Cuyahoga County Bar Ass'n v. Poole

899 N.E.2d 950, 120 Ohio St. 3d 361
CourtOhio Supreme Court
DecidedDecember 4, 2008
DocketNo. 2008-0762
StatusPublished
Cited by4 cases

This text of 899 N.E.2d 950 (Cuyahoga County Bar Ass'n v. Poole) 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. Poole, 899 N.E.2d 950, 120 Ohio St. 3d 361 (Ohio 2008).

Opinions

Per Curiam.

{¶ 1} Respondent, Marcus L. Poole of Cleveland, Ohio, Attorney Registration No. 0040030, was admitted to the practice of law in Ohio in 1978. The Board of Commissioners on Grievances and Discipline recommends that we suspend respondent’s license to practice for two years and stay the last 18 months on conditions, based on findings that include his failure to provide promised legal services to two clients, failure to return unearned fees, and failure to cooperate in the investigation of this misconduct. We agree that respondent committed professional misconduct as found by the board; however, based on respondent’s objections to the recommended sanction, we order a one-year suspension, all stayed on the conditions that respondent submit to monitored probation, consult the Ohio Lawyers Assistance Program, and commit no further misconduct.

{¶2} Relator, Cuyahoga County Bar Association, charged respondent in a three-count complaint with violations of the Code of Professional Responsibility and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate in a disciplinary investigation). A panel of the board heard the cause, including the parties’ stipulations, made findings of misconduct, and recommended the two-year suspension and conditional 18-month stay. The board adopted the panel’s findings and recommendation.

{¶ 3} Respondent objects to the board’s report, arguing that a two-year, partially stayed suspension is too severe when compared to sanctions imposed in similar cases. Respondent also insists that the board had no basis for considering certain factors to be aggravating and weighing them against him. We sustain the objections to the extent that we adopt a lesser sanction, i.e., a one-year suspension from practice, all stayed on conditions.

[362]*362I. Misconduct

A. Count I

{¶ 4} In August 2005, respondent agreed to file a motion seeking the judicial release of Delores Crawford’s grandson and accepted $200 in payment. When he failed to do the promised work, Crawford discharged him and asked for a full refund. Respondent did not repay Crawford until after she filed a grievance with relator.

{¶ 5} Respondent stipulated and the board found that he had violated DR 6-101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter), 7-101(A)(1) (prohibiting a lawyer from intentionally failing to seek the lawful objections of a client), 7-101(A)(2) (prohibiting a lawyer from intentionally failing to carry out a contract of professional employment), and 9-102(B)(4) (requiring a lawyer to promptly return property to which a client is entitled). We accept these findings of misconduct.

B. Count II

{¶ 6} In late September 2005, respondent agreed to pursue a predatory-lending claim on behalf of Nicole Thompson. Thompson paid respondent $1,000, which he deposited into his client trust account. Thompson later discharged respondent for his lack of communication and asked for a refund. Respondent told her that he had already researched her claim, but promised to refund half of her money. He did not repay her until after she filed a grievance with relator, but he then returned the entire $1,000.

{¶ 7} Respondent stipulated and the board found that he had violated DR 1-102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects on his fitness to practice law), 6-101(A)(3), and 9-102(B)(4). We accept these findings of misconduct.

C. Count III

{¶ 8} Respondent stipulated and the board found that he repeatedly faded to respond to letters of inquiry and other notices sent during the investigation of the Crawford and Thompson grievances in violation of Gov.Bar R. V(4)(G). We accept these findings of misconduct.

II. Sanction

{¶ 9} When imposing sanctions for attorney misconduct, we consider relevant factors, including the duties violated and sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in Section 10 of the Rules and Regula[363]*363tions Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD ProcReg.”). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary case is unique, we are not limited to the factors specified in the rule but may take into account “all relevant factors” in determining what sanction to impose. BCGD ProcReg. 10(B).

A. Aggravation and Mitigation

{¶ 10} Respondent first focuses on the aggravating and mitigating factors, arguing initially that the board improperly considered as an aggravating factor the fact that in 2007, he missed the deadline for filing his attorney registration certificate and paying the applicable fee. Respondent did miss the September 1, 2007 deadline but filed within the 90-day grace period and paid his late registration fee, avoiding any further sanction. See Gov.Bar R. VI(1)(A) and (5)(A). The board noted this deficiency but did not factor it into the recommendation, and we also accord the delinquent filing little weight.

{¶ 11} Respondent next challenges the board’s assignment of a dishonest or selfish motive to his misconduct, see BCGD ProcReg. 10(B)(1)(b), and objects to the board’s finding that he violated DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving fraud, deceit, dishonesty, or misrepresentation) and 9-102(A) (requiring a lawyer to maintain client funds other than advances for costs or expenses in a separate identifiable bank account).

{¶ 12} The parties stipulated before the panel hearing that respondent did not violate DR 1-102(A)(4) or 9-102(A) as charged in the complaint. The board nevertheless found this misconduct, but because those charges were dismissed by stipulation, treated them as aggravating factors. Respondent insists that relator did not prove dishonesty or commingling. We agree.

{¶ 13} The board concluded that respondent had lied about the research he performed in Thompson’s case, apparently because when he ultimately produced his case file, it did not contain any notes or other indication of his work. We do not infer any deceitful intent from this absence of documentation. No one asked respondent why he had no record of his research, and absent some charge of dishonesty in this regard, he had no duty to explain. We therefore do not consider this lack of documentation to be evidence of any aggravating factor.

{¶ 14} As for the aggravating nature of respondent’s alleged commingling, the board found that there was “clear and convincing evidence” that respondent had violated DR 9-102(A). But the board’s report did not cite any evidence of commingling, and the report contained no facts to support such a charge. The report acknowledges that respondent deposited Thompson’s $1,000 check in his IOLTA account, which is proper. The report also states that when Thompson [364]*364requested a refund, the $1,000 was no longer there. This, of course, was not proper, but it is not commingling.

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Bluebook (online)
899 N.E.2d 950, 120 Ohio St. 3d 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuyahoga-county-bar-assn-v-poole-ohio-2008.