Cincinnati Bar Assn. v. Deaton - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Cincinnati Bar Assn. v. Deaton, 102 Ohio St.3d 19, 2004-Ohio-1587.]

CINCINNATI BAR ASSN. v. DEATON.
[Cite as Cincinnati Bar Assn. v. Deaton, 102 Ohio St.3d 19, 2004-Ohio-1587.]
Attorneys at law -- Misconduct -- Permanent disbarment -- Neglect of legal
matters -- Deliberately concealing neglect to protect personal interests
-- Failing to cooperate in disciplinary investigation.
(No. 2003-1534 -- Submitted December 2, 2003 -- Decided April 14, 2004.)
ON CERTIFIED REPORT of the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 02-23.
__________________

Per Curiam.
{¶1} Respondent, John Reno Deaton II, last known address in Ft.
Thomas, Kentucky, Attorney Registration No. 0066990, was admitted to the Ohio
bar in 1996. On September 25, 2002, relator, Cincinnati Bar Association, filed a
complaint, as amended, charging respondent with numerous violations of the
Code of Professional Responsibility. After efforts to serve respondent by certified
mail failed, the complaint was served on the Clerk of the Supreme Court pursuant
to Gov.Bar R. V(11)(B). Respondent did not answer, and relator moved for
default. See Gov.Bar R. V(6)(F).
{¶2} A master commissioner appointed by the Board of Commissioners
on Grievances and Discipline considered the motion for default, making findings
of fact, conclusions of law, and a recommendation. Evidence submitted for
review established that respondent agreed to represent at least 11 different clients,
including the law firm for which he worked at the time, but failed to perform as
promised and routinely lied to clients about his progress in their cases.
{¶3} Respondent took the first client's case, a small claims action to
recover payment for services, in April 2000 on an hourly basis. He told the client

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that he had filed suit on the client's behalf and that a trial date had been set.
Neither representation was true. He also misrepresented twice that the fictitious
trial date had been rescheduled.
{¶4} Respondent met with the client on the day before the second
purported trial date, at which time the client said that he would accept $2,000 to
$2,200 to settle the case. The next morning, two hours before the "trial,"
respondent called to tell the client that he had received a $2,800 settlement offer.
The client accepted the offer, and respondent represented that he would place the
money in escrow, prepare a final settlement agreement, and deduct his fees.
Weeks passed during which respondent did not return the client's calls, and the
client received an invoice from respondent's law firm for services. The client
asked the law firm's office manager about the invoice, and the next day,
respondent appeared unexpectedly at the client's job site and paid the client
$2,000, withholding $800 as his fee. Respondent paid the client with a personal
check, thereby concealing the transaction from his employer.
{¶5} Relator charged that in representing this client, respondent had
violated DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation); 2-106(A) (charging a clearly excessive fee); 6-
101(A)(3) (neglecting an entrusted legal matter); 7-101(A)(1) (failing to seek
client's lawful objectives through reasonable means), (2) (failing to carry out a
contract for professional services), and (3) (causing client damage or prejudice);
and 7-102(A)(5) (knowingly making a false statement of law or fact).1
{¶6} A second client retained respondent to petition for a change in the
custody of his two minor children. On October 23, 2000, respondent represented
to a child support enforcement agency and to his client that he had filed the
petition in court. He had not. When he did file the petition on November 9, 2000,

