Dayton Bar Assn. v. Andrews - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Dayton Bar Association v. Andrews.
[Cite as Dayton Bar Assn. v. Andrews (1997), ______Ohio St.3d_____.]
Attorneys at law -- Misconduct -- One-year suspension with
conditions for reinstatement -- Charging an excessive fee for
work performed -- Failure to return client's papers and
unearned fees upon withdrawal from employment -- Failure to
withdraw from employment when mental or physical condition
renders further employment unreasonably difficult --
Continuing employment while under a conflict of interest --
Neglecting an entrusted legal matter -- Failing to promptly
return to client funds client is entitled to receive.

(No. 96-2807 -- Submitted March 19, 1997 -- Decided June 25,
1997.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances
and Discipline of the Supreme Court, No. 95-91.

On December 4, 1995, the relator, Dayton Bar Association, charged
respondent, Charles G. Andrews of Dayton, Ohio, Attorney Registration
No. 0037476, in four counts with violating several Disciplinary Rules while
representing clients in bankruptcy cases.

At a November 25, 1996 hearing before a panel of the Board of
Commissioners on Discipline and Grievances of the Supreme Court

("board"), the following facts were stipulated and the panel made the
following conclusions.
Count
One

On March 4, 1994, Keith Henry paid respondent $160 to file a
petition under Chapter 13 of the federal Bankruptcy Code. Shortly after the
payment Henry's car was repossessed. On April 14, 1994, Henry and his
wife delivered all their original financial information to respondent and paid
him an additional $250 fee to file a Chapter 7 bankruptcy petition for them.
After the Henrys signed the petition Henry's wages were garnished twice
and after each garnishment respondent told Henry that he was waiting for a
court date. Shortly thereafter, Henry's wages were garnished a third time
and his wife's credit union account was attached. Respondent falsely
continued to assure the Henrys that their bankruptcy petition had been filed
and, after the Henrys employed new counsel, respondent failed to respond to
that counsel's letters, to return phone calls, and to return the Henrys'
payments or papers to them. The panel concluded that with respect to the
representation of the Henrys, respondent had violated DR 2-106(A)
(charging an excessive fee for the work performed), 2-110(A)(2) and (3)

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(failure to return a client's papers and unearned fees upon withdrawal from
employment), 2-110(B)(3) (failure to withdraw from employment when
mental or physical condition renders further effective employment
unreasonably difficult), 5-105(B) (continuing employment while under a
conflict of interest), 6-101(A)(3) (neglecting a legal matter entrusted to
him), and 9-102(B)(4) (failing to promptly return to the client funds the
client is entitled to receive).
Count
Two

In June 1994, Charles Hardy and Clara Hardy paid respondent $514
to file a Chapter 13 bankruptcy petition. When the Hardys appeared in
bankruptcy court on January 12, 1995, the Chapter 13 trustee said that no
plan had been filed and the Hardys were given a two-week continuance.
Although an attorney associated with respondent appeared at the continued
hearing and assured the trustee that the Hardys would file a plan, that
attorney refused to file a plan unless the Hardys paid additional fees, which
they were financially incapable of doing. No plan was ever filed. With
respect to his representation of the Hardys, the panel concluded that

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respondent had violated DR 2-106(A), 2-110(A)(3), 2-110(B)(3), 6-
101(A)(3), and 9-102(B)(4).
Count
Three

In early August 1992, Tara Washington hired respondent to file a
Chapter 13 bankruptcy petition. Washington could not continue payments
under the Chapter 13 plan and was advised by the bankruptcy court that she
could convert her case to a Chapter 7 bankruptcy. Respondent told
Washington that although the bulk of her debts were student loans which
were normally nondischargeable in Chapter 7, for $425 he would convert
her case to a Chapter 7 bankruptcy and file for a hardship discharge. He did
not advise Washington that the discharge of her student loans for hardship
reasons was highly unlikely. Washington paid respondent the $425 and he
converted her case to a Chapter 7 bankruptcy. In January 1995, Washington
received a notice of discharge from the bankruptcy court. In March 1995,
Washington began receiving payment demands for her student loan
obligations. When Washington contacted respondent's office, she was told
that he was no longer practicing law. With respect to his representation of

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Washington, the panel concluded that respondent had violated DR 6-
101(A)(3).
Count
Four

In June 1994, respondent received $515 from Betty Lowrie to file a
Chapter 7 bankruptcy petition, but respondent did not file the bankruptcy or
advise Lowrie that he was withdrawing from representing her. With respect
to his representation of Lowrie, the panel concluded that respondent had
violated DR 2-106(A), 2-110(A)(3), 2-110(B)(3), 6-101(A)(3), and 9-
102(B)(4).

