Toledo Bar Association v. Harvey
150 Ohio St. 3d 74
| Ohio | 2017Background
- Beauregard M. Harvey, admitted 2005, faced multiple prior discipline actions (2012 stayed 1-year suspension; 2014 two-year suspension with conditions) and had not complied with the 2014 suspension order.
- Relator (Toledo Bar Assn.) filed an amended five-count complaint alleging repeated client neglect, failure to communicate, failure to cooperate with disciplinary investigations, and refusal to refund unearned fees. Harvey initially defaulted, was interim-suspended, later answered and stipulated to many charges.
- Specific client matters: (1) Darrah Okeke — ignored discovery and dispositive motions, judgment and wage garnishment resulted; failed to cooperate with investigation. (2) Renee Foels — missed conferences and discovery, case dismissed, client not informed; failed to cooperate. (3) Pamela Stahl — accepted $2,000 (partly unearned) but did not file the motion nor refund fees. (4) Michael Smith and Christopher Pacer — advanced retainers taken in August 2014; Harvey failed to notify them of his September 2014 suspension and refused to refund unearned fees.
- Board found violations of multiple Ohio professional-conduct rules (competence, diligence, communication, trust-account handling, refund of unearned fees, cooperating with investigations, and conduct prejudicial to administration of justice). Harvey also failed to comply with prior court orders and was cited for contempt for noncompliance.
- Aggravating factors: significant disciplinary history, pattern of misconduct and multiple offenses, selfish motive (taking fees without performing services), failure to make restitution, lack of cooperation, and negative client impact. No mitigating factors were found.
- Supreme Court held disbarment is the only appropriate sanction and permanently disbarred Harvey; three justices dissented, preferring indefinite suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Harvey neglected and abandoned client matters and failed to communicate/perform | Harvey repeatedly neglected cases (Okeke, Foels, Stahl), failed to respond to discovery, appear, or inform clients; this harmed clients | Harvey stipulated to charges but offered limited or unpersuasive explanations at hearing (some testimony evasive) | Court found violations of Prof.Cond.R. 1.1, 1.3, 1.4 and 8.4(d) for neglect and abandonment |
| Whether Harvey failed to cooperate with disciplinary investigations | Relator: Harvey refused to cooperate in multiple investigations, violating rules and obstructing oversight | Harvey was initially unresponsive and later defended himself at hearing | Court found violations of Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) for failure to cooperate |
| Whether Harvey improperly handled advanced/unearned fees and violated suspension-notice requirements | Relator: Harvey kept retainers, did not deposit or refund unearned fees, and failed to notify clients of his suspension | Harvey refused refunds despite client demands; he did not comply with suspension-notice obligations | Court found violations of Prof.Cond.R. 1.15(c), 1.16(e), and Gov.Bar R. provisions; unearned-fee retention treated as tantamount to theft |
| Appropriate discipline given misconduct and prior record | Relator: Multiple offenses, pattern of misconduct, failure to comply with prior orders, lack of mitigation — disbarment required | Harvey sought lesser sanction (board recommended indefinite suspension); dissenters preferred indefinite suspension | Court held permanent disbarment is the only appropriate sanction; three justices would have indefinitely suspended instead |
Key Cases Cited
- Columbus Bar Assn. v. Boggs, 951 N.E.2d 65 (Ohio 2011) (indefinite suspension for neglect, failure to refund, trust-account misuse; cooperation with discipline contrasted favorably to Harvey)
- Disciplinary Counsel v. Bogdanski, 985 N.E.2d 1251 (Ohio 2013) (indefinite suspension for neglect, restitution refusal, failure to cooperate)
- Disciplinary Counsel v. Frazier, 853 N.E.2d 295 (Ohio 2006) (accepting fees and failing to perform equated with theft; supports disbarment)
- Disciplinary Counsel v. Henry, 939 N.E.2d 1255 (Ohio 2010) (presumptive sanction for accepting retainers and failing to perform is disbarment)
- Columbus Bar Assn. v. Moushey, 819 N.E.2d 1112 (Ohio 2004) (accepting fees then failing to perform can warrant disbarment)
- Mahoning Cty. Bar Assn. v. DiMartino, 65 N.E.3d 737 (Ohio 2016) (repeated discipline may justify further suspension; mitigation where restitution and treatment shown)
- Disciplinary Counsel v. Agopian, 858 N.E.2d 368 (Ohio 2006) (discipline system’s purpose: protect public and assess lawyer fitness)