Akron Bar Assn. v. Fink , 131 Ohio St. 3d 34 ( 2011 )

[Cite as Akron Bar Assn. v. Fink, 131 Ohio St.3d 34, 2011-Ohio-6342.]
AKRON BAR ASSOCIATION v. FINK.
[Cite as Akron Bar Assn. v. Fink, 131 Ohio St.3d 34, 2011-Ohio-6342.]
Attorneys at law—Failure to cooperate in a disciplinary investigation—Engaging
in conduct prejudicial to the administration of justice—Public reprimand.
(No. 2010-2140—Submitted February 2, 2011—Decided December 14, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-011.
__________________
Per Curiam.
{¶ 1} Respondent, Eric R. Fink of Kent, Ohio, Attorney Registration No.
0071059, was admitted to the practice of law in Ohio in 1999. In February 2010,
relator, Akron Bar Association, filed a complaint alleging that Fink had failed to
cooperate in a disciplinary investigation and therefore had engaged in conduct
prejudicial to the administration of justice.
{¶ 2} The parties have submitted stipulations of fact and misconduct, and
a panel of the Board of Commissioners on Grievances and Discipline conducted a
hearing to determine the appropriate sanction for Fink’s misconduct. The board
has accepted the parties’ agreed stipulations and the panel’s recommendation that
we publicly reprimand Fink for his conduct. We adopt the board’s findings of
fact and misconduct and hereby publicly reprimand Fink for failing to respond to
the disciplinary investigation initiated by relator.
Misconduct
{¶ 3} The stipulated facts of this case and Fink’s hearing testimony
demonstrate that in May 2009, a husband and wife who were former clients of
Fink filed a grievance against him. Despite having received letters of inquiry
from relator regarding the grievance, Fink failed to respond to the allegations
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against him. Fink also failed to comply with two subpoenas duces tecum ordering
him to appear and be deposed—one that had been served on his legal assistant and
another that had been personally served on him.
{¶ 4} Based upon information relator obtained through sources other
than Fink, the underlying grievance against him was dismissed. After relator filed
its complaint charging Fink with violations of Prof.Cond.R. 8.4(d) (prohibiting a
lawyer from engaging in conduct that is prejudicial to the administration of
justice) and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a
disciplinary investigation), Fink contacted relator. Fink later filed an answer, sent
a letter to relator outlining the facts of the complaint, and met with representatives
of relator’s grievance committee to answer their questions.
{¶ 5} At the hearing, Fink admitted that he had received but had not
responded to relator’s inquiries. He testified that he did not recall opening the
certified mail and had not appreciated the gravity of the situation. When another
local attorney informed him of its seriousness and advised him to take immediate
action, he did. Fink stated that he now realizes that relator’s investigation was of
the highest importance and that it was necessary to respond immediately. He
repeatedly stated that he had no excuse for his failure to cooperate in the
investigation and that his failure to respond to the subpoenas was a “terrible
mistake.”
{¶ 6} The parties have stipulated, and the panel and board have found,
that Fink’s conduct violated Prof.Cond.R. 8.4(d) and Gov.Bar R. V(4)(G). We
accept these findings of fact and misconduct.
Sanction
{¶ 7} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
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
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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.
{¶ 8} At the panel hearing, Fink testified that in an effort to prevent
similar problems in the future, he now reads all his correspondence and has taken
an online course on how to manage a solo law practice. He denies having any
mental-health or substance-abuse issues, and he meets with a mentor from the
Akron Bar Association Lawyers Assistance Committee to discuss practice issues.
{¶ 9} Of the mitigating factors set forth in BCGD Proc.Reg. 10(B)(2),
the board found the absence of a prior disciplinary record, the absence of a
dishonest or selfish motive, Fink’s eventual cooperation with relator’s
investigation, and evidence of his good character as demonstrated by the letters of
two attorneys, one of whom serves as a mediator for the Portage County Court of
Common Pleas, and two clients, one of whom has been a personal friend of Fink
for 18 years. See BCGD Proc. Reg. 10(B)(2)(a), (b), (d), and (e). The board also
found that Fink’s conduct did not cause any harm or monetary loss to his clients,
that he suffers from no mental problems or alcohol or drug abuse, and that he
acknowledges his rule violations and the necessity of responding to disciplinary
investigations in the future. The board did not find any aggravating factors.
{¶ 10} We have previously imposed public reprimands in other cases
involving similar conduct. See, e.g., Columbus Bar Assn. v. Deffet, 98 Ohio St.3d
384, 2003-Ohio-1090, 785 N.E.2d 746, ¶ 5-6 (publicly reprimanding attorney for
professional misconduct, including neglecting an entrusted legal matter, providing
legal advice to an unrepresented opposing party, initially failing to cooperate with
the disciplinary investigation, and failing to properly register as an attorney with
the Supreme Court); Cleveland Bar Assn. v. Allanson (1995), 72 Ohio St.3d 228,
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229, 648 N.E.2d 1340 (publicly reprimanding attorney for failing to cooperate in
a disciplinary investigation and failing to comply with attorney-registration
requirements for the 1989/1991 and 1991/1993 biennial periods).
{¶ 11} Timely response to disciplinary investigations is necessary to
preserve the integrity of, and public confidence in, the legal profession. We do
not condone Fink’s decision to turn a blind eye to certified letters seeking his
response to a client grievance and to subpoenas ordering him to appear and be
deposed. However, in light of the remaining mitigating factors found by the
board and hereby adopted by this court, and the remedial actions undertaken by
Fink to ensure his future compliance, we agree that a public reprimand is an
appropriate sanction for Fink’s misconduct.
{¶ 12} Therefore, we hereby publicly reprimand Eric R. Fink for his
failure to respond to a disciplinary investigation initiated by the certified
grievance committee of the Akron Bar Association. Costs are taxed to Fink.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
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John F. Herman Co., L.P.A., and John Herman; and Corizin, Sanislo &
Ufholz, L.L.C., and Kevin R. Sanislo, for relator.
Eric R. Fink, pro se.
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