Disciplinary Counsel v. Smith (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Smith, Slip Opinion No. 2022-Ohio-840.]
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
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-840DISCIPLINARY COUNSEL v. SMITH.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Smith, Slip Opinion No.
2022-Ohio-840.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
year suspension, with the final six months stayed on conditions.
(No. 2021-0448—Submitted September 21, 2021—Decided March 23, 2022.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2019-015.
_________________
Per Curiam.
{¶ 1} Respondent, Samuel Ray Smith II, of Cleveland, Ohio, Attorney
Registration No. 0076242, was admitted to the practice of law in Ohio in 2003. On
December 6, 2017, we suspended him from the practice of law for 18 months, with
the final 12 months stayed on the condition that he engage in no further misconduct.
Disciplinary Counsel v. Smith, 152 Ohio St.3d 131, 2017-Ohio-8821, 93 N.E.3d
955, ¶ 8. In that case, Smith admitted that he had neglected a client’s appeal, failed
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to deposit advanced fees into his client trust account, made a false statement to a
court, and made misrepresentations to disciplinary counsel during the disciplinary
proceedings. Id. at ¶ 4. We reinstated him to the practice of law on June 26, 2018.
Disciplinary Counsel v. Smith, 153 Ohio St.3d 1221, 2018-Ohio-2468, 104 N.E.3d
783, ¶ 3.
{¶ 2} In a second amended complaint filed in May 2020, relator,
disciplinary counsel, charged Smith with 19 ethical violations arising from his
conduct in four separate client matters. Among other things, the complaint alleged
that Smith had signed and filed a plea-in-absentia form on behalf of a client without
the client’s permission and that he had falsely notarized the form, failed to deposit
advanced fees into his client trust account, failed to act with reasonable diligence
and provide competent representation, failed to comply with the requirements of
his previous suspension order, and failed to take reasonable steps to protect his
clients or to refund the unearned portions of their fees upon the termination of the
representation.
{¶ 3} The parties submitted stipulations of fact, and Smith admitted that he
had committed seven rule violations. After conducting a hearing, a three-member
panel of the Board of Professional Conduct issued a report finding that Smith had
committed eight additional rule violations and unanimously dismissing four others
alleged violations. Based on those findings of misconduct, the panel recommended
that Smith be suspended from the practice of law for two years, with six months
conditionally stayed. The board adopted the panel’s findings of fact, conclusions
of law, and recommended sanction.
{¶ 4} Smith objects to the board’s findings that he committed the contested
violations and argues that the appropriate sanction for his stipulated misconduct is
a fully stayed two-year suspension. For the reasons that follow, we overrule
Smith’s objections and adopt the board’s findings of misconduct and recommended
sanction.
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Misconduct
Count One—The Lattimore Matter
{¶ 5} In 2017, Smith was appointed to represent Stacy Lattimore in multiple
criminal cases. In June 2017, he met with her at the Cuyahoga County jail, where
she was serving a sentence following her conviction for a separate offense. During
that meeting, Smith presented Lattimore with a standard plea-in-absentia form by
which she could change her pleas in several cases from not guilty to guilty or no
contest, but Lattimore did not sign the document. Thereafter, at his office, Smith
signed Lattimore’s name to the document and notarized it—falsely stating that it
had been subscribed and duly sworn before him by Lattimore and without noting
that he had signed her name or whether he had obtained her consent to do so—and
then filed it with the court.
{¶ 6} Neither Lattimore nor Smith was present when the court relied on the
plea-in-absentia form to accept a no-contest plea in one of Lattimore’s cases and
guilty pleas in several other of her cases. The court sentenced Lattimore to an
additional, aggregate 540 days of incarceration, imposed fines totaling $1,850, and
permanently banned her from entering certain retail establishments.
{¶ 7} At Smith’s disciplinary hearing, Lattimore and Smith offered
conflicting testimony regarding Lattimore’s consent to the changes of her pleas.
Lattimore testified that she had refused to sign the plea-in-absentia document, did
not give Smith permission to sign the document for her, and told him that she no
longer wanted him to represent her. Smith claimed that he had signed the form
with Lattimore’s authorization.
{¶ 8} Finding that it was “unable to determine whether [Lattimore] was a
serial offender who authorized the plea in absentia to test the waters on sentencing
or an innocent who was unaccountably wronged by her lawyer,” the panel
unanimously dismissed the corresponding alleged violation of Prof.Cond.R. 1.2
(requiring a lawyer in a criminal case to abide by the client’s decision as to the plea
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to be entered). Nevertheless, the panel and the board found that by signing and
notarizing the form without noting that he had signed the document on Lattimore’s
behalf, Smith violated Prof.Cond.R. 3.3(a) (prohibiting a lawyer from knowingly
making a false statement of fact or law to a tribunal), 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).
