Disciplinary Counsel v. Manning

856 N.E.2d 259, 111 Ohio St. 3d 349
CourtOhio Supreme Court
DecidedNovember 22, 2006
DocketNo. 2006-0738
StatusPublished
Cited by10 cases

This text of 856 N.E.2d 259 (Disciplinary Counsel v. Manning) 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. Manning, 856 N.E.2d 259, 111 Ohio St. 3d 349 (Ohio 2006).

Opinion

Per Curiam.

{¶ 1} Respondent, Thomas Joel Manning of Centerville, Ohio, Attorney Registration No. 0059759, was admitted to the Ohio bar in 1992.

{¶ 2} On April 18, 2005, relator, Disciplinary Counsel, filed a complaint charging respondent with professional misconduct. Respondent filed an answer to the complaint, and a panel of the Board of Commissioners on Grievances and Discipline held a hearing on the complaint in December 2005. The panel then prepared written findings of fact, conclusions of law, and a recommendation, all of which the board adopted.

Misconduct

{¶ 3} In March 2000, Alfred and Nollie Combs retained respondent to represent them in a potential medical-malpractice action to be filed on Alfred’s behalf. [350]*350Four months later, respondent contacted attorney Jon Lafferty at another law firm and asked for his help in litigating the potential claim. Lafferty asked for a $1,000 retainer. In November 2000, the Combses paid $1,000 to respondent with the understanding that the money would be used to hire the expert that Lafferty wanted to retain. Respondent deposited the money in his law firm’s operating account.

{¶ 4} In late 2000 and early 2001, the Combses contacted respondent to check on the status of their case, but respondent did not provide any relevant information to them. In February 2001, they learned from an attorney at Lafferty’s law firm that that firm was not involved with the case and had not received any money from respondent. The Combses confronted respondent with this information, and respondent told them that he had decided to handle the case himself without Lafferty’s help.

{¶ 5} During the next several months, respondent falsely told the Combses on multiple occasions that he had filed a malpractice action in Montgomery County on their behalf. He also falsely told them that he had received some settlement offers from the defendant medical providers in the case. Finally, in December 2003, respondent advised the Combses to accept a $47,500 settlement offer from the defendants even though there was in fact no settlement offer from, or even a lawsuit against, the defendants. Respondent created a “Release and Confidentiality Agreement” for the nonexistent settlement, which the Combses signed upon respondent’s advice. The purported settlement called for the Combses to receive three installment payments of $10,000, $10,000, and $27,500 from the medical providers. Respondent then gave the Combses a check for $5,221.14 drawn on his law firm’s trust account, and he told them that that payment was the first installment of $10,000, with his attorney fees and expenses subtracted.

{¶ 6} In February 2004, the Combses asked respondent about the second $10,000 installment, which was to be paid to them that month under the purported settlement agreement that they had signed. Respondent falsely told them that he was unsure when the defendant physicians’ insurance company would be wiring the money to his law firm’s trust account.

{¶ 7} In June 2004, the Combses contacted another attorney, who searched court records in Montgomery County and learned that respondent had never filed a lawsuit on their behalf. When that attorney confronted respondent about his actions, respondent admitted that he had failed to file a medical-malpractice case despite telling the Combses that he had done so, and he acknowledged that he had fabricated the alleged settlement agreement to avoid being sued by them for legal malpractice. Respondent also claimed that he had intended to pay the $47,500 “settlement” to the Combses from his own personal funds.

[351]*351{¶ 8} In 2005, respondent did return the $1,000 that the Combses had paid him in November 2000, but the record does not reflect any additional payments to them under the purported settlement since the initial December 2003 payment.

{¶ 9} After examining these actions, the board found that respondent had violated the following Disciplinary Rules: DR 1-102(A)(4) (barring an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (barring conduct that is prejudicial to the administration of justice), 1-102(A)(6) (barring conduct that adversely reflects on a lawyer’s fitness to practice law), 2-106(A) (prohibiting a lawyer from agreeing to charge or collecting an illegal or clearly excessive fee), 2-110(A)(3) (requiring a lawyer to promptly return unearned fees upon withdrawal from employment), 6-101(A)(3) (barring an attorney from neglecting an entrusted legal matter), 6-102 (barring efforts by a lawyer to exonerate himself from or limit his liability to a client for malpractice), 7-101(A)(2) (prohibiting an attorney from intentionally failing to carry out a contract of professional employment), and 9-102(A) (requiring lawyers to maintain client funds in a separate, identifiable bank account).

Sanction

{¶ 10} In recommending a sanction for this misconduct, the board considered the aggravating and mitigating 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 (“BCGD Proc.Reg.”). As aggravating factors, the board found that respondent had displayed a dishonest or selfish motive and had engaged in a pattern of misconduct. BCGD Proc.Reg. 10(B)(1)(b) and (c).

{¶ 11} The board also cited these mitigating factors: the absence of a prior disciplinary record, respondent’s full and free disclosure to the disciplinary board, and his cooperative attitude toward the proceedings. BCGD Proc.Reg. 10(B)(2)(a) and (d). In addition, respondent submitted three letters to the board attesting to his professionalism and good character. BCGD Proc.Reg. 10(B)(2)(e).

{¶ 12} Relator recommended that respondent be suspended from the practice of law for two years, and the panel and the full board adopted that recommendation. The case is now before us on respondent’s objections to the board’s recommendation.

{¶ 13} We have reviewed the board’s report and have also considered the written and oral arguments presented by the parties in response to that report. We accept the board’s factual findings and legal conclusions, as well as its recommended sanction.

[352]*352{¶ 14} The number and intricacy of respondent’s lies to his clients, the three- and-a-half-year period during which he continued to mislead them, and the large number of ethical violations found by the board all justify the recommended two-year suspension. The mitigating evidence presented by respondent does not convince us that leniency is warranted, and we will not stay the suspension as he requests. Respondent engaged in a methodical pattern of dishonest conduct over many months, lying to his clients repeatedly and even covering his tracks with a fraudulent settlement document that barred the clients from discussing the “settlement” with anyone else. This conduct is unacceptable for a member of a profession in which loyalty, candor, and diligence are essential. Respondent’s view that he should be permitted to continue to practice law without any period of actual suspension suggests that he does not grasp the seriousness of his misconduct and does not understand how damaging this kind of dishonesty and deception can be to our legal system.

{¶ 15} “[W]hen an attorney engages in a course of conduct that violates DR 1-102(A)(4), the attorney will be actually suspended from the practice of law for an appropriate period of time.” Disciplinary Counsel v.

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Cite This Page — Counsel Stack

Bluebook (online)
856 N.E.2d 259, 111 Ohio St. 3d 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-manning-ohio-2006.