Toledo Bar Assn. v. Farah , 125 Ohio St. 3d 455 ( 2010 )


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  • [Cite as Toledo Bar Assn. v. Farah, 
    125 Ohio St.3d 455
    , 
    2010-Ohio-2116
    .]
    TOLEDO BAR ASSOCIATION v. FARAH.
    [Cite as Toledo Bar Assn. v. Farah, 
    125 Ohio St.3d 455
    , 
    2010-Ohio-2116
    .]
    Attorney misconduct, including neglect of client matters and failure to cooperate
    in the resulting disciplinary investigation — One-year suspension, all
    stayed on conditions.
    (No. 2009-2330 ⎯ Submitted February 24, 2010 ⎯ Decided May 20, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
    Discipline of the Supreme Court, No. 08-078.
    __________________
    Per Curiam.
    {¶ 1} Respondent, Asad Farah of Temperance, Michigan, Attorney
    
    Registration No. 0066174,
     was admitted to the practice of law in Ohio in 1996.
    He is also licensed to practice in Michigan. Based upon findings of client neglect
    and failure to respond to the resulting disciplinary investigation, the Board of
    Commissioners on Grievances and Discipline recommends that we suspend
    respondent’s license to practice law in Ohio for 12 months, all stayed upon
    conditions, including one year of monitored probation.
    {¶ 2} In a two-count complaint, relator, Toledo Bar Association, charged
    respondent with five violations of the Code of Professional Responsibility arising
    from his representation of a client in two personal-injury actions prior to February
    1, 2007, and a single violation of Prof.Cond.R. 8.1(b) arising from his failure to
    respond to the resulting disciplinary investigation.
    Misconduct
    {¶ 3} At the panel hearing, the client testified that respondent had
    represented her in two personal-injury actions arising from separate automobile
    accidents. Respondent consolidated the cases, but he never resolved them. The
    SUPREME COURT OF OHIO
    client claimed that respondent had dismissed her cases without her knowledge or
    consent in March 2006, but that he had led her to believe that the cases remained
    pending. She also testified that her cases “dragged out for a long time” and that
    respondent often did not return her calls during the course of his representation.
    Despite the alleged deficiencies in respondent’s representation, the client was able
    to obtain new counsel who refiled and ultimately settled her claims.
    {¶ 4} Respondent testified that he had informed the client several times,
    both in person and on the telephone, that he was dismissing her case pursuant to
    Civ.R. 41(A) because he did not have all the medical records and documentation
    necessary to proceed to trial. He also claimed that he had sent her copies of
    everything that he had filed, including the motion to dismiss, and produced copies
    of two letters that he had sent to her regarding the dismissal. Nonetheless, he
    conceded that he “could have done more” to pursue her case and keep her
    informed.
    {¶ 5} Respondent admitted that he had failed to cooperate in relator’s
    investigation of the grievance. He acknowledged that he had received letters
    regarding the investigation but never opened them and that he had promised but
    failed to provide certain documents to relator. He further stipulated that his
    conduct violated Prof.Cond.R. 8.1(b), and he volunteered to give up the practice
    of law in Ohio for one year to atone for his misconduct. He noted that any
    sanction imposed in Ohio would also affect his license in Michigan, where he
    conducts the majority of his practice.
    {¶ 6} The panel and board found that respondent violated DR 6-
    101(A)(3) by neglecting his client’s legal matters and Prof.Cond.R. 8.1(b) by
    failing to cooperate in the resulting disciplinary investigation, but dismissed the
    remaining charges as unsupported by clear and convincing evidence. We adopt
    these findings.
    Sanction
    2
    January Term, 2010
    {¶ 7} When imposing sanctions for attorney misconduct, we consider
    several factors, including the ethical duties that the lawyer violated and 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 Section 10(B)
    of the Rules and Regulations Governing Procedure on Complaints and Hearings
    Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.
    Reg.”). Disciplinary Counsel v. Broeren, 
    115 Ohio St.3d 473
    , 
    2007-Ohio-5251
    ,
    
