Mahoning County Bar Ass'n v. Olivito

850 N.E.2d 702, 110 Ohio St. 3d 64
CourtOhio Supreme Court
DecidedJuly 26, 2006
DocketNo. 2005-2030
StatusPublished
Cited by3 cases

This text of 850 N.E.2d 702 (Mahoning County Bar Ass'n v. Olivito) 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. Olivito, 850 N.E.2d 702, 110 Ohio St. 3d 64 (Ohio 2006).

Opinion

Per Curiam.

{¶ 1} Respondent, Richard Aaron Olivito of Steubenville, Ohio, Attorney Registration No. 0041242, was admitted to the Ohio bar in 1989.

{¶ 2} On December 6, 2004, relator, the Mahoning County Bar Association, charged respondent with several violations of the Code of Professional Responsibility. Respondent answered the complaint, and a panel of the Board of Commissioners on Grievances and Discipline held a hearing on the complaint in July 2005. The panel then prepared findings of fact and conclusions of law, which the board adopted, as well as a recommendation, which the board modified.

Misconduct

{¶ 3} Sometime in either March or May 2003, Catherine and Michael Accola retained respondent to represent them in a bankruptcy matter and to obtain occupational driving privileges for Mr. Accola. Both respondent and Mrs. Accola testified that the Accolas paid respondent a fee at their first meeting. Respondent characterized this as a flat-fee arrangement, but no written fee agreement was executed. While there is some dispute as to the exact fee, the Accolas did give cash to respondent at the outset, and both parties understood that some further payment would be made.

{¶ 4} Respondent did little, if any, work on the Accola bankruptcy until August 2003. Sometime in August, respondent asked Robyn Wilson, a paralegal employed by the attorney from whom respondent rented office space, to help prepare the Accolas’ bankruptcy petition. Wilson worked on the petition for about a month and talked with the Accolas several times to gather information and discuss the petition. Wilson apparently did most of the work on the petition and gave a final draft to respondent sometime after Labor Day.

[65]*65{¶ 5} Although the bankruptcy petition was completed in early September 2003, respondent did not file the petition until October 17, 2003 — either seven months (from March) or five months (from May) after the Accolas retained him. Respondent did not have the Accolas review or sign the completed petition. Instead, respondent forged the Accolas’ signatures in three places on the petition. Respondent also falsely represented on the petition that he had received no payment for attorney fees.

{¶ 6} The Accolas’ creditors’ hearing was scheduled before the bankruptcy trustee on December 15, 2003. Respondent did not appear at the hearing and failed to notify the trustee or the court of his absence in a timely fashion. He also did not communicate with his clients before the hearing.

{¶ 7} The bankruptcy trustee, Elaine Greaves, rescheduled the creditors’ hearing for December 29, 2003, but respondent did not communicate with his clients between the first and second hearings. On December 23, 2003, respondent filed a one-page motion to withdraw as counsel. In the motion, respondent once again falsely claimed that the Accolas had not paid him attorney fees,- citing as a reason for withdrawal the “[c]omplete failure to pay counsel for his preparation and time in regards to this matter.”

{¶ 8} Respondent further claimed that he had sent the motion to the Accolas by ordinary mail on December 19, 2003. Mrs. Accola testified that she never received the motion to withdraw, nor did respondent inform her or her husband before the December 29 creditors’ hearing that he was intending to withdraw. Trustee Greaves expressed concern that, factoring in mailing time by regular mail and the intervening holiday, the timing of the motion to withdraw did not give the Accolas sufficient notice of respondent’s withdrawal to enable the Accolas to obtain another attorney before the second creditors’ hearing.

{¶ 9} Respondent arrived late for the December 29 hearing, and when he appeared, he made several additional misrepresentations to trustee Greaves. He falsely claimed that the Accolas had given him permission to sign their signatures to the petition, that he had provided them with a copy of the petition, and that he had “completely apprised” his clients of its contents. He told the trustee that he had saved the Accolas’ home from foreclosure, despite the fact that the Accolas did not own a home. He also claimed that the Accola bankruptcy was very complex and that he had reviewed the petition with a former bankruptcy trustee, neither of which was true.

{¶ 10} Respondent admitted violating DR 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation) for forging his clients’ signatures in the bankruptcy petition. Respondent, however, denied all other alleged violations. Nevertheless, the board found that respondent had additionally violated DR 1-102(A)(5) (barring conduct that is prejudicial to the administra[66]*66tion of justice), 1-102(A)(6) (barring conduct that adversely reflects on a lawyer’s fitness to practice law), 2-110(A)(2) (requiring a lawyer to take reasonable steps to prevent damage or prejudice to a client before withdrawing from representation), and 6-101(A)(3) (prohibiting the neglect of an entrusted legal matter).

(¶ 11} 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.”).

{¶ 12} As aggravating factors, the board found that although respondent’s misconduct affected only two clients in a single matter, there was a pattern of misconduct within that matter. Respondent made a number of false or misleading statements to the bankruptcy court and the panel. Because of respondent’s actions, his clients and the bankruptcy court had to suffer through the inconvenience of three separate hearings when this simple bankruptcy could have been accomplished in just one hearing. While respondent participated in the disciplinary process, the panel found that respondent did not engage in “full and free disclosure,” nor did he display a cooperative attitude toward the proceedings. Instead, respondent “tended to obfuscate, waste time, attack his own clients and other witnesses, and argue with Relator’s counsel. Literally hundreds of pages of the deposition transcripts, submitted by stipulation as evidence, were taken up with Respondent’s largely irrelevant, redundant, argumentative and sometimes rude questions and speeches.” See BCGD Proc.Reg. 10(B)(1)(c), (d), (e), (f), and (g).

{¶ 13} The mitigating factors identified by the board were the absence of a prior disciplinary violation by respondent and that respondent’s misdeeds affected two clients in one matter, rather than a series of clients and matters. Respondent also acknowledged the wrongful nature of his conduct in forging his clients’ signatures, although he admitted none of the other violations. The relator also stipulated that the Accolas received a bankruptcy discharge based on the petition filed by respondent, and in that regard, the clients were not harmed. Respondent additionally submitted several letters attesting to his good character and his interest in defending the rights of the poor and the downtrodden. See BCGD Proc.Reg. 10(B)(2)(a) and (e).

{¶ 14} Relator recommended that respondent be suspended for two years. Respondent suggested a public reprimand. The panel recommended that respondent be suspended from the practice of law for one year, with six months stayed. The board concluded that a two-year suspension with one year stayed was warranted for respondent’s misconduct. The case is now before us on respondent’s objections to the board’s recommendation.

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Cite This Page — Counsel Stack

Bluebook (online)
850 N.E.2d 702, 110 Ohio St. 3d 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahoning-county-bar-assn-v-olivito-ohio-2006.