Friday, May 17, 2019

Add On Suspension

The Ohio Supreme Court has decided a disciplinary matter as summarized by Dan Trevas

The Ohio Supreme Court today issued a two-year suspension to a Westerville attorney, who has yet to seek reinstatement from a one-year suspension imposed on him in 2016.

In a unanimous per curiam opinion, the Supreme Court found Darwin R. Roseman violated several rules governing the conduct of Ohio lawyers, including failing to competently represent his clients in a personal-injury case initiated in 2007. The Court noted that at the time of Roseman’s disciplinary hearing, more than 10 years after the accident that injured a husband and wife, the couple had yet to receive compensation for their injuries.

Roseman was suspended by the Court in July 2016 for one year with six months stayed on conditions that he commit no further misconduct and that he resolve a $135,000 judgment imposed on him when his client prevailed in a malpractice lawsuit. Roseman has not applied for reinstatement since the suspension. Two months after the Court’s order, the Columbus Bar Association initiated another investigation based on the grievance filed by Roseman’s clients, John and Sandie Backus.

Attorney Delays Settlement Efforts
The Backuses were injured in a multi-vehicle accident in August 2007 and hired Roseman to pursue their personal-injury claims. Roseman filed a lawsuit against the driver who caused the accident and the Backuses’ own insurance provider, American National Property and Casualty Company (ANPAC), for uninsured and underinsured motorist coverage. Both defendants requested discovery from Roseman, who did not respond to their initial requests or any follow-up inquiries. ANPAC and the driver both obtained court orders compelling Roseman to comply, but instead he dismissed the Backuses’ case in 2010 without their knowledge, and sent letters to the opposing attorneys telling them he planned to submit settlement materials to them within a few weeks. He did not do so.

In January 2011, he refiled the lawsuit without having presented any settlement material to the opposing parties, and did not attempt to settle any matters with the driver who caused the accident, believing her insurance coverage had been exhausted by other claims arising from the accident. ANPAC responded, and again asked for discovery materials from Roseman in February 2011, who did not comply. In June 2011, the trial court ordered Roseman to comply and he sent ANPAC the couple’s medical records, but not of the any additional materials requested.

Insurer Offers Resolution 
Shortly after receiving the records, ANPAC offered the Backuses about $20,000 to settle the matter, and Roseman did not respond directly to the offer for some time. In March 2012, the Court’s opinion noted, Roseman made his first settlement request, offering to accept $40,000 from ANPAC. He did not tell the couple he made the offer and he did not obtain an expert’s opinion as to which medical conditions claimed by the Backuses related to the accident.

After an April 2012 conversation with Roseman, ANPAC’s lawyer believed they agreed to settle the case for $40,000, with $10,000 of it already having been paid by ANPAC toward the couple’s medical bills. Roseman did not tell the Backuses about the offer, and they heard about it from their chiropractor’s billing office. They called Roseman to express their dissatisfaction.

Trial Court Dismisses Case
Believing the case was resolved by the settlement, the trial court dismissed the case in May 2012, and Roseman understood that the insurer would not pay until he resolved all the medical-insurance liens placed by providers seeking to be paid for medical services already provided. At the time of his 2018 disciplinary hearing, Roseman had not completed that work, and ANPAC had not issued a settlement check to the Backuses.

The couple filed their grievance with the Columbus Bar Association, which started to investigate Roseman’s conduct. Roseman initially did not respond to letters from disciplinary investigators, but later wrote them, claiming Sandie Backus had approved the settlement amount and that he believed she hired a collections attorney to enforce the agreement. He told the investigators he was surprised to learn the Backuses had not received the settlement money.

Attorney Does Not Cooperate with Investigators
The disciplinary investigators reported that Roseman would not meet with them without a subpoena, and when they served Roseman with one, he related that he no longer possessed the Backuses’ file and that it might have been lost in a 2011 flood at his office. He also said he might have thrown it in a bonfire he used in 2013 to destroy records of cases he thought were closed. Roseman admitted he never offered the couple the chance to retrieve their legal records before he destroyed them, and that he never verified with the Backuses that they received their settlement check.

The bar association charged Roseman with multiple ethical violations. The parties stipulated that Roseman violated nine rules, including failing to provide competent representation, failing to inform clients of decisions that required their consent, and failing to keep his clients reasonably informed about the status of their matter. The parties proposed a two-year suspension for Roseman with six months stayed and that the sanction run concurrently with his 2016 suspension.

The Board of Professional Conduct agreed to recommend that the two suspensions be served concurrently, but proposed that no portion of his sentence be stayed. Instead the board recommended the two-year suspension and a requirement that he complete six hours of continuing legal education on law-office management and, if reinstated, serve a two-year period of monitored probation. He also must fulfill the conditions of his 2016 suspension, including resolution of the $135,000 judgment against him.

The Court’s opinion stated that Roseman failed to pursue a claim against the driver at fault, abandoned his clients after agreeing to settle their claims, and destroyed their files without letting them know about it and without collecting or distributing the settlement money. The Court agreed with the board’s proposed sanctions and suspended Roseman for two years.

2018-1439Columbus Bar Assn. v. RosemanSlip Opinion No. 2019-Ohio-1850.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/05/the-ohio-supreme-court-has-decided-a-disciplinary-matter-as-summarized-by-dan-trevas-the-ohio-supreme-court-today-issued-a-t.html

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