Disciplinary Counsel v. McCray (Slip Opinion) , 156 Ohio St. 3d 492 ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. McCray, Slip Opinion No. 2019-Ohio-1857.]
NOTICE
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SLIP OPINION NO. 2019-OHIO-1857
DISCIPLINARY COUNSEL v. MCCRAY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. McCray, Slip Opinion No.
2019-Ohio-1857.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to act with reasonable diligence in representing a client—
Conditionally stayed one-year suspension.
(No. 2018-1437—Submitted January 9, 2019—Decided May 21, 2019.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-072.
_______________________
Per Curiam.
{¶ 1} Respondent, Leah Traci McCray, of Lima, Ohio, Attorney
Registration No. 0088751, was admitted to the practice of law in Ohio in 2012. We
suspended her license in November 2015 for failing to register for the 2015-2017
biennium, In re Attorney Registration Suspension of McCray, 143 Ohio St. 3d 1509,
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2015-Ohio-4567, 39 N.E.3d 1277, and in December 2015 for noncompliance with
her continuing-legal-education requirements, In re McCray, 144 Ohio St. 3d 1418,
2015-Ohio-5126, 41 N.E.3d 1256. In June 2016, we reinstated her to the practice
of law. In re McCray, 146 Ohio St. 3d 1496, 2016-Ohio-5699, 57 N.E.3d 1175.
{¶ 2} In December 2017, relator, disciplinary counsel, charged McCray
with violating the Rules of Professional Conduct in seven client matters. The
parties entered into a comprehensive set of stipulations, in which McCray admitted
to almost all of the charged misconduct. After a hearing, a three-member panel of
the Board of Professional Conduct found that she had engaged in most of the
stipulated misconduct, dismissed a few alleged rule violations, and recommended
that we impose a conditionally stayed one-year suspension. The board adopted the
panel’s findings and recommended sanction, and no objections have been filed.
{¶ 3} Based on our review of the record, we adopt the board’s findings of
misconduct and recommended sanction.
Misconduct
{¶ 4} Between approximately July 2014 and March 2015, McCray
committed a variety of professional misconduct in seven different client matters—
six domestic-relations/juvenile cases and one misdemeanor criminal case.
Primarily, she neglected those matters and failed to adequately communicate with
her clients. Count One of relator’s complaint is a representative example of
McCray’s misconduct.
{¶ 5} As stipulated by the parties, McCray represented Angelia Maynard in
divorce and child-support proceedings in early 2014. On June 13, 2014, the court
issued its final judgment entry, but Maynard noticed that the entry included several
errors, such as misspelling her daughter’s name and ordering her ex-husband to pay
child support in an amount less than what the parties had agreed to. Over the next
two months, Maynard repeatedly e-mailed and called McCray seeking her
assistance, but McCray failed to respond to her client’s messages. On August 20,
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January Term, 2019
2014, and then again on September 4, 2014, McCray advised Maynard that she was
working to correct the errors. However, after September 4, McCray never
communicated with Maynard again, despite Maynard’s additional attempts to get
information about her case through e-mails, voicemails, and an office visit.
McCray never filed a motion attempting to correct the errors identified by her
client.
{¶ 6} Based on this conduct, the parties stipulated and the board found that
McCray 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 1.4(a)(4) (requiring a lawyer
to comply as soon as practicable with reasonable requests for information from a
client). Because McCray engaged in similar misconduct in the other matters, the
parties stipulated and the board found that she committed five additional violations
of Prof.Cond.R. 1.3, four more violations of Prof.Cond.R. 1.4(a)(3), and three more
violations of Prof.Cond.R. 1.4(a)(4).
{¶ 7} The board also found that McCray’s failure to appear for scheduled
court hearings amounted to two violations of Prof.Cond.R. 8.4(d) (prohibiting a
lawyer from engaging in conduct that is prejudicial to the administration of justice).
For example, in the criminal matter identified in relator’s complaint, McCray
missed her client’s initial plea hearing due to a conflict with a proceeding in another
case. She thereafter failed to respond when the court attempted to reschedule the
plea hearing, and she failed to appear for the rescheduled hearing, which resulted
in her client representing herself pro se.
{¶ 8} In addition, the parties stipulated and the board found that McCray
committed one violation of Prof.Cond.R. 1.15(d) (requiring a lawyer, upon request,
to promptly render a full accounting of funds or property in which a client has an
interest) by failing in one case to provide her clients with a requested itemized
statement of her legal services, two violations of Prof.Cond.R. 1.16(d) (as part of
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the termination of representation, requiring a lawyer to take steps reasonably
practicable to protect a client’s interests) by failing to turn her client file over to her
clients after they terminated her representation and for effectively withdrawing
from another representation without notifying the client or taking the steps
necessary to protect his interests, and one violation of Prof.Cond.R. 1.16(e)
(requiring a lawyer to promptly refund any unearned fee upon the lawyer’s
withdrawal from employment) by failing to refund one client, Johnny Miller, $200
in unearned fees.
