Dayton Bar Ass'n v. Scaccia

34 N.E.3d 919, 143 Ohio St. 3d 144
CourtOhio Supreme Court
DecidedJune 25, 2015
DocketNo. 2014-2143
StatusPublished
Cited by7 cases

This text of 34 N.E.3d 919 (Dayton Bar Ass'n v. Scaccia) 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
Dayton Bar Ass'n v. Scaccia, 34 N.E.3d 919, 143 Ohio St. 3d 144 (Ohio 2015).

Opinion

Per Curiam.

{¶ 1} Respondent, John Joseph Scaccia of Dayton, Ohio, Attorney Registration No. 022217, was admitted to the practice of law in Ohio in 1983. On October 2, 2014, we suspended him for one year, with six months stayed on conditions, for failing to competently manage a case, charging an improper nonrefundable fee, and violating the rules regarding the safekeeping of client funds. Dayton Bar Assn. v. Scaccia, 141 Ohio St.3d 35, 2014-Ohio-4278, 21 N.E.3d 290, ¶ 17-25. We conditioned his reinstatement on the payment of restitution, and we ordered that within 90 days of our opinion, he submit to relator, Dayton Bar Association, and this court a complete list and detailed accounting of all clients to whom he owed restitution. Id. at ¶ 37-38. Although over eight months have passed since our opinion, Scaccia has not yet submitted the required list and accounting, and he remains suspended from the practice of law.

{¶ 2} While Scaccia’s previous case was pending in early 2014, relator filed another complaint charging him with professional misconduct. The parties entered into stipulations of fact and misconduct, which resolved some, but not all, [145]*145of relator’s charges. After a hearing, a three-member panel of the Board of Commissioners on Grievances and Discipline1 made findings of fact and conclusions of law and recommended that Scaccia be suspended for one year, with six months stayed on conditions, and that the suspension run concurrently with the sanction we imposed on October 2, 2014. The board adopted the panel’s report in its entirety, and no party has filed objections.

{¶ 3} Upon our review of the record, we accept the board’s findings of fact, conclusions of law, and recommended sanction.

Misconduct

The Boucha Elghouati matter

{¶ 4} In 2007, Scaccia agreed to represent Boucha Elghouati in a personal-injury matter pursuant to a contingent-fee arrangement. In November 2008, Scaccia resolved her claims, received settlement proceeds on her behalf, and deposited those funds in his client trust account. He then provided Elghouati a written breakdown of the purported distribution of the proceeds. However, he failed to sign the written statement or have his client sign it. Accordingly, the parties stipulated and the board found that Scaccia violated Prof.Cond.R. 1.5(c)(2) (requiring a lawyer entitled to compensation under a contingent-fee agreement to prepare a closing statement signed by the lawyer and the client).

{¶ 5} In disbursing the settlement proceeds, Scaccia issued trust-account checks to his law firm for fees, to Elghouati for her share of the settlement, and to two of her medical providers. However, he could not produce any records indicating that he had disbursed settlement funds totaling $2,304.70 in medical expenses to Elghouati’s other medical providers. Additionally, during this time period, his trust account did not consistently contain sufficient funds to cover the balance owed to the remaining medical-care providers, and on one occasion, he had overdrawn the account.

{¶ 6} At his disciplinary hearing, Scaccia tendered a check made payable to Elghouati to cover the unaccounted-for funds. The parties stipulated and the board found that Scaccia violated Prof.Cond.R. 1.15(a) (requiring a lawyer to maintain records of trust-account funds disbursed on behalf of a client) and 1.15(e) (requiring a lawyer to promptly distribute all portions of client funds that are held in trust). We agree with the board’s findings of misconduct. We also agree with the board’s recommendation to dismiss for lack of sufficient evidence [146]*146the remaining charges relating to Scaccia’s representation of Elghouati and to dismiss the charges under this count that relator withdrew prior to the hearing.

The Darla Brewer matter

{¶ 7} In 2012, James Buckner retained Scaccia to represent him in a then-pending criminal investigation. Local police had recently searched Buckner’s residence, which was owned by his mother, Darla Brewer. In March 2013, both Buckner and Brewer met with Scaccia at his office, and Buckner paid Scaccia $1,500 to also represent his mother. Scaccia, however, failed to deposit the retainer check into his client trust account. In addition, although he later verbally informed Brewer that he lacked professional liability insurance, he did not provide her with a written notice on a separate form. Based on this conduct, the parties stipulated and the board found that Scaccia violated Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client on a separate written form that the lawyer does not maintain professional liability insurance) and 1.15(c) (requiring a lawyer to deposit into a client trust account legal fees and expenses that have been paid in advance). We agree with these findings of misconduct.

{¶ 8} In April 2013, a Montgomery County grand jury indicted Buckner and Brewer on drug-related offenses, and Scaccia thereafter met with both clients again. According to Scaccia, he explained his litigation strategy to them and stated that if a conflict of interest later developed, such as either client deciding to testify against the other, he would be required to withdraw as counsel. Brewer, however, testified that she did not recall Scaccia discussing either his litigation strategy or a potential conflict of interest with them at that meeting. And Scaccia never provided Brewer with a written fee agreement, a letter of representation, or any other documentation explaining the nature and scope of his representation or the potential consequences of representing two criminal defendants in the same proceeding. After her arraignment, Brewer was arrested and confined for one night, and she subsequently discharged Scaccia.

{¶ 9} Relator charged Scaccia with several rule violations based on his brief representation of Brewer, including that his representation of both defendants was a conflict of interest and that he had failed to represent her competently. The board, however, found that relator proved only the stipulated violations and a violation of Prof.Cond.R. 1.5(b) (requiring an attorney to communicate the nature and scope of the representation and the rate of the fee, preferably in writing).

{¶ 10} Specifically, the board noted that the Rules of Professional Conduct do not expressly prohibit an attorney from representing multiple defendants in a felony case, although the comments discourage that practice. See Prof.Cond.R. 1.7, Comment 15 (“The potential for conflict of interest in representing multiple defendants in a criminal matter is so grave that ordinarily a lawyer should decline to represent more than one co-defendant”). According to the board, because [147]*147there was a possibility of a conflict, Scaccia should have provided a clear explanation to Brewer about the consequences of representing both her and her son in the same criminal matter. The board acknowledged that Scaccia attempted to give her an oral explanation, but the board determined that Brewer did not understand Scaccia’s explanation and that his failure to clarify the scope of the representation in writing contributed to her confusion. Thus, the board found that Scaccia violated Prof.Cond.R. 1.5(b) by failing to communicate effectively with Brewer about the nature and scope of his representation.

{¶ 11} We concur in the board’s finding.

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Cite This Page — Counsel Stack

Bluebook (online)
34 N.E.3d 919, 143 Ohio St. 3d 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dayton-bar-assn-v-scaccia-ohio-2015.