Cincinnati Bar Assn. v. Slattery
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1 Cincinnati Bar Association v. Slattery. 2 [Cite as Cincinnati Bar Assn. v. Slattery (1996), _____ Ohio St.3d ______.] 3 Attorneys at law -- Misconduct -- Two-year suspension with one year 4 stayed and two-year probation -- Neglect of entrusted legal matters 5 -- Failure to deposit funds into IOLTA -- Failure to comply with CLE 6 requirements. 7 8 9 (No. 95-841 -- Submitted September 27, 1995 -- Decided January 10, 1996.) ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 94-43. 10 In a complaint filed on June 20, 1994, and amended on March 2, 1995, 11 relator, Cincinnati Bar Association, charged respondent, James J. Slattery, Jr. of 12 Cincinnati, Ohio, Attorney Registration No. 0005088, with eight counts of 13 professional misconduct involving, inter alia, violations of DR 1-102(A)(6) 14 (conduct adversely reflecting on fitness to practice law), 6-101(A)(3) (neglect of 15 entrusted legal matter), and 9-102(A)(2) (failure to deposit client funds in 16 identifiable bank account), as well as Gov.Bar R. X (failure to comply with 17 continuing legal education requirements). A panel of the Board of Commissioners 18 on Grievances and Discipline of the Supreme Court ( board ) heard the matter on 19 March 22, 1995. 1 With respect to Count I of the complaint, as amended, the parties stipulated 2 that respondent failed to comply with continuing legal education requirements, in 3 violation of Gov.Bar R. X, for the two reporting periods preceding issuance of the 4 complaint. 5 With respect to Count II, the parties stipulated that respondent neglected his 6 representation of Shirley Clauss in violation of DR 6-101(A)(3). Clauss paid 7 respondent $1,000 in October 1993 to obtain a divorce from her husband. Clauss 8 supplied respondent with requested financial documentation, but respondent 9 subsequently failed to respond to her efforts to learn the status of her case and 10 otherwise failed to communicate effectively with his client. Respondent maintains 11 that he earned the $1,000 fee by consulting several times with Clauss s husband s 12 attorney and reviewing Clauss s financial information. Respondent claims that he 13 did not file the divorce complaint because the couple was considering dissolution 14 as an alternative. Nevertheless, Clauss requested a refund of her legal fees in 15 December 1993, and respondent also did not reply to this request. Clauss has 16 since retained other counsel and respondent gave her file to relator. 2 1 With respect to Count III, respondent acknowledged that he had violated 2 DR 9-102(A)(2) by failing to deposit Clauss s funds into an IOLTA account that 3 complied with the requirements of R.C. 4705.09. 4 With respect to Count IV, the parties stipulated that respondent neglected 5 his representation of Sandra and Leroy Willman in violation of DR 6-101(A)(3). 6 The Willmans retained respondent on a contingency fee basis to represent them in 7 a personal injury claim against the Hamilton County Sheriff s Department, which 8 is apparently still pending, and a consumer dispute over the purchase of a 9 conversion van, which was arbitrated to a decision against the Willmans. The 10 Willmans also had difficulty learning the status of their cases from respondent and 11 filed a grievance with relator. Respondent agreed to turn over their file to new 12 counsel; however, the Willmans subsequently reconsidered their reasons for his 13 discharge. 14 respondent to represent them in yet a third civil dispute, which was resolved in 15 their favor. Prior to issuance of the instant complaint, the Willmans retained 16 With respect to Count V, the parties stipulated to respondent s alcoholism 17 and that this condition had contributed to his neglect of clients, in violation of DR 18 1-102(A)(6). Respondent admitted that he had been battling alcoholism at least 3 1 since 1993, when he received some treatment, but had subsequently slipp[ed] 2 into alcohol abuse again. 3 diagnosed with cirrhosis of the liver and other complications attributable to his 4 alcohol consumption. At that time, his prognosis was poor -- doctors advised that 5 if he abstained from alcohol, took medication and followed a recommended diet, 6 he had a fifty percent chance of living for two more years. In October 1994, 7 respondent entered a rehabilitation program and, since December 16, 1994, has 8 been living in a long-term residential care facility, the Prospect House, for 9 recovering alcoholics. In July 1994, respondent was hospitalized and Respondent has abstained from alcohol since October 10 1994, and his prognosis is much improved due, in part, to his participation in an 11 experimental liver therapy study being conducted by the Cincinnati Veterans 12 Administration Center. Respondent ceased practicing law voluntarily toward the 13 end of 1994 and has had no other employment, although he has been and 14 continues to be available to the attorneys retained to succeed him. Respondent 15 currently depends on general assistance and food stamps as a consequence of his 16 complete commitment to recovery under the supervision of the Prospect House. 17 18 No evidence was submitted to prove Count VI of the complaint, as amended. 4 1 With respect to Count VII, the parties stipulated that respondent neglected 2 his representation of William Hobbs in violation of DR 6-101(A)(3). Hobbs 3 retained respondent to represent him in an action for injuries he sustained in the 4 parking lot of a lounge, where he had either passed out or been assaulted and had 5 also been run over by one of his co-workers. Respondent filed the suit against the 6 lounge and the co-worker, but learned that the lounge was uninsured, that its 7 corporate charter had been revoked and the lounge owners were judgment proof, 8 and that the co-worker could not be located for service of process, making the 9 likelihood of recovery remote. After respondent advised Hobbs of these 10 developments, Hobbs moved without leaving respondent his new address. 