Cincinnati Bar Assn. v. Emerson , 122 Ohio St. 3d 176 ( 2009 )

[Cite as Cincinnati Bar Assn. v. Emerson, 122 Ohio St.3d 176, 2009-Ohio-2883.]
CINCINNATI BAR ASSOCIATION v. EMERSON.
[Cite as Cincinnati Bar Assn. v. Emerson,
122 Ohio St.3d 176, 2009-Ohio-2883.]
Attorneys at law — Misconduct — Neglect of entrusted legal matters — Failure to
cooperate in disciplinary investigation — Indefinite suspension.
(No. 2009-0042 ⎯ Submitted March 25, 2009 ⎯ Decided June 25, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 07-066.
__________________
Per Curiam.
{¶ 1} Respondent, Eric Lamar Emerson of Covington, Kentucky,
Attorney Registration No. 0072916, was admitted to the practice of law in Ohio in
2000. On March 19, 2009, we suspended respondent’s license for 61 days and
separately suspended his license for 181 days, in accordance with the Gov.Bar R.
V(11)(F) process for reciprocal disciplinary measures. Disciplinary Counsel v.
Emerson, 121 Ohio St.3d 1226, 2009-Ohio-1541, 903 N.E.2d 644; Disciplinary
Counsel v. Emerson, 121 Ohio St.3d 1229, 2009-Ohio-1540, 903 N.E.2d 647. We
imposed these sanctions upon receiving notice that the Supreme Court of
Kentucky had ordered suspensions of respondent’s Kentucky license to practice
law for the same durations. Kentucky Bar Assn. v. Emerson (Ky.2008), 275
S.W.3d 183, and Kentucky Bar Assn. v. Emerson (Ky.2009), 276 S.W.3d 823.
{¶ 2} The Board of Commissioners on Grievances and Discipline now
recommends that we suspend respondent’s license to practice for two years,
staying the second year on condition of monitored probation. This
recommendation is based on the board’s findings that respondent neglected
clients’ cases and otherwise failed to carry out professional responsibilities,
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including failing to cooperate during the investigation of these ethical infractions.
We agree that respondent engaged in professional misconduct as found by the
board; however, to safeguard the public, we order the indefinite suspension of his
license to practice law, which concomitantly requires a petition for reinstatement.
{¶ 3} Relator, Cincinnati Bar Association, charged respondent in a four-
count complaint with violations of the Disciplinary Rules of the former Code of
Professional Responsibility and Gov.Bar R. V(4)(G) (requiring lawyers to
cooperate in a disciplinary investigation). A panel of board members heard the
case, including respondent’s testimony and admissions to the charged misconduct,
made findings of fact and conclusions of law, and recommended that respondent
be indefinitely suspended from practice. The board accepted the panel’s findings
of misconduct but recommended the two-year suspension and one-year stay.
{¶ 4} Relator objects to the board’s report, arguing that the
recommendation is contrary to the indefinite suspension that we ordinarily impose
when a lawyer repeatedly fails to provide diligent representation and then fails to
respond to investigative inquiries of disciplinary authorities. Based on relator’s
sound analysis, and considering that respondent has filed no brief in opposition,
we sustain the objection.
Misconduct
Count I
{¶ 5} Respondent agreed in August 2005 to pursue a civil rights action
on behalf of a client, who then advanced $1,200 for costs in her case. After filing
an amended complaint in federal district court, respondent failed to respond to
requests for discovery and did not appear as scheduled at two depositions. The
district court ordered respondent in October 2006 to file a notice of withdrawal
immediately or continue as counsel. Respondent did not withdraw but continued
in failing to assist the client.
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January Term, 2009
{¶ 6} Respondent conceded that he had abandoned his client, leaving her
to file motions on her own to preserve her claim. He also conceded his failure to
promptly honor requests for the client’s file and an itemized billing for his
services. After the client filed a grievance with relator, respondent failed to reply
to letters of inquiry even after promising during his deposition to respond in
writing.
{¶ 7} The board found clear and convincing evidence that in
representing this client, respondent violated DR 6-101(A)(3) (prohibiting a
lawyer’s neglect of an entrusted legal matter), 7-101(A)(1), (2), and (3)
(prohibiting a lawyer from intentionally failing to seek the lawful objectives of a
client, failing to carry out an employment contract, and causing a client prejudice
or damage), 7-106(A) (prohibiting a lawyer from disregarding a court order), 9-
102(B)(3) (requiring a lawyer to maintain complete records of client funds in the
lawyer’s possession and to render appropriate accounts), and 9-102(B)(4)
(requiring a lawyer to promptly deliver a client’s file upon request) and Gov.Bar
R. V(4)(G). Because these violations are sufficiently supported by the evidence,
we accept these findings of misconduct.
