Mahoning County Bar Association v. DiMartino
145 Ohio St. 3d 391
| Ohio | 2016Background
- Dennis A. DiMartino, admitted 1987, had three prior disciplinary sanctions for neglect, failure to communicate, failure to account, and dishonesty.
- Two client matters led to the present charges: (1) Ember Herrington — settled underinsured-motorist claim for $15,000; DiMartino took $5,000 fee, gave Herrington $5,400, and cannot account for $4,600; failed to produce signed settlement statement; negotiated but did not pay an insurer’s subrogation claim, leaving the client liable. (2) Paul and Kathy Melia — medical-malpractice representation: no written fee agreement, missed hearings, failed to oppose summary judgment, failed to notify clients of dismissal, and cancelled/failed to attend mediation without informing clients.
- In both matters DiMartino failed to respond to the Mahoning County Bar Association’s investigation and relator’s repeated inquiries; his client trust account was overdrawn.
- The Board found violations of Prof.Cond.R. 1.3, 1.4(a)(1),(3),(4), 1.5(b), 1.5(c), 1.15(a), 8.4(c), and Gov.Bar R. V(4)(G) (now V(9)(G)).
- The Board recommended indefinite suspension, $4,600 restitution to Herrington and Rita Chegar, and conditions for reinstatement (mental-health evaluation, treatment plan, and CLE in law-office management/trust accounting).
- The Supreme Court accepted the Board’s findings and recommendations and imposed the recommended sanction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DiMartino neglected client matters and failed to communicate | Relator: DiMartino repeatedly neglected matters (missing hearings, failing to oppose summary judgment), failed to keep clients informed, and lacked written fee/closing statements | DiMartino: (implicit) attributed some conduct to depression; did not contest core factual findings at panel | Court held: Violations of Prof.Cond.R. 1.3, 1.4, and 1.5 proven |
| Whether DiMartino misappropriated or failed to account for client funds and mishandled trust account | Relator: DiMartino cannot account for $4,600 of settlement funds, failed to pay insurer’s subrogation, and overdrawn trust account shows mismanagement | DiMartino: asserted he thought he sent payment; no records or proof of payment; offered no adequate accounting | Court held: Violations of Prof.Cond.R. 1.15(a) and 1.5(c); restitution ordered $4,600 to Herrington/Chegar |
| Whether DiMartino engaged in dishonest conduct | Relator: failure to provide accurate accounting and false/misleading statements constitute dishonesty | DiMartino: did not contest dishonesty findings; mitigation evidence not timely provided | Court held: Violation of 8.4(c) established |
| Whether failure to cooperate with disciplinary investigation warrants sanction severity | Relator: failure to respond to Bar’s inquiries aggravated misconduct; prior discipline increases sanction need | DiMartino: delayed/failed to submit mitigation (psych eval, references) | Court held: Failure to cooperate and prior discipline are aggravating; indefinite suspension appropriate with conditions for reinstatement |
Key Cases Cited
- Trumbull Cty. Bar Assn. v. Braun, 133 Ohio St.3d 541, 2012-Ohio-5136, 979 N.E.2d 326 (attorney neglect plus retention of fee without work justified indefinite suspension)
- Disciplinary Counsel v. Scacchetti, 131 Ohio St.3d 165, 2012-Ohio-223, 962 N.E.2d 786 (commingling/overdraft of trust account, neglect, and noncooperation warranted indefinite suspension)
- Disciplinary Counsel v. Mathewson, 113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891 (rule that neglect plus failure to cooperate supports indefinite suspension)
- Mahoning Cty. Bar Assn. v. DiMartino, 124 Ohio St.3d 360, 2010-Ohio-247, 922 N.E.2d 220 (prior disciplinary decision reinstating suspension for dishonest conduct)
- Mahoning Cty. Bar Assn. v. DiMartino, 114 Ohio St.3d 174, 2007-Ohio-3605, 870 N.E.2d 1166 (prior stayed one-year suspension for neglect)