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

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[Cite as Cleveland Bar Assn. v. Mallin, 86 Ohio St.3d 310, 1999-Ohio-106.]

CLEVELAND BAR ASSOCIATION v. MALLIN.
[Cite as Cleveland Bar Assn. v. Mallin (1999), 86 Ohio St.3d 310.]
Attorneys at law -- Misconduct -- Investigation of grievance against attorney must
be conducted in compliance with Gov.Bar R. V(4)(D) -- Complaint
dismissed when investigation in disciplinary proceeding violates Gov.Bar R.
V(4)(D).
(No. 98-2658 -- Submitted April 13, 1999 -- Decided August 25, 1999.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 97-98.

On December 8, 1997, relator Cleveland Bar Association ("CBA") filed a
complaint against respondent Christopher J. Mallin of Bedford, Ohio, Attorney
Registration No. 0020153. The complaint set forth nine counts arising from
alleged Disciplinary Rules violations that occurred primarily in 1983, 1984, and
1985. The record indicates that the original grievance against Mallin was made on
February 23, 1989, and that Mallin met with representatives from CBA in June
1994 and February 1995.

On September 24 and 25, 1998, a panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court of Ohio ("board") held a hearing.
The panel concluded that Mallin had violated several Disciplinary Rules and
recommended that he be suspended from the practice of law for a two-year period
with one year suspended and with probation and restitution. The board adopted the
panel's findings of fact, conclusions of law, and recommendation.
__________________

Frank J. Cumberland, Jr., and Craig P. Kvale, for relator.

Christopher J. Mallin, pro se.
__________________

PFEIFER, J. In this case, we are required to determine whether the
investigation against Mallin was conducted in compliance with Gov.Bar R. V(4).
We conclude that it was not.

Gov.Bar R. V(4)(D) states that "[t]he investigation of grievances by
Disciplinary Counsel or a Certified Grievance Committee shall be concluded
within sixty days from the date of the receipt of the grievance." It is clear from the
record that the investigation was not concluded within sixty days.

The board is entitled to grant extensions of time to complete an
investigation. Gov.Bar R. V(4)(D)(1) states that "[i]nvestigations for which an
extension is granted shall be completed within one hundred fifty days from the date
of receipt of the grievance." It is clear from the record that the investigation was
not completed within one hundred and fifty days.1

Gov.Bar R. V(4)(D)(2) provides that, in certain circumstances, an extension
of time may be granted beyond one hundred and fifty days. However, it also
states, "No investigation shall be extended beyond one year from the date of the
filing of the grievance." The grievance against Mallin was filed on February 23,
1989, and the complaint was not filed until December 8, 1997. It appears beyond
question that Gov.Bar R. V(4)(D)(2) was violated.

That violation does not dispose of the issue before us because "[the] time
limits set forth in this rule are not jurisdictional." Gov.Bar R. V(4)(D)(3). Thus,
even when the time limits of Gov.Bar R. V(4)(D) have been violated, a grievance
shall not be dismissed "unless it appears that there has been an unreasonable delay
and that the rights of the respondent to have a fair hearing have been violated." Id.
We conclude that a delay of nine years from the date a grievance is received until
the date a complaint is filed is unreasonable. See id. (Investigations that extend
beyond one year from the date of filing are prima facie evidence of unreasonable
delay.)
2

We now address whether the delay prejudiced Mallin's right to a fair
hearing.
In
Columbus Bar Assn. v. Teaford (1966), 6 Ohio St.2d 253, 255, 35 O.O.2d
418, 419, 217 N.E.2d 872, 873, we stated, "Although there is no limitation period
on the assertion of charges of misconduct against an attorney, it is not completely
fair to require a party to respond to claims which have grown stale by the passage
of time * * *. Records may be destroyed and recollection may be hazy. It is for
this reason that the prosecution of old claims is not favored." 2 Though we now
have a rule that limits the time within which a grievance may be prosecuted, it is
not a true statute of limitations and, accordingly, we will adhere to the logic of
Teaford.

Mallin asserted in his post-trial brief that both of the witnesses who were
called by CBA testified that it was difficult for them to remember the events that
gave rise to the allegations of disciplinary violations. This assertion is not
contradicted in the record. Mallin also asserted that he would have used court
records to impeach one of the witnesses, but was unable to timely procure the
records because they had been sent to storage. This assertion is not contradicted in
the record. Both of these assertions by Mallin highlight the concerns the Teaford
court had about delayed disciplinary investigations.

In Cincinnati Bar Assn. v. Backsman (May 25, 1983), D.D. No. 83-7, Ohio
Official Reports Advance Sheets, Vol. 5, No. 3, at A-4, we implicitly concluded
that a delay of at most five years, between the date of the grievance and the date of
the complaint, prejudiced the respondent's right to a fair trial. In this case, we
conclude that it was prejudicial to prosecute Mallin nine years after the original
grievance was filed and approximately twelve years after the events that gave rise
to the complaint occurred. We conclude that the investigation in this disciplinary
proceeding violated Gov.Bar R. V(4)(D) and accordingly dismiss the complaint.
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Judgment accordingly.

DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.

MOYER, C.J., and COOK, J., dissent.
FOOTNOTES:
1.
Requests for extensions of time are required to be in writing. Gov.Bar R.
V(4)(D)(1). The record does not indicate that CBA requested an extension of time
in writing.
2.
Gov.Bar R. V was adopted effective July 1, 1983, long after the Teaford
decision.
__________________

COOK, J., dissenting. Though the delay here is excessive, in the absence of
a showing of material prejudice, dismissal is unwarranted. I would follow the
recommendation of the board.

MOYER, C.J., concurs in the foregoing dissenting opinion.
4