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

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Cleveland Bar Association v. Snow.
[Cite as Cleveland Bar Assn. v. Snow (1995) Ohio
St.3d .
Attorneys at law -- Misconduct -- Six-month suspension stayed
on conditions -- Failure to timely respond to bar
association's inquiry -- Unauthorized withdrawal from
IOLTA account -- Failure to obtain local counsel in
Virginia per federal district court rule.
(No. 95-379 -- Submitted April 4, 1995 -- Decided July 5,
1995.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 94-47.
In a complaint filed June 20, 1994, relator, Cleveland Bar
Association, charged respondent, David A. Snow of Cleveland,
Ohio, Attorney Registration No. 0033686, with four counts of
professional misconduct. A panel of the Board of Commissioners
on Grievances and Discipline of the Supreme Court considered
the matter on the parties' stipulations.
Respondent was admitted to the practice of law in Ohio on
November 11, 1973. With respect to Count I, respondent
stipulated that he failed to timely respond to relator's
request for information about a grievance filed by his client,
Djoni Lucaj, and that he thereby violated Gov.Bar R. V(4)(G).
With respect to Count II, respondent admitted that he had
violated DR 1-102(A)(1) (violation of Disciplinary Rule),
1-102(A)(6) (conduct that adversely reflects on fitness to
practice law), and 9-102(B), including sections (2) and (3)
(failure to properly segregate and account for client's funds),
because he withdrew $1,215 from an IOLTA account that
contained $6,000 in settlement proceeds belonging to his
client, Timothy S. McGuire, without McGuire's consent. In
January 1988, respondent properly endorsed and deposited the
settlement check for $6,000 and he promptly paid McGuire his
share of the proceeds. However, respondent apparently forgot
his promise to pay the $1,215 to McGuire's medical providers,
and he later withdrew the $1,215 from the trust account by
mistake. Respondent made the forgotten payment immediately
when he learned of McGuire's grievance.

With respect to Counts III and IV, respondent admitted
that he violated DR 6-101(A)(1) (when attorney is not competent
to provide representation, failure to associate with another
attorney who is competent) and (2) (inadequate preparation)
because he attempted to represent Donna M. Bethea in a criminal
matter in federal district court in Virginia without
associating himself with local counsel as required by local
rule. Respondent's failure to comply and failure to confer
with the prosecutor in the case required the federal district
court to appoint new counsel to represent Bethea at a hearing
on May 24, 1989.
The panel determined that respondent had violated DR
9-102(B)(2) and (3), 6-101(A)(1) and (2), and Gov.Bar R.
V(4)(G), as admitted. In recommending a sanction for this
misconduct, the panel considered an impressive array of
character references from judges and others of respondent's
professional acquaintance, all of whom affirmed his competence
and integrity. The panel rejected the parties' suggested
sanction -- a six-month suspension to be stayed, in whole or in
part, on the condition that respondent complete a two-year
monitored probation period -- and recommended that respondent
be publicly reprimanded. The board agreed, adopting the
panel's findings of misconduct and recommendation.

Arthur M. Kaufman and Howard Stern, for relator.
Charles W. Kettlewell, for respondent.

Per Curiam. We have reviewed the record and concur in the
board's findings of misconduct. However, we also agree with
the parties as to the sanction respondent should receive,
particularly in view of the public reprimand respondent
received in 1983. Cuyahoga Cty. Bar Assn. v. Snow (May 11,
1983), D.D. No. 83-5. Thus, we order that respondent be
suspended from the practice of law in Ohio for a period of six
months; however, we suspend imposition of this sanction on the
condition that respondent complete a two-year monitored
probation, provided that during this period no disciplinary
complaints against respondent are certified to the board by a
probable cause panel. Costs taxed to respondent.
Judgment accordingly.
Moyer, C.J., Wright, Resnick, F.E. Sweeney and Cook, JJ.,
concur.
Douglas and Pfeifer, JJ., dissent.
Douglas, J., dissenting. I respectfully dissent. The
panel that considered the case against respondent recommnended
that respondent receive a public reprimand. When the full
board considered the case against respondent, it also
recommended a public reprimand. I would accept the advice of
these fact-finding tribunals and order that respondent be
publicly reprimanded.
Pfeifer, J., concurs in the foregoing dissenting opinion.