    875 N.E.2d 935
    , ¶ 21. Because each disciplinary case is unique, we are not
    limited to the factors specified in the rule but may take into account “all relevant
    factors” in determining what sanction to impose. BCGD Proc.Reg. 10(B).
    {¶ 8} The board noted that respondent’s initial lack of cooperation in the
    disciplinary process was an aggravating factor. BCGD Proc.Reg. 10(B)(1)(e). In
    mitigation, it found respondent’s absence of a prior disciplinary record, the
    absence of a dishonest or selfish motive, and respondent’s eventual cooperative
    attitude toward the disciplinary proceedings. BCGD Proc.Reg. 10(B)(2)(a), (b),
    and (d). At the time he handled the grievant’s case, respondent faced a number of
    personal problems, including a lawsuit against a former partner who allegedly
    forged respondent’s signature on half a million dollars of bank notes and the
    criminal defense of a family friend, the result of which he said rendered him
    “dysfunctional for a period of time.” These issues combined to cause marital and
    financial problems for respondent that culminated in his filing for bankruptcy.
    Respondent testified that as a result of these professional and personal challenges,
    he considered taking his own life. Although he sought counsel from his clergy, he
    did not seek professional counseling, because he had no health insurance and
    could not afford treatment.
    {¶ 9} At the hearing, relator argued in favor of a 12-month suspension
    from the practice of law, with six months stayed, and respondent volunteered that
    3
    SUPREME COURT OF OHIO
    he would voluntarily withdraw from the practice of law in Ohio for one year. The
    board recommends that we impose a 12-month suspension, all stayed on the
    conditions that respondent (1) submit to a mental-health evaluation conducted by
    the Ohio Lawyers Assistance Program (“OLAP”), (2) comply with all of OLAP’s
    treatment recommendations, and (3) submit to one year of monitored probation
    commencing upon the completion of OLAP’s mental-health assessment.
    {¶ 10} We have previously imposed suspensions ranging from six to 18
    months, stayed upon conditions, for similar conduct accompanied by similar
    mitigating factors. See, e.g., Cleveland Bar Assn. v. Norton, 
    116 Ohio St.3d 226
    ,
    
    2007-Ohio-6038
    , 
    877 N.E.2d 964
    ; Columbus Bar Assn. v. DiAlbert, 
    98 Ohio St.3d 386
    , 
    2003-Ohio-1091
    , 
    785 N.E.2d 747
    ; Disciplinary Counsel v. Boulger (2000),
    
    88 Ohio St.3d 325
    , 
    725 N.E.2d 1112
    ; and Disciplinary Counsel v. Boykin (1994),
    
    70 Ohio St.3d 75
    , 
    637 N.E.2d 296
    .            Therefore, we agree that the board’s
    recommended sanction is appropriate.
    {¶ 11} Accordingly, we suspend respondent from the practice of law in
    Ohio for 12 months; however, the suspension is stayed upon the conditions that
    respondent (1) submit to a mental-health evaluation conducted by OLAP, (2)
    comply with all of OLAP’s treatment recommendations, and (3) submit to one
    year of monitored probation pursuant to Gov.Bar R. V(9). If respondent fails to
    comply with the conditions of the stay or probation, the stay will be lifted, and
    respondent will serve the full 12-month suspension from practice. Costs are taxed
    to respondent.
    Judgment accordingly.
    PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
    CUPP, JJ., concur.
    BROWN, C.J., not participating.
    __________________
    4
    January Term, 2010
    Marshall & Melhorn, L.L.C., and John A. Borell Jr.; Yolanda D. Gwinn;
    and Jonathan B. Cherry, Bar Counsel, for relator.
    Asad Farah, pro se.
    ______________________
    5
    

Document Info

Docket Number: 2009-2330

Citation Numbers: 2010 Ohio 2116, 125 Ohio St. 3d 455

Judges: Brown, Cupp, Lanzinger, Lundberg, O'Connor, O'Donnell, Pfeifer, Stratton

Filed Date: 5/20/2010

Precedential Status: Precedential

Modified Date: 8/31/2023