Count II
{¶ 8} In December 2005, another client paid respondent $2,500 for his
representation, along with another attorney, in a property dispute with the client’s
ex-husband. During litigation in the matter, the court ordered the client to convey
certain property rights to her ex-husband as part of the divorce decree. The client
refused to sign the necessary papers and discharged respondent, afterward
reclaiming her file and demanding a refund.
{¶ 9} Respondent believed that he had earned the entire $2,500 with the
services he had provided. But he admittedly did not comply with the client’s
request for an itemized billing, explaining that he had not documented the hours
spent on her case and had given her everything from which he might have
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reconstructed the time. After the client filed a grievance with relator, respondent
further failed to respond to an investigator’s letters, even after promising at his
deposition to respond in writing.
{¶ 10} The board found clear and convincing evidence that in
representing this client, respondent had violated DR 9-102(B)(3) and Gov.Bar R.
V(4)(G). Because these violations are sufficiently supported by the evidence, we
accept these findings of misconduct.
Count III
{¶ 11} A third client hired respondent in March 2006 after the client
sustained injuries in a traffic accident. Respondent accepted the case but then
failed to obtain his client’s file from a previous lawyer and did not review court
records of the proceedings that had already occurred. When respondent also
failed to appear in the case on his client’s behalf, the court dismissed the action
for want of prosecution. Respondent failed to communicate with his client and
did not return the case file upon request. He also failed to reply to investigative
letters relative to a grievance about his representation.
{¶ 12} The board found clear and convincing evidence that in
representing this client, respondent violated DR 6-101(A)(3), 7-101(A)(1), (2),
and (3), and 9-102(B)(4) and Gov.Bar R. V(4)(G). Because these violations are
sufficiently supported by the evidence, we accept these findings of misconduct.
Count IV
{¶ 13} Before the Supreme Court of Kentucky suspended respondent from
practice of law in that state, the court publicly reprimanded him for misconduct
committed when he represented an Ohio resident in Kentucky during July 2006.
Respondent had accepted a $2,500 fee from that client and his family, later
withdrew as counsel without returning any portion of the fee, and then failed to
respond to the disciplinary charges brought against him. Kentucky Bar Assn. v.
Emerson (Ky.2008), 260 S.W.3d 782, and Disciplinary Counsel v. Emerson, 120
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January Term, 2009
Ohio St.3d 1206, 2008-Ohio-6352, 897 N.E.2d 647 (public reprimand imposed as
reciprocal discipline).
{¶ 14} During preliminary inquiries about the Kentucky case, respondent
failed to respond to various letters and forced relator to subpoena him for
deposition. He then failed to present a written response that during his deposition
he had promised to provide. The board found clear and convincing evidence that
respondent had thereby violated Gov.Bar R. V(4)(G). We also accept this finding
of misconduct.
Sanction
{¶ 15} As relator argues, we have consistently imposed an indefinite
suspension from practice for lawyers who repeatedly neglect their clients’ legal
interests and fail to cooperate in the ensuing disciplinary investigation. Dayton
Bar Assn. v. Fox, 108 Ohio St.3d 444, 2006-Ohio-1328, 844 N.E.2d 346;
Columbus Bar Assn. v. Torian, 106 Ohio St.3d 14, 2005-Ohio-3216, 829 N.E.2d
1210; and Disciplinary Counsel v. Treneff, 104 Ohio St.3d 336, 2004-Ohio-6562,
819 N.E.2d 695, ¶ 16. We have noted our extensive case law in this area. Fox at
¶ 10, citing Disciplinary Counsel v. Griffith, 104 Ohio St.3d 50, 2004-Ohio-5991,
818 N.E.2d 226; Lorain Cty. Bar Assn. v. Kaderbek, 100 Ohio St.3d 295, 2003-
Ohio-5754, 798 N.E.2d 607; Disciplinary Counsel v. Washington, 97 Ohio St.3d
483, 2002-Ohio-6723, 780 N.E.2d 571. And in view of respondent’s prior
disciplinary record and the lack of any mitigating factors to weigh in his favor, we
find an indefinite suspension to be appropriate.
{¶ 16} Respondent is indefinitely suspended from the practice of law in
Ohio. He may not petition for reinstatement under the procedures set forth in
Gov.Bar R. V(10) for at least two years from the date of our order. Costs are
taxed to respondent.
Judgment accordingly.
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MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Robert J. Gehring and Anita S. Cross, for relator.
Eric L. Emerson, pro se.
______________________
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