Cleveland Bar Ass'n v. Kodish

110 Ohio St. 3d 162
CourtOhio Supreme Court
DecidedAugust 23, 2006
DocketNo. 2005-1585
StatusPublished
Cited by9 cases

This text of 110 Ohio St. 3d 162 (Cleveland Bar Ass'n v. Kodish) 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
Cleveland Bar Ass'n v. Kodish, 110 Ohio St. 3d 162 (Ohio 2006).

Opinions

Per Curiam.

{¶ 1} Respondent, Joan Allyn Kodish of Cleveland, Ohio, Attorney Registration No. 0013377, was admitted to the practice of law in Ohio in 1979. On November 2, 2004, relator, Cleveland Bar Association, charged respondent in an amended multicount complaint with professional misconduct. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and made findings of misconduct, which the board adopted, and a recommendation, which the board modified.

Misconduct

{¶ 2} Respondent is the sole shareholder of the Law Offices of Joan Allyn Kodish, L.P.A., and practices principally in consumer bankruptcy law. From 1994 through 2002, respondent was involved in over 530 bankruptcy cases as counsel for the debtor. She also served as counsel for debtors or debtors-in-possession in eight Chapter 11 cases.

{¶ 3} Relator charged respondent with 12 counts of Disciplinary Rule violations for incidents occurring from 1998 through 2004 and a 13th count for respondent’s failure to cooperate in the disciplinary investigation in violation of Gov.Bar R. V(4)(G). The panel and board dismissed the sixth count of the complaint, finding no clear and convincing evidence to support the alleged misconduct, and relator does not object to this determination. The board also found that relator did not present clear and convincing evidence to support Count IV, which charged respondent with retaining unearned fees, or Count VII, which charged respondent with a conflict of interest arising from an intimate relationship with a client’s representative. Relator does object to these findings and to the board’s failure to find more evidence, relative to Count XIII, of respondent’s failure to cooperate in the investigation of her misconduct.

Count I — Martin

{¶ 4} Theresa Martin paid respondent $900 in August 1999 to file a bankruptcy petition. Respondent filed a Chapter 7 petition on Martin’s behalf. Martin wanted to keep her automobile from her creditors, so respondent told her to have the automobile appraised. On November 29, 1999, respondent wrote to remind Martin to obtain an appraisal. Martin did not obtain the appraisal until December 8,1999.

[164]*164{¶ 5} In October 1999, however, the bankruptcy trustee moved for an order for Martin to turn over her vehicle or to pay the nonexempt value to the court, and respondent did not respond to the bankruptcy trustee’s motion. On November 5, 1999, the bankruptcy court granted the trustee’s motion and ordered Martin to surrender the vehicle.

{¶ 6} On December 3, 1999, the trustee filed a complaint to set aside the ordered discharge of Martin’s financial obligations, citing Martin’s failure to turn over the automobile or its value. Respondent did not answer the complaint or otherwise appear on Martin’s behalf. On February 18, 2000, the bankruptcy court entered a default judgment against Martin, denying her a discharge of her debts.

{¶ 7} Martin had repeatedly telephoned respondent’s office before the default judgment was granted, but she was unable to reach her, and respondent did not return any of the calls. Respondent did not testify at the hearing to explain her inaction. Her attorney, however, argued that respondent was unable to help Martin because Martin waited too long before having her vehicle appraised. Respondent’s counsel maintained that without the appraisal, respondent could ethically do nothing for her client.

{¶ 8} The board found one of the disciplinary violations charged against respondent in Count I. Because respondent ignored her client’s efforts to communicate about the pending bankruptcy case, the board found that respondent had violated DR 6 — 101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter).

Count II — Wilkes

{¶ 9} On July 18, 2001, respondent wrote a $1,400 check to Michael Wilkes from her Interest on Lawyer Trust Accounts (“IOLTA”) checking account. The check was returned for insufficient funds.

{¶ 10} The board found one of the disciplinary violations charged against respondent in Count II. By bouncing a check from her client trust account, the board found, respondent had violated DR 1-102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects on her fitness to practice law).

Count III — Triangle Development

{¶ 11} Among other violations, Count III alleged that respondent represented allied companies and individuals in separate bankruptcy cases, thus simultaneously representing clients with adverse interests without the clients’ informed consent, and that she also charged improper fees.

[165]*165A. Triangle and T.D.I. Fees

{¶ 12} Triangle Development Inc. (“Triangle”) and T.D.I. Investment Group Partners, Inc. (“T.D.I.”) retained respondent in September 1999. She agreed to represent both companies in pursuing Chapter 11 bankruptcies.

{¶ 13} In anticipation of her filing the bankruptcy petitions, respondent received two $10,000 checks: one to represent Triangle, the other to represent T.D.I. As part of her fee arrangement, respondent requested that Alfred E. Edwards III, a principal of both Triangle and T.D.I., personally guarantee payment of her fees. Respondent eventually disclosed the $20,000 fee after filing the bankruptcies, but she apparently did not disclose Edward’s guarantee. Respondent did not deposit the $20,000 into her IOLTA account; however, the board found no evidence that she had not earned these amounts before payment.

{¶ 14} Respondent filed Chapter 11 bankruptcy petitions for Triangle and T.D.I. on September 28, 1999. Respondent then traded Edwards the $10,000 checks for $20,000 in cash. A & A Quality Paving & Cement Co., L.L.C. (“A & A”), a company that Edwards had formed after Triangle’s and T.D.I.’s petitions were filed, made the $20,000 in cash available. Respondent agreed to represent A & A and accepted a ten percent ownership interest in the company.

B. Montgomery Representation

{¶ 15} On September 1, 2000, respondent filed the first of three separate bankruptcy proceedings she would pursue on behalf of Brenda Montgomery. At that time, Montgomery had an ownership interest in Triangle and was listed as a creditor of the company. Respondent, however, did not amend Triangle’s bankruptcy petition, in which Montgomery was named a codebtor, to disclose that she was also representing Montgomery in her bankruptcy proceedings.

{¶ 16} On September 28, 2001, while still representing Montgomery in bankruptcy, respondent faxed a letter to Montgomery proposing a financial settlement as a means to resolve undisclosed disputes that arose during respondent’s representation. The letter specified that the payments to Montgomery were contingent on her promise not to file a grievance claiming professional misconduct or to initiate any criminal prosecution. The letter stated:

{¶ 17} “After much soul searching, prayer, and recriminations against myself for the problems caused to you; I want peace and mutual respect between us. Therefore, below is an outline of a proposal to assist you in starting over.

{¶ 18} “$350 per week for two years payable directly to you and for which you can have a promissory note.

{¶'19} “Within 30-45 days, you will receive a lump sum of $5,000.00; which sum will reduce the balance owed above.

[166]

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Bluebook (online)
110 Ohio St. 3d 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-bar-assn-v-kodish-ohio-2006.