Toledo Bar Assn. v. Pommeranz - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Toledo Bar Association v. Pommeranz.
[Cite as Toledo Bar Assn. v. Pommeranz (1995), Ohio
St.3d .]
Attorneys at law -- Misconduct -- One-year suspension suspended
on condition of completing one year of monitored probation
-- Engaging in conduct prejudicial to the administration
of justice -- Engaging in conduct that adversely reflects
on fitness to practice law -- Neglect of an entrusted
legal matter -- Failing to seek client's lawful objective
-- Failing to carry out contract for professional services.
(No. 94-2666 -- Submitted February 7, 1995 -- Decided May
31, 1995.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 91-45.
By amended complaint filed March 31, 1993, relator, Toledo
Bar Association, charged respondent, Melvin P. Pommeranz of
Toledo, Ohio, Attorney Registration No. 0031840, with seven
counts of misconduct involving, inter alia, DR 1-102(A)(5) and
(6) (engaging in conduct prejudicial to the administration of
justice and that adversely reflects on fitness to practice
law), 6-101(A)(3) (neglecting an entrusted legal matter),
7-101(A)(1) (failing to seek client's lawful objective), and
7-101(A)(2) (failing to carry out contract for professional
services). A panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court ("board") heard
the matter on July 29, 1994.
Respondent stipulated to the facts and misconduct alleged
in Counts One through Six, and relator dismissed Count Seven.
The panel, however, determined that respondent had committed
misconduct only in connection with Counts Three through Six,
which alleged the violations of DR 1-102(A)(5) and (6),
6-101(A)(3), and 7-101(A)(1) and (2). The panel found that
these violations occurred in the course of respondent's
representation of Kathleen Crooks, Valerie Burks, and Carol Sue
Carmon.
Kathleen Crooks retained respondent in September 1987 to
terminate her ex-husband's visitation rights because she
suspected he was sexually abusing their son. Crooks had

apparently already refused her ex-husband visitation, and on
May 22, 1987, he had filed a motion to show cause and to
enforce these rights. The matter was set for hearing on
January 25, 1988, but Crooks and her ex-husband settled their
differences and agreed to a reduction of the visitation
previously ordered before the hearing date . Thereafter,
respondent represented to Crooks that he had filed a motion,
apparently to change the existing visitation order to reflect
the parties' agreement; however, no such motion appears in the
domestic relations court's records. Respondent also
represented to his client that he had been instructed by the
guardian ad litem, in effect, not to pursue the motion until
spring, although the guardian ad litem did not recall this
instruction.
From February 2, 1988 through November 1988, respondent
did not return Crooks's telephone calls and did not take any
action in her case. When asked about this lack of activity,
respondent represented, apparently to relator's investigator,
that his client never called him and that he was waiting for a
psychologist, working in tandem with the local children's
services board, to have the case moved to the juvenile court.
The psychologist denied that he agreed to do this, and the
ex-husband's attorney did not know of such an arrangement.
Crooks finally reported her concerns that her ex-husband
was sexually abusing their son to Fulton County Assistant
Prosecutor Gary Poorman, who referred the matter to the
children's services board. The Juvenile Division of the Fulton
County Court of Common Pleas subsequently scheduled a hearing
on visitation for November 1, 1988, and Crooks advised
respondent of the hearing date. Thereafter, the parties
apparently resolved their differences again before an
adjudication hearing could be held on January 18, 1989.
Sometime after January 18, 1989, Crooks asked respondent
to obtain an increase in her child-support payments. On March
16, 1989, the attorney for Crooks's ex-husband wrote to
respondent, apparently to advise that the ex-husband had agreed
to some proposed terms about increasing child-support
payments. For some reason, however, respondent told Crooks
that her ex-husband would not agree to the proposed terms,
which her ex-husband later told her was not true. In early
June 1989, a counselor for Crooks and her ex-husband wrote to
respondent and also confirmed the agreement to increase child
support. Respondent represented to Crooks that he received
this information in July, and he promised to draft papers
documenting the agreement. He later represented that he
believed the ex-husband's attorney was drafting the necessary
papers. By October 1989, respondent still had not prepared
these papers, and Crooks discharged him. Her new attorney
obtained the increased child-support payments within one month
after being retained.
Valerie Burks engaged respondent in early February 1990 to
represent her in a divorce and custody dispute, for which the
final hearing had been scheduled for February 20, 1990. The
parties agreed at the hearing to continue in a joint-custody
arrangement. Sometime after the mandatory sixty-day waiting
period that followed, Burks asked respondent to take "some
action" because she was no longer satisfied with joint

