CINCINNATI BAR ASSOCIATION v. SELNICK.
No. 01-798
Supreme Court of Ohio
Submitted August 28, 2001—Decided December 19, 2001.
94 Ohio St.3d 1 | 2001-Ohio-6974
ALICE ROBIE RESNICK, J.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 00-32.
ALICE ROBIE RESNICK, J.
{¶ 1} On September 18, 2000, relator, Cincinnati Bar Association, filed an amended complaint charging respondent, Robert Bruce Selnick of Cincinnati, Ohio, Attorney Registration No. 0034372, with numerous violations of the Code of Professional Responsibility, based on twelve grievances. Relator and respondent
{¶ 2} The parties’ stipulations covered the following matters, including the following violations:
{¶ 3} The parties stipulated that respondent violated
{¶ 4} The parties stipulated that respondent violated
{¶ 5} The parties stipulated that respondent violated
{¶ 6} The parties stipulated that respondent violated
{¶ 7} The parties stipulated that respondent violated
{¶ 9} The parties stipulated that respondent violated
{¶ 10} The parties stipulated that respondent violated
{¶ 11} The parties stipulated that respondent violated
{¶ 12} The parties stipulated that respondent violated
{¶ 13} The parties also stipulated to the details of grievances filed against respondent by two additional former clients, Kevin Woodruff and Janet G. Lee. However, no violations were stipulated to relative to those grievances. Woodruff‘s grievance involved respondent‘s failure to appear at a hearing, and respondent‘s failure to serve Woodruff‘s wife with a motion related to child support and an earlier separation agreement. Lee‘s grievance involved her disagreement over the way respondent handled settlement proceeds due her from an auto accident personal injury suit in which respondent represented her. The parties stipulated that respondent‘s malpractice insurer paid over $100,000 to settle Lee‘s lawsuit against respondent, alleging that respondent had improperly retained the settlement proceeds.
{¶ 14} The parties’ stipulations in the Roy, Hamilton, Clark, Roberts, Grigsby, Harper, Judy Miller, Don Miller, Woodruff, and Lee matters all included individual stipulations that collectively indicated that the balance in respondent‘s client trust account fluctuated greatly during the course of respondent‘s representations of these clients, and that there rarely were sufficient funds in the
{¶ 15} As a part of the stipulation process, respondent agreed that he would inventory and return all files to his clients within sixty days. He also committed to providing an accounting on all client files within sixty days of the date of his disciplinary hearing.
{¶ 16} A hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on February 23, 2001. After the hearing, the panel adopted the stipulations entered into by the parties as its findings of fact and conclusions of law. However, the panel rejected the stipulated penalty of an indefinite suspension and recommended that respondent be permanently disbarred from the practice of law.
{¶ 17} In reaching its recommendation, the panel determined that “respondent handled client funds and his professional responsibilities under the principle that he did whatever he needed to do according to his own rules and perceptions. He got into more and more financial trouble while attempting to handle an ever-increasing volume of clients without adequate staff.” In addition, the panel remarked that respondent “does not really believe that he did anything wrong in his misuse of client funds. His basic sense of right and wrong appears to be missing.”
{¶ 18} The board adopted the findings, conclusions, and recommendations of the panel.
{¶ 19} In his objections to the board‘s report filed with this court, respondent presents three arguments:
“1. The sanction recommended, permanent disbarment from the practice of law, does not fairly serve the purposes underlying disciplinary proceedings;
“2. The sanction recommended is unduly and unreasonably harsh, is not supported by the record before the Board or the recent pronouncements of this Court and does not take into account all of the mitigating factors warranting indefinite suspension; and “3. The sanction recommended contravenes the spirit and intent of recently enacted
Gov.Bar R. V(11) [sic, see below] by imposing a harsher one than that agreed-upon by Relator and Mr. Selnick.”
{¶ 20} In his objections, respondent strongly disagrees with the panel‘s determinations regarding his demeanor observed at the hearing and the panel‘s conclusions about his failure to accept responsibility for his actions. Respondent argues that he has exhibited remorse for his actions and has taken responsibility for his failures, including expressing a desire to make restitution and to return his clients’ files. Furthermore, respondent points to mitigating factors, including that he has no prior disciplinary record and that he cooperated in the disciplinary process and stipulated to his wrongdoing. In addition, respondent asserts that he has suffered from severe back pain and was for a period of time overmedicated with OxyContin, that he was at one time on methadone to treat his addiction, and that he continues to battle the effects of that overmedication.
