Cleveland Bar Assn. v. Lavallo - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The Cleveland Bar Association v. Lavallo.
[Cite as Cleveland Bar Assn. v. Lavallo (1993), Ohio
St.3d .]
Attorneys at law -- Misconduct -- One-year suspension with six
months suspended and two-year monitored probation after
serving six months' actual suspension -- Neglect of an
entrusted legal matter -- Failure to carry out contract
for professional services -- Conduct involving fraud,
deceit, dishonesty or misrepresentation -- Failure to
cooperate with investigation of misconduct.
(No. 93-843 -- Submitted June 15, 1993 -- Decided
September 15, 1993.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 92-15.
Relator, Cleveland Bar Association, charges respondent,
Frank J. Lavallo, Jr. of South Euclid, Ohio, Attorney
Registration No. 0037899, with four counts of misconduct,
including violations of DR 6-101(A)(3) (neglect of an entrusted
legal matter), 7-101(A)(2) (failure to carry out contract for
professional services), and 1-102(A)(4) (conduct involving
fraud, deceit, dishonesty or misrepresentation), and Gov. Bar.
R. V(5)(a), now Gov.Bar.R. V(4)(G) (failure to cooperate with
investigation of misconduct). The matter was heard by a panel
of the Board of Commissioners on Grievances and Discipline of
the Supreme Court on September 18, 1992.
With respect to the first count of misconduct, relator
alleged that Steven Jerrick retained respondent in December
1988 to obtain a tax release on his deceased mother's checking
account and to perform other tasks related to her estate.
Jerrick paid respondent a $150 retainer and promised to pay an
additional $200 when the work was completed. Respondent failed
to take any action on Jerrick's behalf and did not respond to
Jerrick's inquiries about his progress. At the hearing before
the panel, respondent stipulated that his inaction violated DR
6-101(A)(3) and 7-101(A)(2).
In the second count, relator alleged that Roy Hill
retained respondent in February 1990 to arrange the transfer of
certain real estate. Hill mailed respondent a check for $300

to cover his fees. Respondent did not respond to Hill's
inquiries about his progress, although respondent later
refunded Hill's money after the certified grievance committee's
finding of probable cause. Respondent stipulated at the
hearing that his inaction violated DR 6-101(A)(3) and
7-101(A)(2).
In the third count, relator alleged that respondent failed
to respond to attempts to contact him about the Jerrick and
Hill complaints and that respondent had to be subpoenaed to
answer the certified grievance committee's questions.1
Respondent also stipulated at the hearing that he had failed to
cooperate with the investigation of his misconduct.
With respect to the fourth count of misconduct, relator
alleged that Roberta Scarcelli retained respondent in February
1990 to represent her during her divorce and that she paid
respondent the retainer he requested. In April 1990,
respondent asked Scarcelli to meet him for a hearing to be held
in the domestic relations court. After conferring with someone
in a referee's office, respondent advised Scarcelli that her
divorce was approved and final.
Two months later, Scarcelli still had not received papers
documenting the divorce. She called respondent, who advised
her that the papers would arrive soon. Thereafter, however,
respondent began to break appointments with Scarecelli. When
Scarecelli threatened to complain to relator, respondent
confessed that he had misled her about her divorce becoming
final. Scarcelli retained other counsel who discovered that
respondent had never filed her divorce action. At the hearing,
respondent acknowledged his having made a false statement to
Scarcelli, as well as his failure to perform and neglect.
Based on the foregoing, the panel found that respondent
violated DR 6-101(A)(3), 7-101(A)(2), and 1-102(A)(4), and
former Gov.Bar.R. V(5)(a). Finding no evidence of mitigation,
the panel recommended that respondent be suspended from the
practice of law for one year, but that six months of the
one-year suspension be stayed, and that respondent be monitored
for a period of two years following the six months' actual
suspension. The panel further recommended that respondent be
ordered to comply with all continuing education requirements
while subject to this sanction. The board adopted the panel's
findings and its recommendation, except that it said nothing
about continuing legal education and further recommended that
respondent be ordered to pay restitution to Scarcelli.

Michael E. Murman, E. John Brzytwa and Dale LaPorte, for
relator.
Frank J. Lavallo, Jr., pro se.

Per Curiam. We agree with the board's findings and its
recommendation. Accordingly, we order that respondent be
suspended from the practice of law in Ohio for one year. Six
months of that year are suspended, however, and respondent is
to be placed on monitored probation for a period of two years
after serving the six months' actual suspension. Moreover,
respondent must make restitution to Scarecelli before resuming
practice under monitored probation. Costs taxed to respondent.
Judgment accordingly.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.

FOOTNOTE
1 Respondent appeared before the committee in October 1990
and suggested that his medical affliction, Graves' disease,
interfered with his representation of these clients. At the
hearing, however, respondent stipulated that "neither the
disease nor its symptoms affected his ability to practice law
or in any way prevented him from attending to the legal matters
entrusted to him by Jerrick and Hill."