{¶ 9} In his first objection, Smith objects to the board’s findings of
misconduct with respect to this count. He argues that any finding that he
“misrepresented the plea agreement to the [c]ourt or engaged in dishonesty or
conduct that was prejudicial to the administration of justice is inconsistent” with
the board’s dismissal of the alleged violation of Prof.Cond.R. 1.2. But Smith has
stipulated that he notarized the plea-in-absentia form—with the notarization stating
that Lattimore had personally appeared before him and had subscribed her name to
the document—when in fact he had signed her name to the document and then
notarized the signature without indicating that the signature was not Lattimore’s.
Smith has therefore admitted facts sufficient to support the board’s findings that he
violated Prof.Cond.R. 3.3(a), 8.4(c), and 8.4(d). We therefore overrule Smith’s
objections regarding those findings and adopt the board’s determination that his
conduct violated those rules.
Count Two—The McLeod Matter
{¶ 10} On March 31, 2016, Colette McLeod, as the fiduciary of her late
father’s estate, hired Smith to file a civil action to recover property that had
belonged to her father, which allegedly had been misappropriated from the estate.
McLeod signed a fee agreement with Smith that provided for a flat fee of $2,500
for representation through trial—though the agreement did not specify that the fee
would be deemed earned upon receipt or inform McLeod that she would be entitled
to a refund of all or part of the fee if Smith did not complete the representation. By
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early July 2016, McLeod had paid $1,750 of the fee plus $250 for a filing fee.
Smith has admitted that he did not deposit any of those funds into his client trust
account.
{¶ 11} Throughout Smith’s representation of McLeod, McLeod
emphasized that time was of the essence in filing and pursuing the civil action, and
Smith does not dispute that fact. In September 2016, McLeod sent Smith a letter
in which she terminated his representation and requested a full refund on the ground
that Smith had failed to provide her with any legal representation. Smith responded,
promising to diligently represent McLeod, and McLeod allowed him to continue
the representation.
{¶ 12} Smith did not file a civil action on McLeod’s behalf until January
2017, approximately ten months after he was retained to do so. In February 2017,
McLeod attempted to terminate Smith’s representation a second time. But after
speaking with him, she once again permitted him to continue the representation.
{¶ 13} Smith was unable to obtain service on the defendant in McLeod’s
lawsuit by certified mail or first-class mail. At an August 30 case-management
conference, the court informed Smith that it would dismiss the case if service was
not perfected by the next court date, which was October 17. Smith waited until
October 5 to file an affidavit for service by publication, despite his being aware that
that process could take more than six weeks. Smith eventually obtained service on
the defendant, but the defendant failed to answer the complaint or otherwise appear.
{¶ 14} The court set a hearing on default for December 19 and ordered
Smith to file a motion for default, to give the defendant seven days’ notice of the
hearing, and to submit an affidavit of damages and a proposed judgment entry.
Smith did not comply with the trial court’s order before this court suspended his
license to practice law on December 6.
{¶ 15} In connection with Smith’s prior suspension, this court ordered him
to notify all his clients by certified mail that he had been suspended and that they
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should seek legal services elsewhere, calling attention to any urgency in seeking
new counsel. We further ordered him to deliver the clients’ files to them and to
refund any unearned portions of the clients’ fees.
{¶ 16} Smith represented to relator that he had sent a letter to McLeod by
certified mail informing her of his suspension, but McLeod denied receiving it, and
Smith was unable to produce a copy of the letter or a return receipt for it. Moreover,
the affidavit of compliance that he filed with this court on January 4, 2018, did not
include a certified-mail tracking number for a letter to McLeod’s address.
{¶ 17} On December 8, 2017, Smith sent McLeod a text message stating
that he had been “temporarily suspended from practicing law” and that he was
unable to continue representing her. He also informed McLeod that he would be
meeting with another attorney—later identified as Robert Smith III (“Smith III”)—
about Smith III’s taking over her case. The next day, Smith told McLeod that he
had given her file to Smith III, who would call her. But Smith III did not contact
McLeod and Smith never provided McLeod with Smith III’s full name or phone
number. At Smith’s disciplinary hearing, McLeod testified that she did not hire
another attorney because she had thought that Smith III was going to take over her
case.
{¶ 18} In a December 13, 2017 journal entry, the trial court noted that Smith
had been suspended from the practice of law. The entry stated that the court would
dismiss McLeod’s case for lack of prosecution if she did not obtain new counsel or
inform the court that she would proceed pro se by January 22, 2018. Although
Smith sent McLeod a text message informing her that she had until January 22 to
obtain new counsel or decide to proceed pro se, he did not tell her that she needed
to file anything with the court. Instead, he told her, “Don’t worry, Mr. Smith [III]
will enter an appearance on your case and have the motion filed way before then.”
