Cleveland Metro. Bar Assn. v. Bancsi (Slip Opinion) , 141 Ohio St. 3d 457 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Bancsi, Slip Opinion No. 2014-Ohio-5255.]
NOTICE
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an advance sheet of the Ohio Official Reports. Readers are requested
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65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-5255
CLEVELAND METROPOLITAN BAR ASSOCIATION v. BANCSI.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Bancsi,
Slip Opinion No. 2014-Ohio-5255.]
Attorneys—Misconduct—Failure to act with reasonable diligence—Failure to
keep client reasonably informed about status of a matter—Engaging in
conduct prejudicial to the administration of justice—Failure to notify
client of lack of malpractice insurance—Two-year suspension, with 18
months stayed on conditions.
(No. 2014-0192—Submitted April 8, 2014—Decided December 4, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 2012-091.
_______________________
Per Curiam.
{¶ 1} Respondent, Joseph Bancsi of Avon Lake, Ohio, Attorney
Registration No. 0025450, was admitted to the practice of law in Ohio in 1972. In
1995, we publicly reprimanded him for failing to deposit unearned fees in a client
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trust account, failing to properly account for client funds, and failing to return a
client’s case file after the client had discharged him. Cleveland Bar Assn. v.
Bancsi, 72 Ohio St. 3d 525, 651 N.E.2d 949 (1995). Also in 1995, we suspended
him for failure to meet the substance-abuse component of his continuing-legal-
education (“CLE”) requirements but reinstated him later that year. In re
Continuing Legal Edn. Suspension of Bancsi, 74 Ohio St. 3d 1431, 655 N.E.2d
1311 (1995); 74 Ohio St. 3d 1449, 656 N.E.2d 691 (1995). In 1997, we suspended
him for one year with six months stayed for practicing law during his CLE
suspension. Disciplinary Counsel v. Bancsi, 79 Ohio St. 3d 392, 683 N.E.2d 1072
(1997). In 2012, we suspended him again for failure to comply with CLE
requirements but reinstated him the following month. In re Continuing Legal
Edn. Suspension of Bancsi, 133 Ohio St. 3d 1472, 1477, 2012-Ohio-5238, 978
N.E.2d 198; 133 Ohio St. 3d 1503, 2012-Ohio-5760, 979 N.E.2d 349.
{¶ 2} In the present case, relator, Cleveland Metropolitan Bar
Association, charged Bancsi with professional misconduct for mishandling a
client’s domestic-relations matter. In response to relator’s complaint, Bancsi
admitted that he had failed to properly notify his client that he lacked malpractice
insurance, but he otherwise disputed that his conduct violated any of the Rules of
Professional Conduct. After a hearing, a three-member panel of the Board of
Commissioners on Grievances and Discipline found that Bancsi engaged in the
charged misconduct and recommended that he serve a two-year suspension, with
18 months stayed on conditions, along with a two-year term of monitored
probation commencing upon his reinstatement from the actual suspension. The
board issued a report adopting the panel’s findings and recommended sanction,
and neither party has filed objections to the board’s report and recommendation.
{¶ 3} Upon our review of the record, we accept the board’s findings of
fact and misconduct and agree that the board’s recommended sanction is
appropriate in this case.
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Misconduct
{¶ 4} In early May 2009, Thomas Scott retained Bancsi—a sole
practitioner with a long history of handling domestic-relations cases—to file a
motion to modify his monthly spousal-support obligation. Scott had retired in
April 2009, and his divorce decree authorized him to petition the domestic-
relations court for a reduction in spousal support after his retirement. Scott paid
Bancsi a $3,500 retainer fee, and Bancsi promised to file the motion within a
week. The timing of Scott’s motion was significant: not only did Scott want to
reduce his obligation as soon as possible, but the court’s ultimate ruling would
likely be made retroactive to the date that the motion was filed.
{¶ 5} Bancsi filed the motion on May 29, 2009, and opposing counsel
thereafter served him with interrogatories and a request for production of
documents. Bancsi failed to respond to the discovery matters, and he also failed
to inform Scott that the requests were made. In August 2009, opposing counsel
filed a motion to compel, which the court granted five days later. Scott claims
that after learning of the outstanding document requests from his daughter, he
called Bancsi, who stated that he had forgotten to inform Scott about the request.
Bancsi instructed Scott to bring the requested documents with him to the next
scheduled hearing. Bancsi, however, never discussed the interrogatories with
Scott.
