580 N.E.2d 1071
No. 91-1250Supreme Court of Ohio.Submitted September 24, 1991 —
Decided December 11, 1991.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-42.
On June 26, 1990, relator, Cincinnati Bar Association, filed a two-count complaint against respondent, Gregory G. Spitz. Count I alleged violations of DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation) and 7-102(A)(5) (false statement knowingly made). Count II charged violations of DR 6-101(A)(1) and (3) (acceptance of legal matter attorney is not competent to handle; neglect of legal matter entrusted) and 7-101(A)(1), (2) and (3) (failure to seek client’s lawful objectives; failure to carry out employment contract; prejudice or damage to client). Respondent filed a timely answer that admitted nearly all the facts alleged but denied any misconduct.
A hearing on the matter was held before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on March 15, 1991.
The parties stipulated to and the record revealed the following facts. On February 7, 1989, respondent was retained by Carol Mahman, Linda Swartout and Gerald Rasch (“clients”) to recover assets from their deceased father’s estate and to prevent possible conversion of the estate assets. Respondent accepted payments from the clients to undertake this representation.
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Respondent later informed his clients that he had filed suit on their behalf, when in fact he had not done so. During the next six months, respondent repeatedly assured his clients that their case was progressing. Respondent went so far as to prepare a “sham” brief which he submitted to his clients as evidence of his continued efforts in the case. In September 1989, respondent told his clients that the judge “had thrown their case out” and that further action would be futile. No offer to return the clients’ retainer fees was made at that time.
Respondent’s clients later met with another attorney to discuss their case. When counsel investigated the matter, he discovered that no suit had ever been filed. When counsel confronted respondent, respondent admitted that no legal proceedings had been commenced. Counsel informed respondent’s former clients of respondent’s misrepresentation.
At the hearing before the panel, respondent stated that what he had initially thought was a simple will contest, which he felt competent to handle, turned out, upon investigation, to be more complex. Respondent testified that his misrepresentations stemmed from “embarrassment” over the prospect of telling his clients that their case was outside his experience and that he was unsure of how to proceed. Respondent, however, also testified that he had “shelved” the case in order to devote more time to income-generating cases. Respondent and his wife testified as to the marital and financial difficulties occurring at the time, but respondent conceded that those problems did not excuse his actions.
The panel found that respondent had violated DR 1-102(A)(4), but dismissed the remaining allegations since the evidence as to these allegations was not clear and convincing. The panel recommended that respondent be publicly reprimanded. The board of commissioners adopted the findings and recommendation of the panel, and also recommended that the costs of the proceeding be charged to respondent. Relator filed timely objections to the board’s report, arguing that respondent’s pattern of continued misrepresentation to his clients warranted a suspension from the practice of law. Respondent, in his reply, urged adoption of the board’s recommendation.
Theodore W. Weinkam and Edwin W. Patterson III, for relator.
Robert E. Taylor, for respondent.
After careful consideration of the record before us, we concur in the board’s findings of respondent’s violation of the Code of Professional Responsibility. We decline, however, to adopt the board’s recommended
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sanction, finding that respondent’s misconduct warrants a more severe penalty. We thus suspend respondent from the practice of law in Ohio for a period of six months, with reinstatement conditioned upon repayment of the retainer fees tendered to him by his clients. Costs taxed to the respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.
H. BROWN, J., dissents.
HERBERT R. BROWN, J., dissenting.
In this case the panel who heard the evidence believed the appropriate sanction to be a public reprimand. The Board of Commissioners on Grievances and Discipline also recommended a public reprimand as the appropriate sanction. Considering the record, I would not reject those recommendations.