{¶ 19} In early December 2017, Smith III agreed to assume responsibility
for some of Smith’s cases. Smith delivered approximately 25 files, including
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McLeod’s, to Smith III’s office and met with Smith III on several occasions to
discuss the files. At Smith’s disciplinary hearing, Smith testified that he had
assumed that Smith III was taking over all the cases that he had delivered to Smith
III and that Smith III never told him that he was not taking over the McLeod case.
Smith III testified that he worked on at least eight of the cases that he received from
Smith but that there was no written confirmation of which files he had agreed to
handle.
{¶ 20} On January 8, 2018, Smith sent McLeod a text message stating that
Smith III had taken over her case, that he believed that Smith III had already filed
the motion for default judgment, and that Smith III would be calling her. However,
Smith III never contacted McLeod or entered an appearance in her case.
{¶ 21} The trial court dismissed McLeod’s case without prejudice on
January 23. After receiving from the court a copy of the entry dismissing her case,
McLeod called Smith. Smith told her that he would find out what had happened
and would have the “other attorney” call her, but McLeod did not hear back from
Smith or the “other attorney.”
{¶ 22} In March 2018, McLeod sent Smith a text message inquiring about
the dismissal of her case and the accompanying order for her to pay the court costs.
She also asked him to send her file to her and to issue a full refund because,
according to her, he had done “absolutely nothing on [the] case.” Smith replied
that he had spoken with “Mr. Smith [III],” who would call her right away to discuss
her case. Smith informed McLeod that her case would need to be refiled but that
she would not have to pay any additional fees and would eventually “get a
judgment.” He also told McLeod that he would get her file from Smith III and mail
it to her, but he did not send the file to her until three months later. In June 2018,
Smith represented to relator that he was prepared to refund McLeod’s $1,750 fee
in five monthly installments of $300, with a final payment in the sixth month
following his reinstatement to the practice of law, but he did not refund any portion
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of the fee before his October 2020 disciplinary hearing. McLeod did not pursue
her case through another attorney, and she never recovered her late father’s
property.
{¶ 23} The parties stipulated and the board found that Smith’s conduct in
the McLeod matter violated Prof.Cond.R. 1.15(c) (requiring a lawyer to deposit
advanced legal fees and expenses into a client trust account, to be withdrawn by the
lawyer only as fees are earned or expenses incurred), 1.16(d) (requiring a lawyer
withdrawing from representation to take reasonably practicable steps to protect a
client’s interest, including giving due notice to the client and promptly delivering
to the client all papers and property to which the client is entitled), 1.16(e)
(requiring a lawyer to promptly refund any unearned fee upon the lawyer’s
withdrawal from employment), and 3.4(c) (prohibiting a lawyer from knowingly
disobeying an obligation under the rules of a tribunal).
{¶ 24} The board also found that Smith’s ten-month delay in filing a
complaint on McLeod’s behalf and his delay in obtaining service on the defendant
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client). In his second objection, Smith objects to that finding,
arguing that the record demonstrates that over a five-month period, he made eight
separate but unsuccessful attempts to obtain service on the defendant.
{¶ 25} The fact that Smith filed McLeod’s complaint more than ten months
after he had been retained by McLeod and offered no reason for that delay—despite
McLeod’s insisting that time was of the essence—is alone sufficient evidence to
support the board’s finding that Smith failed to act with reasonable diligence and
promptness in representing McLeod. In addition, Smith attempted certified-mail
service at two addresses even after certified mail previously sent to those same two
addresses had already been returned marked “attempted not known” or “unable to
forward.” And even after the court stated on August 30, 2017, that it would dismiss
the case if service was not perfected by October 17, Smith waited more than a
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month to initiate the process of service by publication. These facts constitute clear
and convincing evidence that Smith violated Prof.Cond.R. 1.3.
{¶ 26} Smith also objects to the board’s finding that he failed to comply
with this court’s December 2017 suspension order, arguing that his
communications with McLeod about his suspension and his efforts to obtain new
counsel for McLeod constituted substantial compliance with the order. But the
evidence shows that Smith did not provide McLeod with all the information
required by that order, that he did not timely send her file to her, and that he did not
timely refund the unearned portion of her fee. Although Smith referred McLeod’s
case to another attorney, he did not even provide McLeod with the most basic
information—i.e., the attorney’s full name and contact information—to enable her
to protect her own interests. And in fact, the new attorney was not handling her
case. Under these circumstances, we decline to absolve Smith of his duty to comply
with the terms of our 2017 suspension order.
