Dayton Bar Assn. v. Hunt , 135 Ohio St. 3d 386 ( 2013 )

[Cite as Dayton Bar Assn. v. Hunt, 135 Ohio St.3d 386, 2013-Ohio-1486.]
DAYTON BAR ASSOCIATION v. HUNT.
[Cite as Dayton Bar Assn. v. Hunt, 135 Ohio St.3d 386, 2013-Ohio-1486.]
Attorney misconduct, including engaging in conduct involving dishonesty,
handling a legal matter without adequate preparation, and neglecting an
entrusted legal matter—Indefinite suspension.
(No. 2012-1694—Submitted January 23, 2013—Decided April 17, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-083.
__________________
Per Curiam.
{¶ 1} Respondent, Kevin Michael Hunt of Dayton, Ohio, Attorney
Registration No. 0073405, was admitted to the practice of law in Ohio in 2001.
On December 21, 2010, we suspended Hunt’s license to practice law for six
months for neglecting a client matter, failing to reasonably communicate with his
clients regarding the matter, and failing to respond to a disciplinary investigation
into alleged misconduct involving another client. Dayton Bar Assn. v. Hunt, 127
Ohio St.3d 390, 2010-Ohio-6148, 939 N.E.2d 1247.
{¶ 2} In October 2011, relator, Dayton Bar Association, charged Hunt
with multiple violations of the Disciplinary Rules of the Code of Professional
Responsibility1 arising out of his representation of several clients in a personal-
injury case.
{¶ 3} Based on the parties’ stipulations of fact and the evidence submitted
at the hearing, a panel of the Board of Commissioners on Grievances and
1. On February 1, 2007, the Rules of Professional Conduct became effective, replacing the Code
of Professional Responsibility in Ohio. Hunt’s conduct occurred before February 1, 2007, and so
it is governed by the Code of Professional Responsibility.
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Discipline found that Hunt had taken on a case that he was not competent to
handle, proceeded without adequate preparation, neglected the matter,
intentionally failed to pursue the clients’ lawful objectives, and led the clients to
believe that their case remained pending when, in fact, summary judgment had
been granted to the defendants. Citing numerous aggravating factors, including
Hunt’s pattern of misconduct, his failure to acknowledge the wrongful nature of
that conduct, his absence of remorse, and the harm caused to a vulnerable client,
the panel recommended that he be indefinitely suspended. The board adopted the
panel’s findings of fact, conclusions of law, and recommendation.
{¶ 4} Because we find that Hunt engaged in a pattern of neglect and
incompetence that lasted for four years and resulted in the dismissal of his clients’
case, failed to appreciate the gravity of his misconduct, and lied to the clients in
order to conceal his neglect and incompetence, we adopt the board’s findings of
fact and misconduct and indefinitely suspend him from the practice of law in
Ohio.
Misconduct
{¶ 5} While working at his father’s law firm in August 2002,
approximately one year after he was admitted to the practice of law, Hunt agreed
to represent Jennifer and Matthew Pond and their daughter Sarah in a personal-
injury matter. Mrs. Pond and Sarah were injured in an auto accident when a
vehicle (“vehicle I”) waiting to make a left turn was struck from behind by
another vehicle (“vehicle II”) and pushed across the center line into the Ponds’
oncoming vehicle. In June 2004, Hunt filed a complaint against the driver of
vehicle I and against the father of the driver of vehicle II. Hunt was under the
mistaken belief that the driver of vehicle II could not be held legally responsible
for the injuries caused by the accident because she was a minor.
{¶ 6} Mr. and Mrs. Pond gave their depositions in 2005 and were advised
by Hunt that there would be a settlement conference in July of that year. Before
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the settlement conference, however, both defendants moved for summary
judgment. Hunt did not respond to either motion. He testified at the hearing in
this case that he did not respond to the motion filed by the father of the minor
driver, because he believed that the driver of vehicle I had caused the accident.
He realized his mistake when he received the second motion for summary
judgment, but again filed no response. The court granted both motions, and on
July 14, 2005—just days before the settlement conference was to occur—
dismissed the case. Rather than inform the Ponds of this fact, Hunt told them that
the settlement conference had been canceled and that it would be rescheduled. He
later assured Mrs. Pond that the case remained active.
{¶ 7} Although Hunt successfully moved the court for relief from one of
the summary judgments in April 2006 and was granted 20 days to respond to the
summary-judgment motion, he failed to avail himself of that opportunity. The
court once again granted summary judgment in favor of the defendant. A Civ.R.
60(B) motion that Hunt filed in October 2006 was denied on the ground that it did
not contain a proper certificate of service.
{¶ 8} Frustrated by Hunt’s lack of communication, Mrs. Pond consulted
with another attorney in November 2006. That attorney discovered that the
Ponds’ case had been dismissed in 2005. After he advised them of that fact and
the fact that the statute of limitations had run on Mrs. Pond’s claim, the Ponds
retained him to pursue a malpractice action against Hunt for the loss of Mrs.
Pond’s claim and to pursue their daughter’s personal-injury claim, which
remained viable because she was a minor.
{¶ 9} On these facts, the board found that Hunt had violated DR 1-
102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation), 6-101(A)(1) (prohibiting a lawyer from
handling a legal matter that he is not competent to handle, without obtaining
assistance from a lawyer who is competent to handle it), 6-101(A)(2) (prohibiting
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a lawyer from handling a legal matter without adequate preparation), 6-101(A)(3)
(prohibiting a lawyer from neglecting an entrusted legal matter), and 7-101(A)(1)
(prohibiting a lawyer from intentionally failing to seek the lawful objectives of his
client).
