Cleveland Metropolitan Bar Ass'n v. Freeman

[Cite as Cleveland Metro. Bar Assn. v. Freeman, 128 Ohio St. 3d 421, 2011-Ohio-1483.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. FREEMAN.
[Cite as Cleveland Metro. Bar Assn. v. Freeman,
128 Ohio St. 3d 421, 2011-Ohio-1483.]
Attorneys at law — Misconduct — Multiple violations of Code of Professional
Responsibility and Rules of Professional Conduct — Failure to cooperate
in disciplinary investigation — Permanent disbarment.
(No. 2010-1479 — Submitted January 18, 2011 — Decided April 5, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-070.
__________________
Per Curiam.
{¶ 1} Respondent, Bryan S. Freeman of Lakewood, Ohio, Attorney
Registration No. 0070637, was admitted to the practice of law in Ohio in 1999.
{¶ 2} On August 17, 2009, relator, Cleveland Metropolitan Bar
Association, filed an 18-count complaint against respondent, alleging numerous
violations of the Code of Professional Responsibility and Rules of Professional
Conduct, arising from his conduct in eight separate client matters. The Board of
Commissioners on Grievances and Discipline was unable to obtain certified mail
service at respondent’s residence or office addresses. Therefore, the clerk of the
Supreme Court of Ohio accepted service on respondent’s behalf in accordance
with Gov.Bar R. V(11)(B).
{¶ 3} On January 1, 2010, relator filed a motion for entry of default, and
on January 15, 2010, respondent moved for leave to file an answer. In an April
26, 2010 entry, the board granted respondent an extension until May 24, 2010, to
answer the complaint. But when respondent again failed to answer the complaint,
relator renewed its motion for default judgment.
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{¶ 4} A master commissioner appointed by the board granted relator’s
motion, making findings of fact and misconduct and recommending that
respondent be indefinitely suspended from the practice of law. The board adopted
the master commissioner’s report in its entirety. Relator objects to this
recommendation, arguing that respondent’s conduct warrants permanent
disbarment.
{¶ 5} In light of respondent’s extensive misconduct, which includes
misappropriation of client funds, multiple instances of neglect, failure to
reasonably communicate with his clients, making false statements to clients and to
relator’s investigator, and a failure to cooperate in the ensuing disciplinary
investigations, we sustain relator’s objections and permanently disbar respondent
from the practice of law in Ohio.
Misconduct
{¶ 6} In a disciplinary proceeding, relator bears the burden of proving a
lawyer’s professional misconduct by clear and convincing evidence. Gov.Bar R.
V(6)(J); Akron Bar Assn. v. Catanzarite, 119 Ohio St. 3d 313, 2008-Ohio-4063,
893 N.E.2d 835, ¶ 5. Pursuant to Gov.Bar R. V(6)(F)(1)(b), a motion for default
in a disciplinary proceeding must be supported by “[s]worn or certified
documentary prima facie evidence in support of the allegations made.” In this
case, relator has submitted the affidavits, with accompanying documents, of seven
of respondent’s aggrieved clients and the affidavits of two judges, an assistant
United States attorney, assistant bar counsel, and two members of the certified
grievance committee. Additionally, relator has submitted certified copies of court
dockets, filings, and orders relating to the aggrieved clients’ cases, as well as
transcripts of a court proceeding and relator’s attempted deposition of respondent.
Having considered relator’s evidence, the master commissioner and board have
found that respondent has violated the ethical rules incumbent upon Ohio lawyers
in the following matters.
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Grievants Sawyer, Marshall, Bruce, and Mayle
{¶ 7} The board found that although respondent settled the personal-
injury claims of grievants Sawyer, Marshall, Bruce, and Mayle, he either failed to
distribute or failed to promptly distribute the proceeds of those settlements to the
grievants, their healthcare providers, or their subrogated insurers. And in one
instance, he failed to submit all of the client’s medical bills for reimbursement by
the tortfeasor. In three of those cases, respondent failed to answer or return his
client’s telephone calls seeking information about their legal matters.
{¶ 8} During the disciplinary investigation, respondent also advised
relator that he had been working with an assistant United States attorney to
resolve a Medicare lien on the proceeds of the Mayle settlement. In his affidavit,
however, that assistant United States attorney averred that there is no record that
respondent ever contacted his office regarding Medicare’s claim against that
grievant.
