Disciplinary Counsel v. Dougherty (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Dougherty, Slip Opinion No. 2021-Ohio-1240.]
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
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made before the opinion is published.
SLIP OPINION NO. 2021-OHIO-1240DISCIPLINARY COUNSEL v. DOUGHERTY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Dougherty, Slip Opinion No.
2021-Ohio-1240.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Knowingly disobeying an obligation under the rules of a tribunal—Failure
to keep a client reasonably informed about the status of a matter—Failure
to cooperate with a disciplinary investigation—Two-year suspension, with
conditions.
(No. 2020-1514—Submitted January 27, 2021—Decided April 14, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-023.
______________
Per Curiam.
{¶ 1} Respondent, Timothy Raymond Dougherty, of Las Cruces, New
Mexico, Attorney Registration No. 0064500, was admitted to the practice of law
in Ohio in 1995.
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{¶ 2} On October 30, 2019, we suspended Dougherty for two years, with
the second year conditionally stayed, for multiple ethical violations after he
neglected a client’s legal matter, failed to hold client funds and property in trust,
failed to take reasonable steps to protect a client’s interests upon the termination
of his employment, and aided a suspended attorney in the unauthorized practice of
law. See Disciplinary Counsel v. Dougherty and Cicero, 157 Ohio St.3d 486,
2019-Ohio-4418, 137 N.E.3d 1174. On January 23, 2020, we found Dougherty in
contempt for failing to surrender his attorney-registration card and timely file an
affidavit of compliance. See Disciplinary Counsel v. Dougherty, 157 Ohio St.3d
1547, 2020-Ohio-179, 138 N.E.3d 1139. Several weeks later, disciplinary
counsel filed a motion to lift the stay and impose the remainder of Dougherty’s
suspension based on his failure to pay restitution ordered by this court.
Dougherty failed to respond to a show-cause order, and on April 13, 2020, we
found him in contempt for a second time, revoked the stay, and ordered him to
serve the entire two-year suspension. See Disciplinary Counsel v. Dougherty, 158
Ohio St.3d 1463, 2020-Ohio-1424, 142 N.E.3d 685.
{¶ 3} In an April 29, 2020 complaint, relator, disciplinary counsel, alleged
that Dougherty committed multiple ethical violations arising from his
abandonment of two clients’ legal matters and failure to cooperate in the ensuing
disciplinary investigation.
{¶ 4} The parties submitted stipulations of fact, misconduct, and
aggravating and mitigating factors, and Dougherty testified at a hearing before a
three-member panel of the Board of Professional Conduct. The board issued a
report finding that Dougherty had committed the charged misconduct and
recommending that he be suspended from the practice of law for two years, to run
concurrently with the suspension imposed on October 30, 2019, and that we
impose additional conditions on his reinstatement. No objections have been filed.
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{¶ 5} We adopt the board’s findings of misconduct and recommended
sanction, with the exception that the current suspension shall be deemed to have
commenced on April 13, 2020.
Facts and Misconduct
Background
{¶ 6} Dougherty moved to New Mexico on May 12, 2019—four days after
his first disciplinary case was submitted to this court. At the November 13, 2020
hearing in this disciplinary case, Dougherty testified that when he moved to New
Mexico, he delegated his professional responsibilities in his pending client
matters to two individuals with whom he had previously shared office space—
attorney Ric Daniell (who represented Dougherty in his first disciplinary case)
and suspended attorney Chris Cicero (who was also a named respondent in
Dougherty’s first disciplinary case).
Count I—The Poindexter Matter
{¶ 7} In June 2017, Dougherty entered an appearance in a criminal case
that was pending against Jashon Poindexter in the Franklin County Court of
Common Pleas. After several continuances, Dougherty appeared at a pretrial
hearing on April 9, 2019. At that hearing, the court continued Poindexter’s trial
to May 13, 2019, and informed counsel that no further continuances would be
granted.
{¶ 8} Dougherty moved to New Mexico on May 12, 2019, without
notifying the court or filing a motion to withdraw from Poindexter’s case as
required by Loc.R. 18.01 and 18.02 of the Court of Common Pleas of Franklin
County, General Division (requiring an attorney desiring to withdraw from
representation to file a motion to withdraw at least 20 days before trial or obtain
direct permission from the court in extraordinary circumstances). The next day,
Daniell appeared at Poindexter’s trial on Dougherty’s behalf but did not file a
notice of substitution of counsel. After explaining Dougherty’s absence, Daniell
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requested a continuance to prepare for the trial. Although Poindexter briefly
appeared at the courthouse, he soon fled.
