Disciplinary Counsel v. Simon
51 N.E.3d 605
Ohio2016Background
- Thomas J. Simon, Ohio attorney admitted 1981, previously received a one-year fully stayed suspension in 2011 for trust-account commingling and failing to cooperate with discipline.
- Disciplinary Counsel filed an amended complaint alleging Simon failed to reasonably communicate with two clients (Hubbard and Grippi) and failed to notify a client he lacked malpractice insurance.
- In the Hubbard matter, Simon filed suit before the statute of limitations ran, missed a pretrial appearance, failed to respond to discovery or oppose summary judgment, and voluntarily dismissed the complaint without notifying Hubbard or obtaining his informed consent; Simon stipulated he did not advise Hubbard about lack of malpractice insurance.
- In the Grippi matter, Simon filed suit but failed to respond to dispositive motions, resulting in dismissal with prejudice; he filed an untimely appeal brief, leading to affirmance, and Grippi learned of dismissal from a newspaper.
- The board found multiple violations of the Rules of Professional Conduct (communication, diligence, informed consent, and notice of lack of malpractice insurance) and recommended a two-year suspension with 18 months stayed.
- The Supreme Court adopted the misconduct findings but reduced the sanction to a six-month suspension, fully stayed on condition of no further misconduct; two justices would have imposed a 24-month suspension with 18 months stayed.
Issues
| Issue | Plaintiff's Argument (Disciplinary Counsel) | Defendant's Argument (Simon) | Held |
|---|---|---|---|
| Did Simon fail to obtain informed consent and keep Hubbard reasonably informed (Prof.Cond.R. 1.4(a)(1), 1.4(a)(3), 1.4(c))? | Simon failed to notify Hubbard of need for retainer, failed to discuss discovery or dismissal, and failed to inform Hubbard he lacked malpractice insurance. | Simon claims he communicated by phone and sent multiple letters; he stipulated only to 1.4(c) violation. | Court adopted board's findings: violated 1.4(a)(1), 1.4(a)(3), and 1.4(c); credited Hubbard's testimony over Simon's. |
| Did Simon fail to act with diligence and keep Grippi informed and obtain informed consent before allowing dispositive motions to go unopposed (Prof.Cond.R. 1.3, 1.4)? | Simon allowed dispositive motions to go unanswered, did not notify Grippi of status, and failed to file the appellate brief timely. | Simon asserts he provided updates during office visits and discussed Civ.R. 41; some brief communications occurred. | Court adopted board's findings: violated 1.3, 1.4(a)(1), and 1.4(a)(3). |
| What sanction is appropriate given misconduct, prior discipline, and aggravating/mitigating factors? | Two-year suspension with 18 months stayed (board): multiple offenses, prior discipline, and failure to acknowledge wrongdoing justify significant suspension. | Simon urged a fully stayed suspension, emphasizing lack of client harm, mitigation (character witnesses), and full disclosure to board. | Court imposed six-month suspension, fully stayed on condition of no further misconduct (stay to be lifted on new misconduct); reduced from board recommendation considering comparable precedent. |
Key Cases Cited
- Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) (defines clear-and-convincing evidence standard)
- Lorain Cty. Bar Assn. v. Godles, 128 Ohio St.3d 279 (2010) (public reprimand where attorney voluntarily dismissed case and client disputed receipt of notice)
- Disciplinary Counsel v. Turner, 140 Ohio St.3d 109 (2014) (fully stayed two-year suspension for trust-account misuse and failure to cooperate)
- Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327 (1999) (Supreme Court makes final factual determinations in disciplinary cases)
- Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14 (2003) (panel credibility findings ordinarily accorded deference)
- Medina Cty. Bar Assn. v. Malynn, 131 Ohio St.3d 377 (2012) (two-year suspension where misconduct included dishonesty and client-matter neglect)
- Toledo Bar Assn. v. Harvey, 141 Ohio St.3d 346 (2014) (two-year suspension where attorney failed to provide competent representation and committed multiple trust-account and cooperation violations)