Cleveland Bar Ass'n v. Norton

116 Ohio St. 3d 226
CourtOhio Supreme Court
DecidedNovember 15, 2007
DocketNo. 2007-1120
StatusPublished
Cited by10 cases

This text of 116 Ohio St. 3d 226 (Cleveland Bar Ass'n v. Norton) 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. Norton, 116 Ohio St. 3d 226 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} Respondent, Eric E. Norton of Cleveland Heights, Ohio, Attorney Registration No. 0071563, was admitted to the practice of law in Ohio in 1999.

{¶ 2} The Board of Commissioners on Grievances and Discipline has recommended that we suspend respondent’s license to practice for six months, all stayed on conditions, based on findings that he neglected two clients’ cases, failed to advise the clients that he lacked malpractice insurance, and failed to cooperate in efforts to investigate alleged misconduct. On review, we agree that respondent violated the Code of Professional Responsibility and that a six-month stayed suspension is appropriate.

{¶ 3} Relator, Cleveland Bar Association, charged respondent with four counts of professional misconduct, later dismissing Count III of the complaint along with several allegations of impropriety contained within Counts I, II, and IV. A panel of the board heard the cause and, based on the parties’ extensive stipulations and other evidence, made findings of misconduct and recommended a one-year license suspension, all stayed. The board adopted the panel’s findings of misconduct but modified the recommendation to the stayed six-month suspension.

(¶ 4} Neither party has objected to the board’s recommendation.

Misconduct

Count I — The Todd Case

{¶ 5} In early February 2005, Linda Todd, a nurse at a healthcare facility, slipped and fell in the facility’s parking lot. While Todd was receiving workers’ compensation, her employer discharged her for missing work. Todd agreed to have respondent file a retaliation claim on her behalf, and respondent advised [227]*227Todd’s former employer that she anticipated filing a claim for unlawful retaliation under R.C. 4123.90.

{¶ 6} Todd signed a retainer agreement in which respondent promised to investigate and file her claim on a contingent-fee basis. The agreement also provided for respondent’s withdrawal if he determined “at any time that prosecution is not feasible.” Respondent had no professional-liability insurance while representing Todd but failed to so advise his client.

{¶ 7} Over the next few months, Todd sent respondent copies of her medical records and a written account detailing her accident. She also repeatedly called respondent to ask questions about her case. Respondent did not return a number of those calls, but in early May 2005, he emailed Todd and asked about the possibility of settling her case. Todd sent respondent information about her economic losses, and respondent promised to relay a settlement offer to her former employer. He never did.

{¶ 8} Over the next several weeks, Todd again had difficulty getting respondent to return her calls. In June 2005, Todd expressed in an email to respondent her dissatisfaction with his progress and her concern over an impending 180-day statute of limitations deadline. Respondent did not reply to the email, or file suit on Todd’s behalf, or do any other work in the case for the rest of 2005.

{¶ 9} In February 2006, respondent called Todd’s home, apparently because he heard that she had inquired about him from his former law firm, and told her husband that he was withdrawing from her case. On February 23, 2006, respondent sent Todd’s case file to her with a letter advising that he could not continue representing her. He explained: “I am not withdrawing from your case because it lacks merit, but because the dollar losses are too low to justify litigating this case on a contingent fee basis.”

{¶ 10} Respondent suggested in his letter that Todd hire another attorney. He did not, however, describe her claim as one for retaliation under R.C. 4123.90. He instead referred to Todd’s case as a wrongful discharge in violation of public policy, citing cases including Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61, syllabus (“An employee who is receiving temporary total disability compensation pursuant to R.C. 4123.56 may not be discharged solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition”) and advising that a four-year statute of limitations applied. Respondent then wished Todd “good luck,” saying nothing about the statute of limitations in R.C. 4123.90, which had by that time elapsed.

{¶ 11} Respondent did not disclose his lack of malpractice insurance, failed to complete promised work, and then dropped Todd’s case. Respondent has admitted, and we agree, that he thereby violated DR 1-104(A) (requiring a [228]*228lawyer to advise clients if the lawyer does not carry sufficient malpractice insurance), 2-110(A)(2) (requiring a lawyer to take reasonable steps to avoid foreseeable prejudice to the rights of the client before withdrawing from representation), 2-110(C)(5) (requiring a lawyer to obtain a client’s free and knowing assent before withdrawing from representation when the lawyer is not otherwise justified in withdrawing under the rule), 6-101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter), 7-101(A)(l) (prohibiting a lawyer from intentionally failing to seek the lawful objectives of a client), and 7-101(A)(2) (prohibiting a lawyer from intentionally failing to carry out a contract for professional employment).

Count II — The Torres Case

{¶ 12} In August 2004, Frances Torres retained respondent to represent her in a personal injury claim against an ice cream manufacturer after she choked on a foreign object while eating one of the manufacturer’s products. Torres signed a retainer agreement in which respondent promised to investigate and file her claim on a contingent-fee basis. Torres also gave respondent the foreign object and the product packaging to help him prepare the case. Respondent had no professional-liability insurance while representing Torres and did not so advise his client.

{¶ 13} Respondent contacted the ice cream manufacturer in early September 2004 to advise of the Torres claim, and a claims representative asked for evidence of the incident and injury. Respondent provided this evidence but then took no action in the case until November 2005, when Torres threatened to file a grievance against him. Before then, Torres had tried repeatedly to contact respondent, but he had not returned many of her calls.

{¶ 14} Within a week after Torres’s warning, respondent sent a settlement demand to the claims representative and, for approximately six months, tried to negotiate a settlement. Torres submitted her grievance to relator in December 2005 but, by March 2006, she had reconsidered and decided to keep respondent as her lawyer. Respondent ultimately obtained a settlement offer that Torres accepted.

{¶ 15} Respondent did not disclose to Torres his lack of malpractice insurance or properly communicate with her about her case. He stipulated, and we agree, that he thereby violated DR 1-104(A) and 6-101(A)(3).

Count IV — Failure to Cooperate

{¶ 16} In December 2005, relator sent two certified letters to respondent, requesting a written response to the Torres grievance and another grievance. Respondent received the letters but did not reply as requested. Relator sent [229]*229respondent two more letters in January 2006, this time requesting his responses by February 3, 2006. Respondent did not reply as requested.

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Bluebook (online)
116 Ohio St. 3d 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-bar-assn-v-norton-ohio-2007.