Cleveland Metropolitan Bar Ass'n v. Ranke , 127 Ohio St. 3d 126 ( 2010 )

[Cite as Cleveland Metro. Bar Assn. v. Ranke, 127 Ohio St. 3d 126, 2010-Ohio-5036.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. RANKE.
[Cite as Cleveland Metro. Bar Assn. v. Ranke,
127 Ohio St. 3d 126, 2010-Ohio-5036.]
Attorneys — Misconduct — Failure to obtain clients’ consent to forgo responding
to motion for summary judgment — DR 6-101(A)(3) — Neglect of
entrusted legal matter — Public reprimand.
(No. 2010-0345 — Submitted April 20, 2010 — Decided October 21, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-085.
__________________
Per Curiam.
{¶ 1} Respondent, Carolyn Kaye Ranke of Cleveland, Ohio, Attorney
Registration No. 0043735, was admitted to the practice of law in Ohio in 1989.
On December 8, 2008, relator, Cleveland Metropolitan Bar Association, filed a
two-count complaint against her. The complaint alleged that while representing a
husband and wife following the husband’s catastrophic injury in an automobile
accident, respondent had committed multiple violations of DR 6-101(A)(3)
(prohibiting neglect of an entrusted legal matter) and 7-101(A) (prohibiting a
lawyer from (1) intentionally failing to seek the lawful objectives of his client, (2)
intentionally failing to carry out a contract of employment, or (3) intentionally
damaging his client).
{¶ 2} The Board of Commissioners on Grievances and Discipline
rejected all but one of the alleged violations, finding that they were not supported
by clear and convincing evidence. However, based upon findings that she
neglected her clients by failing to obtain their consent to allow a motion for
summary judgment to go unopposed, the board recommends that we publicly
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reprimand respondent. Neither party has objected to the board’s report. For the
reasons that follow, we accept the board’s findings of fact, conclusions of law,
and recommended sanction.
Misconduct
{¶ 3} Respondent agreed to represent a husband and wife for claims
arising from injuries the husband had suffered in an April 1999 automobile
accident while on a business trip in California. The husband, a passenger in a
vehicle driven by a coworker, suffered catastrophic injuries that left him
permanently disabled, and his coworker died.
{¶ 4} The wife’s brother-in-law, an attorney in Cleveland, Ohio, had
filed an initial application for workers’ compensation benefits in May 1999. But
when he failed to take steps to secure the vehicle involved in the accident, the
wife terminated her brother-in-law’s services and hired respondent to prosecute
all claims arising out of the accident, including claims for
uninsured/underinsured-motorist insurance.
{¶ 5} Respondent referred her clients to another attorney for the
workers’ compensation portion of their claims. Although the employer contested
the claim on the ground that the husband and his coworker were acting outside of
the scope of their employment at the time of the accident, the wife testified that
the men were pursuing their employer’s business when the accident occurred.
After several appeals, the clients prevailed on their claim and secured present and
future workers’ compensation benefits in excess of $1.5 million.
{¶ 6} Much of relator’s complaint involves allegations that respondent
violated her ethical duties to her clients by failing to prosecute tort claims against
the coworker’s estate and the employer to (1) establish liability and damages and
(2) recover insurance proceeds, including uninsured/underinsured-motorist
coverage, from applicable insurance policies in accordance with this court’s
decision in Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St. 3d 660,
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710 N.E.2d 1116 – a strategy that might have resulted in a greater recovery than
the clients received through the workers’ compensation system.
{¶ 7} R.C. 4123.741, however, provides:
{¶ 8} “No employee of any employer as defined in division (B) of
section 4123.10 of the Revised Code, shall be liable to respond in damages at
common law or by statute for any injury or occupational disease, received or
contracted by any other employee of such employer in the course of and arising
out of the latter employee’s employment, or for any death resulting from such
injury or occupational disease, on the condition that such injury, occupational
disease, or death is found to be compensable under sections 4123.01 to 4123.94,
inclusive, of the Revised Code.”
