Disciplinary Counsel v. Wilcoxson (Slip Opinion) , 2021 Ohio 3964 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Wilcoxson, Slip Opinion No. 2021-Ohio-3964.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2021-OHIO-3964DISCIPLINARY COUNSEL v. WILCOXSON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Wilcoxson, Slip Opinion No.
2021-Ohio-3964.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
year suspension with 18 months stayed on conditions and proof of
compliance with terms of Ohio Lawyers Assistance Program contract—
Monitored probation in accordance with Gov.Bar R. V(21) focused on law-
office management and client communications imposed.
(No. 2021-0764—Submitted August 3, 2021—Decided November 10, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-049.
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Per Curiam.
{¶ 1} Respondent, Clinton Ralph Wilcoxson II, of Dayton, Ohio, Attorney
Registration No. 0061974, was admitted to the practice of law in Ohio in 1993. On
July 12, 2018, we imposed a conditionally stayed six-month suspension on
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Wilcoxson based on our findings that he had neglected a client matter, failed to
reasonably communicate with the client, failed to return the client’s file, and failed
to cooperate in the resulting disciplinary investigation. Dayton Bar Assn. v.
Wilcoxson, 153 Ohio St.3d 279, 2018-Ohio-2699, 104 N.E.3d 772.
{¶ 2} In an August 2020 complaint, relator, disciplinary counsel, alleged
that Wilcoxson violated the Ohio Rules of Professional Conduct by failing to file a
brief in a client’s appeal of his criminal conviction, failing to reasonably
communicate with the client about the status of the matter, and falsely advising the
client’s mother that he had prepared and filed a motion to reopen the appeal.
{¶ 3} The parties submitted stipulations of fact and Wilcoxson admitted that
he committed all but one of the charged violations. Wilcoxson and a character
witness also testified at a hearing before a three-member panel of the Board of
Professional Conduct. The board issued a report finding that Wilcoxson committed
all the charged misconduct. The board recommended that we suspend him from
the practice of law for two years with 18 months conditionally stayed, that an
additional condition on his reinstatement to the practice of law be imposed, and that
he be required to serve one year of monitored probation. No objections have been
filed. We adopt the board’s findings of misconduct and recommended sanction.
Misconduct
{¶ 4} In January 2019, Scott and Lori O’Connor (“the O’Connors”) retained
Wilcoxson to represent their son, Daniel, in his appeal of his criminal conviction.
They agreed to pay a flat fee of $5,000—$3,000 up front, with the remaining $2,000
to be paid in monthly installments.
{¶ 5} On January 11, 2019, Wilcoxson filed Daniel’s notice of appeal to the
Second District Court of Appeals. On January 28, the court of appeals issued an
App.R. 11(B) notice that the record was complete. The deadline for filing Daniel’s
appellate brief was February 19. Although Wilcoxson received the court’s notice,
he did not timely file a brief or move for an extension of the deadline.
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{¶ 6} On March 14, the court of appeals issued a show-cause order requiring
Wilcoxson to either file Daniel’s appellate brief within 14 days or show cause why
the case should not be dismissed. Wilcoxson did not inform Daniel or the
O’Connors of the court’s order, and he took no action on it. Consequently, the
court dismissed Daniel’s appeal on April 19.
{¶ 7} Wilcoxson did not inform Daniel or the O’Connors that the court had
dismissed the appeal. Nor did he reply to Lori’s June 4 email in which she stated
that her attempts to reach him had been unsuccessful. On or about June 26, Lori
stopped by Wilcoxson’s office and spoke with him. He informed her that he had
experienced some medical difficulties and had failed to timely file a brief on
Daniel’s behalf. Wilcoxson prepared a check to refund a portion of the fee that the
O’Connors had paid him, but after discussing the matter with Lori, he agreed to file
a motion to reopen the appeal and complete the representation for the amount that
the O’Connors had already paid him.
