Akron Bar Ass'n v. Holder

105 Ohio St. 3d 443
CourtOhio Supreme Court
DecidedJune 15, 2005
DocketNo. 2004-1406
StatusPublished
Cited by5 cases

This text of 105 Ohio St. 3d 443 (Akron Bar Ass'n v. Holder) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akron Bar Ass'n v. Holder, 105 Ohio St. 3d 443 (Ohio 2005).

Opinion

Per Curiam.

{¶ 1} Respondent, William P. Holder of Akron, Ohio, Attorney Registration No. 0015110, was admitted to the practice of law in Ohio in 1966. On June 16, 2004, we found that respondent had committed professional misconduct, including representing clients with competing interests, and suspended his license to practice for two years, staying on conditions the last 18 months. See Akron Bar Assn. v. Holder, 102 Ohio St.3d 307, 2004-Ohio-2835, 810 N.E.2d 426.

{¶ 2} On December 8, 2003, relator, Akron Bar Association, charged respondent in a ten-count complaint with additional violations of the Code of Professional Responsibility, some of which again stemmed from conflicts of interest. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and, based on the parties’ stipulated facts and exhibits and other evidence, made findings of fact, conclusions of law and a recommendation, all of which the board adopted.

The Netti Conflict

{¶ 3} Late in 1999, David Netti Jr. (“Netti”), Netti’s wife, Marie, and Herbert Wewer consulted respondent about representing Cabin Fever Log Homes, Inc. (“Cabin Fever”), a building manufacturing business with which the Nettis and Wewer were affiliated. At the time, Mrs. Netti owned 100 percent of Cabin Fever’s stock and kept the company’s books and accounts, while Netti oversaw the day-to-day production and construction work. Wewer, an engineering consul[444]*444tant with whom the Nettis had become friendly, had started to help with the business, anticipating that he would eventually share in the profits.

{¶ 4} Before Cabin Fever, Netti had owned and operated a similar business, Andover Group, Inc. Andover had gone bankrupt, and at about the same time, Netti also sought bankruptcy protection for himself. During most of the events at issue, both bankruptcies were pending in the United States Bankruptcy Court for the Northern District of Ohio.

{¶ 5} As of December 1999, three creditors had filed adversary proceedings to contest discharges in Netti’s personal bankruptcy. Although Netti was at that time represented by another lawyer, Wewer and the Nettis asked respondent to take over in Netti’s personal bankruptcy, to assist Cabin Fever in some legal matters, and to represent Andover against the IRS. Respondent never discussed with these four clients the possibility and extent of their conflicting interests, nor did he obtain his clients’ consent despite the risks attendant to the representation.

{¶ 6} Respondent and an associate entered their appearance in the Netti bankruptcy on December 21, 1999, and the predecessor attorney immediately withdrew. On January 6, 2000, respondent wrote to the Nettis to confirm the cost of his legal services. He also confirmed in his letter some legal advice that he had given the couple. Respondent reiterated that it was necessary for Mrs. Netti to place her shares of Cabin Fever in a trust because “[i]f these actions are not taken, Mrs. Netti will be drawn into Mr. Netti’s adversary cases and possibly into other law suits.”

{¶ 7} According to relator, respondent had no legal basis for this advice. Creditors’ claims had been pending against Netti for some time, yet Mrs. Netti was not then a party to any litigation involving her husband. Relator also faulted respondent for failing to warn that placing the Cabin Fever stock in a trust might be considered a fraudulent conveyance.

{¶ 8} Respondent later advised the bankruptcy court that his client had not paid his retainer, and in March 2000, he was permitted to withdraw. For a time thereafter, Netti represented himself against creditors’ claims. In earlier proceedings involving one of these claims, Netti had failed to produce requested documents and walked out of a deposition. The creditor had responded by moving to compel this discovery.

{¶ 9} The bankruptcy court had scheduled a pretrial in this creditor’s claim for June 14, 2000. Netti did not attend, nor did any attorney appear on his behalf. On June 19, 2000, the court granted the creditor’s motion to compel and ordered Netti to comply with discovery, including resumption of his deposition.

[445]*445{¶ 10} The Nettis subsequently rehired respondent and, on June 28, 2000, paid him $3,500. Respondent’s billing records reflect that he accepted this fee to provide legal services to Cabin Fever, Andover, and the Nettis on various matters and that he charged for some services within the next few days. Respondent’s accounts also reflect charges for work that he performed between July 1 and July 31, 2000, for Netti individually relative to the discovery order in the creditor’s claim.

{¶ 11} On July 5, 2000, the creditor’s counsel moved for default judgment and sanctions, arguing that Netti had failed to appear for his rescheduled deposition on July 3, 2000, to produce documents, and to pay costs as ordered. On July 14, 2000, respondent filed an appearance and a trial brief. Respondent failed, however, to respond to the motion for default judgment.

{¶ 12} On July 21, 2000, the bankruptcy court granted the motion for default and sanctions, thereby denying Netti discharge of a debt in excess of $98,000. The court also ruled that respondent’s trial brief was untimely. Respondent filed for reconsideration of the default on July 31, 2000, and impliedly blamed Netti for the lack of any response, falsely representing to the court that Netti had waited until mid-July 2000 to rehire him.

{¶ 13} The bankruptcy court scheduled a hearing on the creditor’s motion for attorney fees for July 31, 2000, and respondent sent his associate to appear. Although the motion for reconsideration had not yet made its way to the judge, the associate argued in favor of reconsideration. Per respondent’s motion, the associate also misrepresented to the court that Netti had rehired respondent in mid-July. The associate did not oppose the creditor’s claim for fees, advising the court that she was there only to “monitor” the proceedings. The court thereafter denied the motion for reconsideration, finding that Netti had been uncooperative and bore responsibility for not having promptly retained counsel.

{¶ 14} In an interview with relator’s investigators on July 31, 2003, respondent continued to deflect responsibility for his failure to oppose the motion for default. This time, however, respondent reported that the bankruptcy judge had discussed the creditor’s motion for default with him ex parte and had promised to grant judgment against Netti regardless of anything respondent might file. Netti testified before the panel that respondent had previously told him the same thing. Respondent repeated this story under oath at the hearing. The judge flatly denied respondent’s claim, and the panel credited the judge’s denial over respondent’s testimony.

{¶ 15} In the months that followed the default judgment, respondent and Wewer prevailed upon Mrs. Netti to set up a trust for her Cabin Fever stock. She was reluctant, but respondent helped to convince her that after the default her shares were at risk from her husband’s creditors. On September 13, 2000, [446]*446the Nettis executed the Netti Irrevocable Trust and, on respondent’s advice, Wewer became trustee.

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Related

Akron Bar Ass'n v. Holder
858 N.E.2d 356 (Ohio Supreme Court, 2006)
Cleveland Bar Assn. v. Greenberg
2006 Ohio 6519 (Ohio Supreme Court, 2006)
In re Application of Yazdian
112 Ohio St. 3d 409 (Ohio Supreme Court, 2006)
Akron Bar Ass'n v. Dietz
843 N.E.2d 786 (Ohio Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
105 Ohio St. 3d 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akron-bar-assn-v-holder-ohio-2005.