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

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[Cite as Cleveland Bar Assn. v. Cox, 98 Ohio St.3d 420, 2003-Ohio-1553.]

CLEVELAND BAR ASSOCIATION v. COX.
[Cite as Cleveland Bar Assn. v. Cox, 98 Ohio St.3d 420, 2003-Ohio-1553.]
Attorneys at law -- Misconduct -- Public reprimand -- Initially lying to member
of bar association's grievance committee about knowing the attorney
who had dismissed respondent's client's municipal court case and by not
specifically notifying his client about the dismissal.
(No. 2002-2179 -- Submitted February 12, 2003 -- Decided April 9, 2003.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 01-99.
__________________

Per Curiam.
{¶1} In 1996, a client retained respondent, Duane E. Cox of Cleveland,
Ohio, Attorney Registration No. 0002250, to represent him for claims arising out
of an automobile accident. In 1997, after the client rejected a settlement offer by
the defendant's insurance company, respondent filed a complaint on behalf of the
client in the Cleveland Municipal Court.
{¶2} In 1998, following the filing of a motion for change of venue by
the defendant in the municipal court case, respondent gave the file to another
attorney to take over the case. The new attorney sent a letter to the client advising
him that the attorney would be assisting respondent in handling the case.
{¶3} In January 1999, the client notified respondent that he was
discharging him as his attorney because of respondent's delay in resolving his
claim. In February 1999, the client filed a grievance against respondent with
relator, Cleveland Bar Association.
{¶4} In February 2000, the new attorney dismissed the municipal court
case without prejudice and returned the client's file to respondent. Respondent

SUPREME COURT OF OHIO
did not notify the client about the dismissal, although he made several
unsuccessful attempts to contact the client to discuss the case.
{¶5} Relator investigated the client's grievance and after an inquiry by
relator's grievance committee, respondent returned the file to the client in March
2001. When relator subsequently learned of the dismissal of the municipal court
case, a member of relator's grievance committee asked respondent whether he
knew the attorney who had dismissed it. Respondent told the committee member
that he did not know the attorney. The committee member thereafter called
respondent back and confronted him with a copy of the dismissal entry with the
attorney's name on it. Respondent then admitted that he knew the attorney and
that the attorney occasionally handled cases for him.
{¶6} On December 10, 2001, relator filed a complaint charging
respondent with having violated several Disciplinary Rules. A panel of the Board
of Commissioners on Grievances and Discipline of the Supreme Court ("board")
heard the matter on the parties' pleadings, testimony, and exhibits. The panel
found the facts as previously set forth and concluded that respondent had violated
DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation) by initially lying to relator about knowing the attorney who
had dismissed the client's municipal court case and by not specifically notifying
his client about the dismissal. In mitigation, the panel found that respondent had
no prior disciplinary record in 23 years of practice and that he had no selfish
motive in this matter. The panel recommended that respondent be suspended
from the practice of law in Ohio for six months, with the entire suspension stayed.
{¶7} The board adopted the findings of the panel but recommended that
respondent be publicly reprimanded "based on the entire record and the limited
harm suffered." The board further recommended that the costs of the proceeding
be taxed to respondent.
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January Term, 2003
{¶8} We adopt the findings, conclusions, and recommendations of the
board. Although an actual suspension from the practice of law is the general
sanction when an attorney has violated DR 1-102(A)(4), a lesser sanction is
appropriate "when the misconduct is an isolated incident and not a course of
conduct in an otherwise unblemished legal career." Toledo Bar Assn. v. Kramer
(2000), 89 Ohio St.3d 321, 323, 731 N.E.2d 643. Given the isolated nature of
respondent's misconduct and the limited harm attributable to the misconduct, a
public reprimand is appropriate. Cf., e.g., Cincinnati Bar Assn. v. Lange (1991),
57 Ohio St.3d 43, 564 N.E.2d 1069. Respondent is hereby publicly reprimanded.
Costs are taxed to respondent.
Judgment accordingly.

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

MOYER, C.J., and O'CONNOR, J., dissent.
__________________

MOYER, C.J., dissenting.
{¶9} I would suspend respondent for six months and stay the entire
suspension.
O'CONNOR, J., concurs in the foregoing dissenting opinion.
__________________

Michael M. Hughes and Ann Zimmerman, for relator.

Michael Drain, for respondent.
__________________
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