Mahoning County Bar Ass'n v. Lavelle

836 N.E.2d 1214, 107 Ohio St. 3d 92
CourtOhio Supreme Court
DecidedNovember 23, 2005
DocketNo. 2004-2159
StatusPublished
Cited by5 cases

This text of 836 N.E.2d 1214 (Mahoning County Bar Ass'n v. Lavelle) 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
Mahoning County Bar Ass'n v. Lavelle, 836 N.E.2d 1214, 107 Ohio St. 3d 92 (Ohio 2005).

Opinion

Per Curiam.

{¶ 1} Respondent, Mark Joseph Lavelle of Youngstown, Ohio, Attorney Registration No. 0061904, was admitted to the Ohio bar in 1993.

{¶ 2} On May 14, 2004, relators — Mahoning County Bar Association and Disciplinary Counsel — filed an amended complaint charging respondent with two counts of professional misconduct. A panel of the Board of Commissioners on Grievances and Discipline held a hearing and made findings of fact, conclusions of law, and a recommendation, all of which the board adopted.

[93]*93Misconduct

Count One

{¶ 3} Gloria Lynn Short retained respondent in October 2002 to represent her in a domestic-relations matter. She met with respondent, discussed her interest in obtaining a dissolution of her marriage, and received paperwork from respondent that she and her husband were to complete.

{¶ 4} Two weeks later, Short and her husband returned to respondent’s law office and met with his secretary, Pamela Rodriguez. They reviewed and signed paperwork that Rodriguez had typed. Thereafter, Short called respondent’s law office weekly to find out when her dissolution hearing would be held. Rodriguez assured her that the case was pending and a hearing would be scheduled, but in fact neither respondent nor anyone else in his office had ever filed the dissolution pleadings in court. In May 2003, Short hired a different lawyer and secured a dissolution by July of that year.

{¶ 5} Short filed a grievance against respondent in May 2003. The bar association sent a letter and a copy of the grievance to respondent in May 2003 and asked that he respond within 15 days. Respondent did not do so and likewise did not reply to two additional letters sent to him by a member of the bar association in June and July 2003. After respondent received a fourth letter from the bar association in August 2003, he called the bar association’s investigator, scheduled an interview, and prepared a written response to the grievance.

{¶ 6} At his August 2003 interview and in his written response to the grievance, respondent told the investigator that he could not find his file and was not certain what had happened with Short’s case. He indicated that he learned in May 2003 that Short’s dissolution pleadings had never been filed by his office.

{¶ 7} The board found that respondent had thereby violated DR 6-101(A)(3) (barring an attorney from neglecting an entrusted legal matter). Other allegations against respondent in the amended complaint had not been proven by clear and convincing evidence, according to the board, including an allegation that respondent had tried to hide his misconduct by providing a misleading story to the bar association’s investigator.

Count Two

{¶ 8} Respondent met with Brian and Lori Cupp concerning a domestic-relations matter in 2002. Respondent prepared a summons, an affidavit, financial disclosure forms, and a proposed judgment entry granting Cupp and his wife a dissolution. Brian never paid the agreed retainer in full, and respondent never filed a petition for dissolution or any other documents with the common pleas court to initiate the ease.

[94]*94{¶ 9} During respondent’s representation of Brian Cupp, persons employed in respondent’s law office altered documents or falsely notarized them. The affidavit prepared by respondent for the case purports to bear the signatures of both Cupp and his wife, Lori Cupp, with one notary verification. The jurat on the affidavit states that it was signed in the presence of the notary on December 10, 2002, but Lori did not in fact sign it that day. The notary on the document was Gregory Lavelle, the respondent’s brother, who is not an attorney but was employed in respondent’s law office to assist him on personal-injury and domestic-relations matters. Respondent’s secretary, Pamela Rodriguez, changed the date on the affidavit using whiteout correction fluid and added the December 10, 2002 date in place of the date when Lori actually signed the affidavit.

{¶ 10} Rodriguez also altered the signature page on a copy of the Cupps’ separation agreement that she gave to Lori to make it appear as if Lori had signed that document on December 10, 2002. Lori did not sign the document that day. Also, respondent is listed as the notary for Brian Cupp’s signature on the separation agreement, but by his own admission, respondent did not see Cupp sign the document and did not sign the document himself next to the “Mark Lavelle, Attorney at Law” notarial stamp.

{¶ 11} In addition, Rodriguez used whiteout correction fluid to alter two dates on a copy of the parties’ petition for dissolution that she gave to Lori. Rodriguez also faxed a series of documents to a mortgage company in February 2003 listing case numbers for the Cupp dissolution, thereby purporting to show that respondent’s law office had filed the Cupp dissolution petition. ' The case numbers were fictitious; the dissolution petition had not been filed. One of the documents that Rodriguez sent to the mortgage company contained a fictitious file stamp from the common pleas court, a fictitious case number, and the name of a judge on the first page.

{¶ 12} Lori Cupp retained her own attorney in early 2003, and that attorney filed a complaint for divorce on Lori’s behalf in April 2003. Lori filed a grievance against respondent in May 2003.

{¶ 13} After examining respondent’s alleged misconduct in connection with the Cupp case, the board found no clear and convincing evidence that he had committed any violations of the Code of Professional Responsibility.

Recommended Sanction

{¶ 14} In recommending a sanction for respondent’s misconduct in Count One, 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.”). The board cited no aggravating factors in connection with respon[95]*95dent’s actions. The board did note several mitigating factors, including the absence of any prior disciplinary record, the absence of a dishonest or selfish motive, a cooperative attitude during the proceedings once respondent replied to the grievances, and support for respondent’s good character and reputation from judges, attorneys, and others. BCGD Proc.Reg. 10(B)(2)(a), (b), (d), and (e).

{¶ 15} The panel recommended that respondent be suspended from the practice of law for six months, with the entire suspension stayed on conditions. The board accepted this recommendation.

Review of the Board’s Report

{¶ 16} We agree with the board that respondent violated DR 6-101(A)(3) by neglecting a legal matter entrusted to him by Gloria Short. Unlike the board, we find clear and convincing evidence in the record that respondent also violated Gov.Bar R. V(4)(G) in connection with the Short case. Gov.Bar R. V(4)(G) requires attorneys to cooperate with and assist in any disciplinary investigation, and even though respondent eventually did cooperate with the investigation, he ignored for three months the Short grievance and the bar association’s efforts to investigate it.

{¶ 17} The bar association sent a letter and a copy of the Short grievance to respondent on May 20, 2003, asking that he respond within 15 days. When respondent did not do so, the bar association’s assigned investigator sent a second letter on June 17, 2003, asking for a response.

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Related

Disciplinary Counsel v. Davis.
2019 Ohio 1314 (Ohio Supreme Court, 2019)
Disciplinary Counsel v. Maley
119 Ohio St. 3d 217 (Ohio Supreme Court, 2008)
Disciplinary Counsel v. Young
113 Ohio St. 3d 36 (Ohio Supreme Court, 2007)
Mahoning County Bar Ass'n v. Lavelle
852 N.E.2d 736 (Ohio Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
836 N.E.2d 1214, 107 Ohio St. 3d 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahoning-county-bar-assn-v-lavelle-ohio-2005.