{¶ 6} As instructed, Scott brought the requested documents with him to a
September 28, 2009 hearing and gave them to Bancsi. But Bancsi did not turn
over the documents to opposing counsel, and after a week had passed, Scott
learned from his daughter that Bancsi had not yet produced the documents. Scott
called Bancsi, who indicated that he would turn over the documents the following
day, but he did not ultimately produce them until October 19, 2009.
{¶ 7} On October 23, 2009, Scott’s ex-wife moved to dismiss his motion
to modify spousal support because Scott had failed to respond to her
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interrogatories. Four days later, Bancsi filed a motion to continue and stay the
proceedings because he was scheduled to undergo bypass surgery the first week
of November and his recovery was anticipated to last about six to eight weeks. In
what the board characterized as a “surprising and somewhat heavy handed
response to [Bancsi’s] plight,” the domestic-relations court granted the motion to
dismiss and overruled Bancsi’s request for a continuance.
{¶ 8} Notwithstanding the court’s dismissal of his motion, Scott was
sympathetic to Bancsi’s health issues. In mid-January 2010, Bancsi informed
Scott that within a week, he would file a motion for relief from judgment pursuant
to Civ.R. 60(B). But by February 10, 2010, Bancsi had yet to file the motion, and
Scott sent him a letter expressing his disappointment and concern over the lack of
progress. Bancsi did not ultimately file the motion for relief from judgment until
April 6, 2010. Bancsi testified at his disciplinary hearing that his recovery from
surgery took longer than expected and that due to his health problems, he could
not have filed the motion any earlier. But according to Scott, Bancsi had not
informed him of the continuing severity of those health issues or indicated that he
was not otherwise able to reassume responsibility for Scott’s case. In addition,
the board noted that in February 2010, Bancsi was apparently healthy enough to
file a new divorce case for a different client and to enter an appearance in another
case.
{¶ 9} The domestic-relations court denied Scott’s motion for relief from
judgment on May 26, 2010. Because the dismissal had been without prejudice,
Bancsi promised Scott that he would file a new motion to modify support the
following week, but he failed to follow through. Scott then left telephone
messages for Bancsi on June 9 and 15, 2010, and after not hearing back, Scott
terminated the attorney-client relationship on June 20, 2010. Scott immediately
hired new counsel, who promptly filed another motion to modify the spousal-
support obligation and who, by the end of the year, had successfully reduced
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Scott’s obligation from $1,000 a month to $335 a month. However, the court’s
order was made retroactive only to July 1, 2010, which was shortly after Scott’s
new counsel had filed the motion to modify.
{¶ 10} The board found that because of Bancsi’s neglect, Scott lost 12
months of possible credit for any spousal-support reduction that he had hoped to
obtain. The board further noted that if, as Bancsi had claimed, his health was
affecting him such that he was unable to competently represent Scott, “then it was
his responsibility as a sole practitioner to find replacement counsel and refer
Scott’s case to another lawyer who could complete the work.” Based on this
conduct, the board determined that Bancsi 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), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with
reasonable requests for information from the client), and 8.4(d) (prohibiting a
lawyer from engaging in conduct that is prejudicial to the administration of
justice). We concur in the board’s findings of misconduct.
{¶ 11} In addition, the parties stipulated and the board found that Bancsi
failed to properly notify Scott that he lacked professional malpractice insurance,
which violated Prof.Cond.R. 1.4(c) (requiring a lawyer to inform a client in
writing that the lawyer does not maintain professional liability insurance). We
agree.
Sanction
{¶ 12} When imposing sanctions for attorney misconduct, we consider
several 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
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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.
Aggravating and mitigating factors
{¶ 13} As mitigating factors, Bancsi did not act with a dishonest or selfish
motive and he fully cooperated in the disciplinary process. See BCGD Proc.Reg.
10(B)(2)(b) and (d). The board determined that although Bancsi ultimately
refunded Scott’s $3,500 retainer, Scott suffered other financial damages as a
result of Bancsi’s neglect—namely, 12 months of paying a spousal-support
obligation that was more than it should have been. Therefore, the board found,
and we agree, that restitution should not be a mitigating factor in this case.
{¶ 14} In aggravation, Bancsi has prior discipline, he engaged in multiple
instances of neglect, Scott was a somewhat vulnerable client who sustained
financial damages, and Bancsi failed to make full restitution. See BCGD
Proc.Reg. 10(B)(1)(a), (d), (h), and (i). In considering whether to recommend that
Bancsi should be ordered to make full restitution, the board noted that Scott had
declined to sue Bancsi for the damages that he sustained and that had litigation
been filed, it is conceivable that Bancsi may have successfully asserted
affirmative defenses. Thus, the board concluded that Bancsi should not be
required to pay for damages that his former client had not sought. We agree with
this conclusion.
