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

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[Cite as Cleveland Bar Assn. v. Lehotsky, 105 Ohio St.3d 226, 2005-Ohio-1204.]

CLEVELAND BAR ASSOCIATION v. LEHOTSKY.
[Cite as Cleveland Bar Assn. v. Lehotsky,
105 Ohio St.3d 226, 2005-Ohio-1204.]
Attorneys at law--Misconduct--One-year suspension--Neglect of entrusted legal
matters--Failure to carry out contract of employment--Failure to pay
funds to client--Dishonesty--Failure to cooperate in disciplinary
investigation.
(No. 2004-1763 -- Submitted January 19, 2005 -- Decided April 6, 2005.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 03-055.
_______________________

Per Curiam.
{¶ 1} Respondent, Marc A. Lehotsky, last known address in Lakewood,
Ohio, Attorney Registration No. 0068814, was admitted to the practice of law in
Ohio in 1997. On June 9, 2003, relator, Cleveland Bar Association, charged
respondent with two counts of having violated the Code of Professional
Responsibility. Attempts to serve respondent by certified mail and the Cuyahoga
County Sheriff were unsuccessful, and 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 pursuant to Gov.Bar R. V(6)(F).
{¶ 2} A master commissioner appointed by the Board of Commissioners
on Grievances and Discipline granted the motion, making findings of misconduct
and a recommendation, all of which the board adopted.
{¶ 3} As to Count I, the board found that around November 10, 2001,
Jeffrey and Laura Krause paid respondent $225 to draft their wills. A month later,
not having heard from respondent, the Krauses called him to check on his

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progress. Respondent told the Krauses that he would have the wills completed
shortly. From January through March 2002, the Krauses left several telephone
messages for respondent. Respondent returned one of these calls, leaving word
that he was dealing with some family problems and would complete their wills
soon. Sometime after April 2002, the Krauses attempted to contact respondent
again, only to discover that his telephone had been disconnected. Respondent
never did prepare wills for the Krauses, nor did he return the retainer they had
paid.
{¶ 4} With respect to Count I, the board found that respondent had
violated DR 6-101(A)(3) (prohibiting the neglect of an entrusted legal matter), 7-
101(A)(2) (requiring a lawyer to carry out a contract of professional
employment), 9-102(B)(4) (requiring a lawyer to promptly pay a client funds the
client is entitled to receive), and 1-102(A)(4) (prohibiting conduct involving
dishonesty, fraud, deceit, or misrepresentation).
{¶ 5} As to Count II, the board found that respondent had failed to
cooperate in relator's investigation of this misconduct, a violation of Gov.Bar R.
V(4)(G). On November 8, 2002, relator sent a certified letter to respondent
requesting a written response to a grievance filed by the Krauses. The letter was
returned marked "unclaimed."
{¶ 6} On December 5, 2002, relator mailed another letter to respondent,
again requesting a written response to the Krauses' grievance. Soon after,
respondent replied by letter, acknowledging relator's investigation and advising
that he intended to resign his license to practice law. In view of his anticipated
resignation, respondent suggested that an investigation of the Krauses' grievance
was unnecessary.
{¶ 7} In a letter dated December 18, 2002, relator supplied respondent
with information regarding the resignation process and asked for a response to the
Krause grievance. Relator advised respondent that the investigation would
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January Term, 2005
continue until this court accepted his resignation. Respondent apparently received
this letter because it was not returned as refused, unclaimed, or otherwise
undeliverable.
{¶ 8} On March 26, 2003, relator sent another investigative inquiry to
respondent at the same address. He did not reply. On April 30, 2003, relator sent
a letter by certified and regular mail, requesting yet again a response to the
grievance and advising of the intention to file a formal complaint. The certified
letter was returned unclaimed, but the other letter was not. On July 30, 2004,
after filing the formal complaint, relator sent duplicate letters by regular and
certified mail warning respondent of an impending motion for default. Both
letters were returned as unclaimed.
{¶ 9} In its letter of April 30, 2003, relator had referred respondent to the
Ohio Lawyers Assistance Program ("OLAP") because of respondent's own
expressions of concern for his well-being in his letter of December 2002. Several
days later, Scott R. Mote, Executive Director of OLAP, sent a letter to respondent
offering OLAP's assistance and services on the chance that respondent might be
suffering from a chemical dependency or mental disorder. That letter, which was
not returned, also produced no response.
Sanction
{¶ 10} In recommending a sanction for his misconduct, the board
considered the mitigating and aggravating factors of respondent's case. See
Section 10 of the Rules and Regulations Governing Procedure on Complaints and
Hearings Before the Board of Commissioners on Grievances and Discipline
("BCGD Proc.Reg."). The board found that respondent had apologized for his
misconduct in his letter of December 2002 and had never before been the subject
of disciplinary proceedings. BCGD Proc.Reg. 10(B)(2)(a). The board noted that
respondent had not updated his attorney registration for this biennium and had
apparently stopped accepting new clients in anticipation of his resignation and
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was winding up the affairs of other clients. As aggravating factors, the board
found that respondent had failed to cooperate in the disciplinary process and had
not made restitution. BCGD Proc.Reg. 10(B)(1)(i). Respondent had also failed to
pay a $150 sanction ordered on February 27, 2003, for his noncompliance with
continuing legal education requirements.
{¶ 11} Consistent with the sanction recommended by relator and the
master commissioner, the board recommended that respondent be suspended from
the practice of law for one year.
{¶ 12} Upon review, we agree that respondent violated DR 6-101(A)(3),
7-101(A)(2), 9-102(B)(4), and 1-102(A)(4) and Gov.Bar R. V(4)(G) as found by
the board. We also agree that a one-year suspension is appropriate for this single
example of neglect and respondent's failure to cooperate. Accord Cuyahoga Cty.
Bar Assn. v. Muhlbach (1999), 86 Ohio St.3d 547, 715 N.E.2d 1134 (isolated
incident of misconduct, coupled with prior history of discipline, but also eventual
cooperation in disciplinary process warranted attorney's one-year suspension
from the practice of law). In addition to the board's sanction, we further accept
relator's recommendation that respondent be ordered to pay restitution. See, e.g.,
Columbus Bar Assn. v. Patterson (1999), 86 Ohio St.3d 23, 711 N.E.2d 221.
{¶ 13} Respondent is therefore suspended from the practice of law in
Ohio for one year. He is also ordered to repay the Krauses' $225 retainer, and,
upon any request for reinstatement to the practice of law, he must show proof of
this restitution. Costs are taxed to respondent.
Judgment accordingly.

