Mahoning County Bar Ass'n v. Jones , 123 Ohio St. 3d 285 ( 2009 )

[Cite as Mahoning Cty. Bar Assn. v. Jones, 123 Ohio St. 3d 285, 2009-Ohio-5029.]
MAHONING COUNTY BAR ASSOCIATION v. JONES.
[Cite as Mahoning Cty. Bar Assn. v. Jones,
123 Ohio St. 3d 285, 2009-Ohio-5029.]
Attorneys — Misconduct — Neglecting entrusted legal matter — Intentionally
failing to carry out contract of employment — Six-month suspension, all
stayed upon conditions.
(No. 2009-0691 ⎯ Submitted June 3, 2009 ⎯ Decided October 1, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-021.
__________________
Per Curiam.
{¶ 1} Respondent, James S. Jones of Bethesda, Maryland, Attorney
Registration No. 0064099, was admitted to the practice of law in Ohio in 1994.
{¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that we publicly reprimand respondent, based on findings that he
failed for approximately eight months after opening a decedent’s estate to
completely list next of kin, identify estate assets and liabilities, and communicate
with his client. We accept the finding that respondent committed this professional
misconduct; however, given his substandard performance in this probate
proceeding and the inconvenience and delay this caused his client, we conclude
that a six-month suspension, stayed on the condition of a one-year monitored
probation, is the appropriate sanction.
{¶ 3} Relator, Mahoning County Bar Association, charged respondent
with violating three Disciplinary Rules of the former Code of Professional
Responsibility: DR 6-101(A)(3) (prohibiting a lawyer from neglecting an
entrusted legal matter), 7-101(A)(2) (prohibiting a lawyer from intentionally
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failing to carry out a contract for the lawyer’s professional services), and 2-
106(A) (prohibiting a lawyer from collecting a clearly excessive fee). A panel of
three board members heard the case, and after relator dismissed the DR 2-106(A)
charge, made findings of fact, conclusions of law, and a recommendation for a
six-month license suspension, stayed on condition of a one-year monitored
probation. The board adopted the panel’s findings of misconduct, but “based on
the single case of delay and no demonstrable harm to the client,” recommended
that respondent be publicly reprimanded.
{¶ 4} The parties have not objected to the board report.
Misconduct
{¶ 5} Respondent, who has been registered on inactive status in Ohio
since September 1, 2007, is currently employed in the Washington D.C. area as an
in-house corporate counsel, a position that according to him does not require
admission to the bar in any particular state. Respondent and relator stipulated to
the facts underlying the complaint and to his violations of DR 6-101(A)(3) and 7-
101(A)(2). The misconduct occurred while respondent was assisting a widow in
the administration of her husband’s uncomplicated decedent estate.
{¶ 6} Respondent agreed to represent the client with respect to her
husband’s estate, which basically entailed the transfer of title to an automobile
and their residential real estate. In late September 2006, he obtained a $3,710 fee
advance from his client, which he deposited and retained in his client trust
account. He then filed applications to probate the estate and to relieve the estate
from administration in the Mahoning County Probate Court. The case thereafter
languished over the succeeding months, leaving the client to try without success
at least 15 times to contact respondent.
{¶ 7} The probate court conducted a status conference in late May 2007.
Respondent’s client appeared, but respondent did not, because he had not received
notice. The probate magistrate’s decision faulted respondent for having failed
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January Term, 2009
after opening the estate to identify his client as the surviving spouse on the next-
of-kin form. Also missing from the application for relief from administration was
the form listing the estate assets and liabilities.
{¶ 8} The magistrate additionally disapproved of the amount of
respondent’s fee and his failure to obtain prior probate court approval. The
magistrate consequently advised the client to obtain new counsel and a refund.
He also advised the client to file a grievance.
{¶ 9} The client did obtain new counsel, who promptly wound up the
estate. Upon that attorney’s demand for the return of fees other than for filing
costs, respondent partially repaid his former client.1 Based on the parties’
stipulations and respondent’s hearing testimony, the panel and board found clear
and convincing proof that respondent had violated DR 6-101(A)(3) and 7-
101(A)(2). We accept those findings of misconduct.
Sanction
{¶ 10} In recommending a sanction for this misconduct, the panel and
board weighed the mitigating and aggravating factors of respondent’s case. See
BCGD Proc.Reg. 10(B)(1) and (2). Mitigating factors included that respondent
had no prior record of discipline, had acknowledged wrongdoing and made
restitution apparently to his former client’s satisfaction, and had cooperated
during the disciplinary proceedings. See BCGD Proc.Reg. 10(B)(2)(a), (c), and
(d). The panel and board did not specify any aggravating factors.
{¶ 11} We agree with the panel’s reasoning and recommendation.
Although respondent cooperated with the investigation, made restitution to the
client, and has no history of disciplinary violations, the misconduct in this case
1. The record is unclear as to whether all but $400 or $500 was repaid.
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warrants more than a public reprimand. Respondent took a disproportionately
large fee to administer a simple estate in probate, but did not perform the work,
tending instead to his own personal affairs. In addition, his client was unable to
reach him despite having made 15 attempts.
{¶ 12} Although the magistrate’s actions helped to right the ship, the harm
had already been done—the magistrate’s advice came nine months into the
administration of what was, by all accounts, a simple estate, closed by the
successor attorney in two and a half months, with only four and a half hours of
labor. While the matter was in his hands, respondent mishandled and neglected
the case and refused to return the client’s phone calls.
{¶ 13} Respondent is therefore suspended from the practice of law in
Ohio for six months; however, the suspension is stayed on the conditions that he
successfully complete a one-year monitored probation under Gov.Bar R. V(9) and
commit no further disciplinary infractions. The suspension, stay, and probation
will take effect upon respondent’s return to active practice in this state. If
respondent fails to comply with the terms of the stay and probation, the stay will
be lifted, and respondent will serve the entire six-month suspension.
{¶ 14} Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
PFEIFER, J., dissents and would publicly reprimand the respondent.
__________________
Comstock, Springer & Wilson Co., L.P.A., and David C. Comstock Jr.;
and Ronald E. Slipski, for relator.
James S. Jones, pro se.
______________________
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