Disciplinary Counsel v. Simon

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Simon, Slip Opinion No. 2016-Ohio-535.]
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
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-535DISCIPLINARY COUNSEL v. SIMON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Simon, Slip Opinion No.
2016-Ohio-535.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to inform a client of any decision or circumstance with
respect to which the client’s informed consent is required and failing to keep
a client reasonably informed about the status of a matter—Conditionally
stayed six-month suspension.
(No. 2014-2155—Submitted June 23, 2015—Decided February 17, 2016.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 2014-013.
_______________________
Per Curiam.
{¶ 1} Respondent, Thomas John Simon of Ashtabula, Ohio, Attorney
Registration No. 009725, was admitted to the practice of law in Ohio in 1981. On
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February 16, 2011, we suspended Simon from the practice of law for one year, fully
stayed on conditions, for commingling personal and client funds in his client trust
account and failing to cooperate in the ensuing disciplinary investigation.
Disciplinary Counsel v. Simon, 128 Ohio St.3d 359, 2011-Ohio-627, 944 N.E.2d
660.
{¶ 2} On July 16, 2014, relator, disciplinary counsel, filed an amended
complaint with the Board of Commissioners on Grievances and Discipline1
charging Simon with multiple violations of the Rules of Professional Conduct in
two separate legal matters arising primarily from his alleged failure to reasonably
communicate with his clients. In his answer, Simon admitted many of the alleged
facts and that his conduct violated Prof.Cond.R. 1.4(c) (requiring a lawyer to inform
the client if the lawyer does not maintain professional liability insurance), but he
denied the remaining allegations of misconduct.
{¶ 3} The parties submitted stipulated facts and exhibits and a panel of the
board conducted a hearing. Based on the stipulated facts and the testimony of
Simon and the affected clients, the panel found that Simon failed to keep two clients
reasonably informed about the status of their legal matters, failed to obtain their
informed consent about certain aspects of their legal matters, neglected one client’s
matter, and failed to advise the other client that he did not carry malpractice
insurance. The panel also unanimously dismissed allegations that he knowingly
made a false statement of material fact in connection with his disciplinary matter
and engaged in conduct that was prejudicial to the administration of justice.
{¶ 4} The board adopted the panel’s findings of fact and misconduct as well
as its recommendation that Simon be suspended from the practice of law for two
years, with 18 months stayed on the condition that he engage in no further
misconduct. Simon objects to the board’s findings of fact and recommended
1
Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been
renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII.
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sanction, arguing that relator failed to establish the alleged misconduct by clear and
convincing evidence and that his stipulated misconduct warrants, at most, a fully
stayed suspension.
{¶ 5} Having thoroughly reviewed the record, we conclude that relator has
proven by clear and convincing evidence that Simon engaged in the charged
misconduct. Therefore, we overrule Simon’s first objection and adopt the board’s
findings of fact and misconduct. Having considered the applicable aggravating and
mitigating factors, however, we conclude that a six-month suspension, fully stayed
on the condition that Simon engage in no further misconduct, is the appropriate
sanction in this case.
Misconduct
Count One—Danny Hubbard
{¶ 6} Following the termination of his employment with the village of
Jefferson, Danny Hubbard retained Simon to pursue a wrongful-termination claim
shortly before the applicable statute of limitations expired. Simon timely filed a
complaint without requiring Hubbard to pay a retainer.
{¶ 7} Hubbard went to the courthouse for a scheduled pretrial hearing in
July 2011 and waited in the hallway outside of the courtroom, but Simon failed to
appear. Consequently, the court ordered Hubbard to pay the defendants reasonable
attorney fees of $150 and scheduled a hearing for Hubbard to show cause why his
complaint should not be dismissed. After receiving a copy of the entry, Hubbard
called Simon, who explained that he had simply forgotten to appear at the hearing.
Simon appeared at the show-cause hearing, and the court scheduled the matter for
mediation and a jury trial.
