Monday, September 20, 2021

Oral Argument In Bar Discipline Matter

An oral argument tomorrow before the Ohio Supreme Court

Disciplinary Counsel v. Samuel R. Smith II, Case No. 2021-0448
Cuyahoga County

The Board of Professional Conduct suggests the Ohio Supreme Court suspend a Cuyahoga County lawyer for committing ethical violations, some that occurred while he was under suspension for previous misconduct.

The board recommends Samuel Smith II, a Cleveland solo practitioner, be suspended for two years with six months stayed with conditions, including that he reimburses a client $445 for court costs assessed against the client for Smith having filed a lawsuit then not pursuing it.

Smith is accused of several ethical violations related to a criminal case in which he signed his name to a client’s change-of-plea form without the client’s consent, and mishandling three other civil matters. Smith objects to the claim that he changed the plea without his client’s consent, and maintains that his actions warrant a fully stayed suspension.

Smith’s objections triggered an oral argument before the Supreme Court.

Lengthy Jail Sentence Issued After Lawyers Changes Client’s Plea
Smith represented Stacey Lattimore on several charges against her in Shaker Heights Municipal Court related to a department store theft. At the time her charges were pending, Lattimore was in the Cuyahoga County jail serving time for an unrelated theft conviction.

In June 2017, Smith presented Lattimore with a “in absentia” plea agreement form, which would change her pleas from not guilty to no contest. Lattimore stated that she refused to sign the forms because she was unhappy that the plea agreement didn’t contain any measures to address her mental health issues.

Smith signed Lattimore’s name to the form and executed the notary public attestation, swearing he witnessed her signing the form. He then filed it with the court. The in absentia form can be signed by an attorney rather than the client if the lawyer indicates that the client verbally granted authority. Smith didn’t indicate he had Lattimore’s authority when he submitted the form, and he didn’t appear in court when the judge considered the change of plea.

The judge sentenced Lattimore to 18 months in jail and fined her $2,870. When Smith learned about Lattimore’s sentence, he didn’t contact her, seek to reduce or modify the sentence, or file an appeal.

Attorney, Client Provide Conflicting Accounts
Lattimore told a three-member hearing panel at the Board of Professional Conduct that she learned about her sentence when it was mailed to her at the jail, and she claimed she was shocked and confused because she didn’t agree to change her plea. Lattimore was able to obtain assistance from the county public defender’s office, which produced a copy of the plea form. Lattimore told the public defender that wasn’t her signature, and her name was misspelled on the form. The office sought to reinstate her not guilty plea, and more than three years later, the matter hadn’t yet been resolved.

Smith told the hearing panel he signed the form because he was unable to slide it under the glass to Lattimore during the jail visit, and was “adamant” that he obtained her authorization to sign her name. Lattimore insisted she didn’t want to plead guilty, and noted that she was able to sign other forms during jail visits that were slipped under the glass.

The panel found, and the full board agreed, that Smith knowingly made a false statement to the trial court when he signed the form without his client’s consent and lied about witnessing her signature. The board also found he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Prior Discipline Impacts Clients
In December 2017, the Court suspended Smith for 18 months, with 12 months stayed on the condition that he engage in no further misconduct. Part of the suspension required notifying clients by certified letter of the suspension and aiding the clients in efforts to find other representation if they need it.

Based on Smith’s handling of Lattimore’s case and three civil matters, which began before Smith was suspended, the Office of Disciplinary Counsel filed a complaint against Smith noting that he neglected three civil clients, leading to unnecessary delays in their cases or dismissals. Some of the issues relate to Smith’s attempt to transfer 25 of his pending cases to another lawyer he trusted and assumed the attorney had agreed to work on all the cases. The substitute attorney told the board he agreed to handle eight cases and understood that Smith told the clients whose cases he wasn’t taking that they had to make other arrangements.

The board found several violations, including Smith’s failure to place advanced fees clients paid him into his client trust account and for using the fees before proving he completed the work to earn the money. He also failed to give proper notice of his suspension to clients, to promptly refund any money to clients that he didn’t earn, and to competently represent a client.

Attorney Challenges Board Finding
Smith contends he may have made mistakes in his interactions with his clients, but his conduct doesn’t warrant a two-year suspension with six months stayed. Smith maintains he had Lattimore’s consent to change the plea and that he made a mistake by not indicating to the trial court that he had her consent. He notes that the public defender was able to vacate the plea agreement.

Regarding two of his civil case clients, he believed the substitute attorney had agreed to handle their cases and was pursuing them. Any failure to formally notify the clients of his suspension was mitigated by the ongoing communications he had with his client who were made aware by text messages or phone calls that he was suspended.

His fourth client paid advanced fees to file three lawsuits against government agencies, and the client proposed further litigation against family members and others. Smith states that he notified his client that she might not have viable cases, and in some, the statute of limitations had expired. Smith told the board he was researching theories that could extend the time to file the lawsuits against the government agencies based on the harm his client suffered. While he may have made an error while attempting to find a solution for his client, that isn’t an ethical violation, he argues.

He also maintains he has returned all client fees and expenses paid to him except the court costs for the lawsuit that he and the substitute attorney failed to pursue.

Disciplinary Counsel Supports Suspension
The disciplinary counsel supports the board’s recommendation because Smith violated the same ethical rules he was accused of in his first disciplinary case. Those violations occurred while his disciplinary case was pending and then while he was suspended.

Smith had a chance to “right his wrongs, serve his previous suspension, and demonstrate integrity and reliability,” the office notes. Instead, he engaged in more dishonest conduct, didn’t safeguard his clients’ funds, neglected client matters, and “shirked his responsibility” to notify his clients of his suspension.

Because Smith didn’t change his behaviors after an 18-month suspension, a longer suspension is warranted for his current misconduct, the office concludes.

 Dan Trevas

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/09/oral-argument-in-bar-discipline-matter.html

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