Cleveland Metropolitan Bar Ass'n v. FreemanCleveland Metropolitan Bar Ass'n v. Freeman
Per Curiam.
{¶ 1} Respondent, Bryan S. Freeman of Lakewood, Ohio, Attorney Registration No. 0070637, was admitted to the practice of law in Ohio in 1999.
{¶ 2} On August 17, 2009, relator, Cleveland Metropolitan Bar Association, filed an 18-count complaint against respondent, alleging numerous violations of the Code of Professional Responsibility and Rules of Professional Conduct, arising from his conduct in eight separate client matters. The Board of Commissioners on Grievances and Discipline was unable to obtain certified mail service at respondent‘s residence or office addresses. Therefore, the clerk of the Supreme Court of Ohio accepted service on respondent‘s behalf in accordance with
{¶ 3} On January 1, 2010, relator filed a motion for entry of default, and on January 15, 2010, respondent moved for leave to file an answer. In an April 26, 2010 entry, the board granted respondent an extension until May 24, 2010, to answer the complaint. But when respondent again failed to answer the complaint, relator renewed its motion for default judgment.
{¶ 4} A master commissioner appointed by the board granted relator‘s motion, making findings of fact and misconduct and recommending that respondent be indefinitely suspended from the practice of law. The board adopted the master commissioner‘s report in its entirety. Relator objects to this recommendation, arguing that respondent‘s conduct warrants permanent disbarment.
{¶ 5} In light of respondent‘s extensive misconduct, which includes misappropriation of client funds, multiple instances of neglect, failure to reasonably communicate with his clients, making false statements to clients and to relator‘s investigator, and a failure to cooperate in the ensuing disciplinary investigations,
Misconduct
{¶ 6} In a disciplinary proceeding, relator bears the burden of proving a lawyer‘s professional misconduct by clear and convincing evidence.
Grievants Sawyer, Marshall, Bruce, and Mayle
{¶ 7} The board found that although respondent settled the personal-injury claims of grievants Sawyer, Marshall, Bruce, and Mayle, he either failed to distribute or failed to promptly distribute the proceeds of those settlements to the grievants, their healthcare providers, or their subrogated insurers. And in one instance, he failed to submit all of the client‘s medical bills for reimbursement by the tortfeasor. In three of those cases, respondent failed to answer or return his client‘s telephone calls seeking information about their legal matters.
{¶ 8} During the disciplinary investigation, respondent also advised relator that he had been working with an assistant United States attorney to resolve a Medicare lien on the proceeds of the Mayle settlement. In his affidavit, however, that assistant United States attorney averred that there is no record that respondent ever contacted his office regarding Medicare‘s claim against that grievant.
{¶ 9} The board found that respondent had committed one violation of DR 6-101(A)(3) (prohibiting neglect of an entrusted legal matter), three violations of
Grievants Harris and Resnick
{¶ 10} After filing a complaint in Harris‘s personal-injury action, respondent failed to obtain service on some of the defendants and did not inform the grievant of his intention to dismiss her case before he did so. Throughout the representation, Harris was unable to reach respondent, and he failed to promptly deliver her case file upon request. The board found that respondent‘s conduct in the Harris matter violated DR 6-101(A)(3) and
{¶ 11} Resnick had retained respondent to pursue a personal-injury claim in June 2008. But when respondent failed to return several phone calls, Resnick retained another attorney in early 2009. Although Resnick made several requests for his file, respondent did not deliver it until approximately March 16, 2009. The board found that this conduct violated
Grievants Olivito and Coates
{¶ 12} Respondent represented another client in a personal-injury matter that was filed in the Cuyahoga County Court of Common Pleas and later transferred to the Carroll County Court of Common Pleas. During that representation, the client received a letter on respondent‘s letterhead from a woman who identified herself as respondent‘s assistant. The letter, dated October 15, 2008, informed the client that respondent had participated in a pretrial in her case and that the court had scheduled another pretrial for December 15, 2008. Neither docket reflects a pretrial set for the later date. However, the certified docket and the affidavit of Judge Olivito in Carroll County demonstrate that respondent failed to appear at the October 2008 pretrial and did not respond to discovery requests or an order compelling discovery. Consequently, the court granted a motion to dismiss the action without prejudice that was filed by the defendant in the personal-injury matter.