{¶ 8} Simon did not respond to the defendants’ first set of interrogatories
and requests for production of documents in early July, their renewed requests in
September, their October motion to compel discovery, or the court’s order granting
their motion to compel. And Hubbard testified that Simon never discussed any of
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the discovery requests with him. Rather than oppose the defendants’ motion for
summary judgment, Simon voluntarily dismissed Hubbard’s complaint, but
Hubbard testified that Simon never discussed that course of action before taking it.
Because Hubbard was unable to find new counsel willing to represent him, he did
not refile the case.
{¶ 9} Hubbard submitted a grievance to the certified grievance committee
of the Ashtabula County Bar Association, but the committee decided not to file a
complaint. Hubbard appealed that decision to the secretary of the Board of
Commissioners on Grievances and Discipline. After investigating Hubbard’s
grievance, relator filed a formal complaint alleging that Simon’s conduct violated
Prof.Cond.R. 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)(3) (requiring a lawyer to keep the client reasonably informed about the status
of a matter), and 1.4(c) (requiring a lawyer to inform the client if the lawyer does
not maintain professional liability insurance and obtain a signed acknowledgment
of that notice from the client).
{¶ 10} Simon stipulated that he failed to advise Hubbard that he did not
carry professional liability insurance and that his conduct violated Prof.Cond.R.
1.4(c). But he argued that he kept his client reasonably informed about the status
of his matter through telephone conversations and letters. In support of that
argument, he submitted five letters that he claimed to have sent to Hubbard
regarding his case—at least three of which Hubbard denied having received.
{¶ 11} The first disputed letter, dated July 16, 2010, stated that Simon was
willing to represent Hubbard but that he would require payment of a $3,750
retainer. In the second disputed letter, dated February 14, 2011, Simon reiterated
that he could not continue the representation beyond the filing of the complaint
unless he received the requested $3,750 retainer. That letter also suggested that if
the retainer was not paid and Hubbard could not find another attorney, Hubbard
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could voluntarily dismiss the complaint to extend the statute of limitations for an
additional year. The third disputed letter, dated November 23, 2011, stated that
Simon filed a notice of dismissal, effectively extending the statute of limitations for
Hubbard’s claim an additional year; identified the deadline for refiling the case;
and advised Hubbard that Simon was willing to continue the representation if he
paid a retainer.
{¶ 12} But Hubbard testified that he had not received these letters from
Simon and that he learned that his complaint had been dismissed when he went to
the courthouse and spoke to the judge’s secretary about the status of his case.
Moreover, he stated that Simon (1) never informed him that he would need to pay
a retainer to commence or maintain the representation, (2) never discussed the
defendants’ discovery requests with him, and (3) never discussed the notice of
dismissal with him before filing it.
{¶ 13} While Hubbard admitted that he received as many as three or four
letters from Simon, he also testified that he is dyslexic and that he had a friend read
the letters to him to ensure that he fully comprehended them. The board found that
under intense cross-examination, Hubbard maintained that he did not receive
Simon’s July 16, 2010, February 14, 2011, and November 23, 2011 letters, and that
Simon never informed him that he would dismiss the complaint if he did not pay a
retainer.
{¶ 14} The panel found Hubbard’s testimony to be more credible than
Simon’s. Therefore, in addition to Simon’s stipulated violation of Prof.Cond.R.
1.4(c), the panel determined that Simon failed to obtain Hubbard’s informed
consent before dismissing his complaint and failed to keep Hubbard reasonably
informed about the status of his legal matter in violation of Prof.Cond.R. 1.4(a)(1)
and (3). The board adopted those findings.
{¶ 15} Simon objects to the board’s findings, arguing that relator failed to
present clear and convincing evidence—sufficient to produce a firm belief or
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conviction as to the facts sought to be established—that his conduct in the Hubbard
matter violated Prof.Cond.R. 1.4(a)(1) and (3). See Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus (defining clear and
convincing evidence). The essence of Simon’s argument is that due to
inconsistencies in Hubbard’s testimony, the panel should have determined that
Simon’s testimony, supported by copies of the letters that he claimed to have sent
to Hubbard, was more credible. Simon therefore urges us to review the deposition
and hearing transcripts and assess the credibility of the witnesses for ourselves.