The parties stipulated that respondent began having psychological
problems in September 1994, and that he was evaluated and treated for
anxiety and depression in December 1994. Respondent withdrew from the
practice of law in January 1995. In March 1995, respondent's wife filed for
divorce, and his son was killed in an auto accident in mid-1995.

The panel recommended that respondent be suspended from the
practice of law for one year, that within sixty days of the effective date of
his suspension he make restitution of $410 to the Henrys, $514 to the
Hardys, $515 to Lowrie, and $425 to Washington, and that his readmission

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be conditioned upon such restitution. The panel further recommended that
respondent continue psychological counseling or therapy up to and until his
readmission, and that his readmission also be conditioned on a
recommendation from a mental health professional acceptable to relator.
The panel further recommended that relator have the authority to obtain an
independent examination of respondent's psychological fitness to practice
law, and that relator monitor respondent's practice for twelve months after
readmission.

The board adopted the findings and conclusions of the panel and
recommended that respondent be suspended from the practice of law for one
year. Further, the board, modifying the panel's suggested sanction,
recommended that prior to reinstatement, respondent demonstrate, in the
manner set forth in the panel's recommendations, that he has made
restitution, received counseling, and is psychologically fit for practice, in
addition to the conditions listed in Gov.Bar R. V(10)(A).
_________________________________

Mary L. Wiseman, for relator.

Ronnie L. Wingate, for respondent.

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________________________________

Per Curiam. As we noted in Columbus Bar Assn. v. Flanagan
(1997), 77 Ohio St.3d 381, 383, 674 N.E.2d 681, 683, "[t]he counseling of a
client in financial matters, particularly about his or her choice of remedies
under the Bankruptcy Code and whether a bankruptcy proceeding can be
avoided, is a serious matter that deserves the attention of a qualified
attorney." If the attorney cannot or will not give this matter his necessary
attention, or is not qualified to handle the matter he undertakes, he violates
our Disciplinary Rules.

Respondent received fees from four clients on four separate occasions
to handle bankruptcy matters. He failed to file two of the cases, with the
result in one case that the client's automobile was repossessed, his wages
were garnished three times, and his wife's bank account was attached. In
another case, respondent failed to file a Chapter 13 plan, which normally
should have been filed with the Chapter 13 bankruptcy petition or within
fifteen days thereafter. Fed.R. Bankr. P. 3015(b). All three of these matters
indicate a clear neglect of entrusted legal matters.

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In the Washington case, the respondent failed to file a motion for a
hardship discharge of his client's student loans, nor did he advise her that a
hardship discharge was extremely unlikely.

In each of these four cases, respondent failed to give necessary
attention to his clients' problems. We have previously found that neglect of
client matters warrants suspension. Columbus Bar Assn. v. Clark (1996), 76
Ohio St.3d 363, 677 N.E.2d 1182; Disciplinary Counsel v. Crowley (1996),
76 Ohio St. 3d 365, 667 N.E.2d 1183. Moreover, respondent lied to his
clients, leading them to believe he had taken appropriate action on their
behalf, and he failed to return fees to the clients for work he had not
performed. Such activity has also warranted suspension with reinstatement
conditioned upon restitution. Cincinnati Bar v. Hatfield (1997), 77 Ohio St.
3d 231, 673 N.E. 2d 1268. To respondent's credit, he terminated his legal
practice when he realized, albeit belatedly, that he was no longer capable of
providing effective representation.

We adopt the findings, conclusions, and recommendations of the
board. Respondent is hereby suspended from the practice of law for one
year. As conditions to reinstatement, respondent shall, in addition to the

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conditions of Gov. Bar R. V (10)(A), demonstrate that within sixty days of
the date of this order he has made restitution of $410 to the Henrys, $514 to
the Hardys, $515 to Lowrie, and $425 to Washington, that he has continued
psychological counseling or therapy up to and until his readmission and that
his readmission has been recommended by a mental health professional
acceptable to relator. In addition, relator shall have the authority to obtain
an independent examination of respondent's psychological fitness to
practice law and relator shall monitor respondent's practice for twelve
months after readmission. Costs are taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK
and LUNDBERG STRATTON, JJ., concur.

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