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

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[Cite as Cleveland Bar Assn. v. Smith, 102 Ohio St.3d 10, 2004-Ohio-1582.]

CLEVELAND BAR ASSOCIATION v. SMITH.
[Cite as Cleveland Bar Assn. v. Smith, 102 Ohio St.3d 10, 2004-Ohio-1582.]
Attorneys at law -- Misconduct -- Six-month suspension stayed on condition --
Failing to file federal income tax returns for nine years -- Engaging in
illegal conduct involving moral turpitude -- Engaging in conduct
prejudicial to the administration of justice -- Engaging in conduct
adversely reflecting on fitness to practice law -- Neglecting an entrusted
legal matter -- Attempting to exonerate oneself from or limit one's
liability to a client for professional malpractice -- Causing client
damage or prejudice -- Failing to promptly pay funds to which a client
is entitled -- Failing to promptly refund an unearned fee.
(No. 2003-1115 Submitted August 26, 2003 Decided April 14, 2004.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 02-60.
__________________

PFEIFER, J.
{¶1} Respondent, Cynthia D. Smith of Cleveland, Ohio, Attorney
Registration No. 0023694, was admitted to the Ohio bar in 1983. On January 15,
2003, relator, Cleveland Bar Association, charged respondent in an amended
complaint with three counts of professional misconduct. A panel of the Board of
Commissioners on Grievances and Discipline heard the cause and made findings
of fact, conclusions of law, and a recommendation.
{¶2} As to the first count, the panel found that a former Cleveland
police officer retained respondent in May 1990, approximately eight months after
his probationary discharge, to sue the city of Cleveland and a medical clinic for
what he alleged to be his unlawful dismissal based on a false-positive urinalysis.

SUPREME COURT OF OHIO
The client paid respondent $1,000 and thought that she filed his suit in the
Cuyahoga County Court of Common Pleas soon thereafter. Respondent,
however, did not file an action on the client's behalf until September 6, 1996,
almost seven years after the discharge. The defendants responded with a motion
to dismiss the cause as untimely, and respondent did not reply. On March 31,
1997, the common pleas court dismissed the client's suit because it had been filed
outside the statute of limitations.
{¶3} Respondent explained in her answer that she had mistakenly
thought that a seven-year statute of limitations applied. Respondent, who carried
no malpractice insurance, had conceded her error and agreed, prior to the client's
grievance, to pay $30,000 in installments to compensate him for her mistake.
Respondent did not advise her client prior to their negotiations to seek
independent counsel.
{¶4} When respondent's check for the first installment was returned for
insufficient funds, the client retained new counsel and negotiated a $50,000
settlement. Respondent delivered the first installment of $7,500 and gave her
former client a total of $14,000, as well as some more bad checks, before she had
to file for bankruptcy. The bankruptcy did not discharge the debt to her client,
and she has still been unable to pay it.
{¶5} The panel found that respondent had thereby violated DR 6-102
(attempting to exonerate oneself from or limit one's liability to a client for
professional malpractice), 1-102(A)(5) (engaging in conduct prejudicial to the
administration of justice), and 1-102(A)(6) (engaging in conduct that adversely
reflects on an attorney's fitness to practice law).
{¶6} As to the second count, the panel found that respondent had failed
to file federal income tax returns as required by law for the years 1992 through
2000. Respondent admitted to the panel that although she had requested
extensions during those nine years, she had never filed a timely return for those
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January Term, 2004
years. By the time the instant complaint was filed, respondent had filed tax
returns for the years in question. The panel found that respondent had thereby
violated DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude),
1-102(A)(5), and 1-102(A)(6).
{¶7} As to the third count, the panel found that in May 2001, a second
client paid respondent $300 to represent her in a landlord-tenant dispute and at a
hearing on July 23, 2001. Respondent's client appeared on the hearing date, but
respondent did not, because she was out of the country on a previously scheduled
trip. The court denied her request for a continuance, filed just days before the
hearing, after she had left, and the attorney whom respondent had asked to cover
her cases while she was away was also unavailable. Proceeding pro se, the client
lost on the landlord's claim against her but won on parts of her counterclaim, with
the net judgment against her amounting to less than $20.
{¶8} When respondent returned, the client demanded a refund of her
$300 retainer. Respondent agreed to repay $200, but she did not remit the money
until after the client filed her grievance nearly one year later. Respondent then
sent a total of $225.
{¶9} For her failure to immediately repay her client, the panel found
respondent in violation of DR 9-102(B)(4) (failing to promptly pay funds to
which a client is entitled) and 2-110(A)(3) (failing to promptly refund an
unearned fee).
{¶10} In recommending a sanction for this misconduct, the panel
reviewed the aggravating and mitigating factors in Section 10 of the Rules and
Regulations Governing Procedure on Complaints and Hearings Before the Board
of Commissioners on Grievances and Discipline. The panel found no aggravating
factors. As a mitigating feature, the panel found that respondent, a single mother
of two, had devoted her practice principally to low- and moderate-income clients
who might not have been able to find representation elsewhere. In addition,
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SUPREME COURT OF OHIO
respondent's efforts to make restitution to her clients, notwithstanding her lack of
resources, appeared genuine to the panel. Respondent also accepted responsibility
for her mistakes and showed remorse. Moreover, according to witnesses and
testimonial letters, respondent is an active member of her church and community,
whom clients, acquaintances, colleagues, and other professionals alike consider to
be of the highest character and integrity. Finally, respondent has no prior history
of professional sanctions.
{¶11} Relator proposed a one-year suspension with six months of this
sanction stayed. Respondent proposed a public reprimand. The panel
recommended that respondent be suspended from the practice of law for six
months, with the entire period to be stayed on the condition that she consult with a
mentor or expert, chosen by respondent and relator, to improve her office and
fiscal management. The board adopted the panel's findings of misconduct and
recommendation, although it also found violations of DR 6-101(A)(3) (neglecting
an entrusted legal matter) and 7-101(A)(3) (causing client damage or prejudice) in
connection with Count One.
{¶12} We agree that respondent violated DR 1-102(A)(3), 1-102(A)(5),
1-102(A)(6), 2-110(A)(3), 6-101(A)(3), 6-102, 7-101(A)(3), and 9-102(B)(4) as
found by the board. We also agree with the board's recommended sanction.
While respondent has apparently not been convicted or even prosecuted for
failing to file tax returns, this misconduct, combined with the settlement
negotiation she conducted with her own client and her failure to promptly repay
her client's unearned retainer, merits a six-month suspension of her license to
practice law. We stay the entire portion of that suspension on the condition that
she consult with a mentor or expert, chosen by respondent and relator, about
improving her office and fiscal management. Costs are taxed to respondent.
Judgment accordingly.
4

January Term, 2004

RESNICK, F.E. SWEENEY, LUNDBERG STRATTON, O'CONNOR and
O'DONNELL, JJ., concur.

MOYER, C.J., dissents and would suspend respondent for six months.
__________________

Michael M. Hughes and Denise Platfoot, for relator.

Koblentz & Koblentz, Richard S. Koblentz and Craig J. Morice, for
respondent.
__________________
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