Columbus Bar Assn. v. Dice , 120 Ohio St. 3d 455 ( 2008 )

[Cite as Columbus Bar Assn. v. Dice, 120 Ohio St. 3d 455, 2008-Ohio-6787.]
COLUMBUS BAR ASSOCIATION v. DICE.
[Cite as Columbus Bar Assn. v. Dice, 120 Ohio St. 3d 455, 2008-Ohio-6787.]
Attorneys at law — Misconduct — Conduct prejudicial to the administration of
justice — Conduct adversely reflecting on the lawyer's fitness to practice
law — Handling a legal matter without adequate preparation — Neglect
of an entrusted legal matter — Failing to seek the lawful objectives of a
client — Failure to cooperate in a disciplinary investigation — Partially
stayed suspension.
(No. 2008-1238 — Submitted August 26, 2008 — Decided December 30, 2008.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 07-004.
__________________
Per Curiam.
{¶ 1} Respondent, Daniel Sean Dice of New York, New York, Attorney
Registration No. 0069476, was admitted to the practice of law in Ohio in 1998.
{¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that we suspend respondent’s license to practice for one year but
stay the last six months on condition of no further misconduct, based on findings
that he (1) delayed filing an appellate brief in an incarcerated client’s case for
seven months, (2) failed to appear for oral argument on behalf of another criminal
defendant, and then (3) did not fully cooperate in the investigation of this
misconduct. We agree that respondent committed professional misconduct as
found by the board and that a one-year suspension with a six-month stay is
appropriate.
{¶ 3} Relator, Columbus Bar Association, charged respondent in a two-
count complaint with violations of the Code of Professional Responsibility and
SUPREME COURT OF OHIO
Gov.Bar R. V(4)(G) (requiring lawyers to cooperate during a disciplinary
investigation). Though respondent did not answer the complaint until relator
moved for default, he afterward stipulated to the charged misconduct, and the
parties jointly proposed as a sanction the one-year suspension and six-month stay.
A panel of the board issued a report accepting the stipulations and the parties’
proposed sanction, which the board adopted.
Misconduct
Count I
{¶ 4} Respondent was appointed in November 2004 to represent Larry
Craft in a federal appeal of Craft’s felony conviction. The Court of Appeals for
the Sixth Circuit ordered respondent to file a brief in the appeal on February 22,
2005. Respondent did not file the brief and then caused unnecessary delay in his
incarcerated client’s case. Respondent obtained seven extensions, and it was not
until August 22, 2005, that he finally filed a brief. He then missed the deadline
for filing an appendix to his brief, never filing it at all.
{¶ 5} Craft frequently wrote to ask respondent about the case.
Respondent seldom answered Craft’s letters, failing to properly provide status
reports. In early February 2006, after more than two years of respondent’s
dilatory practices, the appellate court had to appoint new counsel for Craft.
{¶ 6} Respondent also failed to appear in another client’s criminal case
that had been scheduled for oral argument before the Sixth Circuit.
{¶ 7} By his acts and omissions, respondent violated DR 1-102(A)(5)
(prohibiting conduct that is prejudicial to the administration of justice), 1-
102(A)(6) (prohibiting conduct that adversely reflects on a lawyer’s fitness to
practice law), 6-101(A)(2) (prohibiting a lawyer from handling a legal matter
without preparation adequate in the circumstances), 6-101(A)(3) (prohibiting a
lawyer from neglecting an entrusted legal matter), 7-101(A)(1) (prohibiting a
lawyer from intentionally failing to seek the lawful objectives of his client), and
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January Term, 2008
7-101(A)(3) (prohibiting a lawyer from intentionally causing a client prejudice or
damage during the course of the professional relationship).
Count II
{¶ 8} Craft filed a grievance against respondent in late January 2006.
Between February and June 2006, relator sent three letters and left a voice mail
asking for respondent’s response to the grievance. Though respondent promised
in various e-mails that his response was forthcoming, he did not provide any reply
during the investigation process. Respondent thereby violated Gov.Bar R.
V(4)(G) and DR 1-102(A)(6).
Sanction
{¶ 9} The sanction proposed by the parties is consistent with
Disciplinary Counsel v. Shramek, 98 Ohio St. 3d 441, 2003-Ohio-1636, 786
N.E.2d 869. There, a lawyer neglected a products-liability case by failing to
timely file an expert’s report for his client or ask for an extension. The lawyer
also did not respond to a motion to strike the expert’s testimony or supply
evidentiary support in response to a motion for summary judgment. That lawyer
also failed to cooperate fully in the investigation of this misconduct by failing to
respond to letters of inquiry or appear in response to a subpoena for his
deposition.
{¶ 10} Like respondent, the lawyer in Shramek violated duties to a client,
DR 6-101(A)(3) and 7-101(A)(3), the public, DR 1-102(A)(5), the legal system,
DR 1-102(A)(6), and the legal profession, Gov.Bar R. V(4)(G). Id., 98 Ohio
St.3d 441, 2003-Ohio-1636, 786 N.E.2d 869, ¶ 9. We suspended the lawyer’s
license to practice for one year and stayed the last six months of the suspension on
the condition that he commit no further misconduct, factoring into our decision
mitigating factors of no prior record of discipline, no dishonest motive, and
eventual cooperation in the disciplinary process. See BCGD Proc.Reg.
10(B)(2)(a), (b), and (d).
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SUPREME COURT OF OHIO
{¶ 11} These mitigating factors are also present in respondent’s case.
Moreover, the parties have agreed that respondent suffers from a mental disability
that contributed to his ethical lapses and for which he has been successfully
treated, a factor that is mitigating under BCGD Proc.Reg. 10(B)(2)(g). A one-
year suspension with a conditional six-month stay is thus equally appropriate
here.
{¶ 12} We note that since July 13, 2006, respondent has been on inactive
status under Gov.Bar R. VI(2). Today, we suspend respondent from the practice
of law in Ohio for one year; however, the last six months of the suspension period
are stayed on the condition that he engage in no further acts of professional
misconduct. If respondent violates the term of the stay, the stay will be lifted, and
he will serve the entire one-year suspension. Costs are taxed to respondent.
Judgment accordingly.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O’Connor, Lanzinger, and
Cupp, JJ., concur.
O’Donnell, J., would suspend the respondent for one year, with no time
stayed.
__________________
Bloomfield & Kempf and David S. Bloomfield; Robert W. Edmund; and
Bruce A. Campbell, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel,
for relator.
Daniel Sean Dice, pro se.
______________________
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