{¶ 27} For the reasons stated above, we overrule Smith’s second objection
and adopt the board’s findings of misconduct with respect to this count.
Count Three—The Huffman Matter
{¶ 28} On April 23, 2015, Beatrice Huffman retained Smith to represent her
in a personal-injury matter. Smith filed a civil action on Huffman’s behalf on April
14, 2017, and he continued to represent her until he was suspended in December
2017.
{¶ 29} Although relator charged Smith with five rule violations arising from
his representation of Huffman, the panel unanimously dismissed three of those
charges based on insufficient evidence. However, the parties stipulated and the
board found that Smith’s professional-liability insurance had twice lapsed during
his representation of Huffman and that he failed to notify her of those facts as
required by Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the
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lawyer does not maintain professional-liability insurance of a certain amount and
to obtain a signed acknowledgment of that notice from the client).
{¶ 30} The board also found that Smith violated Prof.Cond.R. 3.4(c) by
failing to notify Huffman of his suspension by certified mail at her correct address,
as required under our 2017 suspension order. The board acknowledged that Smith
had attempted to send notice of his suspension to Huffman by certified mail, but it
found that Smith had sent the notice to Huffman’s old address even though she had
informed him of her new address in 2016. Smith testified that when the letter was
returned to his office, he assumed that it had been returned because Huffman had
not signed for it. He took no further steps to serve her with the required notice of
his suspension.
{¶ 31} Smith objects to the board’s finding that he violated Prof.Cond.R.
3.4(c), arguing that his failure to effectuate notice of his suspension by certified
mail was a “relatively minor” violation. He asserts that Huffman had actual notice
of his suspension because he told her about it during a telephone conversation
immediately after it occurred, which, he says, mitigated any harm caused to
Huffman.
{¶ 32} However, the evidence shows that Huffman knew virtually nothing
about the status of her case. She testified that she never saw the complaint that was
filed and was unaware that Smith had filed it. Although Smith attempted to arrange
for Smith III to represent Huffman, Smith did not call to Huffman’s attention the
urgency of her seeking another attorney, as required by this court’s 2017 order.
Notice of the urgency of obtaining a new attorney was of the utmost importance,
given that Huffman’s case was already at risk of dismissal because Smith had
missed the trial court’s deadline for filing materials in support of Huffman’s motion
for default judgment. After Huffman failed to appear for a settlement conference
in March 2018, the court dismissed her case without prejudice and ordered her to
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pay court costs in the amount of $445.80. Based on the record before us, it does
not appear that her case was ever refiled.
{¶ 33} On these facts, we find that the actual notice that Smith provided to
Huffman regarding his suspension was not a permissible substitute for the
communication required under our 2017 suspension order. Smith’s failure to alert
Huffman of her need to secure new counsel, combined with Smith’s failed attempt
to secure new counsel on her behalf, deprived Huffman of a near-certain default
judgment—and ultimately, any judgment—in her personal-injury case. We
therefore overrule Smith’s third objection and adopt the board’s findings that Smith
violated Prof.Cond.R. 1.4(c) and 3.4(c) with respect to this count.
Count Four—The Payton Matter
{¶ 34} On September 10, 2012, Smith agreed to represent Alberta Payton
in three civil matters. Payton signed a contract for Smith’s legal services in which
she agreed to pay him a retainer of $4,500, and she made an initial payment of
$3,000. By October 2017, Payton had paid Smith an additional $1,560, at least
$750 of which was for filing fees associated with her cases. Smith did not deposit
the $3,000 payment or any of the advanced filing fees into his client trust account.
Smith stipulated that his failure to do so violated Prof.Cond.R. 1.15(c).
{¶ 35} Payton’s first case involved claims against the Cuyahoga County
probation department and one of its probation officers. She alleged claims of
negligent infliction of emotional distress and fraudulent misrepresentation arising
from events that occurred between January 2007 and February 2009. Her second
case involved claims against the Cuyahoga County psychiatric clinic and a doctor
employed by the clinic. She claimed that the defendants had caused her
posttraumatic stress as a result of a competency evaluation that they had conducted
on her in 2003.
{¶ 36} Smith determined that the statutes of limitations for the claims
alleged in both cases commenced in the first half of 2009. However, Smith did not
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file complaints regarding those claims until late 2016—more than seven years after
the statutes of limitations had commenced and more than four years after Payton
had retained him to pursue the claims.
{¶ 37} In each of those cases, the defendants filed a motion to dismiss the
complaint on the grounds that the claims were barred by the applicable statutes of
limitations and that they had immunity under Ohio’s Political Subdivision Tort
Liability Act, R.C. Chapter 2744. Rather than responding to those motions, Smith
voluntarily dismissed both cases pursuant to Civ.R. 41(A).