{¶ 9} While the judge attempted to call Dougherty, Daniell left a motion
for a continuance that did not include Poindexter’s signature or indicate his
approval with the bailiff and departed the courthouse. Unable to reach
Dougherty, the judge denied the motion and issued a warrant for Poindexter’s
arrest. The next day, the judge e-mailed Dougherty to inform him of what had
transpired. The judge also advised Dougherty that if he did not receive a response
within 24 hours, he would schedule a show-cause hearing to determine whether
Dougherty should be held in contempt of court.
{¶ 10} Cicero responded to the judge’s e-mail from Dougherty’s e-mail
account. He explained the circumstances of Dougherty’s move and represented
that Daniell planned to file a substitution of counsel later that day—though
Daniell never filed the document.
{¶ 11} Dougherty did not respond to the judge’s communications. Nor did
he comply with our October 30, 2019 suspension order, which required him to file
a notice of disqualification within 30 days with any court in which he had pending
litigation. Nearly ten months after we suspended his license to practice law,
Dougherty filed a motion to withdraw from Poindexter’s case and the court
granted the motion. In September 2020, Poindexter remained at large.
{¶ 12} The parties stipulated and the board found that Dougherty’s
conduct violated Prof.Cond.R. 1.16(c) (a lawyer shall not withdraw from
representation in a proceeding without leave of court if the rules of the tribunal so
require), 1.16(d) (requiring a lawyer withdrawing from representation to take
steps reasonably practicable to protect a client’s interest), 3.4(c) (prohibiting a
lawyer from knowingly disobeying an obligation under the rules of a tribunal),
and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to
the administration of justice).
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Count II—The McGonigle Matter
{¶ 13} On December 6, 2018, Dixie McGonigle hired Dougherty to
represent her in a custody case and paid him a $500 retainer. Dougherty entered a
notice of appearance that day. He later filed a motion to modify temporary orders
and twice appeared in court on McGonigle’s behalf. On March 12, 2019,
Dougherty was present in court and signed a continuance order that set the next
hearing for May 8, 2019. Dougherty failed to appear for the May 8, 2019 hearing
and did not inform his client that he could not continue the representation. Nor
did he file a motion to continue the hearing or withdraw from the case. The court
granted McGonigle a continuance to retain new counsel. The next day,
McGonigle sent Dougherty a text message requesting a refund, but he did not
timely respond to her request. However, the parties have stipulated that
Dougherty earned McGonigle’s entire $500 payment.
{¶ 14} The parties stipulated and the board found that this conduct
violated Prof.Cond.R. 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), and 8.4(d).
Count III—Failure to Cooperate
{¶ 15} In October and November 2019, relator sent Dougherty letters of
inquiry regarding the Poindexter and McGonigle matters. Dougherty signed for
both certified mailings but failed to respond. In January 2020, Dougherty sent
relator an e-mail regarding his failure to pay the restitution that was ordered in his
prior disciplinary matter, but he did not address the new allegations against him.
Relator replied to that e-mail and advised Dougherty that his failure to respond to
the new allegations could result in the filing of a formal disciplinary complaint.
Later that day, Daniell e-mailed relator asking that the letters of inquiry be
forwarded to him so that he could respond on Dougherty’s behalf. Relator
forwarded both letters of inquiry to Daniell and responded to his request for
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additional information, but neither Dougherty nor Daniell responded to the letters
of inquiry.
{¶ 16} The parties stipulated and the board found that Dougherty’s
conduct during the disciplinary investigation violated Prof.Cond.R. 8.1(b) and
Gov.Bar R. V(9)(G) (requiring a lawyer to cooperate with a disciplinary
investigation).
{¶ 17} We adopt the board’s findings of misconduct with respect to each
of these three counts.
Sanction
{¶ 18} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases. We have consistently stated that “in determining the
appropriate length of the suspension and any attendant conditions, we must
recognize that the primary purpose of disciplinary sanctions is not to punish the
offender, but to protect the public.” Disciplinary Counsel v. O’Neill, 103 Ohio
St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53.
