Columbus Bar Assn. v. Kluesener (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Columbus Bar Assn. v. Kluesener, Slip Opinion No. 2017-Ohio-4417.]
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SLIP OPINION NO. 2017-OHIO-4417COLUMBUS BAR ASSOCIATION v. KLUESENER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Columbus Bar Assn. v. Kluesener, Slip Opinion No.
2017-Ohio-4417.]
Attorneys—Misconduct—Neglect of client matter, failure to keep client informed,
and failure to comply with discovery request—Six-month suspension, fully
stayed.
(No. 2017-0221—Submitted April 5, 2017—Decided June 22, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-036.
_______________________
Per Curiam.
{¶ 1} Respondent, Jeffrey Thomas Kluesener, of Columbus, Ohio, Attorney
Registration No. 0087256, was admitted to the practice of law in Ohio in 2011. On
August 26, 2016, relator, Columbus Bar Association, charged Kluesener with
professional misconduct arising from his neglect of a single client matter.
{¶ 2} A panel of the Board of Professional Conduct considered the cause on
the parties’ consent-to-discipline agreement. See Gov.Bar R. V(16).
SUPREME COURT OF OHIO
{¶ 3} In their consent agreement, the parties stipulate that Kluesener served
as a law clerk at the Michael D. Christensen Law Offices, L.L.C., for approximately
two years before he was admitted to the Ohio bar in May 2011 and assumed the
role of a lawyer with the firm.
{¶ 4} On April 21, 2011, Anthony Vera hired the firm to pursue a products-
liability claim against the manufacturer of a floor scrubber that allegedly caused
him serious and permanent injury in a November 2010 work-related accident.
Kluesener was involved in Vera’s representation from the initial intake interview,
first as a law clerk, and then as an attorney.
{¶ 5} Although Kluesener had never handled a products-liability case
before, he was lead counsel on Vera’s case and the only attorney identified as
plaintiff’s counsel on the complaint he drafted and filed in the Franklin County
Court of Common Pleas.
{¶ 6} Kluesener knew that he would need to retain an expert to support
Vera’s claim that the floor scrubber was defective, but he did not know how to find
an expert. He did not request the assistance of the other attorneys at his firm, even
though he was periodically under the supervision of Attorneys Chanda Higgins
(n.k.a. Chanda Brown) and Michael D. Christensen. He failed to respond to the
defendant’s discovery requests and an order to compel him to respond. And after
the defendant filed a motion to dismiss the complaint, Kluesener voluntarily
dismissed the complaint pursuant to Civ.R. 41(A).
{¶ 7} Kluesener refiled the complaint one year later, but the only effort he
made to gather additional information in support of Vera’s claim was to write a
single letter to the expert who had investigated the accident in conjunction with a
related workers’ compensation claim. But that expert had found that there was no
product defect and laid blame for the accident on the employer’s requirement that
the scrubber be parked in a certain way. After Kluesener once again failed to
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January Term, 2017
respond to a court order directing him to respond to the defendant’s discovery
requests, the court dismissed Vera’s case with prejudice on July 8, 2015.
{¶ 8} Kluesener admits that he did not communicate with Vera about his
failure to hire an expert, his failure to respond to the defendant’s discovery requests,
the dismissal of Vera’s complaint, or the fact that his failures could provide a cause
of action for legal malpractice. Vera terminated the representation in December
2015 and after obtaining new counsel, filed a legal-malpractice and spoliation
complaint against Kluesener and the Christensen firm. That complaint was settled
and dismissed in February 2016.
{¶ 9} Kluesener admits that his conduct violated Prof.Cond.R. 1.1
(requiring a lawyer to provide competent representation to a client), 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), 1.16(d) (requiring a lawyer withdrawing from representation to take steps
reasonably practicable to protect a client’s interest), and 3.4(d) (prohibiting a
lawyer from intentionally failing to make a reasonably diligent effort to comply
with a legally proper discovery request by an opposing party).
{¶ 10} The parties agreed that no aggravating factors are present and that
relevant mitigating factors include the absence of prior discipline, the absence of a
dishonest or selfish motive, full and free disclosure to the board and a cooperative
attitude toward the disciplinary proceedings, positive evidence of Kluesener’s
character and reputation, and his full acknowledgment of his misconduct. See
Gov.Bar R. V(13)(B); Gov.Bar R. V(13)(C)(1), (2), (4), and (5).
{¶ 11} The parties stipulated that a six-month, fully stayed suspension is the
appropriate sanction for Kluesener’s misconduct. The panel and the board found
that the consent-to-discipline agreement conforms to Gov.Bar R. V(16) and
recommend that we adopt the agreement in its entirety.
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SUPREME COURT OF OHIO
{¶ 12} We have imposed six-month stayed suspensions for comparable
misconduct in Dayton Bar Assn. v. Sebree, 96 Ohio St.3d 50, 2002-Ohio 2987, 770
N.E.2d 1009 (attorney undertook and then neglected client’s representation and
failed to respond to the client’s numerous requests for information regarding the
status of her case); Dayton Bar Assn. v. Hooks, 139 Ohio St.3d 462, 2014-Ohio-
2596, 12 N.E.3d 1212 (attorney accepted retainer and agreed to seek modification
of existing child-custody and child-support matters but failed to perform the work
and failed to keep the client informed about the status of his legal matter); and
Cleveland Metro. Bar Assn. v. Fonda, 138 Ohio St.3d 399, 2014-Ohio-850, 7
N.E.3d 1164 (attorney failed to act with reasonable diligence in two separate client
matters, failed to keep the clients reasonably informed about the status of their legal
matters, and failed to respond to their reasonable requests for information).
{¶ 13} We agree that Kluesener’s conduct violated Prof.Cond.R. 1.1, 1.3,
1.4(a)(3), 1.16(d), and 3.4(d) and that a six-month suspension, fully stayed on the
condition that he engage in no further misconduct, is the appropriate sanction for
his misconduct. Therefore, we adopt the parties’ consent-to-discipline agreement.
{¶ 14} Accordingly, Jeffrey Thomas Kluesener is hereby suspended from
the practice of law for six months, with the entire suspension stayed on the
condition that he engage in no further misconduct. If Kluesener fails to comply
with the condition of the stay, the stay will be lifted and he will serve the full six-
month suspension. Costs are taxed to Kluesener.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
_________________
R. Leland Evans; and Lori J. Brown, Bar Counsel, and A. Alysha Clous,
Assistant Bar Counsel, for relator.
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January Term, 2017
Kegler, Brown, Hill & Ritter Co., L.P.A., and Jonathan E. Coughlan, for
respondent.
_________________
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