Disciplinary Counsel v. King

816 N.E.2d 1040, 103 Ohio St. 3d 438
CourtOhio Supreme Court
DecidedOctober 27, 2004
DocketNo. 2004-0495
StatusPublished
Cited by5 cases

This text of 816 N.E.2d 1040 (Disciplinary Counsel v. King) 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
Disciplinary Counsel v. King, 816 N.E.2d 1040, 103 Ohio St. 3d 438 (Ohio 2004).

Opinions

Per Curiam.

{¶ 1} Respondent, James C. King of Lima, Ohio, Attorney Registration No. 0000774, was admitted to the Ohio bar in 1967. In January 1990, we suspended respondent from the practice of law in Ohio for one year for violating DR 1-102(A)(4) (forbidding conduct involving dishonesty, fraud, deceit, or misrepresentation). Allen Cty. Bar Assn. v. King (1990), 48 Ohio St.3d 8, 548 N.E.2d 238. That case arose from respondent’s federal conviction for filing false individual income tax returns in 1984 and 1985. Id. In February 1991, we reinstated respondent to the practice of law in Ohio. Allen Cty. Bar Assn. v. King (1991), 58 Ohio St.3d 601, 567 N.E.2d 985.

{¶ 2} In February 1996, we suspended respondent from the practice of law in Ohio for six months for violating DR 6 — 101(A)(3) (forbidding neglecting an entrusted legal matter) and 1-102(A)(4). Disciplinary Counsel v. King (1996), 74 Ohio St.3d 612, 660 N.E.2d 1160. We found that respondent had neglected to refile a civil case and that he had repeatedly lied to his client in stating that he had refiled the case. In October 1996, we reinstated respondent to the practice of law in Ohio. Disciplinary Counsel v. King (1996), 77 Ohio St.3d 1202, 670 N.E.2d 1358.

{¶ 3} Shortly after being reinstated the second time, respondent was retained by a client to represent her regarding $350,000 she had invested through her brother-in-law in a limited partnership. Under the agreement, respondent charged a fee of one-third of all proceeds recovered from the client’s brother-in-law in excess of the client’s original $350,000 investment.

{¶ 4} On October 9, 1997, respondent filed a lawsuit on behalf of the client against her brother-in-law in the Allen County Court of Common Pleas. In the complaint, respondent alleged that his client’s brother-in-law had committed fraud, breached his fiduciary duty, and breached a contract by inducing the client to invest $350,000 in the limited partnership. In September 1998, after the defendant moved for summary judgment, respondent voluntarily dismissed the complaint under Civ.R. 41(A).

{¶ 5} On January 6,1999, respondent refiled the complaint, which was identical in all material respects to the October 1997 complaint. In April 1999, the defendant moved for summary judgment. The defendant served respondent with the motion as well as interrogatories and a request for production of documents. Respondent did not respond to the defendant’s motion for summary judgment, [440]*440interrogatories, or request for production of documents within the time required in the court’s scheduling order.

{¶ 6} On June 3, 1999, the common pleas court granted the defendant’s motion for summary judgment. On June 4, 1999, respondent filed a Civ.R. 60(B) motion for relief from the June 3 summary judgment. On June 8, 1999, in a conference call with respondent and the defendant’s attorney, the common pleas court indicated that it would likely grant respondent’s Civ.R. 60(B) motion.

{¶ 7} On June 9, 1999, respondent conducted a previously scheduled meeting with his client, his client’s boyfriend, and the boyfriend’s lawyer. At the meeting, respondent did not inform his client or the other participants that the defendant had filed a motion for summary judgment, that the motion had been granted, that he had filed a Civ.R. 60(B) motion, or that the court had indicated that it was inclined to grant the Civ.R. 60(B) motion. When he was asked about the trial date, respondent stated that it would be continued because the case would require more time than the one-half day that had been reserved.

{¶ 8} On June 22,1999, the court granted respondent’s Civ.R. 60(B) motion and granted him additional time to respond to the defendant’s motion for summary judgment. Respondent subsequently responded to the summary judgment motion. On October 21, 1999, the court of appeals reversed the court’s June 22, 1999 granting of respondent’s Civ.R. 60(B) motion and remanded the case for further proceedings. On November 10, 1999, the common pleas court entered summary judgment in favor of the defendant. When respondent eventually told his client that the adverse judgment had resulted from his failure to file a timely response to the defendant’s motion for summary judgment, she fired respondent.

{¶ 9} In late 2000, the client filed a legal malpractice action against respondent and others in the common pleas court. In January 2001, relator, Disciplinary Counsel, filed a complaint against respondent for his conduct, but relator dismissed the complaint without prejudice pending resolution of the legal malpractice case. In September 2002, respondent paid his client $75,000 to settle the malpractice case. Because respondent did not have legal malpractice insurance when his client’s claim arose, he paid the settlement amount himself.

{¶ 10} On April 14, 2003, relator filed a complaint charging respondent with violating certain Disciplinary Rules. A panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court heard the matter upon the testimony, exhibits, and stipulated facts of the parties. At the hearing, respondent claimed that he had not lied to his client and that he had decided not to disclose what had happened with the defendant’s motion for summary judgment because he wanted to avoid embarrassment:

{¶ 11} “And I remember exactly what happened that day. No, I honest to God thought I had the problem fixed. And I didn’t — you know, is it splitting hairs to [441]*441say I didn’t tell her and then I — and because I didn’t tell her, I didn’t lie to her. * * * Is that a lie? I don’t know. I thought I had the problem fixed and I wanted to avoid the embarrassment that was associated with that kind of disclosure.”

{¶ 12} The panel found the facts as previously set forth and concluded that respondent’s conduct violated DR 1-102(A)(4), 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), and 6-101(A)(3).

{¶ 13} The panel then considered aggravating and mitigating factors in accordance with Section 10(B) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). The panel reviewed the aggravating factors of respondent’s two previous disciplinary cases, his pattern of dishonesty, and his attempt to distinguish an omission from a lie.

{¶ 14} In mitigation, the panel noted respondent’s cooperation in the disciplinary proceedings, his payment to settle the legal malpractice case, his remorse for his actions, and his good character and reputation in the legal community.

{¶ 15} For the sanction, relator recommended that respondent be suspended from the practice of law for two years, and respondent argued that a two-year suspension would be excessive. The panel recommended that respondent be suspended from the practice of law for two years, with the second year of the suspension stayed.

{¶ 16} The board further emphasized as a mitigating factor that respondent’s conduct had been motivated by his altruism:

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Related

Disciplinary Counsel v. Taylor
899 N.E.2d 955 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Fumich
116 Ohio St. 3d 257 (Ohio Supreme Court, 2007)
Disciplinary Counsel v. Bowman
110 Ohio St. 3d 480 (Ohio Supreme Court, 2006)
Disciplinary Counsel v. King
108 Ohio St. 3d 1210 (Ohio Supreme Court, 2006)
Disciplinary Counsel v. Hunter
106 Ohio St. 3d 418 (Ohio Supreme Court, 2005)

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Bluebook (online)
816 N.E.2d 1040, 103 Ohio St. 3d 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-king-ohio-2004.