{¶ 38} Although Smith told Payton that he would be dismissing the actions
and assured her that he could refile them within one year, he never refiled them.
The board found that because the deadline for refiling the probation-department
action fell one day before Smith was suspended from the practice of law, the
responsibility for refiling that action fell squarely on Smith. Based on his failure to
timely refile the action, the board found that he violated Prof.Cond.R. 1.3.
{¶ 39} Payton’s third case involved a claim challenging Cleveland State
University’s (“CSU”) refusal to readmit her as a candidate to a master’s degree
program. Smith determined that the statute of limitations for that claim commenced
on January 31, 2011, but he waited until January 19, 2017, to file the action. The
complaint alleged that CSU, which is a state university, is a county agency.
{¶ 40} Several weeks after the complaint was filed, CSU filed a motion to
dismiss the action on the ground that the Court of Claims had exclusive jurisdiction
over the case because CSU is a state university. Smith did not respond to the
motion, and he voluntarily dismissed the case under Civ.R. 41(A) on March 2,
2017. The action was never refiled.
{¶ 41} The parties stipulated and the board found that Smith did not
complete his representation in any of Payton’s cases and did not refund any portion
of the $4,960 that she had paid him, in violation of Prof.Cond.R. 1.16(e). The board
then considered the intertwined issues of whether Smith had provided competent
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representation to Payton and whether he had given her enough information about
her legal matters to enable her to make informed decisions about the representation.
{¶ 42} At his disciplinary hearing, Smith testified that beginning in 2012
and extending over a long period, Payton informed him of many claims that she
wanted him to pursue, including matters involving her siblings, her neighbors, and
churches. He testified that regarding those types of issues, he had simply told her
that she had no viable causes of action, that she could not prove damages, or that
the statutes of limitations had expired. According to Smith, that advice “was
unnerving [to] her.” He claimed that he had spoken with Payton many times to
explain the three cases that he had decided to pursue for her and the potential
defenses to her claims, including the statutes of limitations and potential
governmental immunity. However, Smith did not produce any letters, emails, or
text messages documenting any of those communications, and Payton testified that
Smith never talked to her about those issues or suggested that they might make it
difficult for her to win her cases.
{¶ 43} Smith acknowledged that he had been “a little bit” concerned about
the statutes of limitations, but he stated that he had researched the issue and
concluded that he could hold off on filing the lawsuits based on the “theory of
continuing harm,” which he also referred to as “the discovery of harm” rule. He
explained that he had had a “good faith reason to believe that [Payton] was still
dealing with and suffering from * * * ongoing damages,” which, according to him,
extended the statute of limitations.
{¶ 44} In addition, Smith testified that he had “kind of” researched the issue
of governmental immunity as a possible defense to Payton’s claims, though he “had
not fully done the research” and believed that exceptions to that defense might
apply. He concluded that the potential defense was not enough to prevent the case
from moving forward. When Smith was questioned about his decision to file
Payton’s claims against CSU in the common pleas court instead of the Court of
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Claims, he testified only that he “thought” at the time that he filed the lawsuit that
the common pleas court was the proper venue.
{¶ 45} The board did not believe that Smith had performed any meaningful
research on those issues as, in its words, “a competent attorney would,” and it noted
that if Smith’s continuing-harm theory were to be accepted, a statute of limitations
would never expire in any case in which the plaintiff had suffered a permanent
injury that required continuous treatment. Moreover, the board noted that a
competent attorney facing the end of a statute-of-limitations period on a claim
would file the lawsuit within the shortest statute-of-limitations period that arguably
applied or would seek a tolling agreement from the prospective defendant.
{¶ 46} The board determined that after he took on the representation of
Payton, “[Smith] had the professional and ethical obligation to make sure he
provided her a clear explanation, preferably in writing, about the hurdles in going
forward with lawsuits in which the statute of limitations had begun to run years
before he even met with her, and years before he was retained to file lawsuits.” The
board explained that rather than having a “hard talk” with Payton about the realities
of her cases, Smith merely accepted her initial $3,000 payment and then took no
discernible action on her behalf for four years. Ultimately, the board found that
Smith had performed superficial and inadequate research and that his failure to
provide Payton with well-reasoned, competently researched advice regarding the
viability of her claims prevented her from making an informed decision about the
representation, in violation of Prof.Cond.R. 1.1 (requiring a lawyer to provide
competent representation to a client) and 1.4(b) (requiring a lawyer to explain a
matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation), and it found that those violations were
intertwined.
{¶ 47} Smith objects to the board’s findings that he violated Prof.Cond.R.
