Wednesday, December 6, 2017

Three Suspended In Ohio

Three bar discipline decisiond issued by the Ohio Supreme Court are summarized by Dan Trevas

Three Ohio attorneys received partially stayed suspensions from the Ohio Supreme Court today that suspend their law practice for six months.

In three separate per curiam opinions, the Supreme Court suspended:

  • Thomas P. Maney Jr. of Columbus for one year with six months stayed.
  • Andrew R. Schuman of Bowling Green for one year with six months stayed.
  • Samuel R. Smith II of Cleveland for 18 months with 12 months stayed.

Maney Falsified Documents
In October 2013, Patrick Baker hired Maney to represent him in a collections proceeding. Maney answered the complaint and attended a pretrial hearing. However, he did not respond to the debt collector’s request for discovery or a subsequent motion for summary judgment. He also did not forward the documents to Baker. Having received no response to the motion, the trial court granted summary judgment for the creditor and issued a $3,062 judgment against Baker.

The trial court, not Maney, informed Baker of the decision. Baker was able to obtain a stay of the judgment and later filed for bankruptcy. Baker filed a grievance against Maney with the Office of Disciplinary Counsel.

Maney responded to a letter from the disciplinary counsel stating that he sent letters to Baker informing him of the status of the case, and claimed he had complied with the discovery requests. He also said he asked Baker on numerous occasions to provide information to respond to the discovery requests, and he provided the disciplinary counsel with five letters he claimed to have sent Baker.

In July 2015, the disciplinary counsel confronted Maney about his claims, noting that Baker was adamant his case had been neglected and the letters were addressed to a residence where Baker did not reside at during the time of his representation. At that point, Maney stated: “You got me.” He admitted he falsified the documents and lied during the investigation.

In April 2016, Maney testified that he realized he bungled Baker’s case by putting Baker’s file on a shelf and forgetting about it.

Parties Agree to Multiple Violations
The parties stipulated to the Board of Professional Conduct that Maney violated several rules governing the conduct of Ohio attorneys, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; failing to act with reasonable diligence on a client matter; failing to keep a client reasonably informed about the status of a case; and making a false statement in connection with a disciplinary matter. The board recommended to the Supreme Court that Maney be suspended for one year with six months stayed with conditions.

When imposing a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The board found Maney acted with a dishonest or selfish motive and that he submitted false statements and evidence during the disciplinary process. It also found that Maney did not have any prior discipline, cooperated with the disciplinary process once a formal complaint was filed, and submitted a number of letters demonstrating his good character and competence as a lawyer.

Maney testified he had been drinking “way too much” and that his drinking contributed to the lies he told the disciplinary counsel. Two days after his disciplinary deposition in April 2016, which took place nearly nine months after he confessed to fabricating the letters, he sought help from the Ohio Lawyers Assistance Program (OLAP). He entered into a two-year OLAP contract.

Maney objected to the board’s proposed sanction and argued that the panel had improperly excluded a report from a treatment professional that may have qualified his substance-use disorder as a mitigating factor that would warrant a fully stayed suspension.  Therefore, he argued that the case should be remanded to the board for consideration of the excluded evidence.

The Court rejected his argument, finding that the panel had properly excluded the challenged evidence.

“Having reviewed the record evidence, we are not persuaded that the outcome of this case would be any different if Maney successfully demonstrated that his substance-use disorder qualified as an independent mitigating factor. In fact, we have previously imposed a one-year suspension with six months stayed on conditions on an attorney who filed several fraudulent documents in court—despite proof of that attorney’s recently diagnosed mitigating mental disorder,” the Court stated.

The Court imposed the suspension with six months stayed with the conditions that he remain in compliance with his OLAP contract, commit no further misconduct, and pay for the cost of the proceedings.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

Justice William M. O’Neill dissented without an opinion.

2016-1494Disciplinary Counsel v. ManeySlip Opinion No. 2017-Ohio-8799.

Video camera icon View oral argument video of this case.

Schuman Collects Excessive Fee

In 2010, the Hancock County Juvenile Court appointed Schuman as a guardian ad litem (GAL) for a minor in a custody case. When he completed his service, he submitted a bill for $3,416 based on a rate of $80 per hour. The court ordered each parent to pay half the bill. The child’s father paid $150 of the deposit the court required, and the mother paid $350.

In 2013, the father had only paid $200 toward his remaining half of the fee, and the mother had paid nothing. Schuman filed an action in Findlay Municipal Court to collect his fee. In his complaint he sought “joint-and-several-liability” from the parents, meaning he could opt to seek the entire amount from just one of the parents. He also calculated his fee to be $6,405, which he reached by using a $150 rate for his GAL fee. His complaint did not mention the juvenile court had approved an $80-per-hour rate; that he already received $700 from the parents; and that the court ordered each to pay half.

The parents failed to respond to his complaint, and the court approved a default judgment in his favor. Part of the evidence he provided to support his case was an itemized bill that he had filed with the juvenile court demonstrating his GAL work, but he altered it in his municipal court submission by removing the line indicating the approved hourly rate was $80 and the total was $3,416.

