Cuyahoga County Bar Ass'n v. Newman

102 Ohio St. 3d 186
CourtOhio Supreme Court
DecidedMay 12, 2004
DocketNo. 2003-1529
StatusPublished
Cited by3 cases

This text of 102 Ohio St. 3d 186 (Cuyahoga County Bar Ass'n v. Newman) 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
Cuyahoga County Bar Ass'n v. Newman, 102 Ohio St. 3d 186 (Ohio 2004).

Opinion

Per Curiam.

[187]*187{¶ 1} Respondent, Joel Ivan Newman of Cleveland, Ohio, Attorney Registration No. 0038433, was admitted to the Ohio bar in 1972. On December 9, 2002, relator, Cuyahoga County Bar Association, charged respondent in a two-count complaint with having violated the Code of Professional Responsibility by representing both parties to a leasehold agreement. A panel of the Board of Commissioners on Grievances and Discipline considered the cause, making findings of fact, conclusions of law, and a recommendation.

{¶ 2} The panel found and evidence substantiates that since 1983, respondent had represented the client who would eventually lease the property in question, regularly assisting him in a wide variety of legal matters in his business and personal affairs largely on a pro-bono basis. In 1993, this client suffered a traumatic head injury in a traffic accident and, although hospitalized for nearly one year, he remained physically and mentally incapacitated as a result. The client was thereafter placed under guardianship. By 1994, the client’s condition had improved, and respondent helped him terminate the guardianship. But because of the client’s continued disability, respondent arranged in 1995 for the client’s mother to serve as conservator for the client’s financial affairs. The conservatorship lasted a little over one year.

{¶ 3} By 1997, respondent had also begun to represent an incorporated shopping center that owned a laundromat available for lease. In early June of that year, respondent presented to his disabled client the prospect of leasing the laundromat because the client was interested in a small business venture to operate. Respondent provided this client a copy of a 1995 corporate income tax return, from which the corporate name and address had been redacted, showing that the former proprietor of the laundromat had lost at least $3,000, not including $45,000 in depreciation. Respondent also told this client, whom he knew to be financially dependent on Social Security disability, that the shopping center’s president would accept only the client’s personal signature on the lease agreement.

{¶ 4} Respondent did not provide this client any other information about the viability of the laundromat, the prior tenant of which had gone out of business. Respondent did inform the client that he could have a two-month grace period to “test out” the business. At the panel hearing, respondent conceded that this term, not having been reduced to writing, would not have been enforceable.

{¶ 5} Shortly after respondent’s proposal, the disabled client told respondent that he wanted to try running the laundromat. On July 1, 1997, respondent completed and signed the documents necessary for his client to establish a corporate structure for the laundromat, including a document that designated respondent as the statutory agent for the company. Respondent provided these services even though he had sent a letter to the disabled client on June 26, 1997, [188]*188advising him that he represented only the shopping center in the arrangements to lease the laundromat. And in a letter dated July 1, 1997, respondent confirmed this representation with the president of the shopping center.

{¶ 6} Also on or about July 1,1997, the disabled client, in his personal capacity, and the president, on behalf of the shopping center, signed the lease, a security agreement, and an equipment sublease for the laundromat. Respondent acted in the transaction as counsel to the shopping center president, while the disabled client participated in the transaction without an attorney. Neither party to the lease expressly consented to respondent’s representation relative to the potential conflict it presented. Moreover, although respondent recalled for the first time during the hearing that he had discussed the conflict with the disabled client and had urged him to obtain other counsel, the panel found that he had not. The panel relied on respondent’s earlier deposition testimony, in which he had stated that he “certainly” had not told the client he needed separate counsel.

{¶ 7} The laundromat proved an unprofitable venture for the disabled client, and, in August or September 1997, he abandoned the business. In the months that followed, respondent, acting on the shopping center’s behalf, prepared to sue the disabled client for payments due under the lease and equipment rental agreements, and the client retained other counsel for his defense. The shopping center later obtained a judgment against the disabled client for $38,822.25, and placed a lien on his house. The client was ultimately forced into bankruptcy.

{¶ 8} With respect to the misconduct charged in Count One (the lease negotiations and the representation of the shopping center in a lawsuit against the disabled client), respondent and relator stipulated and the panel found that respondent had violated DR 5-105(A) and (C) (barring attorneys from accepting professional employment for multiple parties where the clients’ interests are obviously dissimilar, the clients have not consented after full disclosure, and the exercise of the attorney’s independent judgment on any client’s behalf is likely to be adversely affected). With respect to Count Two (respondent’s representation of the shopping center in the lawsuit while he still had a professional relationship with the disabled client), the panel found that respondent had violated DR 7-101(A)(3) (barring attorneys from intentionally causing client damage or prejudice during the course of a professional relationship) inasmuch as he had abandoned his disabled client in negotiating the lease arrangements and then sued after the client defaulted.1

[189]*189{¶ 9} In recommending a sanction for this misconduct, the panel considered the mitigating and aggravating factors listed in Section 10 of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline. The panel found that respondent had no prior disciplinary record, had been a committed and recognized volunteer in the Cleveland Legal Aid Society for many years, and had been active in numerous other civic and professional organizations, including relator’s grievance committee. The panel also found mitigating that respondent had admitted the wrongfulness of his conduct; however, the panel was not convinced of respondent’s remorse, and it inferred from his testimony that he had chosen for financial reasons to protect the interests of the shopping center over those of his disabled client.

{¶ 10} Initially, the parties jointly suggested a public reprimand. But after hearing all of the evidence, relator’s counsel, while acknowledging the binding nature of the stipulation of a public reprimand, suggested that a six-month suspension would be more appropriate. The panel recommended a six-month suspension from the practice of law, all stayed.

{¶ 11} The board adopted the panel’s findings of misconduct, but it modified the panel’s recommendation. The board recommended, “based on the vulnerability of his victim and the resulting harm,” that respondent’s law license be suspended for one year, with six months of the suspension stayed. The board also recommended that respondent be required to reimburse the disabled client for the $1,500 he had expended to settle his predecessor’s overdue water bill so that water service could resume at the laundromat.

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Related

Toledo Bar Assn. v. Pheils
2011 Ohio 2906 (Ohio Supreme Court, 2011)
Gray v. Newman, 89549 (3-13-2008)
2008 Ohio 1076 (Ohio Court of Appeals, 2008)
Cuyahoga County Bar Ass'n v. Newman
820 N.E.2d 374 (Ohio Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
102 Ohio St. 3d 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuyahoga-county-bar-assn-v-newman-ohio-2004.