1.1, 1.3, and 1.4(b) with respect to this count. In support, he asserts that his delay
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in filing Payton’s civil actions was justified because (1) his research revealed a
theory under which the statutes of limitations were tolled, (2) he had a “well-
founded belief in his research,” and (3) he talked with Payton about her cases and
informed her about the deadlines for refiling them. However, Smith has produced
no evidence, other than his own testimony, demonstrating that he conducted
anything more than cursory research or ever informed Payton about the significant
impact that the statutes of limitations and the defense of governmental immunity
could have on her legal claims. We are not aware of any rule that tolls the statutes
of limitations in a negligence or personal-injury case based on the plaintiff’s
permanent injury or “continuing harm,” as Smith claimed existed. Furthermore,
the panel heard conflicting evidence about Smith’s conversations with Payton
regarding the viability of her claims, and it found Payton’s testimony on that issue
more credible. We defer to those credibility determinations because the panel
members saw and heard the witnesses firsthand and the record does not weigh
heavily against those determinations. See, e.g., Cuyahoga Cty. Bar Assn. v. Wise,
108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24.
{¶ 48} Based on the foregoing, we overrule Smith’s fourth objection and
adopt the board’s findings that Smith’s conduct in the Payton matter violated
Prof.Cond.R. 1.1, 1.3, 1.4(b), and 1.16(e).
Recommended Sanction
{¶ 49} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the attorney violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 50} The parties stipulated to one aggravating factor—that Smith has a
record of prior discipline. See Gov.Bar R. V(13)(B)(1). The board accepted that
stipulation and noted that Smith engaged in some of the types of misconduct for
which he was previously disciplined—namely, failing to diligently represent
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clients, failing to deposit funds into his client trust account, and making a false
statement to a tribunal. The board also found that Smith engaged in a pattern of
misconduct, committed multiple offenses, caused harm to vulnerable clients, and
failed to make restitution. See Gov.Bar R. V(13)(B)(3), (4), (8), and (9).
{¶ 51} As for mitigating factors, the board adopted the parties’ stipulations
that Smith did not possess a dishonest or selfish motive and exhibited a cooperative
attitude toward the disciplinary proceedings by entering into numerous stipulations
of fact and misconduct. However, the board declined to accord any mitigating
effect to the letters of four attorneys attesting to Smith’s good character and
reputation because only one of those attorneys demonstrated any knowledge of
Smith’s prior discipline or the allegations in this case.
{¶ 52} Although Smith admitted in March 2020 that he owed restitution in
the amounts of $2,000 to McLeod, $443.80 to the Cuyahoga County Common Pleas
Court for the costs assessed to Huffman, and $4,960 to Payton, he did not make that
restitution before his October 2020 disciplinary hearing. By January 6, 2021, he
had made full restitution to McLeod and a $500 payment to Payton. And in its
response to Smith’s objections to the board’s report, relator has acknowledged that
only the $443.80 in court costs assessed to Huffman remains unpaid. However, the
board attributed little or no mitigating effect to Smith’s payment of restitution
because it was not timely made. See, e.g., Disciplinary Counsel v. Sarver, 163 Ohio
St.3d 371, 2020-Ohio-5478, 170 N.E.2d 799, ¶ 31-32 (according no mitigating
effect to the respondent’s attempt to make restitution because the attempt was made
only one week before his disciplinary hearing).
{¶ 53} In determining the appropriate sanction for Smith’s misconduct, the
board considered three cases that Smith advanced in support of his argument for a
fully stayed suspension—Akron Bar Assn. v. Glitzenstein, 154 Ohio St.3d 557,
2018-Ohio-3862, 116 N.E.3d 1252; Disciplinary Counsel v. Guinn, 150 Ohio St.3d
16January Term, 2022
92, 2016-Ohio-3351, 79 N.E.3d 512; and Cleveland Metro. Bar Assn. v. Mariotti,
158 Ohio St.3d 522, 2019-Ohio-5191, 145 N.E.3d 286.
{¶ 54} The board distinguished this case from Glitzenstein and Guinn on
the ground that the attorneys in those cases had no prior disciplinary violations. See
Glitzenstein at ¶ 5; Guinn at ¶ 12. The board acknowledged that in Mariotti, we
imposed a conditionally stayed one-year suspension on an attorney who had a
record of prior discipline and who failed to act with reasonable diligence, lied to a
client about the status of the client’s case, and failed to cooperate in the ensuing
disciplinary investigation. Mariotti at ¶ 11, 12, 23, 28. However, Mariotti’s prior
suspensions were for continuing-legal-education and attorney-registration
violations, and his subsequent misconduct was tempered by his cooperation in the
disciplinary process and his genuine remorse. Id. at ¶ 1, 21.