Schuman initiated garnishment proceedings for a total of $7,273, which represented the judgment plus interest and costs. Because the mother was not employed, he garnished only the father’s wages and, by the end of 2014, he collected $7,217 from the father. The father lost his job, and Schuman attempted to garnish his bank account for the remaining amount, but there was not sufficient funds to garnish.

Lawyer Admits to Violations
The father filed a grievance against Schuman with the disciplinary counsel. During the disciplinary proceedings Schuman admitted that he used the judicial system to collect an illegal or clearly excessive fee. He also admitted that despite having multiple opportunities to notify the municipal court of the accurate juvenile court order, he continued to perpetrate a fraud on the court by claiming the father owed him additional money.

In June 2016, the disciplinary counsel charged him with misconduct, and the parties stipulated to the professional conduct board that Schuman charged an excessive fee, made a false statement to the a court, engaged in conduct that adversely reflects on a lawyer’s fitness to practice, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The board recommended the one-year suspension with six months stayed. The board found Schuman acted with a selfish motive, committed multiple offenses, and harmed a vulnerable individual. The board also noted that Schuman had no prior disciplinary record; made full disclosure to the board; displayed a cooperative attitude during the disciplinary proceedings; and submitted evidence of his good character, skills as an attorney, and leadership in his community.

The board also found Schuman paid restitution to the father for the difference he charged above the approved rate as well as the interest and court costs.

Schuman objected to the recommended sanction, arguing that his suspension should be fully stayed because of the significant mitigating factors in the case, especially his character and reputation.

The Court rejected his argument, stating that when an attorney’s conduct involves dishonesty it usually warrants an actual suspension, and is “especially true when an attorney makes repeated and material false statements to a court.”

“Beyond Schuman’s lack of candor to the municipal court, he also abused the judicial system in order to bilk more money from a person than he was entitled to receive. Even considering his mitigating evidence, an actual suspension is appropriate for his ethical violations,” the opinion stated.

Justices O’Donnell, Kennedy, French, Fischer, and DeWine joined the opinion.

Chief Justice O’Connor and Justice O’Neill dissented, stating they would not stay any portion of the suspension.

2016-1834Disciplinary Counsel v. SchumanSlip Opinion No. 2017-Ohio-8800.

Video camera icon View oral argument video of this case.

Attorney Misses Criminal Case Appeal Deadline

In a unanimous opinion, the Court found Smith violated several attorney conduct rules based on his representation of Horace K. Vinson Jr.

Smith was hired by Vinson’s stepmother, Darlene Beesley, to file a petition for postconviction relief. After the petition was denied, Smith was contacted by Vinson’s mother, Terri Lamb, about appealing the decision. Lamb paid Smith $1,800 in January 2015 for the full amount of a flat fee Smith requested. He deposited the check in his personal bank account.

Smith did not file the appeal by the Feb. 2, 2015 deadline, and on Feb. 12, he asked the court if he could file a delayed appeal. He falsely told the court that he had been hired on Feb. 2. The court denied the motion and dismissed the appeal.

Smith told Lamb he would filed another postconviction relief petition. After many months of Smith not taking action on Vinson’s case, Vinson filed a grievance with the disciplinary counsel.

When the disciplinary counsel asked Smith about Vinson’s case, he provided a copy of a draft appellate briefthat he claimed he intended to file and a copy of a motion he had prepared for a new trial for Vinson. He also included an itemized billing statement, which indicated he researched and drafted the brief in the month before the Feb. 2 deadline, and that he drafted the motion for the new trial in October 2015.

Further inspection of the documents revealed they were created in May 2016, the day prior to Smith sending his written response to the disciplinary counsel. Smith then admitted he produced the documents to submit with his response.

The professional conduct board was presented a “consent-to-discipline” agreement between the parties, and Smith stipulated to most of the facts. He agreed that he violated several rules, including not acting with reasonable diligence in the representation of his client; knowingly making a false statement to a court; knowingly making a false statement in connection with a disciplinary matter; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The parties stipulated that Smith acted with a dishonest or selfish motive, committed multiple offenses, submitted false evidence, made false statements, and engaged in deceptive practices during the disciplinary process. The board also found Smith had no prior disciplinary record, made a good faith effort to make restitution, displayed a cooperative attitude during the disciplinary proceedings, and provided evidence of good character and reputation.

The opinion noted that in a prior disciplinary case where an attorney neglected legal matters and fabricated materials during the disciplinary investigation, the Court had imposed an 18-month suspension with 12 months stayed.

The Court stayed the last 12 months of Smith’s suspension on the condition that he not commit further misconduct.

2017-0487Disciplinary Counsel v. SmithSlip Opinion No. 2017-Ohio-8821.

Ohio - nobody does it better when it comes to explaining and informing the public about bar discipline. (Mike Frisch)

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