Dayton Bar Ass'n v. Parker

Per Curiam. ¶ 1 Respondent, Arlynn A. Parker of Dayton, Ohio, Attorney Registration No. 0029312, was admitted to the practice of law in Ohio in 1980. On June 17, 2002, relator, Dayton Bar Association, charged respondent with various violations of the Code of Professional Responsibility. Efforts to serve respondent with the complaint at her last known address failed, and the complaint was served on the Clerk of the Supreme Court pursuant to Gov.Bar R. V(11)(B). Respondent did not answer, and relator moved for default pursuant to Gov.Bar R. V(6)(F). ¶ 2 The Board of Commissioners on Grievances and Discipline appointed a master commissioner to consider the motion for default and adopted the master commissioner’s findings of fact, conclusions of law and recommendation. As to the first count of the complaint, an investigator’s affidavit substantiated that respondent had represented a client for whom respondent failed to correct a bankruptcy petition. This client filed a grievance concerning respondent’s neglect. Relator’s investigator attempted to interview respondent, but respondent did not return the investigator’s telephone call. The board concluded from this evidence that respondent had violated DR 6-101(A)(3) (prohibiting neglect of an entrusted legal matter) and Gov.Bar R. V(4)(G) (requiring an attorney to cooperate in a disciplinary investigation). ¶ 3 As to the second count, an investigator’s affidavit substantiated that respondent changed a date on a second client’s bankruptcy petition, “acted unprofessionally in meeting in public places to transact legal business,” and failed to carry out a contract of employment for professional services. The board found that respondent had thereby violated DR 1-102(A)(4) (barring conduct involving 118 dishonesty, fraud, deceit, or misrepresentation), 6-101(A)(3), and 7~101(A)(2) (requiring an attorney to carry out contracts for professional employment). Because respondent did not respond to the investigator’s three letters of inquiry and telephone call, the board also found a second violation of Gov.Bar R. V(4)(G). ¶ 4 As to the third count, an investigator’s affidavit substantiated that respondent failed to “maintain communication” with a third client. The board found that respondent had thereby violated DR 6-101(A)(3). ¶ 5 As to the fourth count, an investigator’s affidavit substantiated that respondent promised but failed to place in escrow a portion of a fourth client’s settlement fees that the client needed in order to pay outstanding medical bills. And when the investigator attempted to interview respondent about this client’s grievance, respondent told the investigator that she was not then prepared to discuss the matter. Respondent never did answer the investigator’s inquiries. The board found that respondent had thereby violated DR 1-102(A)(4), 6-101(A)(3), 7-101(A)(2), 9-102(B)(3) (requiring an attorney to account for client’s funds), and 9-102(B)(4) (requiring an attorney to pay client funds to which client is entitled), and Gov.Bar R. V(4)(G). ¶ 6 Upon review, we agree that respondent committed the foregoing misconduct. In addition to the violations cited in this opinion, however, the board also found five more disciplinary violations relative to the first count in the complaint, two more violations relative to the second count, five more relative to the third count, two more relative to the fourth count, and three more relative to a fifth count. Although these additional violations were charged in the complaint, relator did not cite them in its motion for default or substantiate them with proof. See Gov.Bar R. V(6)(F)(l)(b) (charges shall be supported in default motion by “sworn or certified documentary prima facie evidence”). We therefore reject these findings pursuant to our independent review and final authority in disciplinary cases. See Ohio State Bar Assn. v. Reid (1999), 85 Ohio St.3d 327, 708 N.E.2d 193, paragraph one of the syllabus. ¶ 7 In recommending a sanction for this misconduct, the board found no evidence of the mitigating factors listed in Section 10(B)(2) of the Rules and Regulations Governing Complaints and Procedure Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). The board found the following aggravating circumstances: a pattern of misconduct, multiple offenses, lack of cooperation in the disciplinary process, refusal to acknowledge wrongfulness of conduct, harm to vulnerable clients, and failure to make restitution. BCGD Proc.Reg. 10(B)(1)(c), (d), (e), (g), (h), and (i). The board recommended, in accordance with the sanction recommended by the master commissioner, that respondent be suspended indefinitely from the practice of law. 119 ¶ 8 Having found that respondent violated DR 1-102(A)(4), 6 — 101(A)(3), 7-101(A)(2), 9-102(B)(3), and 9-102(B)(4), and Gov.Bar R. V(4)(G), we agree that an indefinite suspension is the appropriate sanction. “ ‘Neglect of legal matters and a failure to cooperate in the ensuing disciplinary investigation * * * warrant an indefinite suspension from the practice of law in Ohio.’ ” Cleveland Bar Assn. v. Judge (2002), 94 Ohio St.3d 331, 332, 763 N.E.2d 114, quoting Akron Bar Assn. v. Snyder (1999), 87 Ohio St.3d 211, 212, 718 N.E.2d 1271. ¶ 9 Accordingly, respondent is hereby indefinitely suspended from the practice of law in Ohio. Costs are taxed to respondent. Judgment accordingly. Moyer, C.J., Resnick, F.E. Sweeney, O’Connor and O’Donnell, JJ., concur. Pfeifer, J., dissents. Lundberg Stratton, J., dissents with opinion.