1. This rule was miscited in the complaint as DR 7-101(A)(5).
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January Term, 2004
the petition erroneously indicated that the client's wife had been served with the
pleading the preceding month. Respondent later misrepresented to the client and
the client's mortgage company that the client, who was given temporary custody
of one child, had been given full custody and was no longer required to pay child
support. As a result, the client unwittingly failed to keep up with the child
support that he was required to pay during this period. Relator charged that
respondent had thereby violated DR 1-102(A)(4); 6-101(A)(3); 7-101(A)(1), (2),
and (3); and 7-102(A)(5).
{¶7} Respondent was also assigned to represent his employer, the third
client, as lead counsel in a contract action. Respondent advised one of his law
firm's partners that he had prepared and filed a motion to dismiss a counterclaim
as barred by the statute of frauds; however, he never filed the motion.
Respondent also failed to answer the counterclaim, causing the defendant to move
for a default judgment.
{¶8} Respondent concealed his failure by not reporting his attendance at
the hearing on the motion for default on law firm records to document his activity.
The court denied the default motion, but, unknown to his employer, respondent
had also failed to reply to a request for admissions. The court accepted the
admissions as true and, as a result, granted partial summary judgment against the
law firm. Relator charged that respondent had thereby violated DR 1-102(A)(4);
6-101(A)(3); 7-101(A)(1), (2), and (3); and 7-102(A)(5).
{¶9} A fourth client retained respondent to represent her in a personal-
injury action. In December 2000, a partner in respondent's law firm learned that
respondent had failed to file timely notice of the client's experts. Summary
judgment was later granted against the client for unrelated reasons.
{¶10} The client asked respondent to appeal the judgment against her. In
June 2001, respondent advised a law firm partner that the appeal had been filed.
As proof, he gave the partner a copy of his appellate brief that included a
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certificate of service but did not bear a time-stamp from the court. When
respondent's neglect began to surface, the partner investigated and learned that
respondent had never filed the appellate brief in court or served notice of the brief
as represented. Relator charged that respondent had thereby violated DR 1-
102(A)(4); 6-101(A)(3); 7-101(A)(1), (2), and (3); and 7-102(A)(5).
{¶11} A fifth client retained respondent to represent her in another
personal-injury action. Respondent represented to the client and his co-counsel
that he had found an expert favorable to the client's case. He also told his co-
counsel that he had advanced $1,200 to the expert and obtained a report from the
expert. However, respondent never complied with his co-counsel's repeated
requests for a copy of the report, and his co-counsel and client later learned that
he had never located the expert, paid costs, or obtained the report as represented.
Relator charged that respondent had thereby violated DR 1-102(A)(4); 6-
101(A)(3); 7-101(A)(1), (2), and (3); and 7-102(A)(5).
{¶12} The sixth client consulted respondent concerning a claim of
employment discrimination and an April 2000 incident of assault. Respondent
agreed to file a complaint in at least one of the matters, and the client called
respondent to make sure that he did so. Respondent's time sheet entries purport
to show that he prepared the anticipated pleading well in advance of the filing
deadline; however, he did not file the complaint, nor does it appear that he even
prepared it. He also stopped returning the client's calls after missing the filing
deadline. Relator charged that respondent had thereby violated DR 6-101(A)(3);
7-101(A)(1), (2), and (3); and 7-102(A)(5).
{¶13} A seventh client retained respondent in the fall of 2000 to petition
for guardianship of the client's elderly aunt. Respondent arranged for the client's
appointment as guardian but thereafter failed to file timely inventories and
accountings in the guardianship. When the client's aunt and ward died on January
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January Term, 2004
22, 2001, respondent agreed to oversee the administration of her estate but failed
to return the client's calls over the next several months.
{¶14} On June 18, 2001, a second aunt told the client that respondent had
advised her of a hearing to close the deceased aunt's estate that was scheduled for
June 20, 2001. Respondent told both the client and this aunt that they did not
need to attend the hearing; however, both went to the courthouse. When the client
and his aunt found respondent, he told them he was going to file some papers and
asked them to wait in the lobby for his return.
{¶15} Respondent did not return to the courthouse lobby. Upon inquiring
of a magistrate, the client and his aunt learned that respondent had just filed the
guardian's inventory that should have been filed five months earlier, 90 days after
the client's appointment. Respondent never communicated with his client after
