Disciplinary Counsel v. Smith (Slip Opinion)
197 N.E.3d 533
Ohio2022Background:
- Samuel R. Smith II, an Ohio attorney, had been suspended in 2017 for prior misconduct, was reinstated in 2018, and faced a new second-amended complaint in 2020 alleging 19 violations across four client matters.
- The parties stipulated to facts and seven admitted violations; the Board found eight additional violations after a hearing involving four client matters: Lattimore, McLeod, Huffman, and Payton.
- Lattimore: Smith signed and falsely notarized a plea-in-absentia form (contested consent), which led to multiple plea changes and additional sentence and fines; board found false statement/notarization misconduct.
- McLeod & Payton: Smith accepted advanced fees but failed to deposit them into trust, delayed or failed to prosecute matters (including missing statutes of limitations/refiling deadlines), failed to refund unearned fees, and did not timely comply with this Court’s suspension-notice requirements; both matters resulted in dismissed claims and financial harm.
- Huffman: Smith’s professional-liability insurance lapsed twice without required client notice and he failed to send certified-mail suspension notice to her correct address; her case was dismissed and she incurred court costs.
- The Board recommended a two-year suspension with the final six months stayed; the Supreme Court adopted the findings and imposed a two-year suspension, with six months stayed on conditions (CLE, restitution, monitoring, costs).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| False notarization / plea filing (Lattimore) | Smith falsely signed and notarized plea-in-absentia and filed it, violating obligations to the tribunal and honesty rules | Smith claims he had client authorization to sign and submit the form | Court adopted Board: misconduct proven; violations of Prof.Cond.R. 3.3(a), 8.4(c), 8.4(d); Prof.Cond.R.1.2 charge dismissed on consent factual dispute |
| Trust-account & refund violations (McLeod, Payton) | Smith failed to deposit advanced fees into client trust and failed to refund unearned fees | Smith contends restitution efforts and later payments mitigate misconduct | Court adopted Board: violations of Prof.Cond.R. 1.15(c) and 1.16(e); restitution was untimely and of limited mitigating effect |
| Diligence, competence, communication (McLeod, Payton) | Smith delayed filings, missed service/refiling deadlines, inadequately researched statutes of limitations and governmental-immunity defenses, and failed to inform clients | Smith asserts he had legitimate tolling/continuing-harm theory and communicated with clients | Court adopted Board: violations of Prof.Cond.R. 1.1, 1.3, 1.4(b); credibility favored clients and research was insufficient |
| Compliance with prior suspension order / client-protection (McLeod, Huffman) | Smith failed to give required certified-mail notices, timely file suspension-related affidavits, turn over files, and effect properly the transfer to successor counsel | Smith says he attempted notices, gave oral notice, and reasonably relied on another attorney (Smith III) to assume cases | Court adopted Board: violations of Prof.Cond.R. 1.16(d), 3.4(c), 1.4(c); attempted measures were inadequate and harmed clients |
| Appropriate sanction | Relator/Board: actual suspension (two years, six months stayed) given prior discipline, pattern of misconduct, multiple aggravators | Smith: seeks fully stayed two-year suspension; cites comparable stayed-suspension cases | Court: adopts Board sanction — two-year suspension, final six months stayed subject to conditions (CLE, restitution, monitoring) |
Key Cases Cited
- Disciplinary Counsel v. Smith, 152 Ohio St.3d 131, 2017-Ohio-8821, 93 N.E.3d 955 (Ohio 2017) (Smith’s prior suspension for negligence, trust-account and false statements)
- Disciplinary Counsel v. Smith, 153 Ohio St.3d 1221, 2018-Ohio-2468, 104 N.E.3d 783 (Ohio 2018) (order reinstating Smith after prior suspension)
- Akron Bar Assn. v. Glitzenstein, 154 Ohio St.3d 557, 2018-Ohio-3862, 116 N.E.3d 1252 (Ohio 2018) (example of fully stayed suspension in absence of prior discipline)
- Disciplinary Counsel v. Guinn, 150 Ohio St.3d 92, 2016-Ohio-3351, 79 N.E.3d 512 (Ohio 2016) (another stayed-suspension comparison involving no prior discipline)
- Cleveland Metro. Bar Assn. v. Mariotti, 158 Ohio St.3d 522, 2019-Ohio-5191, 145 N.E.3d 286 (Ohio 2019) (conditionally stayed suspension where cooperation and remorse mitigated prior discipline)
- Warren Cty. Bar Assn. v. Marshall, 113 Ohio St.3d 54, 2007-Ohio-980, 862 N.E.2d 519 (Ohio 2007) (two-year actual suspension for repeated misconduct after prior discipline)
- Trumbull Cty. Bar Assn. v. Large, 134 Ohio St.3d 172, 2012-Ohio-5482, 980 N.E.2d 1021 (Ohio 2012) (two-year suspension with six months stayed for client neglect, trust violations, dishonesty, failure to comply with prior-suspension terms)
- Disciplinary Counsel v. Sarver, 163 Ohio St.3d 371, 2020-Ohio-5478, 170 N.E.3d 799 (Ohio 2020) (untimely restitution provides little mitigating effect)