{¶ 8} Wilcoxson prepared an undated motion to reopen the appeal and an
appellate brief, but he never filed those documents with the court. In response to
email inquiries sent by Lori on July 9 about the status of the appeal, Wilcoxson sent
an email to Lori in which he falsely stated: “The motion was sent by runner on
Monday afternoon. I have not received a return yet. Likely received by the court
on Tuesday morning.” Ten days later, in response to another email inquiry by Lori,
Wilcoxson wrote, “Good morning Mrs. O’Connor, I am awaiting acceptance from
the Clerk of Courts. The Court will likely respond with[in] a week or two. After
they respond we can file the brief.” Although Wilcoxson claimed that he did not
recall sending those emails, in a response to one of relator’s letters of inquiry, he
acknowledged that he “must have at some point.” At his disciplinary hearing,
however, he testified that his assistant may have sent the emails—although she
denied that she had done so. The board did not find his testimony on that matter to
be credible. Furthermore, the board noted that Wilcoxson stipulated that if Lori
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were called to testify, she would state that during a telephone conversation in
August 2019, Wilcoxson told her that he had sent a courier to the court “with a
filing to have the appeal reinstated.”
{¶ 9} Wilcoxson did not respond to additional inquiries from the O’Connors
regarding the status of his representation of Daniel and Daniel’s case. Nor did he
respond to an email from Lori in which she expressed concern about his failure to
communicate with her, her inability to find any record of Daniel’s appeal, and her
intention to retain new counsel for Daniel. After retaining new counsel, Lori
learned that Wilcoxson had never filed a motion to reopen Daniel’s appeal or an
appellate brief.
{¶ 10} Daniel’s new counsel filed a motion to reopen his appeal in October
2019. The court of appeals granted that motion on December 4, 2019, and
ultimately affirmed Daniel’s conviction. In the interim, Wilcoxson refunded the
O’Connors’ $3,300—the total amount that they had paid him.
{¶ 11} Consistent with the parties’ stipulations, the board found that
Wilcoxson’s conduct 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). The board also found that relator
presented clear and convincing evidence that Wilcoxson violated
Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation) by falsely informing the O’Connors
that he had filed a motion to reopen Daniel’s appeal.
{¶ 12} We adopt the board’s findings of misconduct.
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Sanction
{¶ 13} When imposing sanctions for lawyer misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 14} As for aggravating factors, the board found that Wilcoxson was
disciplined for engaging in similar misconduct just nine months before he missed
the appellate-brief filing deadline in Daniel’s case and that he acted with a dishonest
or selfish motive by attempting to conceal his misconduct from the O’Connors. See
Gov.Bar R. V(13)(B)(1) and (2). Based on his attempts to conceal his misconduct
and his efforts to blame his assistant for the misrepresentations that he made to the
O’Connors, the board also found that he failed to fully acknowledge his
wrongdoing. See Gov.Bar R. V(13)(B)(7).
{¶ 15} As for mitigating factors, the board found that Wilcoxson made a
timely, good-faith effort to make restitution (albeit after the O’Connors obtained
new counsel for Daniel), exhibited a cooperative attitude toward the disciplinary
proceedings, submitted letters from two judges and the testimony of a third judge
regarding his good character or reputation, and offered his own testimony regarding
his community service. See Gov.Bar R. V(13)(C)(3), (4), and (5). Although
Wilcoxson presented the testimony of his treating physician regarding his
diagnosed medical disorder, the board found that the evidence was insufficient to
establish his disorder as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7).
{¶ 16} The board recommends that Wilcoxson serve a two-year suspension
with 18 months stayed on conditions, be required to abide by the terms of the two-
year contract that he entered with the Ohio Lawyers Assistance Program (“OLAP”)
on December 24, 2020, and serve a one-year period of monitored probation upon
his reinstatement to the practice of law.