{¶ 55} In this case, the board credited Smith for his cooperation in the
disciplinary process and acknowledged his testimony stating that he had learned his
lesson about falsely notarizing documents and could have done a better job of
transferring his clients’ files to another attorney. However, the board also found
that throughout the disciplinary proceedings, Smith offered many excuses for his
misconduct and attempted to cast blame on his clients and Smith III—actions that
it found to be inconsistent with an expression of genuine remorse.
{¶ 56} The board found that the facts of this case were most comparable to
two cases in which we required the attorneys to serve actual suspensions for
misconduct similar to that involved here—namely, Warren Cty. Bar Assn. v.
Marshall, 113 Ohio St.3d 54, 2007-Ohio-980, 862 N.E.2d 519 (imposing a two-
year actual suspension on an attorney who had a record of prior discipline,
neglected a client matter, failed to carry out a contract of employment, and lied to
the relator’s investigator about the status of his attorney registration), and Trumbull
Cty. Bar Assn. v. Large, 134 Ohio St.3d 172, 2012-Ohio-5482, 980 N.E.2d 1021(imposing a two-year suspension with six months conditionally stayed on an
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attorney for client-neglect and trust-account violations in three client matters,
dishonesty, and failure to comply with the terms of his prior suspension order that
required the attorney to notify his clients of his suspension and to return their files
and unearned retainers).
{¶ 57} Because Smith’s previous suspension of 18 months with 12 months
conditionally stayed for misconduct similar to that involved here did not deter him
from reengaging in such misconduct, the board believed that a lengthier suspension
was necessary to protect the public, help preserve the public’s trust in the legal
profession, and motivate Smith to correct his behavior. The board therefore
recommends that we suspend Smith from the practice of law for two years, with
the final six months conditionally stayed, and that we impose certain conditions on
his reinstatement.
Smith’s Objections to the Sanction Recommended by the Board
{¶ 58} Smith objects to the board’s recommended sanction. He argues that
the board should have attributed mitigating effect to his payment of restitution, his
expression of remorse for his misconduct, and the character letters submitted on his
behalf. Smith further attempts to distinguish the facts of this case from those of
Marshall and Large and maintains that his misconduct warrants only a fully stayed
two-year suspension comparable to those imposed in Glitzenstein, Guinn, and
Mariotti. We disagree.
{¶ 59} Despite Smith’s arguments to the contrary, the evidence supports the
board’s findings that Smith’s efforts to make restitution were untimely and that his
expressions of remorse were outweighed by his attempts to blame others for his
failure to protect his clients’ interests following his December 2017 suspension.
The evidence likewise supports the board’s determination that just one of Smith’s
character witnesses offered any indication of being aware of Smith’s prior
misconduct or the current charges against him, and the mitigating effect of that
single letter is negligible at best. Smith now asserts that the authors of the three
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other letters were friends and colleagues of his who were aware of his past
disciplinary proceedings—but he does not suggest that the authors were aware of
the charges in this case when they offered their opinions regarding his character
and reputation. We do not accept Smith’s belated, incomplete, and self-serving
statements regarding the knowledge possessed by those character witnesses as
evidence to bolster the credibility of their statements. We therefore conclude that
the board properly declined to attribute mitigating effect to Smith’s payment of
restitution, purported remorse, and evidence of his good character and reputation.
{¶ 60} We have already rejected Smith’s objections to the board’s findings
of misconduct and have adopted the board’s findings that Smith committed all
seven of the stipulated rule violations, plus eight others. These violations include
Smith’s knowingly making a false statement of fact to a tribunal, engaging in
dishonesty and conduct prejudicial to the administration of justice, and knowingly
disobeying our 2017 suspension order by failing to provide certain notices
regarding his suspension to two clients by certified mail. In addition, Smith
neglected the matters entrusted to him by McLeod and Payton, failed to provide
competent representation to Payton, and failed to explain Payton’s matters to her to
the extent reasonably necessary for her to make informed decisions regarding the
representation. These violations render Smith’s misconduct far more serious than
the conduct for which we imposed fully stayed suspensions in Glitzenstein, Guinn,
and Mariotti.