Applicable precedent
{¶ 15} To support its recommended sanction, the board cites Cleveland
Metro. Bar Assn. v. Berk, 132 Ohio St. 3d 82, 2012-Ohio-2167, 969 N.E.2d 256,
and Warren Cty. Bar Assn. v. Marshall, 113 Ohio St. 3d 54, 2007-Ohio-980, 862
N.E.2d 519. In Berk, we issued a stayed 18-month suspension on an attorney who
neglected two client matters by failing to appear for scheduled court conferences
in each case, which resulted in dismissal of his clients’ actions. Id. at ¶ 5-9.
Similar to Bancsi, the attorney in Berk had prior discipline and engaged in
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multiple offenses. Id. at ¶ 18. But Berk accepted responsibility for his inaction in
his clients’ cases, and he made a timely good-faith effort to rectify the
consequences of his misconduct. Id. at ¶ 19-20, 28. In addition, we found that
Berk’s clients had not suffered irreparable harm and that Berk had “excellent
character and reputation outside of the charged misconduct,” as evidenced by the
testimony establishing that he provided a “great deal of free or low-cost legal
representation to those who otherwise could not afford to obtain such services.”
Id. at ¶ 24-28. Based on these factors, we concluded that an actual suspension in
Berk was not necessary to protect the public, although we required him to serve
an 18-month stayed suspension and a two-year term of monitored probation. Id.
at ¶ 28-29.
{¶ 16} In contrast, in Marshall, we suspended an attorney for two years
for neglecting two client matters and for making a false statement in a disciplinary
investigation. Id. at ¶ 4-10, 18. Similar to Bancsi, the attorney in Marshall had
prior discipline, and his neglect harmed a vulnerable client. Id. at ¶ 13. But in
addition, Marshall’s misconduct occurred while his earlier disciplinary case was
pending and during his stayed suspension, and we were “particularly troubled” by
the fact that he could give a false statement to an attorney investigating him while
his initial disciplinary case was pending. Id. at ¶ 15-16. Based on these factors,
we determined that Marshall appeared “unwilling or unable to comply with the
ethical standards that govern the legal profession.” Id. at ¶ 15. We held that his
conduct warranted an actual two-year suspension, as recommended by the board.
Id. at ¶ 11, 18.
{¶ 17} Following this precedent, the board reasoned that Bancsi should
receive an actual suspension, but not a lengthy one. The board recognized that
Bancsi was dealing with significant health problems during his representation of
Scott, but the board nonetheless concluded that even given those health issues,
Bancsi cannot be excused from meeting the needs of his client. Thus, the board
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recommends a two-year suspension with 18 months stayed on conditions, along
with a two-year period of probation commencing upon Bancsi’s reinstatement
from his actual suspension.
{¶ 18} We agree that the appropriate sanction for Bancsi’s misconduct
falls between the sanctions we issued in Berk and Marshall. Similar to the
attorneys in those cases, Bancsi neglected his client’s case, and he has been
subject to prior discipline. Berk, however, involved more significant mitigating
factors, and unlike the attorney in Berk, Bancsi has previously been disciplined on
more than one occasion and previously was actually suspended from the practice
of law for a disciplinary violation. Thus, a harsher sanction than that in Berk is
warranted. On the other hand, Bancsi’s misconduct was not as egregious as the
misconduct in Marshall, as Bancsi did not commit any act similar to giving a
false statement during a disciplinary investigation. Accordingly, a lesser sanction
than the two-year actual suspension in Marshall is justified. Thus, having
considered Bancsi’s misconduct, the aggravating and mitigating factors, and the
sanctions imposed in comparable cases, we agree with the board’s recommended
sanction in this case.
Conclusion
{¶ 19} Joseph Bancsi is suspended from the practice of law in Ohio for
two years. The last 18 months of that suspension are stayed on the conditions that
he pay the costs of these proceedings and engage in no further misconduct. In
addition, Bancsi shall serve a two-year term of monitored probation, commencing
upon his reinstatement from the actual suspension. Costs are taxed to Bancsi.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________________
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Heather M. Zirke, Bar Counsel; and Shapero & Green, L.L.C., Brian
Green, and Michael Shapero, for relator.
Joseph Bancsi, pro se.
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