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

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[Cite as Columbus Bar Assn. v. Winkfield, 91 Ohio St.3d 364, 2001-Ohio-70.]

COLUMBUS BAR ASSOCIATION v. WINKFIELD.
[Cite as Columbus Bar Assn. v. Winkfield (2001), 91 Ohio St.3d 364.]
Attorneys at law -- Misconduct -- Two-year suspension with final year of
suspension stayed on condition -- Engaging in conduct adversely
reflecting on fitness to practice law -- Neglect of an entrusted legal
matter -- Failing to seek lawful objectives of client -- Failing to carry
out contract of employment -- Failing to deposit client funds in an
account in which no funds of lawyer are deposited -- Failing to render
appropriate accounts to client -- Failing to promptly deliver clients'
funds upon request -- Failing to cooperate in a disciplinary
investigation.
(No. 00-1138 -- Submitted November 28, 2000 -- Decided April 11, 2001.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 99-13.
__________________
Per
Curiam. In February 1997, the family of Frederick E. Lowery
retained respondent Lawrence Edward Winkfield of Columbus, Ohio, Attorney
Registration No. 0034254, and paid him a retainer of $7,000 to investigate and, if
possible, obtain postconviction relief for Lowery. Lowery was convicted in 1993
of aggravated robbery. Respondent told the family that he would charge $150 an
hour against the retainer and discussed with them the options of supershock
probation and a motion to reconsider. Respondent did not deposit the retainer in a
separate trust account.

The potential remedies respondent discussed with the family were
unavailable because of the nature of Lowery's conviction. Although respondent
obtained and examined the relevant court files, spoke with Lowery on the phone,

SUPREME COURT OF OHIO
and unsuccessfully attempted to honor his commitment to visit Lowery in prison,
he filed no court papers on Lowery's behalf.

In July 1997, the family informed respondent that his employment was
terminated and demanded an accounting of his services and a return of the unused
portion of the retainer. In October 1998, before he had received a complaint from
the relator, respondent turned over the $7,000 to his former counsel. After
deducting $1,200 for legal fees due respondent and $600 for his own legal fees to
respondent, his former counsel transmitted $5,200 to the Lowery family in May
1999.

In March 1999, the Office of Disciplinary Counsel of the Supreme Court
requested that respondent reply to a grievance filed by Michael Studebaker.1
Despite this notice and two subsequent requests, respondent did not file a written
reply to the inquiry.

On October 19, 1999, relator, the Columbus Bar Association, filed an
amended complaint charging among other things that respondent's conduct
violated DR 1-102(A)(6) (engaging in conduct that adversely reflects upon the
lawyer's fitness to practice law), 6-101(A)(3) (neglecting an entrusted legal
matter), 7-101(A)(1) (failing to seek the lawful objectives of a client), 7-
101(A)(2) (failing to carry out a contract of employment for professional
services), 9-102(A)(2) (failing to deposit client funds in an account in which no
funds of the lawyer are deposited except those that potentially belong to the
lawyer), 9-102(B)(3) (failing to render appropriate accounts to the client), and 9-
102(B)(4) (failing to promptly deliver client funds to the client upon request). It
also charged that respondent violated Gov.Bar R. V(4)(G) (failing to cooperate in
a disciplinary investigation).

Respondent answered, and the matter was referred to a panel of the Board
of Commissioners on Grievances and Discipline ("board").
2

January Term, 2001

The panel found the facts as stated and concluded that respondent had
violated the Disciplinary Rules and the Rules for the Government of the Bar as
charged. Taking into account letters of support regarding respondent's value to
his church, community, and the legal profession, as well as reports from a
psychiatrist and psychologist verifying that respondent had a history of
depression, and noting that this court had previously disciplined respondent in
Columbus Bar Assn. v. Winkfield (1996), 75 Ohio St.3d 527, 664 N.E.2d 902, the
panel recommended that respondent be suspended indefinitely from the practice
of law. It also recommended that respondent be required to pay the Lowery
family $1,800 with interest at ten percent from February 1997, and pay them ten
percent interest on $5,200 from February 1, 1997 to May 31, 1999. The board
adopted the findings, conclusions, and recommendation of the panel.

We have reviewed the record and adopt the findings and conclusions of
the board. However, we believe that the facts in this case do not warrant an
indefinite suspension. Seven months of the delay in returning the funds to the
Lowerys can be attributed to the former attorney for respondent, who held the
funds from October 1998 until May 1999 before paying them out. During those
final seven months, respondent had assumed not only that his former counsel had
paid out the funds but also that he had provided the Lowerys with an accounting.
Prior to May 1999, his former counsel did neither.

We hereby suspend respondent from the practice of law for two years with
the final year of that suspension stayed provided that during the first year
respondent pays or makes arrangement (1) to pay the Lowery family $1,800 with
interest at ten percent from February 1997 to the date of repayment, and (2) to pay
the Lowery family ten percent interest on $5,200 from February 1, 1997 to May
31, 1999.
Judgment accordingly.

1 The substance of Studebaker's grievance was not brought before the panel.
3

SUPREME COURT OF OHIO

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

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

COOK, J., dissenting. I would adopt the board's recommendation to
indefinitely suspend respondent.

To justify its departure from the board's recommendation, the majority
notes that "[s]even months of the delay in returning the funds to the Lowerys can
be attributed to the former attorney for respondent." I do not disagree with this
finding, but it does not account for respondent's sole control of the funds for
nearly fourteen months after receiving the Lowerys' termination notice and
demand for accounting. Nor does it account for the panel's other troubling
findings: that "the testimony of the Respondent was glib and not sincerely an
expression of regret about his obvious mistreatment of the Lowery family," and
that there is "[no] basis to believe that the Respondent would change his way of
mistreating clients in the future."
In
Columbus Bar Assn. v. Winkfield (1996), 75 Ohio St.3d 527, 530, 664
N.E.2d 902, 905, I dissented from this court's decision to impose a lesser sanction
against respondent than the board had recommended in that case and noted
respondent's "unwillingness to acknowledge his wrongdoing." Given
respondent's prior discipline and what the panel and board described as
"deceitful" misconduct in the instant matters, I must again respectfully dissent.

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

Terry K. Sherman, Susan C. Walker and Bruce A. Campbell, for relator.

Lane, Alton & Horst, L.L.C., and Alvin E. Mathews, Jr.; Hofelich &
Hofelich and James A. Hofelich, for respondent.
__________________
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