{¶ 61} Next, Smith challenges the board’s finding that his misconduct is
comparable to that at issue in Marshall, 113 Ohio St.3d 54, 2007-Ohio-980, 862
N.E.2d 519. Smith notes that we attributed aggravating effect to Marshall’s pattern
of misconduct in which he repeated some of the same offenses for which he had
previously been disciplined, id. at ¶ 13. Smith contends that he could not have
engaged in a pattern of misconduct similar to his prior misconduct, because his
mishandling of McLeod’s and Payton’s payments occurred before he was aware of
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the allegations of misconduct in his prior disciplinary case. But even if that were
true with respect to most—if not all—of Smith’s mishandling of McLeod’s and
Payton’s payments, there can be no doubt that Smith continued to engage in
dishonesty and make misrepresentations to a court after he admitted to similar rule
violations in his prior disciplinary case. Smith’s false notarization and filing of
Lattimore’s plea-in-absentia form occurred more than three months after he signed
and the parties filed a consent-to-discipline agreement in his first disciplinary case,
wherein he admitted that he knowingly made false statements of fact to a tribunal.
On these facts, we accept the board’s finding that Smith, like Marshall, continued
to engage in some of the misconduct for which he had been previously disciplined.
{¶ 62} Smith also attempts to distinguish his misconduct from that at issue
in Large, 134 Ohio St.3d 172, 2012-Ohio-5482, 980 N.E.2d 1021, on the ground
that Large involved multiple aggravating factors that are not present in this case.
He notes that Large acted with a selfish motive, failed to cooperate and made false
statements in the disciplinary proceedings, and that his vulnerable clients were
forced to represent themselves or obtain new counsel, id. at ¶ 29. We acknowledge
that Smith cooperated in these disciplinary proceedings and that he has not been
found to have acted with a selfish motive or to have made false statements during
them. But we do not find that Smith left his vulnerable clients in a better position
than Large left his.
{¶ 63} Although Smith informed his clients that he had been suspended
from the practice of law, he deprived them of the opportunity to protect their own
interests by failing to provide all the notices required under our 2017 suspension
order (i.e., calling attention to any urgency in their pending legal matters, turning
over their files, and refunding the unearned portions of their fees). And after Smith
had voluntarily undertaken the responsibility of obtaining new counsel for the
clients, he did not get any confirmation from Smith III that Smith III had agreed to
accept the McLeod, Huffman, or Payton cases—in writing or otherwise. He also
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failed to give two of those clients Smith III’s full name and contact information in
order to enable them to communicate directly with Smith III, even as he repeatedly
assured them that Smith III was taking action on their behalf. Furthermore, Smith
failed to advise and encourage those clients to seek new counsel—even after it
became evident that Smith III had not worked on their cases and had stopped
responding to Smith’s communications. Thus, Smith’s conduct made his clients
even more vulnerable than they would have been if he had simply complied with
our suspension order and left them to fend for themselves.
{¶ 64} After thoroughly reviewing the record, we agree with the board’s
assessment that the significant aggravating factors in this case greatly outweigh the
few mitigating factors. We also accept the board’s determination that an actual
suspension greater than the suspension imposed in Smith’s first disciplinary case is
necessary to (1) impress upon Smith the importance of honesty, integrity, and
diligence, (2) protect the public from future harm, and (3) preserve the public’s trust
in the legal profession. A more severe sanction is particularly appropriate here
given that in Smith’s first disciplinary case, he benefitted from a 12-month stay of
his 18-month suspension and was reinstated to the practice of law even though he
had failed to fully comply with the terms of our suspension order. Based upon the
foregoing, we overrule Smith’s objections and adopt the board’s recommended
sanction.
Conclusion
{¶ 65} Accordingly, Samuel Ray Smith II is suspended from the practice of
law for two years, with the final six months stayed on the conditions that he commit
no further misconduct and pay the costs of these proceedings. If Smith fails to
comply with the conditions of the stay, the stay will be lifted and he will serve the
entire two-year suspension.
{¶ 66} In addition to the requirements for reinstatement set forth in Gov.Bar
R. V(24) and the continuing-legal-education (“CLE”) requirements set forth in
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Gov.Bar R. X, Smith shall complete at least three hours of CLE focused on client-
trust-account management and at least six hours of CLE focused on law-office
management, and within 90 days of this order, Smith shall submit proof that he has
made restitution of $445.80 to the Cuyahoga County Court of Common Pleas for
the costs assessed in Huffman v. Greater Cleveland Regional Transit Auth.,
Cuyahoga C.P. No. CV 17 878978. Upon his reinstatement to the practice of law,
he shall be required to work with a monitoring attorney designated by relator for a
period of one year. Costs are taxed to Smith.
Judgment accordingly.
KENNEDY, DEWINE, DONNELLY, and STEWART, JJ., concur.
O’CONNOR, C.J., and FISCHER and BRUNNER, JJ., would impose an
additional 12-month suspension.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Audrey E. Varwig and
Michelle R. Bowman, Assistant Disciplinary Counsel, for relator.
Strip, Hoppers, Leithart, McGrath & Terlecky Co., L.P.A., and Nelson E.
Genshaft, for respondent.
_________________
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