RESNICK, PFEIFER, LUNDBERG STRATTON and O'DONNELL, JJ., concur.

MOYER, C.J., O'CONNOR and LANZINGER, JJ., dissent.
___________________
MOYER, C.J., dissenting.
{¶ 14} I respectfully dissent from the sanction imposed on respondent.
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January Term, 2005
{¶ 15} The record before us demonstrates a pattern of irresponsibility on
the part of respondent. He not only failed to perform the legal service he agreed
to perform and failed to return his clients' telephone calls, but also failed to return
the money he took from his clients more than three years ago as a retainer for that
service. Moreover, he has largely ignored the resulting disciplinary investigation
and proceedings against him.
{¶ 16} The majority imposes a one-year suspension. At the end of that
suspension, respondent presumably can be reinstated to the practice of law simply
upon proof of restitution of $225 to his clients and compliance with the
registration obligation imposed by Gov.Bar R. VI and other applicable rules
adopted for the government of the bar. There will be no review of his conduct
during the year of suspension. We therefore will have no assurance that his
dismissive attitude regarding the rules of this court and the need to cooperate with
the disciplinary process will have changed. Why should a lawyer who shows
utter disregard for our system of peer review be readmitted with no review of his
conduct? We owe more than that to his prospective clients.
{¶ 17} I am not confident that the public will be protected from future
misconduct should respondent in fact be reinstated at the end of one year.
Although respondent says he intends to discontinue the practice of law, we have
no assurance that he will. He has not submitted a resignation from the practice of
law as authorized by Gov.Bar R. V(11). We should impose a sanction that
provides greater assurance that respondent's unprofessional conduct will not be
repeated.
{¶ 18} I would impose an indefinite suspension in order that we may
determine upon his application for readmission, should one be presented, whether
respondent intends to continue practicing law in Ohio and whether he appreciates
all the responsibilities that accompany a license to practice law.
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O'CONNOR and LANZINGER, JJ., concur in the foregoing dissenting
opinion.
__________________

Denise Platfoot Lacey, for relator.
______________________
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