{¶ 19} As aggravating factors, the parties stipulated and the board found
that Dougherty has a prior disciplinary record and that he committed multiple
offenses and failed to cooperate in relator’s investigation. See Gov.Bar R.
V(13)(B)(1), (4), and (5). In mitigation, the board accepted the parties’
stipulations that Dougherty did not act with a dishonest or selfish motive and
made full and free disclosure to the board and exhibited a cooperative attitude
toward the disciplinary proceedings after relator filed the formal complaint. See
Gov.Bar R. V(13)(C)(2) and (4). The board acknowledged Dougherty’s
testimony that he alone was responsible for complying with all of the
requirements for withdrawing from the Poindexter and McGonigle matters, that
he has not worked in the legal profession since he moved to New Mexico, and
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that he presently has no plans to return to Ohio. The board also attributed
mitigating effect to Dougherty’s sincere expression of remorse for his
misconduct.
{¶ 20} The parties jointly recommended that Dougherty be suspended for
two years and that his suspension run concurrently with the suspension imposed
in his first disciplinary case. In support of the concurrent suspension, the parties
relied on Columbus Bar Assn. v. Roseman, 156 Ohio St.3d 485, 2019-Ohio-1850,
129 N.E.3d 422. Roseman neglected a couple’s personal-injury matter, failed to
reasonably communicate with the clients, settled their case without their consent,
and effectively abandoned their case without performing the work necessary to
collect the settlement proceeds. He also failed to cooperate in the resulting
disciplinary investigation. No mitigating factors were present, and we attributed
aggravating effect to Roseman’s prior discipline, multiple rule violations, and
harm to vulnerable clients. We imposed a two-year suspension for Roseman’s
misconduct and ordered it to be served concurrently with the one-year partially
stayed suspension that we had imposed in his prior discipline case nearly three
years earlier, from which he had not yet been reinstated. Id. at ¶ 2, 27.
{¶ 21} The board also considered two cases in which we imposed two-
year suspensions with 18 months conditionally stayed on attorneys who, like
Dougherty, effectively abandoned their clients. In Disciplinary Counsel v.
Brueggeman, 160 Ohio St.3d 198, 2020-Ohio-1578, 155 N.E.3d 833, an attorney
neglected the legal matters of two clients, failed to reasonably communicate with
those clients, and failed to provide one of them with competent representation.
And in Disciplinary Counsel v. Hoppel, 129 Ohio St.3d 53, 2011-Ohio-2672, 950
N.E.2d 171, the attorney accepted retainers from 14 separate clients, converted
that money to his own use, failed to perform the contracted work, and failed to
appear at multiple hearings on behalf of the affected clients.
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{¶ 22} The board found that the jointly recommended sanction in this case
fell well within the parameters of the sanctions imposed in comparable cases and
that running the two-year suspension concurrently with Dougherty’s earlier
suspension would achieve an outcome similar to that of Brueggeman and Hoppel.
In addition, the board recommends Dougherty’s reinstatement be conditioned
upon the completion of 12 hours of continuing legal education (“CLE”) on the
subject of law-office management and payment of the costs of this proceeding and
that upon reinstatement, he be required to serve a two-year period of monitored
probation, also focused on law-office management.
{¶ 23} After independently reviewing the record and our precedent, we
adopt the board’s recommended sanction, with the exception that the suspension
shall be deemed to have commenced on April 13, 2020—the date that we revoked
the stay of the two-year suspension imposed on October 30, 2019 in case No.
2018-1766.
Conclusion
{¶ 24} Accordingly, Timothy Raymond Dougherty is suspended from the
practice of law in Ohio for two years, which suspension shall be deemed to have
commenced on April 13, 2020. In addition to the conditions set forth in our
October 30, 2019 suspension order in case No. 2018-1766 and the requirements of
Gov.Bar R. V(24), Dougherty’s reinstatement shall be conditioned on the
completion of 12 hours of CLE on the subject of law-office management. Upon
reinstatement to the practice of law, Dougherty shall serve a two-year period of
monitored probation pursuant to Gov.Bar R. V(21), with monitoring focused on
law-office management. Costs are taxed to Dougherty.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
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January Term, 2021
Joseph M. Caligiuri, Disciplinary Counsel, and Lia J. Meehan and
Matthew A. Kanai, Assistant Disciplinary Counsel, for relator.
Timothy Raymond Dougherty, pro se.
_________________
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