Lorain Cty. Bar Assn. v. Fernandez - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Lorain Cty. Bar Assn. v. Fernandez, 89 Ohio St.3d 82, 2000-Ohio-112.]

LORAIN COUNTY BAR ASSOCIATION v. FERNANDEZ.
[Cite as Lorain Cty. Bar Assn. v. Fernandez (2000), 89 Ohio St.3d 82.]
Attorneys at law -- Misconduct -- Indefinite suspension -- Engaging in a
pattern of neglect involving multiple clients -- Refusing to cooperate in
disciplinary investigations.
(No. 99-2265 -- Submitted February 9, 2000 -- Decided May 24, 2000.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 99-09.

In November 1995, Joshua Robles retained respondent, Yolanda
Fernandez of Lorain, Ohio, Attorney Registration No. 0062647, to dissolve a
partnership for a vending-machine business. As a result of a February 1997
arbitration hearing to attempt to settle the case, the arbitrator advised the parties to
have the business appraised, and Robles gave respondent the name of an appraiser
to contact. Several months passed before respondent contacted the appraiser; and
after the appraiser declined to perform the appraisal, Robles gave respondent the
name of a second appraiser. Respondent contacted the second appraiser in
November 1997, but did not otherwise proceed or contact Robles. When Robles
requested his file so that he could get another attorney to handle the dissolution,
respondent refused to return it.

In January 1997, Amy McDonald retained respondent to represent her in a
bankruptcy matter. McDonald paid respondent $625 to cover the filing and
attorney fees. McDonald made numerous attempts to contact respondent, and
eventually reached her, only to be told that respondent needed additional
information. McDonald provided the additional information, but respondent
never filed the bankruptcy case. After McDonald filed a grievance, respondent
failed to respond to a letter of inquiry by relator, Lorain County Bar Association.

Carmen Belingeri retained respondent to file a lawsuit against her
insurance company. The case was scheduled for a September 1997 arbitration
hearing, but was dismissed when neither Belingeri nor respondent appeared.
Respondent did not notify Belingeri to attend the hearing and subsequently
represented to Belingeri that the case was still active. In July 1998, Belingeri
discovered the dismissal when she checked the court records herself. Respondent
did not respond to a letter of inquiry sent by relator concerning a grievance filed
by Belingeri against her.

In May 1996, the Lorain County Common Pleas Court appointed
respondent to represent Walter Wade in a criminal case. Respondent advised
Wade that if he pled guilty to drug trafficking, he would receive probation. Wade
pled guilty but received a sentence of eighteen months in prison. Respondent then
advised Wade to file a motion for shock probation. Wade handed respondent the
pertinent papers to file, but she never filed the motion. Respondent also failed to
respond to relator's inquiry concerning Wade's subsequent grievance about her
representation.

In September 1997, Rosa Bonilla retained respondent to file for divorce on
her behalf. Bonilla paid respondent $350 to file the divorce action, but
respondent never filed it. In the meantime, however, Bonilla's husband was
apparently able to establish venue in Texas, and in January 1998, Bonilla learned
that her husband had filed for divorce in Texas. In August 1998, Bonilla's
husband informed her that their divorce had been finalized following respondent's
failure to answer on her behalf. After Bonilla filed a grievance, respondent failed
to respond to relator's letter of inquiry.

On August 2, 1999, relator filed an amended complaint charging
respondent with multiple violations of Disciplinary Rules and a Rule for the
Government of the Bar. Respondent failed to answer, and the matter was
submitted to a panel of the Board of Commissioners on Grievances and Discipline

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of the Supreme Court ("board") on relator's motion for default judgment pursuant
to Gov.Bar R. V(6)(F).

