Columbus Bar Assn. v. Foster - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Columbus Bar Assn. v. Foster, 92 Ohio St.3d 411, 2001-Ohio-199.]

COLUMBUS BAR ASSOCIATION v. FOSTER.
[Cite as Columbus Bar Assn. v. Foster (2001), 92 Ohio St.3d 411.]
Attorneys at law -- Misconduct -- Indefinite suspension -- Pattern and practice
of carelessness, inattention to detail, procrastination, and failure to
communicate with clients and court officials in practicing bankruptcy
law.
(No. 01-368 -- Submitted April 2, 2001 -- Decided July 18, 2001.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-42.
__________________

Per Curiam. On June 5, 2000, relator, Columbus Bar Association, filed a
complaint charging respondent, Thomas Joseph Foster of Columbus, Ohio,
Attorney Registration No. 0058540, with several violations of the Code of
Professional Responsibility, primarily with respect to his conduct in handling
bankruptcy matters.

When respondent failed to answer the complaint, the Board of
Commissioners on Grievances and Discipline ("board") referred the matter to
one of its members, Jonathan Hollingsworth ("board member"), for ruling on the
motion for default filed by relator.

Based upon the affidavits attached to relator's motion for default, the
board member found that relator's complaint, which was sent by certified mail,
was received by "Fredda Sherman" at respondent's address. Relator made several
other attempts to effect actual service of the complaint, including attempting to
contact respondent not only at his home address but also at his office address.

The board member found that in July 1998, Richard Mullis retained
respondent by paying him $475 to file a personal bankruptcy. Thereafter, Mullis

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was unable to contact respondent, and in June 1999, Mullis filed a complaint with
relator. Respondent filed a bankruptcy case for Mullis in October 1999. The
board member also found that by February 1999, Kathy Opatich had paid
respondent the entire $675 fee to file a personal bankruptcy for her. Unable to
communicate with respondent, Opatich filed a complaint regarding him with
relator in June 1999. In August 1999, respondent filed a bankruptcy petition for
Opatich but did not file the schedules and statement of affairs within the time
required by rule.

The board member also found that in early 1999, respondent accepted
$1,000 from Jamison Johnson to take over an uncontested divorce proceeding
from her previous counsel and to file a personal bankruptcy case for her. In April
1999, respondent misrepresented to Johnson that the bankruptcy petition had been
filed, but, in fact, he did not file it until June 1999. However, after filing the
bankruptcy action, respondent did not provide the services to Johnson required by
court rule. As a result, the court dismissed Johnson's case with prejudice, and she
was barred from filing a second bankruptcy case for six months.

From March 1998 through October 1999, respondent filed seventeen
bankruptcy cases, including the Mullis, Opatich, and Johnson cases. In eight of
those cases, the clients signed the petitions substantially earlier than the dates on
which respondent filed the cases. In one case, the date of the signature had been
"whited over" and a photocopy of the paper filed instead of an original so as to
make the date of actual signing unclear. In eleven cases, respondent did not file
the schedules of debts and statement of financial affairs as required by the
bankruptcy rules; in four of those cases, respondent filed the schedules and
statement over one hundred days after the petition dates; in three of the cases,
respondent never filed them. In five of the cases, respondent did not file in a
timely manner other necessary documents. Though directed in July 1999 by the
bankruptcy court clerk to redo the Patricia Burba petition because his signature
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January Term, 2001
was omitted, respondent had not complied as of May 2000. Four of the cases
were dismissed because respondent failed to file appropriate documents or failed
to attend the required first meeting of creditors.

The board member concluded that respondent's conduct in these cases
demonstrated a pattern and practice of carelessness, inattention to detail,
procrastination, and failure to communicate with clients and court officials and
indicated that he was not competent to practice bankruptcy law. The board
member concluded that respondent's conduct violated DR 1-102(A)(4) (a lawyer
shall not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation), 1-102(A)(5) (a lawyer shall not engage in conduct prejudicial
to the administration of justice), 1-102(A)(6) (a lawyer shall not engage in
conduct adversely reflecting on the lawyer's ability to practice law), 6-101(A)(1)
(a lawyer shall not handle a legal matter that he is not competent to handle), 6-
101(A)(3) (a lawyer shall not neglect an entrusted legal matter), 7-101(A)(1) (a
lawyer shall not fail to seek the lawful objectives of a client), and 7-101(A)(3) (a
lawyer shall not prejudice or damage his client).

The board member recommended that the motion for default be granted
except for the charge that respondent violated DR 6-101(A)(2) (a lawyer shall not
attempt to handle a legal matter without preparation adequate in the
circumstances) because relator did not establish this violation by clear and
convincing evidence. The board member recommended that respondent be
indefinitely suspended from the practice of law and that reinstatement depend
upon his making full and complete restitution to his former clients. The board
adopted the findings, conclusions, and recommendation of the board member.

We have reviewed the record and adopt the findings and conclusions of
the board. As we noted in Dayton Bar Assn. v. Andrews (1997), 79 Ohio St.3d
109, 112, 679 N.E.2d 1093, 1095, " `the counseling of a client in financial matters
* * * is a serious matter that deserves the attention of a qualified attorney.' If the
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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."
Id., quoting Columbus Bar Assn. v. Flanagan (1997), 77 Ohio St.3d 381, 383, 674
N.E.2d 681, 683. See, also, Cincinnati Bar Assn. v. Wolosin (1999), 84 Ohio
St.3d 401, 704 N.E.2d 566, and Disciplinary Counsel v. Dahling (2000), 90 Ohio
St.3d 246, 737 N.E.2d 25, where the orders we issued disbarring attorneys were
based in large part on their neglect of bankruptcy cases. In this matter, we agree
with the recommendation of the board. Respondent is indefinitely suspended
from the practice of law in Ohio. Full and complete restitution to respondent's
former clients for payments made and services not received is a prerequisite to the
filing of any application for reinstatement. Costs are taxed to respondent.
Judgment accordingly.

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

Pamela N. Maggied, Randall S. Arndt, Patricia K. Block and Bruce A.
Campbell, for relator.
__________________
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