{¶ 13} The board found that respondent‘s conduct with respect to the client violated
{¶ 15} When respondent and his client failed to appear on the third trial date, the court issued a bench warrant for the client‘s arrest. The judge recalled the warrant and set a fourth trial date after the client advised her that respondent had not notified her of the trial date. When respondent failed to appear on the next trial date, the judge granted a continuance to allow the client to retain new counsel and issued a show-cause order to respondent. Respondent appeared at the show-cause hearing, albeit late, and agreed to reimburse the local government that filed the case for the costs associated with his failure to appear. Respondent failed to pay the ordered restitution and did not appear at the hearing on the prosecution‘s motion to compel.
{¶ 16} The board found that respondent‘s conduct violated
Failure to Cooperate in a Disciplinary Investigation
{¶ 17} Despite having received notice of the grievances against him, respondent failed to cooperate in relator‘s investigation and has never provided a written response to any of the grievances. The board found that respondent‘s conduct with respect to each of the eight grievances violated
Acceptance of Board‘s Findings of Fact and Misconduct
{¶ 18} We accept the board‘s findings of fact and misconduct with respect to each of these matters because the record clearly and convincingly supports them.
{¶ 19} Because we agree with the board‘s findings that alleged violations of
{¶ 20} When imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties that the lawyer violated and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in Section 10(B) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.“). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 21} In its default motion, relator argued that respondent‘s misconduct warrants permanent disbarment. The master commissioner and board, however, recommend that he be indefinitely suspended from the practice of law. Relator objects to this recommendation, arguing that pursuant to our precedent, respondent‘s conduct involving the misappropriation of client funds, multiple instances of neglect, and his complete failure to cooperate in the disciplinary investigation warrants permanent disbarment.
{¶ 22} Respondent has committed more than 50 ethical violations, including multiple instances of neglect and failure to reasonably communicate with his clients or comply with their reasonable requests for information. He has misappropriated settlement funds. He has made false statements to clients and to relator‘s investigator, failed to attend scheduled court appearances, and failed to cooperate in the resulting disciplinary investigations. Furthermore, he has delayed the board‘s consideration of relator‘s default motion, and consequently has delayed the imposition of his sanction, by requesting and obtaining leave to answer the complaint but failing to file an answer.
{¶ 23} As aggravating factors, the board found that respondent acted with a dishonest or selfish motive, engaged in a pattern of misconduct involving multiple offenses, failed to cooperate in the disciplinary process, failed to acknowledge the wrongful nature of his conduct, caused harm to vulnerable clients, and failed to make restitution. See BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (e), (g), (h), and (i). The only mitigating factor present is the absence of a prior disciplinary record. See BCGD Proc.Reg. 10(B)(2)(a).
{¶ 24} We have previously recognized that neglect of entrusted legal matters coupled with a failure to cooperate in the ensuing disciplinary investigation warrants an indefinite suspension. See, e.g., Disciplinary Counsel v. Hoff, 124 Ohio St.3d 269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10; Cleveland Bar Assn. v. Davis, 121 Ohio St.3d 337, 2009-Ohio-764, 904 N.E.2d 517, ¶ 17. Respondent‘s conduct, however, also includes misappropriation of client settlement funds and misrepresentation, and we have consistently recognized that the presumptive
{¶ 25} Based upon the foregoing, we conclude that the only appropriate sanction for respondent‘s misconduct is permanent disbarment.
{¶ 26} Accordingly, Bryan S. Freeman is permanently disbarred from the practice of law in Ohio. Costs are taxed to respondent.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Benesch, Friedlander, Coplan & Aronoff, L.L.P., Joseph N. Gross, and David W. Mellott, for relator.