custody. Thereafter, respondent advised his client that he had
prepared a particular motion and that a hearing had been set
for June 1990. On June 1, 1990, Burks contacted the court
clerk and learned that no such motion had been filed.
When Burks asked respondent about the missing motion, he
promised to send her a copy of a journal entry and represented
that he was also preparing a motion to change custody and
visitation. On June 22, 1990, Burks telephoned respondent, and
he pretended to read the relevant journal entry to her and
advised that he was still working on the motion to change
custody and visitation. On July 2, 1990, respondent explained
to Burks that a judge was causing his delay. On July 20, 1990,
respondent promised again to forward copies of the journal
entry and motion. In the meantime, the court threatened to
dismiss the cause if the parties did not submit the necessary
journal entry. On July 25, 1990, Burks contacted the court
clerk's office to learn that a motion had been filed to compel
respondent's filing of the journal entry. On July 25, 26, and
27, Burks tried unsuccessfully to reach respondent to discuss
these developments, and she finally just picked up her case
file.
Sometime in 1989, Carol Sue Carmon paid respondent a $500
retainer and $100 filing fee to represent her in a Wood County
vistation proceeding. Respondent told Carmon that he filed a
motion to establish visitation on December 13, 1989; however,
the court has no record of that filing. Respondent did send a
copy of his motion to Carmon, but it took her three months to
reach him with her corrections. Finally, in February 1990,
respondent advised Carmon that the motion had not been filed
because the court had no record of the paid filing fee. He
offered to find the canceled check and to contact her when a
hearing had been scheduled. Carmon never heard from respondent
again, despite her further efforts to contact him. Respondent
subsequently represented, apparently to relator's investigator,
that his visitation motion had been filed but not heard because
of a crowded court docket.
In recommending a sanction for respondent's violations of
DR 1-102(A)(5) and (6), 6-101(A)(3), and 7-101(A)(1) and (2),
the panel considered the personal tragedies respondent had
experienced during the events at issue. His elderly parents
both suffered serious illnesses and required much of his time
and care. After several hospitalizations, his mother passed
away, and so did his father-in-law. Respondent, himself,
suffered from a recurring and incapacitating eye infection
caused by a diseased cornea.
In addition, the panel considered respondent's efforts to
regain control over his overwhelming caseload. He attended a
time-management course and has used the lessons to responsibly
reduce his practice. He also arranged to share office space
with an informal mentor, Jude T. Aubry, who now monitors
respondent's progress and suggests additional ways to improve
his efficiency.
The panel also considered numerous favorable reports from
respondent's professional acquaintances and friends, most of
whom attested by affidavit to his competence, integrity, pro
bono work, and dedication to the practice of law.
The panel recommended that respondent be suspended from

the practice of law for one year, but that this sanction be
suspended in favor of a one-year probation period to be
formally monitored by Aubry. The board adopted the panel's
findings of misconduct and its recommendation.
Cooper, Straub, Walinski & Cramer and Keith Mitchell, for
relator.
Lorin J. Zaner, for respondent.
Per Curiam. We have reviewed the record and concur in the
board's findings of misconduct and its recommendation.
Respondent is therefore suspended from the practice of law in
Ohio for a period of one year, but this sanction is suspended
on the condition that he successfully completes a year of
probation to be monitored by Jude T. Aubry. Costs taxed to
respondent.

Judgment accordingly.
Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., Wright and Cook, JJ., dissent.
Moyer, C.J., dissenting. For the same reasons that I
dissented in Toledo Bar Assn. v. Dzienny (1995), 72 Ohio St.2d
173, 177-178, 648 N.E.2d 499, 502, I am again unable to agree
with the majority's disposition of this matter.
At a minimum, the majority's statement of facts, admitted
by respondent, includes no fewer than ten lies told by
respondent. Respondent not only lied to his clients but to
grievance committee investigators as well. Particularly
troubling is respondent's use of court officials and even a
judge as scapegoats when confronted by clients for the truth.
If we truly desire to maintain trust in our profession and
in our legal system, this court cannot continue to order
sanctions for lawyer misconduct that amount to little more than
a slap on the wrist when that conduct involves a continuing
breach of trust.
I am not unmindful of respondent's mitigation evidence nor
am I abandoning the hope of rehabilitation. However, as I have
previously stated, a "message should be sent to those who
question why lawyers who lie to clients are permitted to
continue practicing law without interruption, and to lawyers
who apparently are assuming that the benefit for deceiving
clients is worth the risk of our sanction." Dzienny, supra, at
178, 648 N.E.2d at 503 (Moyer, C.J., dissenting). We must
communicate with stern conviction that the failure to accept
responsibility for one's mistakes and to respond in a
forthright and expedient manner will result in actual
suspension from the practice of law.
For the foregoing reasons I would suspend respondent from
the practice of law for one year with six months suspended.
Wright and Cook, JJ., concur in the foregoing dissenting
opinion.