Cleveland Metro. Bar Assn. v. Sweeney (Slip Opinion) , 146 Ohio St. 3d 335 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Sweeney, Slip Opinion No. 2016-Ohio-469.]
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SLIP OPINION NO. 2016-OHIO-469
CLEVELAND METROPOLITAN BAR ASSOCIATION v. SWEENEY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Sweeney, Slip Opinion No.
2016-Ohio-469.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Public
reprimand.
(No. 2015-0591—Submitted May 20, 2015—Decided February 11, 2016.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2014-026.
_______________________
Per Curiam.
{¶ 1} Respondent, Francis Edward Sweeney Jr., of Mayfield Heights, Ohio,
Attorney Registration No. 0058723, was admitted to the practice of law in Ohio in
1992. On April 7, 2014, relator, Cleveland Metropolitan Bar Association, filed a
complaint alleging that Sweeney neglected a client matter, failed to communicate
with the client, failed to effectuate his withdrawal from representation with minimal
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adverse effects on the clients, and failed to take reasonable steps to protect his
clients’ interests when terminating the attorney-client relationship. A panel of the
Board of Commissioners on Grievances and Discipline1 held a hearing at which the
parties submitted exhibits and the client, her Florida counsel, Sweeney, and a
character witness testified. The panel recommended that a fully stayed six-month
suspension was the appropriate sanction for Sweeney’s misconduct. The board
adopted the panel report in its entirety.
{¶ 2} After reviewing the record, we adopt the board’s findings of fact and
misconduct, but we reject the recommended sanction. We instead conclude that a
public reprimand is appropriate under these circumstances.
Misconduct
{¶ 3} Sweeney was retained in April 2005 to represent Heidi DeCaprio and
her minor daughter, who were injured in an automobile accident in Florida. He
performed substantial work but was unable to settle the matter, so in May 2006, he
referred his clients to Florida attorney James Magazine. Magazine’s firm filed a
lawsuit in January 2009 and remained as counsel until May 2011, when the firm
withdrew due to a conflict of interest. The clients were then referred to Michael
Walker of Walker Law Group, another Florida firm.
{¶ 4} Three months later, in August 2011 and more than six years after the
accident, the Walker firm withdrew because of DeCaprio’s failure to cooperate. In
particular, the Walker firm’s case notes indicated that DeCaprio failed to return
counsel’s calls, was verbally abusive and rude in telephone conversations with
attorneys and staff, refused to work with staff to get her deposition scheduled, and
had an unrealistic view of the value of her case. At the time of Walker’s
withdrawal, the firm had presented to DeCaprio an offer of settlement, which
DeCaprio never acted upon. Following Walker’s withdrawal, DeCaprio contacted
1
Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been
renamed the Board of Professional Conduct. See Gov.Bar. R. V(1)(A), 140 Ohio St. 3d CII.
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January Term, 2016
Sweeney and in December 2011, Sweeney personally resumed his efforts to settle
the case from Ohio.
{¶ 5} The issue before us is whether and when, in the history of this matter,
an attorney-client relationship existed between Sweeney and DeCaprio and her
daughter, and if one did exist, whether Sweeney committed any misconduct in that
representation.
{¶ 6} Relator did not show that Sweeney committed any misconduct during
the period when the lawsuit was handled by the Florida firms. In the wake of the
Walker firm’s withdrawal, however, Sweeney’s activity in the case arose again.
DeCaprio sought Sweeney’s counsel. They communicated through text messages.
She faxed legal documents to him, including, on December 1, 2011, the defendant’s
motion to dismiss her case—based on DeCaprio’s failure to respond to discovery
requests—and proposals for settlement.
{¶ 7} Sweeney was aware in mid-December that Walker’s motion to
withdraw had been granted. Sweeney requested copies of DeCaprio’s medical bills
from the Walker firm, which sent them to him on December 20, 2011. The firm’s
contemporaneous notes from Sweeney’s mid-December contact with the firm
stated that the staff had received a call “from atty * * * Sweeney who was
approached by Ms. DeCaprio to handle her case again.” Sweeney placed a call to
the insurance adjuster in late December to try to settle the matter. And in late
December, Sweeney texted DeCaprio that he was “trying to settle it.”
{¶ 8} A hearing on the motion to dismiss had been set for January 10, 2012.
Sweeney texted DeCaprio on December 30, 2011: “Got it covered. U don’t have
to be there. I am coordinating it thru Magazine. No worries. Happy new year.”
On the day of the hearing, Sweeney texted: “We will work it out. No worries.”
The next day, after the motion to dismiss had been granted, he texted: “Patience”
and “[Magazine] will be calling u and explaining what we are going to do. I’m
pretty sure we are going to be ok. Just don’t freak out yet!”
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{¶ 9} On January 12, 2012, however, the relationship changed. Sweeney
texted DeCaprio, “I just found out you ignored several motions to compel answers
to intterroigatorries [sic] over 2 years ago. Not only have you not been listening to
me and Magazine U screwed yourself by no [sic] listening to anyone. I can’t help
u anymore. Call walker if u have questions. Sorry.”
{¶ 10} The panel and board found from these and other communications
that Sweeney had become actively involved in DeCaprio’s case and that he took
several concrete actions on her behalf in December 2011 and January 2012. The
board also found that Sweeney gave DeCaprio flawed advice not to attend the
dismissal hearing and that after the January 12 message, Sweeney—after having
already failed to arrange for an attorney to attend the dismissal hearing—failed to
apprise DeCaprio that she could petition the court for reconsideration or appeal the
dismissal.
