Toledo Bar Ass'n v. Dzienny

648 N.E.2d 499, 72 Ohio St. 3d 173

Opinions

Per Curiam.

In his only objection to the board’s findings and recommendation, respondent argues that he should receive a public reprimand instead of the six-month stayed suspension recommended by the board. In its objection to the board’s report, relator argues that the board erred in not finding that respondent’s conduct also violated DR 6-101(A)(3) and 7-101(A)(2).

In light of the significant and lengthy deception of his clients, the respondent’s argument that he deserves the lightest punishment possible under the rules is without merit. Respondent relies solely upon Portsmouth Bar & Library Assn. v. Stevenson (1994), 69 Ohio St.3d 37, 630 N.E.2d 337, for his position that he should receive a public reprimand. Although Stevenson also involved an attorney’s failure to timely file suit and subsequent deception of his client as to the status of the suit, the attorney in Stevenson eventually informed his client of his misconduct. In this case, respondent’s deceptions would never have been uncovered if the clients had not retained another attorney to look into the matter. As such, respondent’s misconduct is worse than that committed by the attorney in Stevenson and therefore deserves a greater punishment.

In similar cases of misconduct, we have consistently imposed a suspension or a suspended suspension as opposed to a public reprimand. In Columbus Bar Assn. v. Nichols (1991), 61 Ohio St.3d 546, 575 N.E.2d 799, we found that a one-year suspended suspension was appropriate where the attorney had failed to timely file two lawsuits. In Lorain Cty. Bar Assn. v. Motsch (1993), 66 Ohio St.3d 56, 607 N.E.2d 1069, we likewise held that deceiving clients about the fact that a suit had been filed on their behalf when that was not the case deserved a suspended six-month suspension.

Relator argues that the board erred in not finding that respondent’s conduct constituted a violation of DR 7 — 101(A)(2). However, relator asserted a violation of that rule only in connection with Count II of the complaint. As noted above, the board dismissed that count because it had not been proved by clear and convincing evidence. We defer to the board and decline to disturb that finding. See Cincinnati Bar Assn. v. Fennell (1980), 63 Ohio St.2d 113, 119, 17 O.O.3d 68, 72, 406 N.E.2d 1129, 1133.

Relator also argues that the board erred in not finding that the failure of respondent to timely file the lawsuit against the hospital and its employees violated DR 6-101(A)(3). In order to violate DR 6-101(A)(3), an attorney’s conduct must' constitute neglect. “Neglect involves an attorney’s failure to advance a client matter for which he has been retained. Neglect is different from negligence and usually requires a pattern of disregarding obligations or repeated omissions by an attorney.” Guttenberg & Snyder, The Law of Professional Responsibility in Ohio (1992) 201. Even though the failure to timely file a lawsuit, standing alone, may not rise to a violation of DR 6-101(A)(3), we believe that respondent’s failure to timely file the lawsuit coupled with his continued deception of his clients does constitute a violation of DR 6 — 101(A)(3). We reached the same result in Cuyahoga Cty. Bar Assn. v. Caywood (1991), 62 Ohio St.3d 185, 580 N.E.2d 1076, where the attorney missed the statute of limitations and then deceived his client about the status of the case. See, also, Toledo Bar Assn. v. Westmeyer (1988), 35 Ohio St.3d 261, 520 N.E.2d 223; Columbus Bar Assn. v. Nichols, supra.

Therefore, we hold that respondent violated DR 1-102(A)(4), 6-101(A)(3) and 6-102(A). Even though we have found an additional violation, we agree with the sanction recommended by the board. Accordingly, we order that respondent be suspended from the practice of law in the state of Ohio for six months and that the suspension be stayed.

Judgment accordingly.

Douglas, Wright, Resnick and Pfeifer, JJ., concur. Moyer, C.J., F.E. Sweeney and Cook, JJ., dissent.