Disciplinary Counsel v. Simonelli

863 N.E.2d 1039, 113 Ohio St. 3d 215
CourtOhio Supreme Court
DecidedApril 18, 2007
DocketNo. 2006-1190
StatusPublished
Cited by2 cases

This text of 863 N.E.2d 1039 (Disciplinary Counsel v. Simonelli) 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. Simonelli, 863 N.E.2d 1039, 113 Ohio St. 3d 215 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} Respondent, Mark Michael Simonelli of Willoughby, Ohio, Attorney Registration No. 0065965, was admitted to the Ohio bar in 1996.

{¶ 2} On December 6, 2004, relator, Disciplinary Counsel, filed a complaint charging respondent with multiple violations of the Code of Professional Responsibility. 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 March 2006. The panel then prepared written findings of fact, conclusions of law, and a recommendation, all of which the board adopted.

Misconduct

{¶ 3} Relator agreed to withdraw Counts II, IV, and V of the complaint before the hearing. We now consider the evidence presented in support of the remaining allegations in the complaint.

Count I

{¶ 4} Beginning in the summer of 2002, respondent accepted client referrals from WJW Enterprises, an organization that purported to assist persons trying to keep their homes after foreclosure proceedings had been filed against them. Some of the clients referred by WJW to respondent were in need of advice and [216]*216representation on bankruptcy matters. Respondent generally charged each bankruptcy client $600 for his services, plus court costs.

{¶ 5} In September 2002, respondent filed a Chapter 13 bankruptcy petition in the bankruptcy court on behalf of his client Barbara Fletcher, who had been referred to him by WJW. Respondent spoke with Fletcher briefly one time by telephone before he filed the bankruptcy petition, but they never met in person. A runner from respondent’s office met with Fletcher at a restaurant so that Fletcher could sign several papers before the bankruptcy filing, but no one explained the documents to Fletcher, and she testified at the disciplinary hearing that she had no idea what the documents were.

{¶ 6} The month after respondent filed Fletcher’s bankruptcy petition, another person from respondent’s office met Fletcher at a restaurant so that she could sign another document. No one explained the document to Fletcher or discussed respondent’s legal fees with her.

{¶ 7} Respondent did not meet or speak with Fletcher before the November 2002 meeting of creditors in her bankruptcy case, and he did not tell her that he would be sending a different attorney to the meeting. Fletcher testified that the other attorney did not know anything about the case.

{¶ 8} In a signed statement on Fletcher’s bankruptcy petition, respondent told the bankruptcy court that he had explained to his client the different types of relief available to her under federal bankruptcy laws, but Fletcher testified at the disciplinary hearing that neither respondent nor anyone from his law firm had provided any such explanation to her.

{¶ 9} In another signed statement filed by respondent in Fletcher’s bankruptcy case, he stated that he had “not shared or agreed to share with any other entity * * * any compensation” in connection with Fletcher’s case. In another filing in the case, respondent stated that Fletcher had paid him $600 for his services, but respondent’s $600 legal fee was paid by WJW rather than by Fletcher directly. The president of WJW was James Warsing, who was not an attorney licensed to practice law in Ohio.

{¶ 10} After examining these actions, the board found that respondent had violated the following Disciplinary Rules: DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 3-102(A) (prohibiting a lawyer from sharing legal fees with a nonlawyer), and 6-101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter).

Count III

{¶ 11} In October 2002, respondent filed a Chapter 13 bankruptcy petition in the bankruptcy court on behalf of his client Amy Wolf, who had been referred to him by WJW.

[217]*217{¶ 12} In a signed statement on Wolfs bankruptcy petition, respondent told the bankruptcy court that he had explained to his client the different types of relief available to her under federal bankruptcy laws, but Wolf testified at the disciplinary hearing that respondent never spoke with her at any time during the representation, and Wolf never spoke with anyone from respondent’s law office before respondent filed the bankruptcy petition for her.

{¶ 13} In another filing in Wolfs bankruptcy case, respondent stated that Wolf had paid him $600 for his services. Wolf testified at the disciplinary hearing that she never paid respondent any money but instead paid $800 to WJW. WJW then paid respondent $600 for his work on the Wolf matter. The president of WJW was James Warsing, who was not an attorney licensed to practice law in Ohio.

{¶ 14} After examining these actions, the board found that respondent had violated DR 1-102(A)(4) and 3-102(A).

Count VI

{¶ 15} In December 2002, respondent filed a Chapter 13 bankruptcy petition in the bankruptcy court on behalf of his clients Timothy and Sharon Haines, who had been referred to him by WJW. Sharon Haines testified at the disciplinary hearing that respondent never spoke with her at any time during the representation.

{¶ 16} A runner from respondent’s office met with Sharon Haines at a restaurant so that she could sign several papers before the bankruptcy filing, but Sharon could not recall for certain whether anyone from respondent’s law firm had explained the documents to her before she signed them.

{¶ 17} In January 2003, the bankruptcy trustee moved to dismiss the Haineses’ case because they had not filed a Chapter 13 plan. Respondent never discussed the trustee’s motion with the Haineses, and the bankruptcy court granted the trustee’s motion.

{¶ 18} After examining these actions, the board found that respondent had violated DR 6-101(A)(3).

Respondent’s Objections to the Board’s Findings

{¶ 19} 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 find that respondent violated all of the provisions as described above.

{¶ 20} Respondent identifies certain testimony from the disciplinary hearing that conflicts with the testimony and other evidence on which the panel and the board relied in reaching the findings of misconduct noted above. The record supports the panel and the board’s findings, however, and “[ujnless the record weighs heavily against a hearing panel’s findings, we defer to the panel’s [218]*218credibility determinations, inasmuch as the panel members saw and heard the witnesses firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24. See, also, Disciplinary Counsel v. Zingarelli (2000), 89 Ohio St.3d 210, 220-221, 729 N.E.2d 1167 (rejecting an attorney’s objections following a disciplinary hearing because “it was the panel members, and not this court, who had the opportunity to evaluate the character and demeanor of the witnesses”). Because we find ample evidence in the record to support the panel and the board’s findings, we adopt those findings ourselves.

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Bluebook (online)
863 N.E.2d 1039, 113 Ohio St. 3d 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-simonelli-ohio-2007.