{¶ 16} We have held that this court renders the final determination of the
facts in disciplinary cases and that we are not bound by the findings of the board.
Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 708 N.E.2d 193 (1999), paragraph
one of the syllabus. We have also acknowledged that the panel members are in a
better position to assess the credibility of the witnesses, because they are able to see
and hear the witnesses firsthand. See, e.g., Cincinnati Bar Assn. v. Statzer, 101
Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶ 8. And for that reason, we
ordinarily defer to the panel’s credibility determinations unless the record weighs
heavily against those findings. Id.{¶ 17} While there were some inconsistencies in Hubbard’s testimony,
particularly with regard to the dates he met with Simon, his testimony regarding the
key elements of relator’s claim remained consistent. And although the panel did
not explain why it found Simon’s testimony to be less credible than Hubbard’s, we
note that Simon’s version of events had even more troubling inconsistencies. For
example, in responding to the initial inquiry regarding Hubbard’s grievance, Simon
did not mention, let alone produce, the letters that are now the key to his defense.
And when he submitted documents to the certified grievance committee three
months later, the one letter that Hubbard indisputably received was conspicuously
absent. That letter, forwarding a time-stamped copy of the complaint, instructed
Hubbard to refer all inquiries about the case to Simon and outlined Simon’s plans
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to commence discovery—without mentioning the need for a retainer or Simon’s
intent to dismiss the complaint. While the panel found that this evidence was
insufficient to prove that any of the letters Simon produced had been fabricated,2
we find that it is nonetheless sufficient to cast doubt on Simon’s credibility.
{¶ 18} Therefore, we conclude that the record does not weigh heavily
against the board’s credibility findings, overrule Simon’s first objection with
respect to the Hubbard matter, and adopt the board’s findings of fact and
misconduct with respect to this count.
Count Two: The Grippi Matter
{¶ 19} In April 2010, Louis Grippi retained Simon to represent him in
connection with a wrongful-termination claim against his former employer, the city
of Ashtabula, and a related unfair-labor-practice claim against his union for
refusing to pursue arbitration of that claim.3 He later retained a separate attorney
to pursue related federal claims.
{¶ 20} Simon filed a complaint against the Ashtabula city manager and the
president of the union in the Ashtabula County Court of Common Pleas in
November 2010. The following month, the city manager answered the complaint
and filed a motion for judgment on the pleadings, and the union moved to dismiss
the complaint. Although Simon sought and obtained leave to respond to the
defendants’ dispositive motions by April 15, 2011, he never actually filed a
response. Consequently, the judge dismissed Grippi’s case with prejudice on
August 10, 2011.
2
Based on the insufficiency of the evidence regarding the alleged fabrication of the letters, the panel
unanimously dismissed alleged violations of Prof.Cond.R. 8.1(a) (prohibiting knowingly making a
false statement of material fact in connection with a disciplinary matter) and 8.4(d) (prohibiting a
lawyer from engaging in conduct that is prejudicial to the administration of justice).
3
Grippi’s claim against the union was dismissed by the State Employment Relations Board on July
22, 2010.
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{¶ 21} Unaware that his case had been dismissed, Grippi sent Simon a letter
by certified mail asking for a status update. But on August 18, 2011, he read in the
local newspaper that the case had been dismissed with prejudice. When Grippi
inquired about the dismissal, Simon agreed to appeal it. He timely filed a notice of
appeal, but when he failed to file an appellate brief after receiving multiple
extensions of time, Grippi terminated his representation and hired the attorney who
was handling his federal claims to complete the appeal. The court of appeals
ultimately affirmed the dismissal of the action with prejudice. Grippi v.
Cantagallo, 11th Dist. Ashtabula No. 2011-A-0054, 2012-Ohio-5589.
