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

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[Cite as Cleveland Bar Assn. v. Freeman, 95 Ohio St.3d 117, 2002-Ohio-1944.]

CLEVELAND BAR ASSOCIATION v. FREEMAN.
[Cite as Cleveland Bar Assn. v. Freeman (2002), 95 Ohio St.3d 117.]
Attorneys at law -- Misconduct -- Public reprimand -- Neglect of an entrusted
legal matter -- Handling legal matter without adequate preparation.
(No. 01-2205 -- Submitted January 30, 2002 -- Decided April 24, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 01-12.
__________________

Per Curiam. Relator, Cleveland Bar Association, filed a two-count
complaint on February 5, 2001, charging respondent, Kenneth J. Freeman of
Solon, Ohio, Attorney Registration No. 0018940, with several violations of the
Disciplinary Rules. Respondent filed an answer on February 28, 2001, and the
parties stipulated findings of fact and conclusions of law and recommended a
sanction to the Board of Commissioners on Grievances and Discipline of the
Supreme Court.
Count I

In Count I, respondent agreed to represent Dr. Geraldine M. Glover in a
Chapter 7 bankruptcy action and in an adversary proceeding to determine the
dischargeability of Glover's student loan. Respondent filed a Chapter 7
bankruptcy petition for Glover on November 2, 1998, and the court discharged
Glover's debts on April 1, 1999, exempting, however, her student loan. A recent
change in the bankruptcy law required a finding of hardship to grant relief from
government-guaranteed student loans. Respondent thus elected to await the
outcome of three hardship cases pending before the same bankruptcy judge that
Glover had drawn before filing an action for Glover.

SUPREME COURT OF OHIO

Approximately one year later, respondent decided, after reviewing rulings
in those cases, that Glover was not likely to prevail in an adversary proceeding
seeking relief based on hardship. Consequently, respondent did not file an
adversary proceeding for Glover. Respondent, however, failed to adequately and
timely notify Glover of his conclusion until Glover filed a grievance against him
on December 28, 1999.

In mitigation as to this count, respondent began suffering from diabetes at
about this time, a previously undiagnosed condition until his hospitalization for it
in November 1999. Furthermore, Glover may reopen her bankruptcy case and file
an adversary proceeding to determine dischargeability of her student loan.
Finally, Glover sued respondent for malpractice, and the parties have settled that
case and dismissed it.
Count II

Under Count II, Freddie Young hired respondent to file a Chapter 13
bankruptcy for him and his wife, Pamela L. Young. Mr. Young paid respondent a
fee of $1,400. The Youngs also discussed filing an adversary proceeding against
Mr. Young's mortgage holder concerning a longstanding dispute over insurance
proceeds. Respondent and the Youngs verbally agreed that respondent would
collect an additional fee at the conclusion of the adversary proceeding.

Consequently, respondent filed a Chapter 13 bankruptcy petition for the
Youngs and, later, an adversary proceeding. During respondent's representation
of the Youngs, respondent concluded that he could not support the claims set forth
in the adversary complaint with sufficient evidence, despite the Youngs'
insistence that they had valid claims against the mortgage holder.

Nevertheless, respondent failed to adequately and fully communicate with
the Youngs in a timely or effective manner. Respondent failed to inform Mr.
Young adequately that the court would dismiss his adversary proceeding if he was
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January Term, 2002
unable to produce additional documentation. Moreover, after the court dismissed
the proceeding, respondent failed to timely notify Mr. Young about the dismissal.

In mitigation as to this count, relator agrees that respondent did not have
sufficient evidence to support the claims set forth in the adversary complaint.
Relator does not question respondent's judgment on how to proceed in his initial
representation of Mr. Young in the adversary proceeding, especially given Mr.
Young's hesitance toward previous settlement attempts. Moreover, the Youngs
did not pay respondent for the adversary proceeding, and respondent has agreed to
waive the defense of the statute of limitations should Mr. Young sue him for
malpractice relative to the dismissal of the adversary proceeding.

Respondent initially failed to cooperate with relator's investigator. Before
relator filed the instant complaint, though, respondent began to cooperate fully
with relator; he presented a detailed review of his representation of the Youngs in
a lengthy letter to relator.

Relator and respondent stipulated that respondent violated DR 6-
101(A)(3) (neglecting legal matter entrusted to lawyer) in representing Glover and
6-101(A)(2) (handling legal matter without adequate preparation) in representing
the Youngs. Relator and respondent also stipulate that respondent violated
Gov.Bar R. V(4)(G) in initially failing to cooperate fully in the investigation of
the Youngs' grievance.

The parties jointly recommended that we publicly reprimand respondent
for his admitted violations of the Disciplinary Rules.

A panel of the board adopted the stipulated findings of fact and
conclusions of law and agreed to recommend the stipulated sentence of a public
reprimand. The board adopted the panel's findings, conclusions, and
recommendation.
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SUPREME COURT OF OHIO

After reviewing the record, we adopt the findings, conclusions, and
recommendation of the board. Accordingly, we hereby publicly reprimand
respondent and tax costs to him.
Judgment accordingly.

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

Edward L. Bettendorf and John J. Duffy, for relator.

Gerald R. Walton, for respondent.
__________________
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