this incident. Moreover, despite what he had represented to his client, respondent
had never opened the deceased aunt's estate. Relator charged that respondent had
thereby violated DR 1-102(A)(4); 6-101(A)(3); 7-101(A)(1), (2), and (3); and 7-
102(A)(5).
{¶16} The eighth client retained respondent to defend him against a
charge of driving under the influence. Respondent failed to return the client's
calls about his case until after the client reported him to a senior partner of the law
firm. And although respondent told the client that he would file a motion to
suppress, he never did.
{¶17} In the course of his representation, respondent's client missed a
hearing, arriving too late and after respondent had left the courthouse. The client
tried to contact respondent without success, and respondent never told the client
that his failure to appear had resulted in a warrant for his arrest. A few days after
the hearing, police went to the client's home and his 11-year-old daughter
telephoned him, frightened, to alert him about the situation. The client promptly
appeared as instructed and was permitted to post bond.
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{¶18} At a second scheduled trial date, respondent recommended that the
client plead guilty to the charges against him because certain witnesses had either
not been subpoenaed or had not appeared, and the court would not grant further
continuances in the case. The client pled guilty, and respondent promised to
appeal. After his plea, the client called respondent unsuccessfully many times to
ask about the appeal. The client ultimately learned from a partner in respondent's
law firm that the appeal time had elapsed and, further, that his guilty plea had
precluded an appeal. Relator charged that respondent had thereby violated DR 1-
102(A)(4); 6-101(A)(3); 7-101(A)(1), (2), and (3); and 7-102(A)(5).
{¶19} A ninth client retained respondent in December 2001 to represent
him in an action to clear for sale the title of property held in trust. On four or five
occasions, respondent represented to his client that the action had been filed in
probate court but that he needed the client to sign additional papers that he
intended to file. Respondent then scheduled a "dry closing" on the property for
March 29, 2000, assuring the client that all issues of title had been resolved. The
client later learned that respondent had not filed the action to clear title and,
consequently, the property could not be transferred. Relator charged that
respondent had thereby violated DR 1-102(A)(4); 6-101(A)(3); 7-101(A)(1), (2),
and (3); and 7-102(A)(5).
{¶20} The tenth client retained respondent in October 2001 to represent
her in a divorce action. By that time, the law firm for which respondent had
worked had terminated his employment, and respondent was practicing on his
own. The client paid respondent a flat fee of $350. Respondent later joined
another law firm, and that firm sent invoices for his services to his divorce client.
Respondent told the client to ignore the invoices and then stopped communicating
with her. The client ultimately learned that respondent never filed anything on
her behalf. He refunded the client's money only after her repeated requests.
Relator charged that respondent had thereby violated DR 1-102(A)(4); 6-
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January Term, 2004
101(A)(3); 7-101(A)(1), (2), and (3); 7-102(A)(5); and 9-102(B)(4) (failing to
promptly pay client funds to which the client is entitled).
{¶21} An eleventh client retained respondent to defend him against
charges of driving under the influence. On the day of the client's first hearing,
respondent told the client and his family that although the arresting officer was
willing to agree to a reduction of the charges against the client, the prosecutor was
not. Respondent, who did not suggest any pretrial motions or continuances,
advised his client to plead guilty or no contest.
{¶22} The client pled no contest and, before sentencing, gave respondent
some medical evidence for the court's consideration. Respondent did not use it.
The client retained new counsel, and the court granted the new attorney's motion
to withdraw the client's plea. Thereafter, the charges against the client were
reduced to the offense that the prosecutor had supposedly rejected before. Relator
charged that respondent had thereby violated DR 6-101(A)(3); 7-101(A)(1), (2),
and (3); and 7-102(A)(5).
{¶23} Finally, relator further charged that respondent violated Gov.Bar
R. V(4)(G) (failure to cooperate in disciplinary proceedings) because he did not
respond to investigative inquiries concerning his eighth, ninth, tenth, and eleventh
client, or to a grievance submitted by a twelfth client.
{¶24} Except for the violation of DR 9-102(B)(4) relative to the first
client, whom the master commissioner found had not actually realized any
settlement proceeds for respondent to wrongfully withhold, the master
commissioner found that respondent committed all of the cited misconduct.2 In
recommending a sanction for this misconduct, the master commissioner found
none of the mitigating factors listed in Section 10 of the Rules and Regulations

