Cleveland Bar Ass'n v. Kraus

116 Ohio St. 3d 302
CourtOhio Supreme Court
DecidedDecember 11, 2007
DocketNo. 2007-1547
StatusPublished
Cited by1 cases

This text of 116 Ohio St. 3d 302 (Cleveland Bar Ass'n v. Kraus) 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. Kraus, 116 Ohio St. 3d 302 (Ohio 2007).

Opinions

Per Curiam.

{¶ 1} Respondent, David P. Kraus of Westlake, Ohio, Attorney Registration No. 0039592, was admitted to the practice of law in Ohio in 1988. On January 17, 2001, we suspended respondent’s license to practice for 18 months after finding that he had neglected clients’ cases, had failed to promptly deliver funds to which clients were entitled, and had withdrawn as counsel without taking reasonable steps to avoid prejudice to clients. Cuyahoga Cty. Bar Assn. v. Kraus, 91 Ohio St.3d 25, 2001-Ohio-234, 740 N.E.2d 1092. We stayed the suspension, however, on the conditions that respondent complete a monitored probation period, make restitution, and obtain treatment for the alcoholism that contributed to cause his misconduct. Respondent complied with these conditions, and on November 8, 2002, we terminated his probation. See Cuyahoga Cty. Bar Assn. v. Kraus, 97 Ohio St.3d 1218, 2002-Ohio-6299, 778 N.E.2d 1045.

{¶ 2} The Board of Commissioners on Grievances and Discipline recommends that we now suspend respondent’s license to practice for two years, based on findings that he (1) neglected the cases of four additional clients, (2) failed to return funds to which two clients were entitled, and (3) notarized a client’s signature in violation of the jurat. The board further recommends a stay of the second year of this suspension, provided that respondent continue treatment for his chemical dependence and serve under a one-year monitored probation. On review, we agree that respondent violated the Code of Professional Responsibility as found by the board and that a two-year suspension, with one year stayed on conditions, is appropriate.

{¶ 3} Relator, Cleveland Bar Association, charged respondent in a multicount amended complaint with professional misconduct, including violations of DR 1-[303]*303102(A)(4) (prohibiting conduct involving fraud, deceit, dishonesty, or misrepresentation), 1-102(A)(5) (prohibiting conduct that is prejudicial to the administration of justice), 6-101(A)(3) (prohibiting neglect of entrusted legal matters), and 9-102(B)(4) (requiring a lawyer to promptly deliver funds that a client is entitled to receive). A panel of the board considered the cause on the parties’ consent-to-discipline agreement, filed pursuant to Section 11 of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). The panel accepted the agreement, found the stipulated facts and misconduct, and recommended the sanction that the parties jointly proposed — the two-year suspension with one year stayed on conditions. The board adopted the panel’s findings of misconduct and recommendation.

Misconduct

Count I — The McDonald Case

{¶ 4} In July 2004, respondent agreed to represent Carolyn Ann McDonald in a personal-injury claim against a department store. Respondent negotiated extensively to resolve McDonald’s claim, and the parties settled the dispute. In April 2005, the department store’s insurer sent respondent a check, made payable to respondent and his client, for $1,500.

{¶ 5} McDonald authorized respondent to endorse the check and settlement agreement on her behalf. Respondent signed McDonald’s name as instructed, but he also notarized her signature on the settlement agreement, falsely stating that he had witnessed the signing. Respondent then delayed sending McDonald her $1,000 share of the settlement proceeds. Though respondent sent McDonald $350 shortly after he received the settlement check, he did not deliver the $650 balance until December 15, 2005.

{¶ 6} By falsely representing that he had witnessed McDonald’s signature as a notary, respondent violated DR 1-102(A)(4). By failing to promptly pay McDonald all the money to which she was entitled, respondent violated DR 9-102(B)(4).

Count II — The Griffin Case

{¶ 7} In March 2005, Shirley Griffin retained respondent to defend her son against criminal charges in Cuyahoga County Common Pleas Court. Griffin paid respondent a flat fee of $1,500. Respondent consulted with the Griffin family on the telephone and in person about the son’s case and also discussed discovery with the assigned assistant prosecutor.

{¶ 8} In June 2005, respondent appeared in court with his client and, on his chent’s behalf, entered into a plea agreement with the assistant prosecutor. The [304]*304court scheduled sentencing for July 13, 2005. Respondent did not appear for that proceeding, nor did he appear for the rescheduled sentencing hearing two days later. When respondent failed to appear later that month for another rescheduled sentencing hearing, the court appointed new counsel for Griffin’s son.

{¶ 9} By failing to appear for sentencing proceedings in the Griffin case, respondent violated DR 1 — 102(A)(5) and 6 — 101(A)(3).

Count III — The Homan Case

{¶ 10} Respondent defended Lee C. Homan in Berea Municipal Court against charges of domestic violence, and in April 2001, he obtained a dismissal of the case against his client. In January 2006, respondent represented Homan again in the municipal court, this time defending him against charges of telephone harassment. Respondent consulted extensively with his client on the telephone and in person and received $500 for his services.

{¶ 11} Respondent entered an appearance and a not-guilty plea on Homan’s behalf. On March 20, 2006, however, respondent advised his client that he could not appear at a pretrial conference scheduled for that day and that Homan should appear and request a continuance. Homan appeared as instructed without respondent.

{¶ 12} After respondent’s March 20 communication, Homan never heard from him again. Respondent did not contact Homan even after the municipal court scheduled an April 2006 trial date. In May 2006, Homan appeared in municipal court, pleaded no contest, and received his sentence.

{¶ 13} By neglecting Homan’s case and failing to appear with him in court, respondent violated DR 6-101(A)(3).

Count TV — The Price Case

{¶ 14} In February 2006, respondent defended Robert E. Price against criminal charges in the Garfield Heights Municipal Court, receiving $200 for his services. Respondent entered an appearance and a not-guilty plea on Price’s behalf. He also waived the speedy-trial deadline and made a motion for release of his client’s vehicle, which the court granted.

{¶ 15} Respondent then failed to appear for proceedings in Price’s case. He did not appear at a pretrial conference in March 2006. And even though the court issued an order threatening him with contempt if he did not attend, respondent also did not appear on April 6, 2006, for the rescheduled pretrial conference. In the meantime, Price obtained new counsel, who did appear at the April 6 conference. With his new lawyer’s assistance, Price changed his plea and was sentenced.

[305]*305{¶ 16} By neglecting Price’s case and failing to appear with him in court, respondent violated DR 6-101(A)(3).

Count V — The Frazier-Jackson Case

{¶ 17} In December 2005, Dave A. Frazier Sr.

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Related

Cleveland Bar Association v. Kraus
2010 Ohio 3088 (Ohio Supreme Court, 2010)

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Bluebook (online)
116 Ohio St. 3d 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-bar-assn-v-kraus-ohio-2007.