Columbus Bar Ass'n v. Ashton

108 Ohio St. 3d 37
CourtOhio Supreme Court
DecidedJanuary 25, 2006
DocketNo. 2005-1168
StatusPublished
Cited by1 cases

This text of 108 Ohio St. 3d 37 (Columbus Bar Ass'n v. Ashton) 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
Columbus Bar Ass'n v. Ashton, 108 Ohio St. 3d 37 (Ohio 2006).

Opinion

Per Curiam.

{¶ 1} Respondent, Robert Edwin Ashton of Bexley, Ohio, Attorney Registration No. 0032276, was admitted to the practice of law in Ohio in 1984. On October 11, 2004, relator, Columbus Bar Association, charged respondent with violations of the Code of Professional Responsibility. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and made findings of misconduct and a recommendation, all of which the board adopted.

Misconduct

{¶ 2} The parties stipulated that while struggling with an addiction to crack cocaine, respondent took unauthorized expense-account advances from his law firm, failed to properly withdraw from a client’s case, and failed to disclose to clients that he lacked malpractice insurance.

[38]*38{¶ 3} In October 1998, respondent was an associate with the law firm of Climaco, Lefkowitz, Peca, Wilcox & Garofoli Co., L.P.A. (“the Climaco firm”) in the firm’s Columbus office. In November 1998, respondent entered his appearance as counsel, along with the Climaco firm, for Gregory Donchatz, the defendant in a commercial-lease case that had been filed in March 1998, in the Franklin County Municipal Court. Prior to respondent’s appearance, Donchatz had been represented in the lease dispute by his brother, Kenneth R. Donchatz.

{¶ 4} In May 1999, the case was transferred, at the plaintiffs request, to the Franklin County Court of Common Pleas. The plaintiff took no further action in the cause until January 23, 2001, when he refiled the case in common pleas court.

{¶ 5} In December 2000, respondent took unauthorized expense-account advances from the Climaco firm. Respondent took these funds while he was impaired due to drug dependency. Respondent told the Climaco firm’s managing partner of these advances shortly after he took them and reimbursed the firm.

{¶ 6} Respondent told Robert Casarona, another partner in the Climaco firm, of his drug dependency. The Climaco firm and respondent later agreed that he would resign effective January 1, 2001. Prior to respondent’s resignation, Donchatz paid the Climaco firm approximately $5,000 in fees for his services.

{¶ 7} On January 17, 2001, respondent entered an intensive, outpatient substance-abuse treatment program at Talbot Hall at the Ohio State University Hospital. He completed the treatment program on February 26, 2001.

{¶ 8} Respondent notified Donchatz that he had left the Climaco firm, and Donchatz asked respondent to continue representing him in the lease dispute. Respondent agreed; however, he did not disclose to Donchatz his drug addiction and treatment or the circumstances surrounding his resignation from the Climaco firm.

{¶ 9} On February 20, 2001, Casarona filed a motion to withdraw as Donchatz’s counsel on the Climaco firm’s behalf. Respondent disclosed to Casarona around the same time that he had recently completed a treatment program for his drug dependence. Respondent later appeared at a status conference in Donchatz’s case, and in April 2001, the court scheduled a trial for January 29, 2002.

{¶ 10} In May 2001, respondent accepted a job as an editor with Reed Elsevier, a publisher of legal literature. Respondent started his new job on May 29, 2001, and afterward, stopped taking clients. He did, however, accept a $310 payment on May 31, 2001, from Donchatz, which was the only money that Donchatz paid respondent after his resignation from the Climaco firm. Respondent returned the fee with interest after Donchatz filed a grievance with relator.

{¶ 11} In early September 2001, respondent relapsed into drug use. On September 16, 2001, he returned to Talbot Hall for a substance-abuse treatment [39]*39program that included some hospitalization. He was discharged three days later, but from October 26 until October 30, 2001, he was hospitalized again. A physician and a psychiatrist determined that respondent was disabled due to his drug dependence. Reed Elsevier approved respondent’s application for disability benefits based on this diagnosis.

{¶ 12} On November 8, 2001, respondent entered a residential substance-abuse treatment program. The next day, respondent filed notice of his withdrawal as counsel in Donchatz’s case and mailed a copy of the notice to Donchatz’s residence. Respondent also mailed a copy of the withdrawal notice to the plaintiffs counsel. Respondent did nothing more to alert Donchatz of his withdrawal or the reason for it.

{¶ 13} Donchatz apparently did not receive a copy of respondent’s withdrawal notice and did not realize that respondent had withdrawn from his case. Respondent, however, assumed that Donchatz had received the withdrawal notice and had retained other counsel. He did nothing else in Donchatz’s ease.

{¶ 14} Together with other lapses, respondent’s failure to consult with Donchatz about his withdrawal eventually led to a default judgment against his client. First, the Franklin County Common Pleas Court did not rule on respondent’s November 9, 2001 notice of withdrawal. Second, despite Casarona’s February 20, 2001 motion to withdraw on behalf of the Climaco firm, the court sent two notices of the upcoming January 29, 2002 trial to Casarona and, by mistake, mailed the notices to the Climaco firm’s Cleveland office. The notices were returned as undeliverable. Respondent did not receive any notice of the scheduled trial date.

{¶ 15} When no one appeared at the trial on Donchatz’s behalf, the court entered a default judgment against him. The court’s February 4, 2002 order established Donchatz’s liability only, requiring a further hearing on the issue of the amount of damages. The default judgment entry did not list respondent as counsel of record for the purpose of providing him notice, and no one else contacted Donchatz about defense counsel’s failure to appear.

{¶ 16} Meanwhile, in mid-November 2001, respondent was discharged from the residential substance-abuse treatment program and released by his psychiatrist to return to work. Respondent resumed his employment with Reed Elsevier. Respondent thereafter remained in recovery, regularly attending Alcoholics Anonymous (“AA”) meetings and actively participating in the Ohio Lawyers Assistance Program (“OLAP”).

{¶ 17} While respondent put his life back on track, however, the confusion in Donchatz’s case persisted. On February 4, 2002, the court issued an order setting the cause for a damages hearing on March 29, 2002. This time, respondent’s name did appear on the court’s order as Donchatz’s counsel, and he [40]*40was listed as having been served with notice. Respondent did not receive a copy of the February 4 court order.

{¶ 18} On March 26, 2002, Donchatz’s brother Kenneth entered an appearance as counsel of record in the lease dispute and moved for a continuance of the damages hearing. At some point, respondent heard of trouble in the case and called to inquire about what had happened. He revealed to Kenneth Donchatz around this time the reason for his withdrawal. Kenneth immediately asked respondent for the Donchatz case file, but respondent was unable to locate the file until January 2005, when he finally returned it.

{¶ 19} Upon discovering that neither Donchatz nor his counsel had received notice of the impending damages hearing, the common pleas court granted the motion for a continuance. The parties eventually settled, and the cause was dismissed.

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Bluebook (online)
108 Ohio St. 3d 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/columbus-bar-assn-v-ashton-ohio-2006.