2. The master commissioner found an eleventh violation of DR 1-102(A)(4) that was not charged
in the complaint. We reject this finding, as well as the board's reliance on it, pursuant to our
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Governing Procedure on Complaints and Hearings Before the Board of
Commissioners on Grievances and Discipline. As aggravating considerations, the
master commissioner found:
{¶25} "Respondent lied to nearly everyone he came in contact with, with
respect to the charges raised by the Relator. Respondent misled and lied to clients
and further compounded the situation [by] falsifying and fabricating time sheets
and records of the law firm where he was employed. As a result of these multiple
deceptions, clients were damaged, the law firm was exposed to serious credibility
and financial problems, and the justice system was denigrated and manipulated.
{¶26} "The Master Commissioner notes the respondent has made no
effort to explain or deny the accusations made by Relator. It is further noted that
the Respondent committed a number of serious violations of the Disciplinary
Rules in a relatively short period of time. The conduct of the Respondent is a
basic default of his oath. Respondent may have had some motive for his
conduct[;] however[,] the reasons for the constant abdication of responsibility to
those to whom he owed a duty [are] reprehensible."
{¶27} Relator suggested that respondent's license to practice law be
indefinitely suspended. Finding respondent predisposed to dishonesty and lacking
in integrity, the master commissioner recommended a permanent disbarment. The
board adopted the master commissioner's findings and recommendation.
{¶28} We find that respondent violated Gov.Bar R. V(4)(G) and DR 1-
102(A)(4); 2-106(A); 6-101(A)(3); 7-101(A)(1), (2), and (3); 7-102(A)(5); and 9-
102(B)(4) as charged in the complaint. Moreover, despite his efforts to present
mitigating evidence for the first time in objections to the board's report, we agree
that respondent must be disbarred.
________________
independent review and final authority in disciplinary cases. Ohio State Bar Assn. v. Reid (1999),
85 Ohio St.3d 327, 708 N.E.2d 193, paragraph one of the syllabus.
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January Term, 2004
{¶29} Respondent submits that his transgressions were related to, if not
caused by, his relationship with his former fiancée and her propensity to abuse
alcohol and other substances. He claims that he was unable to attend to his clients
because he sometimes had to search for his fiancée when she disappeared in a
drunken or drug-induced binge and because she was sometimes verbally or
physically abusive toward him. Relator responds that respondent's submissions
are untimely, unwarranted, and insufficient to diminish the gravity of his
misconduct. We agree, at least insofar as the insufficiency of his mitigating
evidence.
{¶30} " `Neglect of legal matters and a failure to cooperate in the ensuing
disciplinary investigation generally warrant an indefinite suspension from the
practice of law in Ohio.' " Columbus Bar Assn. v. Moushey, 96 Ohio St.3d 461,
2002-Ohio-4850, 776 N.E.2d 16, ¶ 11, quoting Akron Bar Assn. v. Snyder (1999),
87 Ohio St.3d 211, 212, 718 N.E.2d 1271. But an indefinite suspension is too
lenient here because respondent also deliberately concealed his neglect to protect
his personal interests, thereby sacrificing his clients' welfare to preserve his own.
We view his actions as the equivalent of misappropriating funds from these
clients, an offense that, absent sufficiently mitigating circumstances, requires our
most severe sanction. Cleveland Bar Assn. v. Dixon, 95 Ohio St.3d 490, 2002-
Ohio-2490, 769 N.E.2d 816; Disciplinary Counsel v. Connors, 97 Ohio St.3d 479,
2002-Ohio-6722, 780 N.E.2d 567.
{¶31} Although respondent has no prior disciplinary record, he has not
offered evidence of this or any other mitigating factor described in Section 10 of
the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline. He suggests
that he has suffered abuse but does not claim or substantiate that it produced a
medical condition that caused his misconduct. He also presents nothing to
suggest his good-faith restitution or his character and reputation. Moreover, he
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clearly did not cooperate during relator's investigation, and his misconduct was
obviously motivated by self-interest.
{¶32} For these reasons, we adopt the recommendation to disbar.
Respondent is therefore ordered permanently disbarred from the practice of law in
Ohio. Costs are taxed to respondent.
Judgment accordingly.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON,
O'CONNOR and O'DONNELL, JJ., concur.
__________________

Laura A. Abrams and Franklin A. Klaine Jr., for relator.

John Reno Deaton, pro se.
__________________
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