Akron Bar Assn. v. Freedman , 128 Ohio St. 3d 497 ( 2011 )

[Cite as Akron Bar Assn. v. Freedman, 128 Ohio St. 3d 497, 2011-Ohio-1959.]
AKRON BAR ASSOCIATION v. FREEDMAN.
[Cite as Akron Bar Assn. v. Freedman, 128 Ohio St. 3d 497, 2011-Ohio-1959.]
Attorneys at law — Violations of Rules of Professional Conduct — Failure to
communicate with a client — Failure to notify client of lack of
professional-liability insurance — Public reprimand.
(No. 2010-2170 — Submitted February 2, 2011 — Decided April 27, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-045.
__________________
Per Curiam.
{¶ 1} Respondent, Bruce Richard Freedman of Akron, Ohio, Attorney
Registration No. 0023864, was admitted to the practice of law in Ohio in 1981. In
June 2010, relator, Akron Bar Association, filed a complaint charging respondent
with multiple violations of the Ohio Rules of Professional Conduct arising from
his representation of a husband and wife who were preparing to file for
bankruptcy. The parties have submitted stipulations of fact and agree that
respondent has violated Prof.Cond.R. 1.4 (requiring a lawyer to reasonably
communicate with a client), 1.4(c) (requiring a lawyer to inform the client if the
lawyer does not maintain professional-liability insurance), and 1.5(d)(3)
(prohibiting a lawyer from denominating a fee as earned upon receipt,
nonrefundable, or in similar terms without simultaneously advising the client in
writing that the client may be entitled to a refund of all or part of the fee if the
lawyer does not complete the representation), and relator has dismissed four other
alleged violations.
{¶ 2} Pursuant to Section 3(C) of the Rules and Regulations Governing
Procedure on Complaints and Hearings Before the Board of Commissioners on
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Grievances and Discipline (“BCGD Proc.Reg.”), the matter was deemed to have
been submitted without hearing. The Board of Commissioners on Grievances and
Discipline has accepted the parties’ agreed stipulations of fact and misconduct.
The board has also adopted the parties’ recommended sanction of a public
reprimand. We agree that respondent has committed professional misconduct as
found by the board and that a public reprimand is the appropriate sanction.
Misconduct
{¶ 3} The stipulated facts of this case demonstrate that in January 2009,
a husband and wife paid respondent a $3,500 flat fee to examine their personal
and business finances, handle matters with their creditors, and determine whether
filing for bankruptcy was appropriate either for their businesses or for them
personally. There was no written fee agreement, and respondent did not advise
the couple, in writing or otherwise, that they might be entitled to a refund of all or
part of the fee if he did not complete the representation. Nor did he advise them
that he did not carry malpractice insurance.
{¶ 4} Respondent acknowledges that he did not return the couple’s
telephone calls as promptly as he should have and that he should have called them
more frequently than he did. Although he filed a motion for leave to plead in an
action filed against the couple by one of their creditors, he acknowledges that he
did not advise them that he had done so.
{¶ 5} When the couple could not reach respondent in October 2009, they
informed him by e-mail that they were terminating his services and requested a
complete refund of their retainer. Respondent believed that he had rendered
services exceeding the value of the retainer and has not refunded any portion of it.
Although the couple and their businesses have filed for bankruptcy, they have not
listed any portion of the $3,500 fee they paid to respondent or any malpractice
action against him as assets of the bankruptcy, nor has their bankruptcy trustee
sought return of the fee.
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January Term, 2011
{¶ 6} The parties stipulated and the panel and board found that by failing
to communicate with the clients in a timely manner, failing to keep them
reasonably informed of the status of their case, and failing to comply with
requests for information by the clients, respondent has violated Prof.Cond.R. 1.4.
They further stipulated and the panel and board found that by failing to notify the
clients of his failure to maintain malpractice insurance and the possibility that
they could be entitled to a refund of any unearned fee, respondent has violated
Prof.Cond.R. 1.4(c), and 1.5(d)(3). We adopt these stipulated 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
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 8} The parties have stipulated and the panel and board have found
that none of the BCGD Proc.Reg. 10(B)(1) aggravating factors are present. As
mitigating factors, the parties have stipulated to the absence of a prior disciplinary
record in almost 30 years of practice, the absence of a dishonest or selfish motive,
respondent’s acknowledgement of his errors and willingness to apologize to his
clients for his misconduct, respondent’s full and free disclosure to the disciplinary
board, and respondent’s character and reputation. See BCGD Proc.Reg.
10(B)(2)(a), (b), (d), and (e).
{¶ 9} The panel and board declined to characterize respondent’s
acknowledgment of his errors and willingness to apologize as a mitigating factor
pursuant to BCGD Proc.Reg. 10(B)(2)(c), observing that the record contains no
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evidence that respondent did, in fact, apologize. They did, however, accept the
remaining stipulated factors, including respondent’s expression of remorse.
{¶ 10} Citing a number of cases publicly reprimanding attorneys for
similar misconduct, and acknowledging that respondent has practiced law for
almost 30 years without a disciplinary violation, the panel and board recommend
that we publicly reprimand respondent for his misconduct in this matter.
{¶ 11} In Lorain Cty. Bar Assn. v. Godles, 128 Ohio St. 3d 279, 2010-
Ohio-6274, 943 N.E.2d 988, ¶ 12, 14, 18, we publicly reprimanded an attorney
who had violated Prof.Cond.R. 1.4(a)(1) through (5) (requiring a lawyer to
reasonably communicate with a client), 1.4(b) (requiring a lawyer to explain
matters to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation), and 1.4(c) and DR 1-104(A)(both
requiring a lawyer to inform the client at the time of the engagement or at any
time subsequent to the engagement if the lawyer does not maintain professional-
liability insurance). We have also publicly reprimanded an attorney who
neglected a client’s legal matter, failed to hold a client’s funds separate from her
own, and failed to take reasonable steps to prevent damage or prejudice to a client
before withdrawing from representation. Akron Bar Assn. v. Holda, 111 Ohio
St.3d 418, 2006-Ohio-5860, 856 N.E.2d 973, ¶ 9, 15.
{¶ 12} Having considered respondent’s conduct, the applicable
aggravating and mitigating factors, and sanctions imposed in comparable cases,
we adopt the board’s recommended sanction. Bruce Richard Freedman is hereby
publicly reprimanded for violating Prof.Cond.R. 1.4, 1.4(c), and 1.5(d)(3). Costs
are taxed to respondent.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
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January Term, 2011
Lee Peterson and Brian M. Pierce, for relator.
Dennis J. Bartek, for respondent.
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