Dayton Bar Association v. Wilcoxson. ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Dayton Bar Assn. v. Wilcoxson, Slip Opinion No. 2018-Ohio-2699.]
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. 2018-OHIO-2699
DAYTON BAR ASSOCIATION v. WILCOXSON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Dayton Bar Assn. v. Wilcoxson, Slip Opinion No.
2018-Ohio-2699.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Conditionally stayed six-month suspension.
(No. 2017-0663—Submitted January 24, 2018—Decided July 12, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-014.
__________________
Per Curiam.
{¶ 1} Respondent, Clinton Ralph Wilcoxson II, of Vandalia, Ohio, Attorney
Registration No. 0061974, was admitted to the practice of law in Ohio in 1993.
{¶ 2} In a formal complaint certified to the Board of Professional Conduct
on March 2, 2017, relator, Dayton Bar Association, charged Wilcoxson with
multiple ethical violations arising from his neglect of a single matter, failure to
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reasonably communicate with the affected client, failure to deliver the client’s file
to successor counsel, and failure to cooperate in the ensuing disciplinary
investigation. Based on Wilcoxson’s failure to answer that complaint, we imposed
an interim default suspension on June 12, 2017. Dayton Bar Assn. v. Wilcoxson,
150 Ohio St. 3d 1274, 2017-Ohio-4206, 81 N.E.3d 1259. Three days later,
Wilcoxson filed a motion for leave to answer and a motion to vacate the interim
default suspension. We granted his motion for leave to answer and remanded the
case to the board, and we also granted his motion to terminate the interim
suspension contingent on Wilcoxson answering relator’s complaint. 150 Ohio
St.3d 1401, 2017-Ohio-5822, 78 N.E.3d 903. On August 10, 2017, we reinstated
his license to practice law without terminating the pending disciplinary proceeding.
150 Ohio St. 3d 1282, 2017-Ohio-7157, 81 N.E.3d 1265.
{¶ 3} On remand, a panel of the board considered the cause on the parties’
consent-to-discipline agreement. See Gov.Bar R. V(16).
{¶ 4} The parties stipulated that in 2014, Wilcoxson entered into an
attorney-client relationship and agreed to file a federal employment-discrimination
lawsuit on his client’s behalf. The client agreed to pay an initial retainer of $1,000
plus a $400 filing fee but failed to timely make that payment. Wilcoxson then
agreed to begin work once the client paid half of the retainer and the full filing fee.
But instead of making the agreed payment of $900, the client paid only $500, on
November 28, 2014.
{¶ 5} Despite the client’s failure to abide by the modified fee agreement,
Wilcoxson filed suit on December 5, 2014—four days after the deadline for filing
the suit. On January 13, 2015, the client’s former employer moved to dismiss the
complaint on the ground that it was untimely filed. Wilcoxson did not oppose the
motion, and the court ruled that the client’s federal claims were time-barred.
Although Wilcoxson maintains that he had informed the client that he expected the
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federal claims to be dismissed as untimely, he did not inform the client regarding
the status of the case until after it had been dismissed.
{¶ 6} The client retained new counsel and filed suit in state court. After
Wilcoxson failed to comply with the new counsel’s request that Wilcoxson provide
the client’s file, the client filed a grievance with relator in August 2015. Wilcoxson
did not respond to the investigator’s repeated requests for a meeting and the
production of the client’s file. But on January 7, 2016, Wilcoxson voluntarily
appeared before the Dayton Bar Association Certified Grievance Committee. At
that time, he answered all of the committee members’ questions and freely admitted
that he had failed to properly handle his client’s legal matter. Several months later,
Wilcoxson spoke with the client during a chance social encounter and agreed to
refund $300 of the client’s $500 payment ($400 of which represented the filing fee),
and the client picked up the refund check in October 2016.
{¶ 7} The parties stipulated and 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 a client reasonably
informed about the status of a matter), 1.16(d) (requiring a lawyer withdrawing
from representation to take steps reasonably practicable to protect a client’s
interest), 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a
demand for information by a disciplinary authority during an investigation), and
8.4(a) (prohibiting a lawyer from violating or attempting to violate the Ohio Rules
of Professional Conduct). The panel unanimously dismissed an additional alleged
violation that was not addressed in the consent-to-discipline agreement.
