Disciplinary Counsel v. Brown - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OFFICE OF DISCIPLINARY COUNSEL v. BROWN.
[Cite as Disciplinary Counsel v. Brown (1998), ___ Ohio St.3d ___.]
Attorneys at law -- Misconduct -- Permanent disbarment -- Failing to carry out
contract of employment -- Failing to deliver to client property in attorney's
possession which client is entitled to receive -- Engaging in conduct
prejudicial to the administration of justice -- Failing to assist and
cooperate in disciplinary investigation -- Neglect of an entrusted legal
matter -- Engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
(No. 98-756 -- Submitted June 10, 1998 -- Decided September 30, 1998.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 97-60.

On June 16, 1997, relator, Office of Disciplinary Counsel, filed a six-count
complaint charging respondent, Patrick Lee Brown of Union, Kentucky, Attorney
Registration No. 0042194, in each count with violating Disciplinary Rules as well
as a Rule for the Government of the Bar. The complaint, which was sent to the
last known address of respondent, was returned "unclaimed." Relator then served
the complaint upon the Clerk of the Supreme Court of Ohio as permitted by rule.
When respondent failed to answer the complaint, relator filed a motion for default
judgment, which was considered by a panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court ("board").

Based upon the complaint and the exhibits attached to the motion, the panel
found with respect to count one that in September 1995, Leroy Ragin retained
respondent to argue his appeal in the United States Fourth Circuit Court of
Appeals. Ragin paid respondent a retainer of $1,000 and gave him a Rolex watch
as security for additional fees. Although respondent appeared in the case and

obtained an extension of time to file a brief, he failed to file within the extended
time. Respondent did not return the watch despite Ragin's request. The panel
concluded that respondent's conduct violated DR 7-101(A)(2) (failing to carry out
a contract of employment), 9-102(B)(4) (failing to deliver property of the client in
the possession of the attorney to which the client is entitled), 1-102(A)(5)
(engaging in conduct prejudicial to the administration of justice), and Gov.Bar R.
V(4)(G) (failing to assist and cooperate in a disciplinary investigation).

With respect to count two, the panel found that in the spring of 1995, Donny
Canady employed respondent and paid him a retainer of $2,500 to assist Canady in
reinstating a federal appeal. Respondent's Motion for Leave to File a Notice of
Appeal Out of Time was denied. When Canady requested respondent to file a
second motion with a further explanation of the reason for the delay, respondent
refused, and further refused to return the unearned portion of the money he had
been paid, but agreed to work with Canady to settle the fee dispute. Canady had
no further contact with respondent, and relator was unable to contact respondent
about Canady's grievance. The panel concluded that respondent's conduct
violated DR 9-102(B)(4) and Gov.Bar R. V(4)(G).

In considering count three, the panel found that in May 1996, George
Bennett retained respondent to file a motion for a writ of habeas corpus under
Section 2255, Title 28, U.S.Code. Bennett paid respondent $3,000 of the $6,000
retainer requested by respondent. Respondent did not file the motion, and Bennett
was thereafter unable to contact respondent. Relator also was unsuccessful in its
attempts to contact respondent about Bennett's grievance. The panel concluded
that respondent's failure to act or respond to Bennett and relator violated DR 7-
101(A)(2), 6-101(A)(3) (neglecting an entrusted legal matter), 1-102(A)(5), and
Gov.Bar R. V(4)(G).

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The panel found with respect to count four that in May 1996, George K.
Bushey retained respondent to research the issues Bushey might raise in a Section
2255 motion. Bushey's father paid respondent a $2,000 retainer. Thereafter,
neither Bushey nor his father was able to contact respondent by mail. When
Bushey's father contacted respondent by telephone, he was told that respondent
would get something in the mail to him. Respondent failed to do so, and failed to
return the retainer when Bushey requested it. Relator attempted to contact
respondent about the Bushey grievance, but was unsuccessful. The panel
concluded that respondent's failure to act violated DR 9-102(B)(4), 1-102(A)(4)
(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 6-
101(A)(3), 1-102(A)(5), and Gov.Bar R. V(4)(G).

The panel also found, as alleged in count five, that in 1994, Cosmos
Ekwunife retained respondent and paid him $3,650 to represent him in a criminal
appeal. Because respondent failed to arrange to pay the court reporter for the trial
transcript, Ekwunife's appeal was dismissed. Respondent failed to return
Ekwunife's money and failed to cooperate when relator sought to investigate the
matter. The panel concluded that respondent's conduct violated DR 9-102(B)(4)
and Gov.Bar R. V(4)(G).

With respect to count six, the panel found that in August 1996, Sam Barash
retained respondent and paid him $3,000 to represent his brother, Robert Barash,
in an appeal in the United States Sixth Circuit Court of Appeals. After respondent
contacted Robert Barash in September 1996 and told him that the work on his
appeal was eighty percent complete, respondent did not contact Robert Barash
again. Nor did respondent reply to James E. Hall, a successor attorney retained by
Sam Barash, although respondent received a certified letter mailed to him by Hall
terminating respondent's services and demanding a return of Sam Barash's money.

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Respondent also failed to cooperate fully with relator in its investigation of the
Barash matter. The panel concluded that respondent's conduct violated DR 7-
101(A)(2), 9-102(B)(4), 1-102(A)(4), 6-101(A)(3), 1-102(A)(5), and Gov.Bar R.
V(4)(G). The panel recommended that respondent be disbarred from the practice
of law. The board adopted the findings, conclusions, and recommendation of the
panel.
__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, Assistant
Disciplinary Counsel, for relator.
__________________
Per
Curiam. We adopt the findings, conclusions, and recommendation of
the board. Respondent is hereby permanently disbarred from the practice of law in
Ohio. Costs taxed to respondent.
Judgment accordingly.

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

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