Disciplinary Counsel v. Simmonds
147 Ohio St. 3d 280
| Ohio | 2016Background
- Rasheed A. Simmonds, an Ohio lawyer admitted in 1997, was charged with professional misconduct in three client matters and the parties waived an evidentiary hearing by stipulation.
- Count 1 (Mary Baskin): Baskin paid $1,500 in May 2012 for Simmonds to file an EEOC charge; Simmonds failed to prepare or file the charge, did not communicate timely, missed the statute of limitations, and did not refund the retainer.
- Count 2 (Dawn Jones): Jones paid $975 toward a $1,750 upfront flat fee for an employment claim; Simmonds did not advise her in writing that an "earned upon receipt" fee might be refundable if representation was not completed, failed to communicate, and did not refund promised fees.
- Count 3 (Tonya Bowman): After settling with a medical group and obtaining a judgment against a doctor, Simmonds failed to respond to Bowman’s requests for settlement accounting and updates while collection and payment issues arose.
- The Board found violations of Prof.Cond.R. 1.3 (diligence), 1.4(a)(4) (responding to reasonable client requests for information), and 1.5(d)(3) (required written advisals when charging "earned upon receipt" fees). Aggravators: multiple offenses, failure to pay restitution, client harm from missed statute of limitations. Mitigators: no prior discipline, no dishonest motive, acknowledgment of wrongdoing, OLAP enrollment (mental-health evidence insufficient to fully mitigate).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Simmonds fail to act with reasonable diligence (Prof.Cond.R. 1.3)? | Disciplinary Counsel: Simmonds neglected client matters, missed SOL, and failed to pursue or complete promised work. | Simmonds: conduct was related to personal/health issues and he has sought OLAP assistance. | Held: Violation established—Simmonds violated Rule 1.3. |
| Did Simmonds fail to comply with reasonable client requests for information (Prof.Cond.R. 1.4(a)(4))? | Counsel: Simmonds repeatedly failed to respond to clients’ requests for status, accounting, and refunds. | Simmonds: asserted mitigation (mental health, OLAP) and pro se explanations. | Held: Violation established—Simmonds violated Rule 1.4(a)(4). |
| Did Simmonds violate fee-notice rule when charging an upfront/"earned" fee (Prof.Cond.R. 1.5(d)(3))? | Counsel: Fee agreement failed to include the required written advisal that client may be entitled to refund if representation not completed. | Simmonds: no specific rebuttal to the absence of advisal; offered to refund but did not. | Held: Violation established—Simmonds violated Rule 1.5(d)(3). |
| Appropriate sanction for these violations? | Counsel: One-year suspension with conditions (consistent with precedent for similar neglect/communication failures). | Simmonds: requested consideration of mitigation (no prior discipline, OLAP, mental-health factors) and a stayed sanction. | Held: One-year suspension fully stayed on conditions: remain in OLAP and comply with contract; pay restitution ($1,500 to Baskin; $975 to Jones) within 90 days; refrain from further misconduct; pay costs. Stay will be lifted on noncompliance. |
Key Cases Cited
- Cleveland Metro. Bar Assn. v. Fonda, 7 N.E.3d 1164 (Ohio 2014) (one-year stayed suspension where attorney neglected client matters, failed to communicate, and had OLAP involvement that did not fully mitigate)
- Trumbull Cty. Bar Assn. v. Yakubek, 32 N.E.3d 440 (Ohio 2015) (confirming use of one-year stayed suspensions for attorneys who neglected matters, failed to communicate, and mishandled client funds or cooperation)