Disciplinary Counsel v. Derryberry.
152 Ohio St. 3d 41
| Ohio | 2017Background
- Quentin M. Derryberry II, admitted 1970, faced disciplinary charges arising from his brief 2013 representation of Linda Moore in a juvenile custody matter involving a great-grandson, D.S.
- Moore paid a $1,000 retainer; Derryberry requested documents but did not file a motion to intervene or otherwise act on her behalf before she terminated him on December 2, 2013.
- Moore repeatedly sought status information; Derryberry did not return calls and refunded only $300 initially, later refunding the remainder after the grievance was filed.
- During the disciplinary investigation, Derryberry told relator he had advised Moore that immediate intervention was inappropriate and that he had spoken with opposing counsel Matthew Kentner; the board found these statements false.
- The Board found violations of Prof.Cond.R. 1.4(a)(3), 1.4(a)(4) (failure to keep client informed/comply with information requests) and Prof.Cond.R. 8.1(a) (knowingly making false statements in a disciplinary matter), but not Prof.Cond.R. 1.3 (diligence).
- The court sustained the board’s findings on communication and false statements, dismissed the diligence violation, and imposed a one-year suspension fully stayed on condition of no further misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Derryberry violated Prof.Cond.R. 1.3 (diligence) | Derryberry failed to act to secure temporary custody for Moore between Oct 29 and Dec 2, 2013. | It was a reasonable tactical choice to delay intervention until Sharp had intervened and served the mother; immediate filing was unnecessary. | Dismissed: record does not clearly and convincingly show lack of diligence; primary failure was communication, not persistent neglect. |
| Whether Derryberry violated Prof.Cond.R. 1.4(a)(3) & (a)(4) (communication) | He failed to keep Moore reasonably informed and did not comply promptly with her requests for information. | He had a strategy; timing justified; but concedes communication could have been better. | Sustained: Derryberry failed to communicate his strategy and respond to repeated inquiries. |
| Whether Derryberry violated Prof.Cond.R. 8.1(a) (false statements in disciplinary matter) | He made knowingly false statements to relator about advising Moore and about a call with opposing counsel. | He denied the statements or claimed explanations (e.g., assistant error; hypothetical description). | Sustained: Board found his statements and hearing testimony not credible and knowingly false. |
| Appropriate sanction | Relator recommended suspension (board: one year, six months stayed). | Derryberry requested a fully stayed suspension or public reprimand, citing limited misconduct and restitution. | One-year suspension fully stayed on condition of no further misconduct; costs taxed to respondent. |
Key Cases Cited
- Cleveland Metro. Bar Assn. v. Azman, 147 Ohio St.3d 379 (2016) (one-year suspension, half stayed, where attorney destroyed/misrepresented evidence and lied in investigation)
- Cincinnati Bar Assn. v. Moore, 143 Ohio St.3d 252 (2015) (two-year suspension, second year stayed, for multiple false statements to relator)
- Disciplinary Counsel v. Meyer, 134 Ohio St.3d 180 (2012) (18-month suspension, six months stayed, for practicing while suspended and making false statements)
- Disciplinary Counsel v. Wexler, 139 Ohio St.3d 597 (2014) (stayed suspension for multiple false statements to relator)
- Akron Bar Assn. v. DeLoach, 130 Ohio St.3d 153 (2011) (stayed suspension and monitored probation where attorney recreated client letters in response to grievance)
- Akron Bar Assn. v. Tomer, 138 Ohio St.3d 302 (2013) (conditioned suspension for neglect, client-trust mismanagement, and false evidence in investigation)
- Erie-Huron Counties Joint Certified Grievance Comm. v. Derby, 131 Ohio St.3d 144 (2012) (refund of fees before hearing can be mitigating)
- Dayton Bar Assn. v. O’Neal, 134 Ohio St.3d 361 (2012) (diligence violations where attorney missed deadlines/hearings)
- Mahoning Cty. Bar Assn. v. Sakmar, 127 Ohio St.3d 244 (2010) (diligence/neglect violations)
- Cincinnati Bar Assn. v. Lawson, 119 Ohio St.3d 58 (2008) (attorney neglected client matters)
- Disciplinary Counsel v. Folwell, 129 Ohio St.3d 297 (2011) (attorney discipline for neglectful practices)
- Lorain Cty. Bar Assn. v. Nelson, 144 Ohio St.3d 414 (2015) (diligence and client-protection principles in imposing discipline)