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

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Cleveland Bar Association v. Gay.
[Cite as Cleveland Bar Assn. v. Gay (1993), Ohio St.3d
.]
Attorneys at law -- Misconduct -- Indefinite suspension --
Readmittance with conditions -- Engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation
-- Conduct prejudicial to the administration of justice --
Conduct adversely reflecting on fitness to practice law --
Neglect of an entrusted legal matter -- Failing to
maintain complete record of client funds and properties --
Failing to promptly pay or deliver funds requested by
client -- Failing to seek lawful objectives of client --
Failing to cooperate in investigations by grievance
committee -- Failing to register with Supreme Court.
(No. 93-1738 -- Submitted November 10, 1994 -- Decided
February 2, 1994.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 90-35.
On June 26, 1990, relator, Cleveland Bar Association,
filed a five-count complaint charging respondent, James A. Gay
of Cleveland, Ohio, Attorney Registration No. 0025646, with
numerous violations of the Code of Professional
Responsibility. Respondent failed to answer the complaint and,
on March 4, 1993, a panel of the Board of Commissioners on
Grievances and Discipline granted relator's motion for
default. Counsel for respondent subsequently made an
appearance in the proceeding to submit evidence in mitigation
only. The parties waived their right to a hearing on that
issue.
The evidence submitted in support of relator's motion for
default shows, as to Count I, that respondent was removed as
administrator of his father's estate for failing to file an
inventory. Further, the successor administrator received a
judgment against respondent for misappropriating and converting
to his own use the sum of $5,631.55 from the estate. The panel
found that respondent violated DR 1-102(A)(4) (engaging in
conduct involving dishonesty, fraud, deceit or
misrepresentation), 1-102(A)(5) (engaging in conduct that is

prejudicial to the administration of justice), 1-102(A)(6)
(engaging in conduct that adversely reflects on one's fitness
to practice law), 6-101(A)(3) (neglecting a legal matter
entrusted), 9-102(B)(3) (failing to maintain complete records
of all funds, securities and other properties of a client), and
9-102(B)(4) (failing to promptly pay or deliver to a client as
requested by the client, the funds, securities, or other
properties in the attorney's possession).
As to Count II, the evidence reveals that respondent
agreed to represent Phyllis M. Washington in a pending
malpractice action, that he did not respond to her telephone
calls or letters, and that he failed to pursue her lawsuit.
The panel found violations of DR 1-102(A)(4), 1-102(A)(5),
6-101(A)(3), and 7-101(A)(1) (failing to seek the lawful
objectives of a client).
The evidence establishes, as to Count III, that respondent
agreed to represent three clients (Johnnie Jones, Paul Traylor
and Jacqueline Jackson) in various legal matters and,
thereafter, failed to pursue their claims or communicate with
them. Further, respondent accepted fees from Jones and Traylor
(in the amounts of $200 and $345, respectively) for legal
services which he did not perform and he has failed to return
those sums. The panel found violations of DR 1-102(A)(4),
6-101(A)(3), 7-101(A)(1), and 9-102(B)(4).
As to Count IV, the evidence shows that various members of
the Certified Grievance Committees of the Cleveland and
Cuyahoga County Bar Associations contacted respondent
concerning the complaints filed against him, that respondent
failed to respond to their telephone calls and letters, and
that respondent failed to provide the information they
requested. The panel found a violation of Gov. Bar R. V(5)(A),
now V(4)(G) (failing to cooperate in investigations by
certified grievance committees).
As to Count V, the evidence establishes that respondent
was admitted to the practice of law in the state of Ohio in
1979, that he has continued to practice law in this state at
least through January 1991, and that he has not registered with
the Supreme Court of Ohio pursuant to Gov. Bar R. VI since the
1985-1987 biennium. The panel found a violation of Gov. Bar R.
VI(1) (failing to register with the Supreme Court of Ohio).
In mitigation, respondent, through his counsel, submitted
medical documentation that the misconduct alleged was
attributable to clinical depression and substance abuse.
Relator and counsel for respondent recommended that respondent
be indefinitely suspended from the practice of law.
The panel recommended indefinite suspension as the
appropriate sanction. It further recommended that respondent's
readmittance be conditioned upon his providing clear and
convincing evidence of his abstinence from substance abuse and
substantial recovery from clinical depression, as well as proof
of restitution. The board adopted the panel's findings and
recommendation.

John A Hallbauer and Dennis M. Pilawa, for relator.
Otha M. Jackson, for respondent.

Per Curiam. We agree that respondent committed the

disciplinary violations found by the board. We also agree with
the board's recommendation. Accordingly, respondent is hereby
indefinitely suspended from the practice of law in Ohio with
readmittance conditioned upon the criteria recommended by the
board. Costs taxed to respondent.
Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.