Cuyahoga County Bar Ass'n v. Smith

873 N.E.2d 1224, 115 Ohio St. 3d 95
CourtOhio Supreme Court
DecidedAugust 29, 2007
DocketNo. 2007-0768
StatusPublished
Cited by2 cases

This text of 873 N.E.2d 1224 (Cuyahoga County Bar Ass'n v. Smith) 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. Smith, 873 N.E.2d 1224, 115 Ohio St. 3d 95 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} Respondent, Richard Ford Smith Jr. of Cleveland, Ohio, Attorney Registration No. 0018125, was admitted to the Ohio bar in 1985. For the reasons explained below, we conclude that respondent should be permanently disbarred from the practice of law in Ohio.

{¶ 2} In 1999, we publicly reprimanded respondent for violating DR 6-101(A)(3) (barring a lawyer from neglecting an entrusted legal matter) and 7-101(A)(2) (prohibiting a lawyer from intentionally failing to carry out a contract of professional employment). Lake Cty. Bar Assn. v. Smith (1999), 85 Ohio St.3d 402, 709 N.E.2d 116.

{¶ 3} On November 16, 2006, relator, Cuyahoga County Bar Association, filed an amended complaint charging respondent with 11 counts of professional misconduct. Respondent was served with a copy of the complaint but did not answer, and relator moved for default under Gov.Bar R. V(6)(F). A master commissioner appointed by the Board of Commissioners on Grievances and Discipline granted the motion, making findings of fact and conclusions of law, which the board adopted, as well as a recommendation, which the board rejected.

Misconduct

Count One

{¶ 4} Carrie L. Davis paid respondent a $450 retainer and $209 for court costs in connection with a Chapter 7 bankruptcy matter. Respondent then prepared and filed a Chapter 7 bankruptcy petition for Davis in November 2004.

{¶ 5} While representing Davis, respondent incorrectly advised her that she could spend her state and federal income tax refunds rather than turning those [96]*96funds over to the bankruptcy trustee. Davis relied on respondent’s advice and used the refunds to pay personal obligations.

{¶ 6} When a hearing was scheduled in the bankruptcy court on the trustee’s request that Davis be ordered to turn over the nonexempt portion of her tax refunds, respondent told Davis that he would attend the hearing on her behalf. After the May 2005 hearing date, Davis called respondent several times and left messages for him at his office, his home, and on his cell-phone voice mail. Respondent did not return the calls.

{¶ 7} In June 2005, respondent signed an agreed order for Davis to turn over $1,772 — the nonexempt portion of her tax refunds — to the bankruptcy trustee within 30 days, but respondent never told Davis about the order. Only after Davis received a summons and complaint filed by the bankruptcy trustee in August 2005 did she learn that respondent had signed an agreed order directing her to pay $1,772 to the trustee. Davis tried to reach respondent to find out what was happening with her bankruptcy case, but respondent failed to return any of her calls from May 2005 until October 19, 2005.

{¶ 8} Approximately one hour before Davis was to appear in the bankruptcy court on October 19, 2005, respondent called her and acknowledged that he had neglected her case. He told Davis that he would personally pay $100 per month to the bankruptcy trustee to resolve the tax-refund issue, and he assured her that she did not need to attend the hearing that day.

{¶ 9} Because she had lost confidence in respondent, Davis did attend the hearing. She waited outside the courtroom and was eventually told again by respondent that he would pay the tax-refund obligation to the bankruptcy trustee from his own funds in $100 monthly installments. On October 20, 2005, the trustee sent respondent an agreed entry memorializing the promised payments, but respondent failed to sign the document and then told Davis that he had never received any papers to sign. After she learned that respondent had failed to sign the agreed entry and had misrepresented to her that he had not received it, Davis discharged respondent and signed the document herself.

{¶ 10} We agree with the board’s finding that these actions by respondent violated DR 1 — 102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (prohibiting a lawyer from engaging in conduct prejudicial to the administration of justice), 1-102(A)(6) (barring conduct that adversely reflects on a lawyer’s fitness to practice law), 6-101(A)(2) (prohibiting a lawyer from handling a legal matter without adequate preparation), 6-101(A)(3), 7-101(A)(2), and 7-101(A)(3) (prohibiting a lawyer from intentionally prejudicing or damaging a client), as well as Gov.Bar R. V(4)(G) (requiring attorneys to cooperate with and assist in any disciplinary investigation).

[97]*97 Count Two

{¶ 11} In August 2002, respondent agreed to represent James Wilson in a bankruptcy matter. Wilson agreed to pay respondent $657 for attorney fees and court costs associated with the filing of a Chapter 7 bankruptcy petition.

{¶ 12} During calendar years 2002 through 2005, respondent failed to file the bankruptcy petition or take any other action on Wilson’s behalf. In October 2005, Wilson made an additional payment to respondent, bringing the total amount paid to $825. Although respondent told Wilson that he would file the bankruptcy petition before changes to the bankruptcy laws took effect on October 17, 2005, respondent failed to file the petition or take any other action on Wilson’s behalf in 2005.

{¶ 13} Respondent finally filed Wilson’s bankruptcy petition in February 2006. Because respondent had failed to include some paperwork that must be filed with any bankruptcy petition filed after the October 17, 2005 change in the bankruptcy laws, Wilson’s bankruptcy case was dismissed. Respondent did not return Wilson’s phone calls inquiring about the dismissal, and he never replied to Wilson’s or relator’s requests for an accounting of the work performed on Wilson’s case. Respondent also did not respond to relator’s other requests for information about his representation of Wilson.

{¶ 14} Respondent failed to verify for relator that he had maintained the requisite professional-liability insurance during his representation of Wilson, and respondent never told Wilson that he lacked that insurance.

{¶ 15} We agree with the board’s finding that these actions by respondent violated DR 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 1~104(A) (requiring an attorney to disclose to clients that he does not carry professional-liability insurance), 6-101(A)(2), 6-101(A)(3), 7-101(A)(2), 7-101(A)(3), and 9~102(B)(3) (requiring a lawyer to maintain complete records of all funds of a client and to render appropriate accounts), as well as Gov.Bar R. V(4)(G).

Count Three

{¶ 16} In August 2005, respondent agreed to represent Delilah Rogers on a bankruptcy matter, and he filed a Chapter 13 bankruptcy petition on her behalf. Several days after the filing, respondent was notified by the bankruptcy court that the petition was defective because Rogers had not signed part of it. Respondent failed to notify Rogers about the deficiency or take any action to correct it, and he failed to appear at a creditors’ meeting for her. Respondent also failed to appear at a show-cause hearing and failed to pay the necessary filing fee for the case.

{¶ 17} Rogers was unaware of court dates for the case, and she received no communication from respondent about them. The bankruptcy court dismissed [98]*98the case, and respondent failed to notify Rogers or take any action to protect Rogers’s interests.

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Related

Warren County Bar Ass'n v. Marshall
121 Ohio St. 3d 197 (Ohio Supreme Court, 2009)
Disciplinary Counsel v. Lentes
900 N.E.2d 167 (Ohio Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
873 N.E.2d 1224, 115 Ohio St. 3d 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuyahoga-county-bar-assn-v-smith-ohio-2007.