156 N.E.2d 136
D.D. No. 5Supreme Court of Ohio.
Decided February 4, 1959.
Attorneys at law — Misconduct — Indefinite suspension from practice — Series of acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
This cause was originated by the Cleveland Bar Association’s filing of five specifications of misconduct against the respondent. The Board of Commissioners on Grievances and Discipline, after consideration of the matter, made findings of fact as to each specification as follows:
Specification No. 1. A client retained respondent for the purpose of obtaining a divorce, and a fee of $150 was paid. After the case was heard, respondent advised the client that the case was completed except for the final papers which would be forthcoming within a few days. The client later learned from inquiry at the courthouse that the case had been dismissed without prejudice for want of prosecution. The action had not been reinstated and the fee had not been refunded at the date of hearing before the board. The board concluded that the client knew at all times that his divorce was not final and did not rely on any representation of respondent, and that respondent’s conduct in the matter evidences a disregard of his duty to expedite the disposition of his client’s cause and to uphold the honor and maintain the dignity of the profession.
Specification No. 2. A client retained respondent for the purpose of obtaining a divorce and paid a fee. Respondent knew the client was living in a state of either bigamy or adultery, for which reason respondent refused to file the petition. Upon complaint, respondent refunded the sum paid. Thereafter respondent filed the petition without a fee, with knowledge of the client’s continued bigamous or adulterous relationship. The client failed to appear for the hearing, and respondent dismissed the case. The board concluded that respondent failed to terminate a professional relationship in the face of his client’s continued wrongdoing and performed improper service by instituting an admittedly unmeritorious suit.
Page 479
Specification No. 3. Respondent was retained to represent one charged with robbery and was paid a retainer fee of $150. The accused was convicted and committed to the penitentiary. Respondent advised accused’s relatives who retained him that to appeal the case a record would be necessary at an estimated cost of $500. On the last day of trial, respondent was paid an additional sum of $50, and later $200. Respondent filed a motion for leave to appeal, which was overruled. He did not represent that he had perfected an appeal, nor did he collect any further fees. The board concluded that the evidence does not support the charge that respondent represented he had perfected an appeal, or that he had collected fees for services which he represented had been necessary and had been expended in perfecting the appeal after the date within which the appeal was required to be filed.
Specification No. 4. Respondent was retained to represent a client in a transaction to purchase realty, and a fee of $100 was paid. The client delivered to respondent $1,500 which was to be paid to the vendor as a down payment. Of the sum, $500 was paid to the vendor before it was determined that the land contract prepared by the vendor would not meet the approval of respondent. The vendor offered to return the $500, but respondent refused to accept it and demanded $1,000 damages from the vendor. The client, at all times, wanted only the return of his $1,500 and requested the return of the $1,000 held by respondent. Respondent declined to pay it for the reason that if he did his client would be in default in his contract and could not recover anything from the vendor, and respondent insisted that a suit be instituted against the vendor for the $500. On a contingent fee basis, a suit was instituted by respondent for his client against the vendor for $3,500 damages. The suit was against the wishes of respondent’s client. Respondent claimed an attorney’s lien on the $1,000, for services rendered in the action against the vendor. Such a lien did not exist. The suit against the vendor was settled, the vendor paying respondent’s client $275. Respondent was arrested for embezzlement on complaint of his client, but on remission of the $1,000 the criminal proceeding was dismissed. There is no evidence that respondent ever used the $1,000 or commingled it with his
Page 480
own funds. The board concluded that respondent failed to account promptly to his client for the $1,000 and instituted litigation against the wishes of his client to promote his own personal gain, failed to uphold the honor and dignity of the profession, and interfered with and delayed the administration of justice.
Specification No. 5. Respondent received from two separate clients filing fees in bankruptcy matters and failed to pay such fees in full until notified by the referee that the petitions would be dismissed unless the fees were paid. Shortly after the notification, the fees were paid. The board concluded that this specification is too indefinite and uncertain to constitute a specific charge of unethical practice.
From the foregoing findings, the board determined that respondent was guilty of misconduct and recommended that respondent should be suspended from the practice of law for an indefinite period.
The cause is before this court on objections by respondent to the findings and recommendation of the board.
Mr. John L. Dampeer, Mr. George H. Faust and Mr. Chester K. Gillespie, for relator.
Mr. Charles A. Chandler, for respondent.
Per Curiam.
Since the misconduct referred to in the first, second and especially the fourth specifications is, in its cumulative effect, sufficient to warrant the recommendation of the board, we do not make any determination as to whether the conduct of the respondent in any one of those specifications might in and of itself, under the particular circumstances therein involved, be sufficient to justify the recommendation of the board.
The objections to the findings and recommendation of the board are overruled, the report of the board is confirmed, and judgment is rendered accordingly.
Report confirmed and judgment accordingly.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
Page 481