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

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TOLEDO BAR ASSOCIATION v. GATWOOD.
[Cite as Toledo Bar Assn. v. Gatwood (1998), ___ Ohio St.3d ___.]
Attorneys at law -- Misconduct -- Disbarment -- Failing to perform services for
which attorney was retained -- Failing to return client funds -- Writing
checks which were returned for insufficient funds.
(No. 97-2674 -- Submitted May 26, 1998 -- No. 98-831 -- Submitted June 10,
1998 -- Decided September 23, 1998.)
ON CERTIFIED REPORTS by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, Nos. 96-95 and 97-74.

On January 21, 1997, relator, Toledo Bar Association, filed an amended
complaint charging respondent, David Warren Gatwood of Sylvania, Ohio,
Attorney Registration No. 0011513, with violating several Disciplinary Rules and
Rules for the Government of the Bar. Respondent filed an answer denying most of
the allegations of the complaint, and the matter was heard by a panel of the Board
of Commissioners on Grievances and Discipline of the Supreme Court ("board").

Based on evidence produced by relator, the panel found that Rodger
Jamison retained respondent and paid him $200 to correct a calculation of child
support. Respondent appeared at the hearing and was to provide the court with the
correct child support calculation but failed to do so. Thereafter, Jamison was
unable to contact respondent. The panel concluded that respondent's actions
violated DR 6-101(A)(3) (neglecting an entrusted legal matter). On another count,
the panel found that respondent wrote checks for $654.50 and $143, which were
both returned for "insufficient funds." Bad check charges brought against
respondent were dismissed after he made restitution. The panel concluded that
respondent's actions with respect to the checks demonstrated a course of conduct
that violated DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation) and 1-102(A)(6) (engaging in conduct that adversely
reflects upon the attorney's fitness to practice law).

In addition, the panel found that in 1995, William E. Bigelow retained
respondent to represent him in a personal injury case. After respondent settled the
case and Bigelow signed a release, respondent continued to tell Bigelow that the
money from the insurance company would be forthcoming. When Bigelow
discovered that respondent had received the settlement proceeds and threatened to
report respondent to relator, respondent wrote Bigelow a check for his share of the
settlement proceeds. The check was returned for insufficient funds. Respondent
later provided Bigelow with a cashier's check. The panel concluded that
respondent's actions with respect to the Bigelow matter violated DR 9-102(B)(1)
(failing to promptly notify a client of the receipt of the client's funds), 9-102(B)(4)
(failure to pay over the client's funds promptly when requested by the client), 9-
102(A) (commingling client and personal funds), and 1-102(A)(4) and 1-
102(A)(6).

The panel found that Alfred Lee Haley engaged respondent and paid him
$1,100 in part for court fees and in part as a retainer to represent him in a domestic
relations matter. Respondent failed to file any court action with respect to the
Haley matter or take any action on behalf of Haley. The panel concluded that
respondent's inaction had violated DR 6-101(A)(3). It also concluded that
respondent violated Gov.Bar R. V(4)(G) (failing to cooperate in a disciplinary
investigation) and DR 1-102(A)(5) (engaging in conduct prejudicial to the
administration of justice), after finding that respondent failed to answer relator's
written inquiries with respect to the grievances filed against him. The panel
recommended that respondent be indefinitely suspended from the practice of law.

2

The board adopted the findings, conclusions, and recommendation of the panel in
case No. 96-95.

On August 11, 1997, relator filed a two-count complaint charging that in
representing Melissa McCartney, respondent did not remit to his client all the
settlement funds he received on her behalf, and that after another client, Mark
Edwards, gave him $18,000 to pay Edwards's child support arrearage settlement,
he failed to pay the funds as directed. Also, when Edwards demanded that his
money be returned, respondent gave Edwards a check that was dishonored for
insufficient funds. Respondent failed to answer this second complaint, and the
panel of the board which heard the matter rendered a default judgment, finding the
facts as alleged.

The panel concluded that respondent had violated DR 9-102(B)(1) and 9-
102(B)(4), 9-102(A), 1-102(A)(4) and 1-102(A)(6) in the McCartney matter, and
DR 9-102(A), 1-102(A)(4) and 1-102(A)(6), and 6-101(A)(3) with respect to the
Edwards matter. The panel recommended that respondent be suspended from the
practice of law indefinitely and make full restitution. The board adopted the
findings, conclusions, and recommendation of the panel in case No. 97-74.
__________________

James E. Goranson and W. David Arnold, for relator.
__________________
Per
Curiam. In Toledo Bar Assn. v. Gatwood (1988), 36 Ohio St.3d 610,
522 N.E.2d 523, we publicly reprimanded respondent. In Disciplinary Counsel v.
Gatwood (1997), 78 Ohio St.3d 304, 677 N.E.2d 1182, we indefinitely suspended
him. These two new matters present additional incidents that occurred during and
after the period of his infractions in Disciplinary Counsel v. Gatwood.

3

In these cases, as in Disciplinary Counsel v. Gatwood, respondent failed to
perform services for which he was retained and failed to return client funds. In
that previously reported case, and in this one, respondent also wrote checks that
were returned for insufficient funds. Even if respondent's conduct was not willful
and dishonest, the gross carelessness and negligence apparent in these repeated
violations warrant a severe sanction.
In
Cuyahoga Cty. Bar Assn. v. Churilla (1997), 78 Ohio St.3d 348, 678
N.E.2d 515, we said that the appropriate sanction for misappropriation of client
funds and continued neglect of duty is disbarment. See, also, Cleveland Bar Assn.
v. Armon (1997), 78 Ohio St.3d 497, 678 N.E.2d 1371, and Columbus Bar Assn. v.
Sterner (1996), 77 Ohio St.3d 164, 167, 672 N.E.2d 633, 635. Respondent is
disbarred from the practice of law in Ohio. Costs taxed to respondent.
Judgment accordingly.

RESNICK, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.

MOYER, C.J., DOUGLAS and F.E. SWEENEY, JJ., concur in judgment only.

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