{¶ 9} The board found that respondent had committed one violation of
DR 6-101(A)(3) (prohibiting neglect of an entrusted legal matter), three violations
of Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), two violations of 1.4(a)(2) (requiring a lawyer to
reasonably consult with the client about the means by which the client’s
objectives are to be accomplished), four violations of 1.4(a)(3) (requiring a lawyer
to keep the client reasonably informed about the status of a matter), four
violations of 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with
reasonable requests for information from the client), one violation of 1.15(d)
(requiring a lawyer, upon request, to promptly render a full accounting of funds or
property in which a client or third party has an interest), and one violation of
8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation).
Grievants Harris and Resnick
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{¶ 10} After filing a complaint in Harris’s personal-injury action,
respondent failed to obtain service on some of the defendants and did not inform
the grievant of his intention to dismiss her case before he did so. Throughout the
representation, Harris was unable to reach respondent, and he failed to promptly
deliver her case file upon request. The board found that respondent’s conduct in
the Harris matter violated DR 6-101(A)(3) and Prof.Cond.R. 1.3, 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) and 1.4(a)(2) through
(4).
{¶ 11} Resnick had retained respondent to pursue a personal-injury claim
in June 2008. But when respondent failed to return several phone calls, Resnick
retained another attorney in early 2009. Although Resnick made several requests
for his file, respondent did not deliver it until approximately March 16, 2009. The
board found that this conduct violated Prof.Cond.R. 1.3, 1.4(a)(2) through (4), and
1.15(d).
Grievants Olivito and Coates
{¶ 12} Respondent represented another client in a personal-injury matter
that was filed in the Cuyahoga County Court of Common Pleas and later
transferred to the Carroll County Court of Common Pleas. During that
representation, the client received a letter on respondent’s letterhead from a
woman who identified herself as respondent’s assistant. The letter, dated October
15, 2008, informed the client that respondent had participated in a pretrial in her
case and that the court had scheduled another pretrial for December 15, 2008.
Neither docket reflects a pretrial set for the later date. However, the certified
docket and the affidavit of Judge Olivito in Carroll County demonstrate that
respondent failed to appear at the October 2008 pretrial and did not respond to
discovery requests or an order compelling discovery. Consequently, the court
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granted a motion to dismiss the action without prejudice that was filed by the
defendant in the personal-injury matter.
{¶ 13} The board found that respondent’s conduct with respect to the
client violated Prof.Cond.R. 1.3, 1.4(a)(2) through (4), 8.4(c), and 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice).
{¶ 14} Grievant Lisa L. Coates was the judge assigned to a case in which
respondent’s client was charged with operating a vehicle while under the
influence, driving under suspension, and failure to control. Although respondent
had advised the judge and the prosecutor that he would file a motion to suppress
before trial, he failed to do so. At respondent’s request, the judge continued the
trial for two weeks. On the date of the trial, respondent requested and received
another continuance after informing the court that he had been in a car accident.
{¶ 15} When respondent and his client failed to appear on the third trial
date, the court issued a bench warrant for the client’s arrest. The judge recalled
the warrant and set a fourth trial date after the client advised her that respondent
had not notified her of the trial date. When respondent failed to appear on the
next trial date, the judge granted a continuance to allow the client to retain new
counsel and issued a show-cause order to respondent. Respondent appeared at the
show-cause hearing, albeit late, and agreed to reimburse the local government that
filed the case for the costs associated with his failure to appear. Respondent
failed to pay the ordered restitution and did not appear at the hearing on the
prosecution’s motion to compel.
{¶ 16} The board found that respondent’s conduct violated Prof.Cond.R.
1.3 and 1.4(a)(2) through (4), as well as 8.4(c) and (d).
Failure to Cooperate in a Disciplinary Investigation
{¶ 17} Despite having received notice of the grievances against him,
respondent failed to cooperate in relator’s investigation and has never provided a
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written response to any of the grievances. The board found that respondent’s
conduct with respect to each of the eight grievances violated Prof.Cond.R. 8.1
(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).
Acceptance of Board’s Findings of Fact and Misconduct
{¶ 18} We accept the board’s findings of fact and misconduct with respect
to each of these matters because the record clearly and convincingly supports
them.
