allen attempted to reach Stubbs, she did
not respond. In addition, Stubbs never informed Allen of her license suspension,
and Allen was ultimately forced to obtain new counsel. The master commissioner
and board found, and we agree, that Stubbs’s conduct violated Prof.Cond.R. 1.1,
1.3, 1.4(a)(3), 1.5(a), 1.16(d), 5.5(a), and 8.4(h).
Count X—Failure to Cooperate
{¶ 13} Relator charged Stubbs with failure to cooperate in eight
disciplinary investigations. For each investigation, relator submitted sworn
testimony demonstrating that it had mailed to Stubbs a copy of each grievance,
along with additional letters of inquiry for each grievance. Even though Stubbs
signed for most of the letters, she never submitted a written response as requested.
In addition, Stubbs signed a receipt accepting relator’s notice of deposition and a
subpoena requesting documents that were sent by certified mail, but she failed to
appear for the deposition and did not respond to the request for production of
documents.
{¶ 14} Because Stubbs repeatedly ignored relator’s investigative inquiries,
we agree with the master commissioner and board that Stubbs’s conduct 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(4)(G) (requiring a lawyer to cooperate with a disciplinary
investigation).
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Remaining Counts
{¶ 15} Relator did not submit evidence to support Counts II, III, V, and
IX of its complaint. We therefore dismiss the allegations in those counts under
former Gov.Bar R. V(6)(F)(1)(b), 64 Ohio St. 3d XCVII, which requires “[s]worn
or certified documentary prima facie evidence” in support of a motion for default.
Sanction
{¶ 16} 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.
{¶ 17} The board found no mitigating factors in this case but found eight
of the nine aggravating factors listed in BCGD Proc.Reg. 10(B)(1), including
prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct,
multiple offenses, lack of cooperation in the disciplinary process, refusal to
acknowledge the wrongful nature of the conduct, vulnerability of and resulting
harm to the client, and failure to make restitution. See BCGD Proc.Reg.
10(B)(1)(a), (b), (c), (d), (e), (g), (h), and (i).
{¶ 18} Relator recommended permanent disbarment. The master
commissioner found that because Stubbs’s misconduct preceded or overlapped
the misconduct for which she was indefinitely suspended in Disciplinary Counsel
v. Stubbs, 128 Ohio St. 3d 344, 2011-Ohio-553, 944 N.E.2d 225, the appropriate
sanction was another indefinite suspension, to run consecutively to the previously
imposed suspension. Based on the “pervasiveness” of Stubbs’s misconduct, the
board disagreed and recommends permanent disbarment.
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{¶ 19} We have previously explained that “ ‘[t]he normal penalty for
continuing to practice law while under suspension is disbarment.’ ” Disciplinary
Counsel v. Sabroff, 123 Ohio St. 3d 182, 2009-Ohio-4205, 915 N.E.2d 307, ¶ 21,
quoting Disciplinary Counsel v. Allison, 98 Ohio St. 3d 322, 2003-Ohio-776, 784
N.E.2d 695, ¶ 12. Moreover, we have held that “accepting legal fees and then
failing to carry out the contract for employment is tantamount to theft of client
funds and is also cause for disbarment, particularly when coupled with neglect, a
history of misconduct, and other disciplinary infractions.” Disciplinary Counsel
v. Frazier, 110 Ohio St. 3d 288, 2006-Ohio-4481, 853 N.E.2d 295, ¶ 54, citing
Columbus Bar Assn. v. Moushey, 104 Ohio St. 3d 427, 2004-Ohio-6897, 819
N.E.2d 1112, ¶ 16; see also Disciplinary Counsel v. Henry, 127 Ohio St. 3d 398,
2010-Ohio-6206, 939 N.E.2d 1255, ¶ 33 (“respondent’s pattern of neglect and
failure to perform as promised, followed by his failure to return unearned fees and
client documents and his complete disregard for the ensuing disciplinary
proceedings, warrants his permanent disbarment”); Cleveland Metro. Bar Assn. v.
Cicirella, 133 Ohio St. 3d 448, 2012-Ohio-4300, 979 N.E.2d 244, ¶ 12 (an
attorney was permanently disbarred when she “not only continued to practice law
while under suspension, but also took her client’s money, failed to carry out the
contract of employment, failed to return her client’s money or records, and failed
to cooperate in the resulting disciplinary investigation”).
{¶ 20} Having considered Stubbs’s conduct, the profusion of aggravating
factors, the absence of any mitigating factors, and our precedent, we conclude that
the appropriate sanction is permanent disbarment. Stubbs’s neglect of entrusted
client matters, her acceptance of client funds without performing the work, her
attempts to practice law while her license was suspended, her failure to inform
clients of her license suspension, her dishonesty, her incompetence, and her
failure to cooperate in the disciplinary process demonstrate that she is no longer
fit to practice law.
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{¶ 21} Accordingly, SaKeya MonCheree Stubbs is hereby permanently
disbarred from the practice of law in Ohio. Costs are taxed to Stubbs.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Jeffrey C. Rogers; Yvonne L. Twiss; and Bruce A. Campbell, Bar
Counsel, and A. Alysha Clous, Assistant Bar Counsel, for relator.
______________________
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