11 Respondent subsequently appeared before the trial court on a number of occasions 12 for status conferences in Hobbs s cause of action; however, respondent did not 13 appear on the date set for trial, and Hobbs s case was dismissed with prejudice. 14 Respondent conceded that he neglected Hobbs s cause by failing to appear and 15 failing to dismiss the case voluntarily before the dismissal. 16 With respect to Count VIII, the parties stipulated that respondent neglected 17 his representation of Michael J. Younger in violation of DR 6-101(A)(3). 18 Respondent agreed to represent Younger on a contingency-fee basis in a lender5 1 liability claim against a bank for failure to execute a previously approved loan to 2 purchase certain business property from the city of Cincinnati. Respondent also 3 agreed to represent Younger on a contingency-fee basis in an action against the 4 city of Cincinnati for the sale of the business property when Younger s other 5 attorneys withdrew from the action. Respondent attempted to diligently represent 6 Younger in both matters and to defend him in others and had some success. 7 However, in February 1994, respondent failed to respond timely to discovery 8 requests, and he subsequently failed to comply with a court-ordered deadline to 9 produce the discovery. Respondent escaped the imposition of sanctions by 10 supplying some of the requested materials at the hearing on the motion for 11 sanctions; however, the court later determined that he had not fully responded to 12 the order compelling discovery, and it dismissed Younger s case with prejudice. 13 From the stipulations and respondent s testimony at the hearing, the panel 14 determined that he had violated each of the cited Disciplinary Rules, as well as 15 Gov.Bar R. X.1 16 considered respondent s committed efforts to recover from alcoholism. It also 17 considered testimony and correspondence from respondent s friends and 18 professional acquaintances, all of whom described his integrity and competence In recommending a sanction for this misconduct, the panel 6 1 apart from his addiction to alcohol. 2 suggested by relator, with some modification. 3 respondent receive a two-year suspension from the practice of law, with one year 4 of this period suspended on the following conditions of probation: 5 6 7 8 The panel recommended the sanction The panel recommended that a) Respondent is to provide proof of the establishment and maintenance of an attorney s trust (I.O.L.T.A.) account for the holding of client funds. b) Respondent shall satisfactorily complete all necessary continuing legal education requirements and be currently registered; 9 c) Respondent shall abstain from the use of alcohol and shall be subject to 10 random testing for alcohol consumption by a physician, or other medical 11 personnel, as selected by, and reporting to, Relator, in order to verify compliance 12 with this requirement; 13 d) Respondent shall regularly attend after care or other alcohol counseling 14 sessions, as set forth in the Prospect House program; shall attend meetings of 15 Alcoholics Anonymous, if so directed; and shall become involved with the Ohio 16 Lawyers Assistance Program; 7 1 e) Respondent s practice of law shall be monitored by an attorney selected 2 by the Cincinnati Bar Association, upon such terms and conditions as may be 3 appropriate; 4 f) If Respondent should fail to comply with any of the conditions of 5 probation, probation shall cease and the balance of the suspension shall become 6 effective. 7 8 9 The board adopted the panel s report, including its findings of fact, conclusions of law and recommendation. Peter J. Rosenwald and James J. Condit, for relator. 10 James H. Coogan, for respondent. 11 Per Curiam. Upon review of the record, we concur in the board s findings 12 that respondent violated DR 1-102(A)(6), 6-101(A)(3) and 9-102(A)(2), as well as 13 Gov.Bar R. X. We also agree, in the main, with the board s recommendation; 14 however, we consider a two-year probation period more appropriate for the 15 public s protection. Moreover, consistent with relator s suggested sanction, we 16 are inclined to credit respondent for the purpose of his actual suspension period 17 from December 16, 1994, the date on which he conscientiously entered the 18 Prospect House and had already ceased practicing law on his own accord. 8 1 Therefore, we order that respondent be suspended from the practice of law in Ohio 2 for two years; however, one year of this sanction is suspended, respondent is 3 placed on probation for two years under the conditions established by the board, 4 and the period of his actual suspension is deemed to have commenced on 5 December 16, 1994. Costs taxed to respondent. 6 7 Judgment accordingly. MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., 8 9 concur. COOK, J., concurs in part and dissents in part. 10 11 The panel found, as a matter of fact, that respondent failed to attend and report the credit hours required by Gov. Bar R. X, but it did not specify the violation of Gov.Bar R. X in its conclusions of law. 1 COOK, J., concurring in part and dissenting in part. I concur with the sanction imposed by the majority, with the exception that I would impose two years of actual time suspended from the practice of law. 9
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