{¶ 22} The panel members heard conflicting testimony from Simon and
Grippi. Simon testified that Grippi frequently stopped by his office and received
updates about his case during those visits. But the panel members believed that
Simon failed to keep Grippi informed about the status of the case and that he
allowed the case to be dismissed with prejudice without even notifying Grippi that
the defendants had filed dispositive motions. Therefore, the panel and board found
that Simon violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable
diligence in representing a client), 1.4(a)(1), and 1.4(a)(3).
{¶ 23} Simon objects, arguing that there is insufficient evidence to support
the board’s findings that he committed any misconduct in the Grippi matter. First,
he contends that Grippi admitted to having brief conversations about the
defendants’ dispositive motions, though Grippi claimed to have not known whether
Simon intended to respond to those motions. Simon also argues that Grippi knew
about the possibility of dismissal because he admitted that Simon had mentioned
Civ.R. 41 to him at some point during the representation. But Grippi also testified
that while he remembered Simon mentioning the rule number, he had not known
what the rule entailed.
{¶ 24} We conclude that the testimony identified by Simon does not weigh
heavily against the panel’s findings that Simon not only failed to keep Grippi
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reasonably informed about the status of his case but also failed to obtain Grippi’s
informed consent to allow the defendants’ dispositive motions to remain
unopposed. Furthermore, Simon’s performance of what he describes as
“substantial work” on Grippi’s case cannot excuse (1) his failure to discuss his
litigation strategy with his client, (2) his failure to obtain his client’s consent before
letting the defendants’ dispositive motions go unopposed, or (3) his failure to timely
file an appellate brief. Therefore, we overrule Simon’s objection with regard to this
matter and adopt the board’s findings of fact and misconduct with respect to this
count.
Sanction
{¶ 25} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties 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).4 Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251,
875 N.E.2d 935, ¶ 21.
{¶ 26} As aggravating factors, the board found that Simon had a prior
disciplinary offense, engaged in multiple offenses by failing to reasonably
communicate with two separate clients on multiple occasions, and failed to
acknowledge the wrongful nature of his conduct. See BCGD Proc.Reg.
10(B)(1)(a), (d), and (g). In mitigation, the board found that Simon did not act with
a dishonest or selfish motive and presented plentiful evidence of his good character
and reputation apart from the charged misconduct, including testimony from three
judges, six current or former law-enforcement officers, and four letters of reference.
See BCGD Proc.Reg. 10(B)(2)(b) and (e). The board acknowledged that Simon’s
4
Effective January 1, 2015, the aggravating and mitigating factors previously set forth in BCGD
Proc.Reg. 10(B) are codified in Gov.Bar R. V(13), 140 Ohio St.3d CXXIV.
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clients “were arguably not harmed by his inaction in their cases,” though it did not
attribute any aggravating or mitigating effect to that fact.
{¶ 27} Having considered Simon’s conduct, the applicable aggravating and
mitigating factors, and the sanctions imposed for comparable misconduct, the board
recommended that we suspend Simon for two years, with 18 months stayed on the
condition that he engage in no further misconduct.
{¶ 28} The board found that but for Simon’s prior discipline, the facts of
this case were strikingly similar to Lorain Cty. Bar Assn. v. Godles, 128 Ohio St.3d
279, 2010-Ohio-6274, 943 N.E.2d 988. After filing a personal-injury action on
behalf of a client, Godles elected to voluntarily dismiss the case rather than respond
to discovery requests, a motion to compel discovery, and a court order to compel
discovery. Id. at ¶ 5-6. Godles claimed that he called and wrote to the client to
advise him of his intent to withdraw from the representation and voluntarily dismiss
the case, but the client testified that the conversation never occurred and that he
never received the letter. Id. at ¶ 7. Despite the conflicting testimony and
credibility issues of the witnesses, we found that Godles did “very little” work and
failed to fully communicate with the client in violation of Prof.Cond.R. 1.4(a)(1)
through (5), and failed to advise the client that he did not carry professional liability
insurance in violation of Prof.Cond.R. 1.4(c). Id. at ¶ 12, 14. And we publicly
reprimanded him for that conduct. Id. at ¶ 18.