{¶ 9} Thus, before pursuing a tort recovery against the coworker,
respondent’s clients would have had to withdraw their workers’ compensation
claim, which they had initiated before hiring her, and forgo the benefits arising
from that claim, at a time when their financial position was extremely grim. The
same would be true of any attempt to pursue a tort recovery against the employer.
See R.C. 4123.74 (complying employers are immune from suit for employee
injury received in course of and arising from employment).
{¶ 10} The attorney who had handled the workers’ compensation claim
testified that it would have been malpractice for her to counsel the clients to
withdraw that claim to pursue an uncertain tort recovery. She also stated that if
the client had instructed her to do so, she would have withdrawn as counsel.
{¶ 11} The parties stipulated and the board found that in the first action
that respondent filed on her clients’ behalf, she had (1) named as a defendant the
coworker’s widow in her capacity as personal representative of the coworker’s
estate, when no estate had been opened, (2) never conducted any formal
discovery, (3) never responded to any formal discovery requests, although she
provided relevant medical records and bills to the defendants, (4) failed to
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respond to motions to dismiss filed by the coworker’s widow and insurance
company and then voluntarily dismissed the claims against them and the
employer’s insurer without prejudice, (5) failed to appear at a pretrial conference,
and (6) did not oppose the employer’s motion for judgment on the pleadings,
which the court later granted.
{¶ 12} The board concluded that none of these acts constituted neglect of
an entrusted legal matter. Although the board recognized that respondent did not
formally respond to discovery requests, it noted that she did provide relevant
medical bills and records to the defendants. The board noted that it is not neglect
for an attorney to voluntarily dismiss a defendant instead of responding to a
motion to dismiss, nor is it neglect to miss a single pretrial appearance when that
failure does not prejudice the client. Moreover, the board rejected allegations that
respondent neglected her clients by taking or not taking these actions without her
clients’ permission, observing that respondent’s uncontroverted testimony
revealed that she had discussed every decision with her clients and had done her
best to keep them apprised of the case status.
{¶ 13} In October 2004, respondent refiled the clients’ tort action against
the coworker’s surviving spouse as the personal representative of the coworker’s
still unopened estate. Respondent did not conduct any formal discovery and
failed to respond to interrogatories and to requests for production of documents
and admissions propounded by the defendant. The board concluded that relator
had failed to prove by clear and convincing evidence that these actions constituted
neglect, because once respondent became aware that she had sued the wrong
party, “there was nothing she could do to salvage the case.”
{¶ 14} Although the parties had stipulated that respondent did not return
phone calls to her clients for extended periods of time, they also stipulated that
this conduct occurred when she was in trial on other matters. The parties further
acknowledged that at other times, respondent spoke frequently with the clients
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and provided uncompensated assistance regarding consumer debt, the husband’s
driving privileges, student aid for the clients’ children, and the wife’s charitable
activities. Thus, the board found that relator had not shown that respondent’s
failure to communicate with her clients rose to the level of neglect at any time
during their professional relationship.
{¶ 15} The board further rejected allegations that respondent had violated
DR 7-101(A) by intentionally (1) failing to seek the lawful objectives of her
clients, (2) failing to carry out her contract of employment, or (3) prejudicing or
damaging her clients. The board stated: “Relator advanced no set of facts which
tended to show that respondent intentionally hurt or damaged her clients in any
way. On the contrary, the [board] was impressed with the degree of selflessness
which respondent exhibited in doing everything she could to help these
unfortunate people. While she may or may not have been guilty of negligence in
her handling of their case, the [board] finds that she did not act to intentionally
damage her clients in any way.”
{¶ 16} Furthermore, the board observed that “by the time respondent was
hired by her clients, [the brother-in-law] had already, at [the wife’s] request, filed
an application for Workers’ Compensation benefits on behalf of [the husband].
Under the circumstances, the panel was convinced that this may very well have
been the better way to address this family’s immediate financial needs.” While
the board agreed that the clients should have been advised of the benefits and
drawbacks of pursuing a workers’ compensation recovery versus pursuing a tort
recovery, it observed that the time for that discussion was before filing the
workers’ compensation claim – when they were represented by other counsel.
