Disciplinary Counsel v. Peck
150 Ohio St. 3d 130
Ohio2017Background
- In 2009 Ashley and Charles Needham sued We Sell Auto Sales (Donald Jones d.b.a. We Sell) for consumer-fraud and related claims; Gregory L. Peck entered an appearance for Jones.
- Needhams filed a second amended complaint naming Jones; that pleading was served on Peck, but Peck did not answer. A default hearing resulted in a judgment of compensatory and treble damages, punitive damages, fees, and interest totaling a certificate of judgment for $25,927.56.
- Peck failed to respond to the default motion, did not move for leave to file an out-of-time answer, and did not present evidence of excusable neglect at the default hearing.
- Peck later filed a Civ.R. 60(B) motion (denied), appealed (unsuccessfully), and failed to disclose that his malpractice insurance had lapsed. Some of Jones’s funds ($6,054.26) were garnished and a lien issued against his property.
- Disciplinary Counsel charged Peck with violating Prof.Cond.R. 1.1 (competence) and 1.3 (diligence). The parties stipulated to facts and jointly recommended a six-month suspension fully stayed; the Board adopted the stipulation and recommended the same. The Supreme Court adopted the board’s report, imposed the stayed suspension, and ordered restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peck violated ethical duties by neglecting the representation and permitting a default judgment | Peck’s neglect and failure to respond violated Prof.Cond.R. 1.1 and 1.3 causing client harm | Peck acknowledged missing responses and lapsing insurance; no defense of excusable neglect was shown | Court found violations of Prof.Cond.R. 1.1 and 1.3 and adoption of stipulated misconduct |
| Appropriate sanction for neglect causing significant financial harm | Six-month suspension, fully stayed, given mitigating factors and cooperation | Agreed to the stipulated sanction | Court imposed a six-month suspension fully stayed on condition of no further misconduct |
| Whether restitution is required and amount | Restitution appropriate to compensate client for losses caused by the neglect | Parties’ stipulation omitted restitution; Peck did not contest restitution at decision | Court ordered full restitution of $25,927.56 plus 4% interest from May 17, 2010 |
Key Cases Cited
- Nelson v. Lorain Cty. Bar Assn., 144 Ohio St.3d 414 (2015) (public reprimand where attorney neglected case, client lost opportunity to pursue claim, and attorney lacked malpractice coverage)
- Dawson v. Cleveland Metro. Bar Assn., 124 Ohio St.3d 22 (2009) (six-month suspension where neglect produced a large default judgment and attorney failed to satisfy malpractice-settlement obligations)
- Drain v. Cuyahoga Cty. Bar Assn., 120 Ohio St.3d 288 (2008) (six-month suspension, fully stayed on conditions, for neglect, missed deadlines, missed refiling statute, and lapse of professional-liability insurance)