357 N.E.2d 1099
No. 76-10Supreme Court of Ohio.
Decided December 15, 1976.
Attorneys at law — Misconduct — Acts constituting — Indefinite suspension.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Respondent, Ben Carter, of Cincinnati, was admitted to the practice of law in Ohio in 1957. He was in his mid-forties at that time. He practices law from his home.
A complaint of misconduct was filed with the Board of Commissioners on Grievances and Discipline against respondent by the Cincinnati Bar Association. The complaint contained eight charges and came on for hearing on June 4, 1976, with respondent present. He thereupon entered into the following stipulations with respect to the first three charges:
“CHARGE ONE
“1. On July 6, 1970, Mr. Carter filed a personal injury action in the Court of Common Pleas, Hamilton County,
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Ohio, being cause No. A-249368 on behalf of William B. Merritt, individually and as father and next friend of Wanda Merritt Belcher, his daughter.
“2. From July 6, 1970, through April 1972 the plaintiff questioned Mr. Carter as to the status of the proceedings on numerous occasions. On each occasion, Mr. Carter advised that he and opposing counsel were attempting to select a trial date.
“3. On April 21, 1972, plaintiff went to the Hamilton County Court House and learned that the cause had been dismissed with prejudice on October 26, 1971, by reason of the plaintiff’s failure to answer interrogatories. These interrogatories were never forwarded by Mr. Carter to plaintiff, although they had been served upon Mr. Carter on July 30, 1970.
“4. Mr. Carter has done nothing to correct the situation and has no satisfactory explanation to offer to Mr. Merritt as to why the suit was dismissed.
“5. On September 27, 1972, Mr. Merritt filed an action against Mr. Carter for failure to properly represent him in the personal injury case, being cause No. A-727032. Mr. Carter failed to plead and appear in court. Subsequently, default judgment was granted in that action against Mr. Carter for five thousand ($5,000) dollars. Mr. Carter has made no effort to satisfy this judgment and it remains outstanding.
“CHARGE TWO
“7. Mr. Carter was retained by Robert McNichols to defend a civil action for assault and battery involving their child. Mr. Carter was paid a fee in excess of four hundred ($400) dollars and accepted the employment.
“8. Mr. Carter failed to communicate with his client and failed to file an answer to the complaint as a result of which a default judgment in the amount of ten thousand ($10,000) dollars was taken against his client. The judgment was certified as a lien against the client’s real estate and foreclosure proceedings were either commenced or threatened.
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“9. Mr. McNichols retained new counsel who was successful in settling the dispute for two thousand ($2,000) dollars.
“10. Mr. Carter agreed with Mr. McNichols and his new counsel to repay Mr. McNichols’ cost and expenses, which approximated two thousand six hundred ($2,600.00) dollars.
“CHARGE THREE
“13. In February 1972, Marion Ellen Shaw retained Mr. Carter for the purpose of obtaining a divorce, paying him a retainer of seventy-five ($75.00) dollars. From March 15, 1972, through the end of June, 1972, she made numerous calls to Mr. Carter’s office, inquiring as to the status of the proceedings, none of which were returned.
“14. Around the end of June, 1972, she finally was able to speak to Mr. Carter who advised her that service had not yet been obtained upon her husband and that she would have to advance an additional thirty-five ($35.00) dollars court costs for service by publication, which sum was advanced on July 1, 1972.
“15. Mrs. Shaw continued to inquire as to the status of the proceedings through August 29, 1972, during which period of time Mr. Carter failed to communicate with her. On August 29, 1972, Mrs. Shaw personally researched the records of the Hamilton County Court of Common Pleas, Division of Domestic Relations, and found that her divorce proceedings, cause No. A-721602, had been dismissed for want of prosecution on May 30, 1972.
“16. The court records reveal no attempt at service by publication nor the payment of any additional court costs by Mr. Carter.
“17. Mrs. Shaw has made demand, both personally and through counsel, upon Mr. Carter for the return of her funds to no avail.”
Charges four through eight were dismissed by the panel which conducted the hearing.
With respect to charges one, two and three, the panel found as a matter of fact, based upon the stipulations,
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that respondent violated Canons 6 and 7 of the Code of Professional Responsibility and specifically violated DR 6-101(A) (2) and (3) and DR 7-101(A) (2), as charged by the Cincinnati Bar Association. The board recommended that respondent be indefinitely suspended from the practice of law.
Mr. R. Edward Tepe, Mr. Henry G. Monning, Mr. Albert J. Mestemaker, Jr., and Mr. Ivan L. Tamarkin, for relator.
Mr. Ben Carter, pro se.
Per Curiam.
Upon a careful consideration of the record, the finding of the Board of Commissioners on Grievances and Discipline, and the briefs of relator and respondent, we conclude there are ample admitted facts to justify the board’s finding that respondent clearly violated the Code of Professional Responsibility, specifically DR 6-101(A) (2) and (3) and DR 7-101(A) (2).
We concur with the recomendation of the board, and respondent, Ben Carter, is indefinitely suspended from the practice of law.
Judgment accordingly.
O’NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
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