{¶ 11} The board found that Sweeney’s conduct violated Prof.Cond.R. 1.3
(requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)
(requiring a lawyer to reasonably communicate with a client), 1.16(b)(1)
(permitting a lawyer to withdraw from representation if the withdrawal can be
accomplished without material adverse effect on the interests of the client), and
1.16(d) (requiring a lawyer withdrawing from representation to take steps
reasonably practicable to protect a client’s interest). We adopt the board’s findings
of fact and misconduct.
Sanction
{¶ 12} 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 Gov.Bar
R. V(13).
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January Term, 2016
{¶ 13} The board found as aggravating factors that Sweeney committed
multiple offenses that caused harm to multiple victims who were vulnerable. See
Gov.Bar R. V(13)(B)(4) and (8). As mitigating factors, the board found that
Sweeney had no prior disciplinary record, had displayed a cooperative attitude
toward these proceedings, and had presented abundant evidence of his good
character and of his reputation for, and record of, professionalism and service to his
clients and the greater community. See Gov.Bar R. V(13)(C)(1), (4) and (5).
{¶ 14} Relator recommends that Sweeney receive a fully stayed six-month
suspension from the practice of law. In support of that recommendation, relator
cites several cases involving comparable conduct in which we imposed a
comparable sanction, including Cleveland Metro. Bar Assn. v. Fonda, 138 Ohio
St.3d 399, 2014-Ohio-850, 7 N.E.3d 1164, and Dayton Bar Assn. v. Hooks, 139
Ohio St. 3d 462, 2014-Ohio-2596, 12 N.E.3d 1212. In Fonda, we imposed a stayed
one-year suspension for a violation of Prof.Cond.R. 1.3, 1.4(a)(3) and (4), and
1.16(d) where the respondent had neglected two clients’ cases, as opposed to the
single matter here, and had failed to take reasonable steps to protect one client’s
interests when he withdrew as counsel. And in Hooks, we imposed a stayed six-
month suspension and 12 hours of continuing legal education for a violation of
Prof.Cond.R. 1.3 and 1.4 where the respondent had failed to file documents
regarding modification of a client’s child-support obligation and had failed to keep
the client reasonably informed as to the status of his case. The respondent there
admitted that he had been charged with operating a vehicle while intoxicated, which
was a charge that was not one of the disciplinary charges against him, and we
required that he submit to an evaluation by the Ohio Lawyers Assistance Program
to ensure that no underlying problems existed. Neither of those factors is present
here.
{¶ 15} Sweeney argues that his conduct warrants a public reprimand, and
we are inclined to agree. In Akron Bar Assn. v. Freedman, 128 Ohio St. 3d 497,
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2011-Ohio-1959, 946 N.E.2d 753, the respondent failed to timely communicate
with a couple who had retained him, failed to keep them reasonably informed about
the status of their case, failed to inform them that he did not maintain professional
liability insurance, and failed to advise them that if he did not complete the
representation, they could be entitled to a refund of part or all of the flat fee they
had paid him, thus violating Prof.Cond.R. 1.4, 1.4(c), and 1.5(d)(3). The mitigation
factors were similar to those here, including that the respondent had practiced for
nearly 30 years without a disciplinary record. Id. at ¶ 8. We determined that the
respondent’s conduct warranted a public reprimand. Id. at ¶ 12.
{¶ 16} In Columbus Bar Assn. v. Smith, 143 Ohio St. 3d 436, 2015-Ohio-
2000, 39 N.E.3d 488, ¶ 5-6, the respondent violated Prof.Cond.R. 1.3, 1.4(a)(2)
through (4), and 1.16(d) by filing a responsive pleading late, failing to present all
of a client’s claims, not taking steps to protect a client’s interests after moving to
withdraw as counsel, and not timely communicating with a client about or
providing copies of a federal magistrate judge’s recommendation. The mitigating
factors were similar to those here, see id. at ¶ 8, and we publicly reprimanded Smith
for her misconduct, id. at ¶ 11. And in Columbus Bar Assn. v. Ryan, 143 Ohio St. 3d
73, 2015-Ohio-2069, 34 N.E.3d 120, ¶ 1, the respondent was difficult to contact,
did not timely file court papers although she represented to the client that they had
been filed, and failed to communicate with the client in a domestic-relations matter.
With similar mitigating and aggravating factors as here, see id. at ¶ 4, we
determined that the conduct warranted a public reprimand, id. at ¶ 7.
{¶ 17} We adopt the board’s findings and conclude that Sweeney’s conduct
violated Prof.Cond.R. 1.3, 1.4(a), 1.16(b)(1), and 1.16(d). Considering Sweeney’s
long career with no previous disciplinary action, the appropriate sanction here is a
public reprimand.
{¶ 18} Accordingly, Francis Edward Sweeney Jr. is hereby publicly
reprimanded. Costs are taxed to Sweeney.
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January Term, 2016
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Tucker Ellis, L.L.P., Matthew P. Moriarty, and Paul W. Smith; and Heather
M. Zirke, Assistant Bar Counsel, for relator.
Kegler, Brown, Hill & Ritter Co., L.P.A., and Jonathan E. Coughlan, for
respondent.
_________________
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