The panel found the facts as previously set forth and concluded that by her
conduct, respondent had violated DR 6-101(A)(3) (neglecting an entrusted legal
matter) in the Robles, McDonald, Belingeri, Wade, and Bonilla matters, 7-
101(A)(2) (failing to carry out a professional services employment contract) in the
McDonald, Wade, and Bonilla matters, 7-101(A)(3) (prejudicing or damaging
client during the course of the professional relationship) in the Bonilla matter, and
Gov.Bar R. V(4)(G) (neglecting or refusing to testify in a disciplinary
investigation or hearing) in the McDonald, Belingeri, Wade, and Bonilla matters.
The panel essentially found that there were no mitigating circumstances and
recommended that respondent be indefinitely suspended from the practice of law
in Ohio. The board adopted the findings, conclusions, and recommendation of the
panel.
__________________

Snoble, Snoble, Tonry & Innes and Gerald A. Innes, for relator.
__________________

Per Curiam. We adopt the findings, conclusions, and recommendation of
the board. Absent mitigating circumstances, an indefinite suspension from the
practice of law is an appropriate sanction when an attorney engages in a pattern of
neglect involving multiple clients and refuses to cooperate in the ensuing
disciplinary investigations. See Disciplinary Counsel v. Henderson (1999), 87
Ohio St.3d 219, 221, 718 N.E.2d 1277, 1279. No mitigating factors are evident
that would warrant a lesser sanction for respondent's reprehensible conduct here.
Respondent is hereby indefinitely suspended from the practice of law in Ohio.
Costs taxed to respondent.
Judgment accordingly.

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

MOYER, C.J., and COOK, J., dissent.
__________________

COOK, J., dissenting. I agree with the findings and conclusions of the
board, but determine that disbarment is the appropriate sanction here. When
respondent repeatedly neglected entrusted legal matters, she violated the duties of
diligence that she owed to her clients. The ABA Standards for Imposing Lawyer
Sanctions1 provide that "[d]isbarment is generally appropriate when * * * a
lawyer knowingly fails to perform services for a client and causes serious or
potentially serious injury to a client; or * * * a lawyer engages in a pattern of
neglect with respect to client matters and causes serious or potentially serious
injury to a client." Standards 4.41(b) and (c).

Five of respondent's clients were seriously prejudiced by respondent's
violations. Two of them paid respondent significant sums to file actions, which
were never filed. A third found her lawsuit dismissed when respondent failed to
attend a scheduled arbitration hearing and failed even to notify the client that the
hearing was taking place. A fourth client waited months for respondent to secure
an appraiser, which never occurred. And another of respondent's clients, a
criminal defendant, relied on respondent's erroneous guarantee of probation and
then waited in vain for respondent to file the requested motion for shock
probation. In four of these five matters, respondent disregarded relator's letters of
inquiry, and respondent has failed to respond to relator's amended complaint.

The majority chooses to adopt the board recommendation to suspend
respondent indefinitely. But the panel and board reports cite no mitigating
factors, and I find none in this record. Instead, the panel and board reports
contain aggravating factors that reflect the board's own recently proposed
Guidelines for Imposing Lawyer Sanctions.2 Respondent's pattern of misconduct,

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multiple offenses, and failure to cooperate with the disciplinary investigation
should all be considered in favor of a more severe sanction.

This court has previously disbarred attorneys for violations of DR 6-
101(A)(3) when those violations were, as here, coupled with a refusal to return
client files and an utter disregard for the disciplinary process. See, e.g., Cleveland
Bar Assn. v. Johnson (1998), 84 Ohio St.3d 146, 702 N.E.2d 409; Cuyahoga Cty.
Bar Assn. v. Clower (1998), 84 Ohio St.3d 151, 702 N.E.2d 412.

Because I believe that disbarment is the appropriate sanction in this case, I
respectfully dissent.

MOYER, C.J., concurs in the foregoing dissenting opinion.
FOOTNOTES:

1.
See ABA Center for Professional Responsibility, Standards for
Imposing Lawyer Sanctions (1991 & Amend.1992).

2.
See Board of Commissioners on Grievances and Discipline,
Proposed Rules and Regulations Governing Procedure on Complaints and
Hearings, Sections 10(A)(3), (4), and (5), Guidelines for Imposing Lawyer
Sanctions.

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