Greene County Bar Ass'n v. SaundersGreene County Bar Ass'n v. Saunders
Marlow & Neuherz, L.L.C., and Brandin D. Marlow, for appellee.
Per Curiam.
{¶ 1} Respondent, Craig William Saunders, whose last known address is in Dayton, Ohio, Attorney Registration No. 0071865, was admitted to the practice of law in Ohio in 2000. We suspended his license on November 3, 2009, for his failure to register as an attorney for the 2009-2011 biennium. In re Attorney Registration Suspension of Saunders, 123 Ohio St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256.
{¶ 2} On December 7, 2009, relator, Greene County Bar Association, filed a complaint charging respondent with professional misconduct arising from his
{¶ 3} During the pendency of this action, we have suspended Saunders‘s license to practice for an interim period pursuant to
{¶ 4} Because respondent has failed to file an answer to relator‘s complaint in this action, relator moved for a default judgment on April 12, 2010. A master commissioner appointed by the Board of Commissioners on Grievances and Discipline found that relator‘s evidence, consisting of affidavits from the grievants and copies of documents, was sworn or certified as required by
Misconduct
{¶ 5} In its complaint, relator alleges that Saunders has committed 27 violations of the Code of Professional Responsibility and the Rules of Professional Conduct in his representation of four clients, including the city of Xenia, where he served as an assistant prosecutor.
Count One
{¶ 6} In the first count, the master commissioner and board found that respondent converted more than $40,000 that his client, Sue K. Johnston, had entrusted to him in 2005 to pay taxes due on her mother‘s estate. Despite Saunders‘s assurances that the taxes had been paid, the Ohio Department of Taxation informed Johnston in 2008 that no tax return had been filed and that $45,806.75 in taxes, interest, and penalties remained unpaid. Johnston tried without success to discuss the matter with Saunders. She retained new counsel and paid the taxes herself.
{¶ 7} Finding that Saunders‘s conduct occurred before February 1, 2007, the effective date of the Ohio Rules of Professional Conduct, the master commissioner and board concluded that the Code of Professional Responsibility applied. Accordingly, they recommend that a number of alleged violations of the Rules of Professional Conduct be dismissed: they found that Saunders violated only DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 6-101(A)(3) (prohibiting neglect of an entrusted legal matter), 7-101(A)(1) (prohibiting a lawyer from intentionally failing to seek the lawful objectives of his client), and 9-102(E)(1) (requiring a lawyer to maintain funds of clients or other third parties in a separate interest-bearing account).
{¶ 8} We agree that relator has clearly and convincingly proven the alleged violations of DR 1-102(A)(4), 6-101(A)(3), 7-101(A)(1), and 9-102(E)(1). And in accordance with the board‘s recommendation, we hereby dismiss the alleged violations of
Count Two
{¶ 9} Saunders was hired to file a lawsuit on behalf of Mildred Barreno. Barreno stated that she attempted to contact respondent on several occasions, that he never returned her phone calls, and that he later sent her a check for $1,340 without explanation.1
{¶ 10} Based upon the foregoing, the master commissioner and board found that Saunders violated DR 1-102(A)(4), 6-101(A)(3), and 7-101(A)(1). We agree that respondent‘s failure to pursue the action to a conclusion that had the consent of his client is an intentional failure to seek the lawful objectives of his client and that his failure to return her phone calls or explain the disposition of her case and
Count Three
{¶ 11} In a third case, the Greene County Probate Court discovered that a fiduciary‘s account filed on March 10, 2005, showed that money had been deposited with Saunders for the payment of estate taxes. Four years later, the court directed respondent to finalize the account, but he did not do so.
{¶ 12} Relator alleged that respondent converted approximately $2,500 from this estate. Because the amount respondent was fined when he was convicted of two counts of theft nearly matched the sum of the money allegedly converted by Saunders in this estate and the money converted in count one, the master commissioner and the board concluded that Saunders‘s theft convictions related to the conduct alleged in this count and in count one of relator‘s complaint. Although it appears likely that respondent‘s convictions are related to this conduct, because the judgment of conviction does not identify the underlying facts and there is not a certified copy of the indictment against respondent in the record or an affidavit from a person with personal knowledge of the case, there is not sufficient evidence to infer that the convictions and the misconduct are related. The remaining sworn or certified exhibits presented to the master commissioner do not show that respondent converted funds from this estate. Therefore, we cannot adopt the board‘s finding that respondent violated DR 1-102(A)(4).
{¶ 13} Based on the finding that respondent failed to finalize the account as ordered by the probate judge, the master commissioner and board found, and we agree, that Saunders violated DR 6-101(A)(3).
Count Four
{¶ 14} With respect to the fourth and final count, the master commissioner found that in 2009 and while serving as an assistant prosecutor for the city of Xenia, Saunders failed to file a brief in opposition to a criminal defendant‘s appeal and lied to a government official about this failure. Based upon this conduct and Saunders‘s failure to respond to the ensuing disciplinary investigation, the master commissioner found that Saunders had violated
{¶ 15} The board adopted these findings of fact but dismissed the alleged violation of
{¶ 16} We adopt the board‘s findings of fact and misconduct with respect to this count with one exception. Because there is no evidence to show that it was Saunders‘s responsibility to file the appellate brief in this client matter or that he knew that the brief had not been filed, we cannot find that he engaged in dishonesty, fraud, deceit, or misrepresentation when he advised a government official that the brief had been filed. Therefore, we adopt the board‘s recommendation to dismiss the alleged violations of
Sanction
{¶ 17} In recommending a sanction, the board considered the aggravating and mitigating factors listed in BCGD Proc.Reg. 10. See Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. Aggravating factors found by the board include Saunders‘s prior disciplinary record, dishonest or selfish motive, pattern of misconduct involving multiple offenses, lack of cooperation in the disciplinary process, and vulnerability of and resulting harm to the victims of the misconduct. See BCGD Proc.Reg. 10(B)(1)(a) through (e), (h). Saunders has not made restitution to Johnston. See BCGD Proc.Reg. 10(B)(1)(i). The board found that no mitigating factors were present. See BCGD Proc.Reg. 10(B)(2).
{¶ 18} The master commissioner and board recommend that Saunders be permanently disbarred from the practice of law in Ohio. In support of this recommendation, they cite the seriousness and wide-ranging nature of Saunders‘s misconduct, which included the misappropriation of more than $40,000 of client funds, and the presence of significant aggravating factors, which included the indefinite suspension imposed by this court in November 2010 for his neglect of client matters, conversion of client funds, dishonesty, fraud, deceit, and misrepresentation, and his failure to respond to the ensuing disciplinary investigations.
{¶ 19} Disbarment is the presumptive sanction for the misappropriation of client funds. Trumbull Cty. Bar Assn. v. Kafantaris, 121 Ohio St.3d 387, 2009-Ohio-1389, 904 N.E.2d 875, ¶ 14, citing Cleveland Bar Assn. v. Dixon, 95 Ohio St.3d 490, 2002-Ohio-2490, 769 N.E.2d 816, ¶ 15. In light of respondent‘s pattern of misconduct, including the misappropriation of more than $40,000 in client funds, his complete disregard for the disciplinary process, and the indefinite suspension we imposed in November 2010 for unrelated misconduct, we agree that permanent disbarment is warranted.
{¶ 20} Accordingly, Craig William Saunders is permanently disbarred from the practice of law in the state of 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.
David Miles, for relator.