Cleveland Metro. Bar Assn. v. Callahan (Slip Opinion) , 150 Ohio St. 3d 227 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Callahan, Slip Opinion No. 2017-Ohio-5700.]
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SLIP OPINION NO. 2017-OHIO-5700CLEVELAND METROPOLITAN BAR ASSOCIATION v. CALLAHAN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Callahan, Slip Opinion No.
2017-Ohio-5700.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to act with reasonable diligence in representing two
clients—Public reprimand.
(No. 2017-0223—Submitted April 5, 2017—Decided July 6, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-046.
__________________
Per Curiam.
{¶ 1} Respondent, Michael William Callahan, of Cleveland, Ohio, Attorney
Registration No. 0051964, was admitted to the practice of law in Ohio in 1991. On
October 5, 2016, relator, Cleveland Metropolitan Bar Association, charged
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Callahan with professional misconduct based on his neglect of the personal-injury
claims of two clients.
{¶ 2} A panel of the Board of Professional Conduct considered the cause on
the parties’ consent-to-discipline agreement. See Gov.Bar R. V(16).
{¶ 3} In their consent agreement, the parties stipulate that Natasha Moore
and her minor daughter, LaShierry Thompson-Moore, hired Callahan to represent
them in personal-injury matters following an August 2012 automobile accident.
Callahan had minimal contact with Moore from the time she completed her medical
treatment in October 2012 until he submitted a demand package to an insurance
adjuster employed by the other driver’s insurance company on May 8, 2014. The
insurer never made a settlement offer, and Callahan failed to file a lawsuit before
the statute of limitations expired on Moore’s claim. Consequently, Moore’s action
is time barred.
{¶ 4} Upon realizing that the statute of limitations had elapsed, Callahan
called Moore to report his error. He offered to pay her $1,500 for her noneconomic
damages and to have her medical bills paid, but he did not advise her in writing that
she should consult with independent counsel before settling her possible legal-
malpractice claim against him. Moore accepted Callahan’s settlement offer.
Callahan did not pay the agreed amount and failed to inform Moore that her own
insurance company later rejected as untimely the medical bills he had submitted
because the statute of limitations on her personal-injury claim had expired.
{¶ 5} After Moore filed a grievance with relator, Callahan reported his
errors to his professional-liability-insurance carrier and retained counsel. Moore
retained new counsel to resolve her legal-malpractice claim against Callahan. That
claim has been settled and paid in full.
{¶ 6} Callahan waited two years and nine months after the accident to file a
complaint in the Sandusky County Court of Common Pleas on behalf of Thompson-
Moore and filed it just one day before her 20th birthday—the date the statute of
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limitations would have expired. He did not attend a scheduled pretrial conference
even though he had received a scheduling notice. After he failed to participate in
another pretrial conference by telephone, the judge presiding over the case ordered
him to appear and show cause for his absences.
{¶ 7} In accordance with Thompson-Moore’s wishes, the judge issued an
order for Callahan to withdraw from her case and to facilitate the transfer of the
case file to new counsel. But instead of withdrawing, Callahan filed a Civ.R. 41(A)
notice of voluntary dismissal. The court struck the notice of voluntary dismissal
from the record and ordered Callahan to show cause why he should not be held in
contempt for failing to abide by the court’s order to withdraw from the
representation. Thereafter, Callahan filed a motion to withdraw from the case and
sent letters of explanation and apology to the judge stating that he had not meant to
defy the court’s order to withdraw when he filed the notice of voluntary dismissal
and a letter of apology to Thompson-Moore. The court granted his motion to
withdraw and dismissed the contempt charge. Thompson-Moore retained new
counsel, settled her personal-injury claim, and is satisfied with the settlement.
{¶ 8} Callahan admits that his conduct in these two cases violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably
informed about the status of a matter), and 1.8(h)(2) (prohibiting a lawyer from
settling a potential malpractice claim without notifying the client in writing that the
client should seek independent counsel).
{¶ 9} The parties agree that no aggravating factors are present in this case.
See Gov.Bar R. V(13)(B). They also stipulate that relevant mitigating factors
include the absence of a prior disciplinary record, the absence of a dishonest or
selfish motive, Callahan’s timely, good-faith effort to make restitution and rectify
the consequences of his misconduct, and his full and free disclosure to relator and
his cooperative attitude toward the disciplinary proceedings. See Gov.Bar R.
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V(13)(C)(1) through (4). Additional stipulated mitigating factors include the
absence of lasting harm to the affected clients and Callahan’s acquisition and use
of law-practice-management software to avoid similar problems in the future.
{¶ 10} The parties note that we have publicly reprimanded attorneys who
have engaged in comparable misconduct and stipulate that that is the appropriate
sanction in this case. See, e.g., Mahoning Cty. Bar Assn. v. Bernard, 98 Ohio St.3d
414, 2003-Ohio-1483, 786 N.E.2d 450 (publicly reprimanding an attorney who
failed to reasonably communicate with a client and settled and dismissed a
personal-injury case without the client’s knowledge or consent); Lorain Cty. Bar
Assn. v. Nelson, 144 Ohio St.3d 414, 2015-Ohio-4337, 44 N.E.3d 268 (publicly
reprimanding an attorney whose misconduct included neglecting a single client
matter, failing to reasonably communicate with the client, and failing to deliver all
of the papers and property to which the client was entitled upon termination of the
representation).
{¶ 11} The panel and the board considered three additional cases in which
we have publicly reprimanded attorneys for comparable misconduct, see Cleveland
Metro Bar Assn. v. Sweeney, 146 Ohio St.3d 335, 2016-Ohio-469, 56 N.E.3d 932;
Columbus Bar Assn. v. Smith, 143 Ohio St.3d 436, 2015-Ohio-2000, 39 N.E.3d
488; Disciplinary Counsel v. Dundon, 129 Ohio St.3d 571, 2011-Ohio-4199, 954
N.E.2d 1186, found that the consent-to-discipline agreement conforms to Gov.Bar
R. V(16), and recommend that we adopt the agreement in its entirety.
{¶ 12} We agree that Callahan’s conduct violated Prof.Cond.R. 1.3,
1.4(a)(3), and 1.8(h)(2) and that a public reprimand is the appropriate sanction for
his misconduct. Therefore, we adopt the parties’ consent-to-discipline agreement.
{¶ 13} Accordingly, Michael William Callahan is hereby publicly
reprimanded. Costs are taxed to Callahan.
Judgment accordingly.
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January Term, 2017
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
_________________
Heather M. Zirke, Bar Counsel, and Kari L. Burns, Assistant Bar Counsel,
for relator.
Mazanec, Raskin & Ryder Co., L.P.A., and Joseph F. Nicholas Jr., for
respondent.
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