{¶ 29} In Disciplinary Counsel v. Turner, 140 Ohio St.3d 109, 2014-Ohio-
3158, 15 N.E.3d 851, we imposed a fully stayed two-year suspension on an attorney
who deposited personal funds into his client trust account, used the account only to
pay his personal and business expenses, and failed to cooperate in the disciplinary
process. While Turner’s misconduct is not similar to Simon’s, the panel noted that
the aggravating factors of prior discipline and an initial failure to cooperate in the
disciplinary process are comparable to Simon’s prior discipline and failure to
acknowledge the wrongful nature of his conduct, see id. at ¶ 16-18.
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{¶ 30} The panel also noted that while we have imposed actual suspensions
from the practice of law in cases involving the neglect of client matters, those cases
involved dishonest conduct, which has not been proven here. See, e.g., Medina Cty.
Bar Assn. v. Malynn, 131 Ohio St.3d 377, 2012-Ohio-1293, 965 N.E.2d 299(imposing a two-year suspension with six months stayed for misconduct including
the failure to preserve the identity of client funds, failure to reasonably
communicate with a client, failure to cooperate in multiple disciplinary
investigations, and conduct involving dishonesty, fraud, deceit, or
misrepresentation); Toledo Bar Assn. v. Harvey, 141 Ohio St.3d 346, 2014-Ohio-
3675, 24 N.E.3d 1106 (imposing a two-year suspension with six months stayed for
an attorney’s failure to provide competent representation, failure to reasonably
consult with a client, several client trust account violations, conduct prejudicial to
the administration of justice, and failure to cooperate in the ensuing disciplinary
investigation).
{¶ 31} Comparing the facts of this case to Godles, Turner, Malynn, and
Harvey, the panel and board recommend that we suspend Simon from the practice
of law for two years, with 18 months stayed on the condition that he commit no
further misconduct.
{¶ 32} Simon objects to the board’s recommended sanction, arguing that it
failed to accord any mitigating effect to his clients not suffering harm as a result of
his misconduct, and that it failed to acknowledge his full and free disclosure in
connection with this matter. He also contends that the board should have accorded
greater weight to his character evidence given the stature of the witnesses who
testified on his behalf and that he should not receive a sanction greater that a fully
stayed suspension.
{¶ 33} We reject Simon’s invitation to reconsider the board’s assessment of
the applicable aggravating and mitigating factors. Nonetheless, we conclude that
the sanction recommended by the board is not consistent with the sanctions
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imposed in the two cases that the board found to be most instructive—Godles and
Turner. Comparing Simon’s misconduct and the applicable aggravating and
mitigating factors to those cases, we believe that his sanction should be greater than
the public reprimand imposed in Godles but less than the fully stayed two-year
suspension imposed in Turner. Therefore, we conclude that the proper sanction for
Simon’s misconduct is a six-month suspension, fully stayed on the condition that
he commit no further misconduct.
{¶ 34} Accordingly, we overrule Simon’s first assignment of error, sustain
Simon’s second assignment of error in part, and suspend him from the practice of
law in Ohio for six months, fully stayed on the condition that he commit no further
misconduct. If Simon engages in additional misconduct, the stay will be lifted and
he will serve the entire six-month suspension. Costs are taxed to Simon.
Judgment accordingly.
PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
O’CONNOR, C.J., and O’DONNELL and LANZINGER, JJ., dissent and would
suspend the respondent for 24 months with 18 months stayed.
_________________
Scott J. Drexel, Disciplinary Counsel, and Stacy Solochek Beckman and
Donald M. Scheetz, Assistant Disciplinary Counsel, for relator.
Richard C. Alkire Co., L.P.A., Richard C. Alkire, and Dean C. Nieding, for
respondent.
_________________
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