{¶ 10} We find that the record clearly and convincingly supports the
board’s findings of fact and misconduct and hereby adopt them.
Sanction
{¶ 11} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 12} The board found a number of aggravating factors that weighed in
favor of a harsh sanction, the first being Hunt’s prior disciplinary sanction for
similar conduct in his handling of a medical-negligence case. See BCGD
Proc.Reg. 10(B)(1)(a). Though his misconduct in that case occurred after the
misconduct at issue here, the board found that it was relevant because it
demonstrated that Hunt had engaged in a pattern of misconduct involving
multiple offenses. See BCGD Proc.Reg. 10(B)(1)(c) and (d). He acted with a
dishonest or selfish motive when he lied to his clients about the status of the
settlement conference in an effort to conceal his poor legal representation. See
BCGD Proc.Reg. 10(B)(1)(b). And although Hunt stipulated to most of the
factual allegations of relator’s complaint, he failed to acknowledge the wrongful
nature of his conduct, offered little insight into or explanation for his actions, and
stipulated to only two of the alleged violations—that he was not competent to
handle the Ponds’ personal-injury matter and that he had failed to adequately
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prepare their case. Hunt also caused harm to Mrs. Pond, a vulnerable client
whose claims were extinguished because Hunt did not file suit against the true
tortfeasor before the statute of limitations expired. See BCGD Proc.Reg.
10(B)(1)(h). The delay occasioned by Hunt’s neglect and the resultant
malpractice action left Mrs. Pond frustrated with the legal system.
{¶ 13} In contrast to the multiple aggravating factors, very little mitigation
evidence was offered. The board did not find that any of the mitigating factors set
forth in BCGD Proc.Reg. 10(B)(2) had been proven.
{¶ 14} Relator recommended that Hunt be disbarred from the practice of
law in Ohio. Hunt argued in favor of a two-year suspension.
{¶ 15} In its report, the board cites several cases in which we have
imposed suspensions ranging from one year with six months stayed to two years
for comparable misconduct. See, e.g., Toledo Bar Assn. v. Hickman, 107 Ohio
St.3d 296, 2005-Ohio-6513, 839 N.E.2d 24 (imposing a one-year suspension with
six months stayed on an attorney who neglected client matters, intentionally failed
to seek the lawful objectives of his clients, and repeatedly lied to the clients about
the status of their cases); Cincinnati Bar Assn. v. Larson, 124 Ohio St.3d 249,
2009-Ohio-6766, 921 N.E.2d 618 (imposing a two-year suspension with the
second year stayed on conditions on an attorney who repeatedly misled one client
about what he had accomplished on her behalf, neglected two other client matters,
failed to return unearned fees to all three clients, and failed to cooperate in two of
the resulting disciplinary investigations); Cuyahoga Cty. Bar Assn. v. Glaeser,
120 Ohio St.3d 350, 2008-Ohio-6199, 899 N.E.2d 140 (imposing a two-year
suspension with one year stayed on an attorney who misled a client about having
filed and settled a lawsuit on the client’s behalf); and Disciplinary Counsel v.
Manning, 111 Ohio St.3d 349, 2006-Ohio-5794, 856 N.E.2d 259 (imposing a
two-year suspension on an attorney who deceived his clients for several years by
telling them that he had filed a medical-malpractice case on their behalf when he
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had not and by fabricating a purported settlement agreement to avoid being sued
for legal malpractice).
{¶ 16} The board noted that in cases with these types of violations, an
actual suspension of at least two years is typically imposed and that a lesser
sanction is imposed only when significant mitigating factors are present. For
example, Hickman (one-year suspension with six months stayed) had practiced
law for 25 years with no prior disciplinary offenses, expressed remorse for his
misconduct, cooperated in the disciplinary proceedings, and submitted references
from two judges, a magistrate, and four attorneys attesting to his good character.
Hickman at ¶ 10-11. Larson (two-year suspension with one year stayed) had
nearly 20 years of experience with no disciplinary violations, produced medical
evidence that he suffered from a debilitating sleep disorder that compromised his
concentration and productivity during the time of his misconduct, and submitted
favorable assessments from three judges who commended his performance in
their courts and voiced no misgivings about his integrity. Larson at ¶ 1 and 20.
Glaeser (two-year suspension with one year stayed) cooperated in the disciplinary
investigation despite having serious health problems and candidly admitted to
having misrepresented to his client that he had filed a complaint, when he had not.
He also revealed that at the time of his misconduct, he was dealing with his son’s
recent murder. Glaeser at ¶ 10. And although we did not accord great weight to
the mitigating evidence in Manning (two-year suspension), we acknowledged that
he did not have a prior disciplinary record, made full and free disclosure to the
board, cooperated in the disciplinary proceedings, and submitted three letters
attesting to his professionalism and good character. Manning at ¶ 11 and 14.
{¶ 17} Because of the paucity of mitigating evidence and the multiple
aggravating factors present in this case, including Hunt’s lack of remorse, the
board urges us to impose a greater sanction than we imposed in Hickman, Larson,
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Glaeser, and Manning and recommends that we indefinitely suspend Hunt from
the practice of law.
{¶ 18} Having reviewed the record and considered Hunt’s misconduct, the
lack of mitigating factors, and the significant aggravating factors—including
Hunt’s failure to appreciate the wrongfulness of his misconduct and the attitude of
indifference he exhibited throughout the disciplinary proceedings—we adopt the
board’s recommended sanction.
{¶ 19} Accordingly, Kevin Michael Hunt is indefinitely suspended from
the practice of law in Ohio. Costs are taxed to Hunt.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
__________________
Pickrel, Schaeffer & Ebeling, and Andrew C. Storar, for relator.
Thomas J. Replogle, for respondent.
______________________
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