{¶ 21} In support of his third argument, respondent cites what he asserts is recently promulgated
{¶ 22} Although misidentifying the rule, respondent correctly cites the rule‘s text and is correct that Section 11 was effective May 1, 2001. In particular, for respondent‘s purposes,
{¶ 23} Relator‘s answer brief to respondent‘s objections sets forth the following proposition of law:
“Where the parties have stipulated findings of fact and conclusions of law, and jointly recommended a sanction of indefinite suspension, but respondent‘s circumstances have worsened appreciably and the board found a lack of mitigation in the face of aggravating factors, this court retains final authority to set an appropriate sanction.”
{¶ 24} Relator states that as of the date of its brief, respondent failed to return client files or provide an accounting regarding money he owed to his clients, despite his commitment to do so within sixty days of the panel hearing, and had failed to comply with his commitment to work to provide restitution to clients. As to respondent‘s chemical dependency, relator emphasizes that the board found that
{¶ 25} After this case was briefed by the parties, respondent filed a motion to supplement the record, which was ultimately allowed by this court. See 93 Ohio St.3d 1424, 755 N.E.2d 349. The supplement indicates that respondent has been undergoing treatment at Bethesda Oak Hospital, and “has been documenting all of his AA attendance.” Respondent states that “this additional information demonstrates Mr. Selnick‘s addiction to Oxycontin and his course of treatment.” This supplement also contains statements of accountings that respondent has provided to some of his former clients. The supplement also states that respondent has obtained the funds to begin providing restitution to eleven named former clients, some of whom are mentioned in the stipulations detailed above, and lists the amounts of restitution to be provided to each.
{¶ 26} In response to respondent‘s supplement of the record, relator moved this court for leave to file its own supplementation of the record. After this court granted the motion (see 93 Ohio St.3d 1424, 755 N.E.2d 349), relator supplemented the record with further information. Relator‘s supplement indicates that, on June 13, 2001, respondent was indicted in the Court of Common Pleas of Hamilton County on two counts of illegal processing of drug documents in violation of
{¶ 27} Relator‘s supplement to the record also indicates that on September 4, 2001, a probate court judge in Hamilton County adopted a magistrate‘s decision
{¶ 28} Relator‘s supplement to the record also indicates that on July 13, 2001, Angela Rosenbalm, a grievant in this proceeding, was granted a default judgment against respondent in her action against him in the Court of Common Pleas of Hamilton County and was awarded permanent possession of her divorce file and her minor son‘s personal injury files and costs.
{¶ 29} Relator‘s supplement to the record also indicates that an additional amended complaint, based on grievances filed against respondent by thirteen clients or former clients, is pending against respondent. These grievances were not before the panel when it conducted the hearing in the instant proceeding. The grievances of the thirteen clients or former clients in this additional complaint are distinct from the grievances detailed above in the instant proceeding. Many of these additional grievances involve respondent‘s neglect of client matters, making false representations to clients about work he failed to do, and failing to disperse to his clients settlement proceeds he received on their behalf. Many of the additional grievances also involve respondent‘s failure to return client files, failure to submit itemized statements, and failure to return unused portions of retainers to clients who
{¶ 30} After considering the relevant matters that were considered by the panel and board, we adopt the findings, conclusions, and recommendation of the board. Respondent engaged in a pervasive pattern of neglect of client matters, failure to respond to court orders, deceit, misuse of client funds through his client trust account, and failure to return client files or provide accountings despite numerous requests and opportunities to do so, causing substantial injury and great inconvenience to many clients.
{¶ 31} Although it is possible that respondent‘s substance abuse played a significant role in his problems, he declined to rely on that ground in the hearing before the panel and failed to develop a sufficient record in mitigation. Respondent claims that his failure to develop a record was based on a belief that by entering into stipulations, the parties obviated the need for a record to be developed. However, as to respondent‘s asserted reliance on the terms of
{¶ 32} Furthermore, on its face,
{¶ 33} Finally, any mitigation value in respondent‘s cooperation in stipulating to numerous violations is offset by his failure to return client files and provide accountings while this case has been pending. Although the supplemented record indicates that respondent has been attempting to sort out some of his problems with former clients, respondent has fallen far short of the commitment he made at the time of his hearing before the panel to return files and to conclude his bookkeeping problems and to make restitution to former clients. It is apparent that many of these problems remain unresolved, causing further substantial hardships to a large number of his many former clients who were the victims of his deficient representation.
{¶ 34} Respondent is hereby permanently disbarred from the practice of law in the state of Ohio. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
Naomi C. Dallob, Sue Livensparger and Gates T. Richards, for relator.
Dinsmore & Shohl, L.L.P., Mark A. Vander Laan and Bryan E. Pacheco, for respondent.