{¶ 9} We agree with the board’s findings of misconduct.
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 11} As aggravating factors, the board found that McCray has a prior
disciplinary record for her attorney-registration and CLE suspensions, see Gov.Bar
R. V(13)(B)(1), that she engaged in a pattern of misconduct and committed multiple
ethical violations in each of the seven client matters, see Gov.Bar R. V(13)(B)(3)
and (4), and that she failed to make restitution to one client in the amount of $200,
see Gov.Bar R. V(13)(B)(9).
{¶ 12} In mitigation, the board found that McCray lacked a dishonest or
selfish motive and that she had a cooperative attitude toward the board proceedings.
See Gov.Bar R. V(13)(C)(2) and (4). Most significantly, the board found that
personal family issues had contributed to McCray’s misconduct. Specifically, the
board noted that the majority of her violations occurred over a short time period
when she was under severe stress due to the disappearance of her teenage daughter.
McCray testified that she was “in a fog” during that time and that her fear and
anxiety had a “debilitating impact” on her law practice. According to McCray, she
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January Term, 2019
eventually requested local judges to transfer some of her cases to other attorneys
and she stopped practicing law so that she could focus on her family. At her
disciplinary hearing, McCray acknowledged that counseling would have been
helpful and agreed to work with the Ohio Lawyers Assistance Program (“OLAP”).
She also agreed to work with a monitoring attorney.
{¶ 13} To support its recommended sanction, the board relied on the
precedent cited in the parties’ stipulations, which included a number of comparable
cases involving attorneys who neglected and failed to reasonably communicate
with clients. For example, the parties cited Toledo Bar Assn. v. Harvey, 133 Ohio
St.3d 228, 2012-Ohio-4545, 977 N.E.2d 628, in which we imposed a conditionally
stayed one-year suspension on an attorney who committed professional
misconduct—mostly neglect—in 12 bankruptcy matters and one small-claims
action. Mitigating evidence included the attorney’s “stressful life events”—his
divorce and the sudden death of his mother—at the time of his misconduct. Id. at
¶ 16-19.
{¶ 14} The parties also cited Columbus Bar Assn. v. Balaloski, 145 Ohio
St.3d 121, 2016-Ohio-86, 47 N.E.3d 150, in which we adopted a consent-to-
discipline agreement recommending that the attorney serve a two-year suspension,
with the second year conditionally stayed, for neglecting five client matters, failing
to reasonably communicate with four clients, failing to provide competent
representation to two clients, and failing to promptly deliver funds or property to
one client. In mitigation, the parties stipulated that the attorney’s depression had
contributed to his misconduct.
{¶ 15} Here, the parties argued that although McCray’s misconduct was
similar to that in Balaloski, she deserves a less severe sanction because her
misconduct was the result of a “traumatic event” rather than “a more general
depressive state” that existed for a longer period. But as explained in Harvey, we
generally do not accord “evidence of stressful life events as much weight as
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evidence of a qualifying mental disability,” although such events are “relevant
factors that may be considered in determining the appropriate sanction for an
attorney’s misconduct.” Id. at ¶ 18.
{¶ 16} Nevertheless, we agree with the parties and the board that in light of
the significant mitigating factors here, a one-year suspension, all stayed on the
conditions recommended by the board, is the appropriate sanction in this case. See
Trumbull Cty. Bar Assn. v. Yakubek, 142 Ohio St. 3d 455, 2015-Ohio-1570, 32
N.E.3d 440, ¶ 14 (imposing a conditionally stayed one-year suspension on an
attorney who neglected four bankruptcy matters and citing several decisions
imposing the same sanction “on attorneys who neglected a few client matters, failed
to reasonably communicate with clients, and either failed to cooperate in [the]
relator’s investigation or failed to promptly deliver funds to which their clients were
entitled”).
Conclusion
{¶ 17} For the reasons explained above, Leah Traci McCray is hereby
suspended from the practice of law for one year, with the entire suspension stayed
on the conditions that she (1) provide proof within 30 days of this court’s
disciplinary order that she has paid restitution to Johnny Miller in the amount of
$200, (2) submit to an OLAP evaluation and comply with any treatment
recommendations arising from the assessment, (3) serve a two-year period of
monitored probation pursuant to Gov.Bar R. V(21), and (4) engage in no further
misconduct. If McCray fails to comply with any condition of the stay, the stay will
be lifted and she will serve the entire one-year suspension. Costs are taxed to
McCray.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
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January Term, 2019
Scott J. Drexel, Disciplinary Counsel, for relator.
Leah Traci McCray, pro se.
_________________
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