CINCINNATI BAR ASSOCIATION v. FERNANDEZ
No. 2015-2001
Supreme Court of Ohio
Submitted March 9, 2016—Decided September 1, 2016
147 Ohio St.3d 329
{¶ 10} Judge Dewey argues in response that the court of appeals properly dismissed the complaint and that Steinle has not shown a legal right to the requested relief. We agree with the court of appeals that appellant‘s mandamus action is in essence an impermissible attеmpt to appeal Judge Dewey‘s denial of the motion for findings of fact and that appellant can prove no set of facts entitling him to relief. Moreover, because
{¶ 11} The court of appeals correctly granted Judge Dewey‘s motion to dismiss.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Albrechta & Coble, Ltd., Joseph F. Albrechta, John A. Coble, and George J. Schrader, for appellant.
Thomas L. Stierwalt, Sandusky Cоunty Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
{¶ 1} Respondent, Justin Enrique Fernandez of Cincinnati, Ohio, Attorney Registration No. 0062974, was admitted to the practice of law in Ohio in 1994. In a September 23, 2015 amended complaint, relator, Cincinnati Bar Association, charged Fernandez with professional misconduct arising from his alleged neglect of a client‘s legal matter and use of an out-of-state company to provide paralegal and paraprofessional services tо his practice.
{¶ 2} The parties entered into stipulations of fact, and a panel of the Board of Professional Conduct heard testimony from Fernandez and one additional witness. The panel found that Fernandez failed to reasonably consult with his cliеnt about how he planned to achieve the client‘s objectives and that he deprived the client of information necessary to make informed decisions about the representation. The panel recommended that Fernandez be publicly reprimanded for this misconduct, and the board adopted the panel‘s report in its entirety.
{¶ 3} Relator objects to the panel‘s dismissal of four additional alleged violations, most of which focused on Fernandez‘s relationship with an out-of-state company that provided paralegal and paraprofessional services to his firm. For the reasons that follow, we overrule relator‘s objections, adopt the findings and conclusions of the board, and publicly reprimand Fernandez for his misconduct in this matter.
Misconduct
{¶ 4} At аll times relevant to this proceeding, Fernandez had a business relationship with Morgan Drexen, Inc., a California company that described itself as providing integrated support systems to attorneys with a focus on back-office paralegal and paraprofessional services. Morgan Drexen also assisted Fernandez with what it classified as “non-formal debt resolution.”
{¶ 5} In February 2014, Fernandez undertook the representation of Madelyn Harvey in the settlement of her outstanding debts. At the beginning of the representatiоn, Harvey received a packet of materials from Morgan Drexen titled, “Non-Formal Debt Resolution Instructions,” that included a letter on Fernandez‘s letterhead over his signature. Although the letterhead bore Fernandez‘s former home address and telephone number in Cincinnati, it also included Morgan Drexen‘s telephone number and directed Harvey to reply to Morgan Drexen‘s address in Costa Mesa, California.
{¶ 7} After Harvey returned the paperwork, Morgan Drexen sеnt letters to her creditors on Fernandez‘s letterhead over his electronic signature. The letters advised Harvey‘s creditors that she was represented with respect to the attempted negotiation and resolution of her unsecured debts and suggested that she might petition for bankruptcy, though Fernandez was unaware whether any bankruptcy petition had been prepared on Harvey‘s behalf. The letters also instructed Harvey‘s creditors to direct all communications to “Justin Fernandez Attorney at Law; c/o MORGAN DREXEN: Intеgrated Legal Systems; 675 Anton Blvd.; Costa Mesa, CA 92626,” and provided the 800 number for Morgan Drexen‘s Costa Mesa, California office.
{¶ 8} During the first several months of the representation, Harvey communicated only with Morgan Drexen. Her first direct communication with Fernandez ocсurred when she sought to terminate his representation and obtain a refund of the fees she had paid. After Harvey sought help from a consumer-protection hotline, Fernandez contacted her and offered to refund 90 percent of the fees she had paid. On July 7, 2014, a legal assistant at Morgan Drexen sent Harvey a letter on the company‘s letterhead and enclosed a check for $1,342.80—90 percent of the $1,492 fee that Harvey had paid—from Howard Law, P.C., which shared an address with Morgan Drexen.1
{¶ 9} Fernandez never met with Harvey in person. He had visited Morgan Drexen‘s California office just three times, and none of those visits occurred while he represented Harvey. And while Fernandez had approved many of the form documents Morgan Drexen used, he had not seen thе actual letters sent to Harvey‘s creditors under his signature. A log from Morgan Drexen shows that its employees had contact with and received settlement offers from Harvey‘s creditors, but Fernandez testified that creditor settlement offers were not
{¶ 10} The panel found that Fernandez‘s conduct violated
{¶ 11} The panel also found that relator had failed to prove an alleged violation of
{¶ 12} The board adopted the findings of fact and conclusions of law of the panel. Relator objects to these findings and argues that thе record clearly and convincingly demonstrates that Fernandez violated
{¶ 13} We have previously held that the unanimous dismissal of a count by a hearing panel in a disciplinary proceeding precludes further review of the dismissal by the full board or this court. See Disciplinary Counsel v. Hale, 141 Ohio St.3d 518, 2014-Ohio-5053, 26 N.E.3d 785, ¶ 22; Cuyahoga Cty. Bar Assn. v. Marosan, 109 Ohio St.3d 439, 2006-Ohio-2816, 848 N.E.2d 837, ¶ 13; and Columbus Bar Assn. v. Dougherty, 105 Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094, ¶ 9.
{¶ 14} Under past versions of the rule, however, further review of a unanimous dismissal was precluded only when the panel also gave written notice of that action to the board, the respondent, all counsel of record, disciplinary counsel, the
{¶ 15} But with the most recent amendments to the Supreme Court Rules for the Government of the Bar of Ohio, effective January 1, 2015, a unanimous hearing panel may now order a count or a complaint dismissed on the record or in its report and is required to provide a dismissal entry to the relator, the respondent, and counsel of record only if the entire complaint is dismissed. See
Sanction
{¶ 16} When imposing sanctions for attorney misconduct, we consider several relevаnt factors, including the ethical duties that the lawyer violated, relevant aggravating and mitigating factors, and the sanctions imposed in similar cases. See
{¶ 17} As aggravating factors, the board found that Fernandez did not fully cooperate with relator‘s investigation аnd failed to show remorse for his misconduct.
{¶ 19} Having thoroughly reviewed the record, we adopt the findings аnd conclusions of the board and find that by failing to have any direct communication with his client during the four months that he represented her, Fernandez violated
{¶ 20} Accordingly, Justin Enrique Fernandez is hereby publicly reprimanded for the above-described misconduct. Costs are taxed to Fernandez.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Justin D. Flamm, Nicholas A. Zingarelli, and Edwin W. Patterson III, for relator.
James J. Brudny Jr., for respondent.
Notes
If, at the end of the evidence presented by the relator or of all evidence, a unanimous hearing panel finds that the evidence is insufficient to support a charge or count of misconduct, the panel may order on the record or in its report that the complaint or count be dismissed. If a unanimous hearing panel dismisses a complaint in its entirety, the director shall send a dismissal entry to the relator, respondent, and all counsel of record.