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{¶ 17} In support of that sanction, the board considered four cases in which
we imposed a two-year suspension with 18 months conditionally stayed and a
period of monitored probation on attorneys who, like Wilcoxson, neglected at least
one client matter and failed to reasonably communicate with the affected client. Of
those cases, we find Cleveland Metro. Bar Assn. v. Bancsi, 141 Ohio St.3d 457,
2014-Ohio-5255, 25 N.E.3d 1018, Disciplinary Counsel v. Engel, 154 Ohio St.3d
209, 2018-Ohio-2988, 113 N.E.3d 481, and Disciplinary Counsel v. Karp, 156
Ohio St.3d 218, 2018-Ohio-5212, 124 N.E.3d 819, to be most instructive.
{¶ 18} Bancsi neglected a client’s case by failing to respond to
interrogatories relating to the client’s motion to modify spousal support, which
resulted in the dismissal of the client’s motion and a 12-month delay in the
reduction of his spousal-support obligation. Bancsi at ¶ 5-10. Similarly, Engel
failed to take any action to settle a client’s debt, leaving the client to resolve the
issue on her own nearly a year after she retained him. Engel at ¶ 6-7. In both cases,
the attorneys had prior disciplinary action against them. See Bancsi at ¶ 1; Engel
at ¶ 2.
{¶ 19} Karp neglected a client’s immigration matter, failed to explain the
matter to the extent reasonably necessary to permit the client to make an informed
decision, and failed to reasonably consult with the client about the means by which
her objectives were to be accomplished. Karp at ¶ 15. Like Wilcoxson, Karp also
engaged in dishonesty by misrepresenting the status of the case to his client (and
her employer). See id. at ¶ 7-10, 23. In addition, Karp made misrepresentations to
the federal government, made false statements of material fact in connection with
the resulting disciplinary proceeding, and failed to appreciate the gravity of his
misconduct; but in contrast to Wilcoxson, Karp had no prior discipline. See id. at
¶ 10, 14-15, 20, 23.
{¶ 20} In Karp, we acknowledged that “an actual suspension from the
practice of law is particularly appropriate when an attorney has made deliberately
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false statements to a client.” 156 Ohio St.3d 218, 2018-Ohio-5212, 124 N.E.3d
819, at ¶ 22, citing Disciplinary Counsel v. King, 74 Ohio St.3d 612, 614, 660
N.E.2d 1160 (1996) (emphasizing the attorney’s dishonesty toward his client in
justifying the imposition of a six-month suspension for repeatedly and falsely
assuring the client that he had refiled the client’s claim). Accord Disciplinary
Counsel v. Stollings, 111 Ohio St.3d 155, 2006-Ohio-5345, 855 N.E.2d 479, ¶ 13.
The sum of Wilcoxson’s misconduct—including his deliberately false statements
to the O’Connors—warrants the imposition of an actual suspension from the
practice of law. And the similarities between Wilcoxson’s misconduct and the
misconduct at issue in Bancsi, Engel, and Karp make the sanction that we imposed
in those cases—a two-year suspension with 18 months conditionally stayed—
particularly appropriate here. Therefore, we adopt the board’s recommended
sanction.
Conclusion
{¶ 21} Accordingly, Clinton Ralph Wilcoxson II is suspended from the
practice of law in Ohio for two years with 18 months stayed on the conditions that
he commit no further misconduct and pay the costs of this proceeding. If he fails
to comply with the conditions of the stay, the stay will be lifted, and he will serve
the entire two-year suspension. In addition to the conditions of reinstatement set
forth in Gov.Bar R. V(24)(C), Wilcoxson shall be required to submit proof that he
is in compliance with the terms of his December 24, 2020 OLAP contract. And
upon reinstatement to the practice of law, he shall serve a one-year period of
monitored probation in accordance with Gov.Bar R. V(21) focused on his law-
office management and client communications. Costs are taxed to Wilcoxson.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
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Joseph M. Caligiuri, Disciplinary Counsel, and Martha S. Asseff and Karen
H. Osmond, Assistant Disciplinary Counsel, for relator.
Leppla Associates, Ltd., and Gary J. Leppla, for respondent.
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