{¶ 17} In contrast, the board accepted the parties’ stipulation that
respondent had failed to obtain her clients’ permission to forgo responding to a
summary-judgment motion filed by the coworker’s widow in the second tort
action. And because respondent had a duty to obtain her clients’ consent to allow
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the motion to go unopposed and admitted that she had not done so, the board
concluded that respondent had violated DR 6-101(A)(3). But in light of the fact
that no estate had been opened for the deceased coworker, the board concluded
that the dismissal of the action against his widow, as the purported representative
of his nonexistent estate, did not prejudice the clients.
{¶ 18} Upon review, we adopt the findings of the board and its
conclusions (1) that respondent violated DR 6-101(A)(3) by failing to obtain her
clients’ consent before deciding not to respond to a motion for summary judgment
and (2) that relator failed to prove the remaining alleged violations DR 6-
101(A)(3) and 7-101(A) by clear and convincing evidence.
Sanction
{¶ 19} In recommending a sanction, the board considered the ethical
duties that respondent had violated, the aggravating and mitigating factors listed
in 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.”), and the sanctions imposed in similar cases. See, e.g., Stark
Cty. Bar Assn. v. Buttacavoli, 96 Ohio St. 3d 424, 2002-Ohio-4743, 775 N.E.2d
818, ¶ 16; Disciplinary Counsel v. Broeren, 115 Ohio St. 3d 473, 2007-Ohio-5251,
875 N.E.2d 935, ¶ 21.
{¶ 20} The board found that respondent had committed a single violation
of DR 6-101(A)(3) by failing to obtain her clients’ consent before allowing the
summary-judgment motion in the second tort action to go unopposed. The only
aggravating factor found by the board was respondent’s failure to acknowledge
that she had either engaged in wrongful conduct or committed any ethical
violation in not seeking her clients’ permission to allow that motion to go
unopposed. See BCGD Proc.Reg. 10(B)(1)(g).
{¶ 21} In mitigation, the board acknowledged that respondent has no prior
disciplinary violations, had no dishonest or selfish motive, fully and freely
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disclosed information to relator, and displayed a cooperative attitude toward the
disciplinary proceedings. See BCGD Proc.Reg. 10(B)(2)(a), (b), and (d).
Respondent also submitted letters from two judges and two lawyers attesting to
her good character and reputation in the legal community. She also agreed to
settle a related malpractice action for $419,235.45. These facts also may be
considered in mitigation. See BCGD Proc.Reg. 10(B)(2)(e) and (f).
{¶ 22} Relator argued that a one-year suspension with six months stayed
was the appropriate sanction for respondent’s alleged misconduct, while
respondent urged the panel and board to dismiss the case. Noting “the relatively
minor nature of the single violation * * * and the mitigating fact that her clients
were not prejudiced by it,” the board recommended that respondent be publicly
reprimanded.
{¶ 23} We have previously found that an attorney’s repeated failures to
respond to discovery requests, motions to exclude and to dismiss, and the
dismissal of a case without the client’s consent demonstrate a pattern of neglect in
violation of DR 6-101(A)(3). Stark Cty. Bar Assn. v. Watterson, 103 Ohio St. 3d
322, 2004-Ohio-4776, 815 N.E.2d 386, ¶ 25, 46. And in Medina Cty. Bar Assn. v.
Kerek, 102 Ohio St. 3d 228, 2004-Ohio-2286, 809 N.E.2d 1, we publicly
reprimanded an attorney who violated DR 6-101(A)(3), as well as 5-103(B)
(barring attorneys from giving impermissible financial assistance to a client) and
Gov.Bar R. V(4)(G) (requiring an attorney’s cooperation in disciplinary
proceedings).
{¶ 24} Having reviewed the record, we conclude that the board’s
recommended sanction is appropriate in this case. Accordingly, respondent is
hereby publicly reprimanded for having violated DR 6-101(A)(3). Costs are
taxed to respondent.
Judgment accordingly.
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PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
BROWN, C.J., not participating.
__________________
Jones Day, Robert S. Faxon, and Seth J. Linnick, for relator.
Reminger Co., L.P.A., and George S. Coakley, for respondent.
______________________
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