{¶ 8} The parties stipulated and the board found that one aggravating factor
is present—that Wilcoxson failed to notify his client that he did not maintain
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professional-liability insurance.1 See Gov.Bar R. V(13)(A). Mitigating factors, in
contrast, include the absence of prior discipline, the absence of a dishonest or selfish
motive, payment of restitution, and evidence of Wilcoxson’s good character and
reputation. See Gov.Bar R. V(13)(C)(1), (2), (3), and (5).
{¶ 9} The board recommends that we adopt the parties’ consent-to-
discipline agreement and suspend Wilcoxson from the practice of law for six
months, all stayed on the condition that he engage in no further misconduct. In
support of that recommendation, the board cited three cases in which we imposed
conditionally stayed six-month suspensions for comparable misconduct.
{¶ 10} In Disciplinary Counsel v. Shuler, 129 Ohio St. 3d 509, 2011-Ohio-
4198, 954 N.E.2d 593, the attorney neglected two client matters and failed to
cooperate in the ensuing disciplinary investigations. We imposed a six-month
suspension, fully stayed on conditions that included the attorney’s successful
completion of his three-year contract with the Ohio Lawyers Assistance Program.
No aggravating factors were present, and mitigating factors included the absence
of prior discipline, the absence of a dishonest or selfish motive, evidence of good
character and reputation, and a qualifying mental-health diagnosis.
{¶ 11} We also imposed a conditionally stayed six-month suspension in
Dayton Bar Assn. v. Hooks, 139 Ohio St. 3d 462, 2014-Ohio-2596, 12 N.E.3d 1212,
for misconduct that included neglect of a single matter, failure to reasonably
communicate with the client, and failure to cooperate in the disciplinary
investigation. The only aggravating factor was Hooks’s commission of multiple
offenses, and mitigating factors included the absence of prior discipline, the
absence of a dishonest or selfish motive, and his acceptance of responsibility for
the misconduct.
1
Relator’s complaint did not allege a violation of Prof.Cond.R. 1.4(c) (requiring a lawyer to inform
a client if the lawyer does not maintain professional-liability insurance). Stipulated evidence
suggests that Wilcoxson attempted to comply with that rule, albeit unsuccessfully.
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January Term, 2018
{¶ 12} And in Columbus Bar Assn. v. Kluesener, 150 Ohio St. 3d 322, 2017-
Ohio-4417, 81 N.E.3d 457, we imposed a six-month suspension, fully stayed on
the condition that the attorney engage in no further misconduct, based on the
attorney’s neglect of a single matter, failure to provide competent representation,
failure to keep the client reasonably informed, failure to protect the client’s interests
on withdrawal from the representation, and intentional failure to comply with legal
discovery requests. No aggravating factors were present, but relevant mitigating
factors included the absence of prior discipline, the absence of a dishonest or selfish
motive, full and free disclosure to the board and a cooperative attitude toward the
disciplinary proceedings, evidence of good character and reputation, and the
attorney’s full acknowledgment of his misconduct.
{¶ 13} Based on the foregoing, we agree that Wilcoxson’s conduct violated
Prof.Cond.R. 1.3, 1.4(a)(3), 1.16(d), 8.1(b), and 8.4(a) and that a conditionally
stayed six-month suspension is the appropriate sanction for that misconduct. We
therefore adopt the parties’ consent-to-discipline agreement.
{¶ 14} Accordingly, Clinton Ralph Wilcoxson II is suspended from the
practice of law in Ohio for six months, all stayed on the condition he engage in no
further misconduct. If Wilcoxson fails to comply with the condition of the stay, the
stay will be lifted and he will serve the full six-month suspension. Costs are taxed
to Wilcoxson.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
DEGENARO, J., not participating.
_________________
Ruffolo, Stone & Stone and John M. Ruffolo; and Auman, Mahan & Furry
and David M. Rickert, for relator.
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Leppla Associates, Ltd., Gary J. Leppla, and Philip J. Leppla, for
respondent.
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