{¶ 19} Because we agree with the board’s findings that alleged violations
of Prof.Cond.R. 1.4(a)(1) were not supported by the evidence with respect to the
Bruce, Resnick, Mayle, Markey, and Coates matters, we hereby dismiss them.
We also observe that neither relator’s motion for default judgment nor the board’s
report addresses alleged violations of Prof.Cond.R. 1.4(a)(1) and (2) in the
Sawyer and Marshall matters, 1.16(d) in the Harris matter, or 1.3 in the Bruce
matter, and therefore we dismiss them.
Sanction
{¶ 20} 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 Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 21} In its default motion, relator argued that respondent’s misconduct
warrants permanent disbarment. The master commissioner and board, however,
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recommend that he be indefinitely suspended from the practice of law. Relator
objects to this recommendation, arguing that pursuant to our precedent,
respondent’s conduct involving the misappropriation of client funds, multiple
instances of neglect, and his complete failure to cooperate in the disciplinary
investigation warrants permanent disbarment.
{¶ 22} Respondent has committed more than 50 ethical violations,
including multiple instances of neglect and failure to reasonably communicate
with his clients or comply with their reasonable requests for information. He has
misappropriated settlement funds. He has made false statements to clients and to
relator’s investigator, failed to attend scheduled court appearances, and failed to
cooperate in the resulting disciplinary investigations. Furthermore, he has
delayed the board’s consideration of relator’s default motion, and consequently
has delayed the imposition of his sanction, by requesting and obtaining leave to
answer the complaint but failing to file an answer.
{¶ 23} As aggravating factors, the board found that respondent acted with
a dishonest or selfish motive, engaged in a pattern of misconduct involving
multiple offenses, failed to cooperate in the disciplinary process, failed to
acknowledge the wrongful nature of his conduct, caused harm to vulnerable
clients, and failed to make restitution. See BCGD Proc.Reg. 10(B)(1)(b), (c), (d),
(e), (g), (h), and (i). The only mitigating factor present is the absence of a prior
disciplinary record. See BCGD Proc.Reg. 10(B)(2)(a).
{¶ 24} We have previously recognized that neglect of entrusted legal
matters coupled with a failure to cooperate in the ensuing disciplinary
investigation warrants an indefinite suspension. See, e.g., Disciplinary Counsel v.
Hoff, 124 Ohio St. 3d 269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10; Cleveland Bar
Assn. v. Davis, 121 Ohio St. 3d 337, 2009-Ohio-764, 904 N.E.2d 517, ¶ 17.
Respondent’s conduct, however, also includes misappropriation of client
settlement funds and misrepresentation, and we have consistently recognized that
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the presumptive sanction for misappropriation of client funds is permanent
disbarment. See, e.g., Disciplinary Counsel v. Jones, 112 Ohio St. 3d 46, 2006-
Ohio-6367, 857 N.E.2d 1221, ¶ 22 (presumptive sanction for pattern of
misconduct involving dishonesty, misappropriation, and lack of cooperation in
disciplinary proceedings is disbarment); Lorain Cty. Bar Assn. v. Fernandez, 99
Ohio St. 3d 426, 2003-Ohio-4078, 793 N.E.2d 434, ¶ 9 (“The presumptive
sanction for misappropriation of client funds is disbarment”); Disciplinary
Counsel v. Smith, 101 Ohio St. 3d 27, 2003-Ohio-6623, 800 N.E.2d 1129, ¶ 9
(“Absent any mitigating factors, disbarment is the appropriate sanction for an
attorney’s misappropriation of client funds”); Cincinnati Bar Assn. v. Weaver,
102 Ohio St. 3d 264, 2004-Ohio-2683, 809 N.E.2d 1113, ¶ 15 (an attorney’s
“persistent neglect of his clients’ interests, failure to perform as promised, failures
to account for his clients’ money, and lack of any participation in the disciplinary
proceedings” warrant disbarment).
{¶ 25} Based upon the foregoing, we conclude that the only appropriate
sanction for respondent’s misconduct is permanent disbarment.
{¶ 26} Accordingly, Bryan S. Freeman is permanently disbarred from the
practice of law in Ohio. Costs are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Benesch, Friedlander, Coplan & Aronoff, L.L.P., Joseph N. Gross, and
David W. Mellott, for relator.
______________________
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