MAHONING COUNTY BAR ASSOCIATION v. SAKMAR
No. 2010-1201
Supreme Court of Ohio
Submitted September 15, 2010—Decided December 1, 2010.
127 Ohio St.3d 244, 2010-Ohio-5720
Per Curiam.
{¶ 1} Respondent, Michael A. Sakmar of Boardman, Ohio, Attorney Registration No. 0062443, was admitted to the practice of law in Ohio in 1993.
{¶ 2} On October 12, 2009, relator, Mahoning County Bar Association, filed a complaint charging respondent with four counts of professional misconduct. Although respondent was served with the complaint on October 17, 2009, he did not file an answer or otherwise appear in the action. Therefore, on April 20, 2010, relator moved for default pursuant to
Misconduct
{¶ 3} In support of its motion for default, relator submitted three affidavits: two from Youngstown Municipal Court judges and one from the grievance committee member assigned to investigate a grievance filed by one of those judges. Based upon those affidavits, the master commissioner and board found that from February 2006 to December 2008, respondent had either been tardy or failed to appear for numerous hearings before the two municipal court judges and that he had once left a hearing early against the judge‘s specific instruction to remain.
{¶ 4} As a result of this conduct, respondent was cited for contempt multiple times and was found guilty of contempt and fined on two separate occasions in the Youngstown Municipal Court. And when respondent failed to appear for a scheduled hearing in August 2007, the judge issued a capias for his arrest but withdrew it when respondent paid the $60 capias fee.
{¶ 5} The master commissioner and board did not expressly make factual findings regarding respondent‘s failure to cooperate in the resulting disciplinary
{¶ 6} The master commissioner and board found that there was clear and convincing evidence that respondent had violated
Sanction
{¶ 7} 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.
{¶ 8} Respondent has either been tardy or failed to appear on behalf of his clients at multiple court hearings. He has left a proceeding against the presiding judge‘s express instruction to remain in the courtroom. Although judges have given him ample opportunity to correct this behavior, respondent has failed to do so. This conduct demonstrates a lack of diligence and a profound disrespect not only for the tribunal, but also for the other attorneys and parties appearing before the tribunal. It also impedes the efficient administration of justice.
{¶ 9} Mitigating factors in this case include the absence of a prior disciplinary record and the absence of a dishonest or selfish motive. BCGD Proc.Reg. 10(B)(2)(a) and (b). In aggravation, however, the master commissioner and board found that respondent had engaged in a pattern of misconduct involving multiple offenses and had failed to cooperate in the disciplinary process. See BCGD Proc.Reg. 10(B)(1)(c), (d), and (e).
{¶ 11} We have previously recognized that neglect of an entrusted legal matter coupled with a failure to cooperate in the ensuing disciplinary investigation warrants an indefinite suspension. E.g., Cleveland Metro. Bar Assn. v. Gottehrer, 124 Ohio St.3d 519, 2010-Ohio-929, 924 N.E.2d 825, ¶ 16; Disciplinary Counsel v. Hoff, 124 Ohio St.3d 269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10. In Gottehrer, we imposed an indefinite suspension for conduct that violated
{¶ 12} At the other end of the spectrum is a case in which we imposed a six-month suspension upon an attorney for deliberately disobeying a court order and then lying to the court about it. Disciplinary Counsel v. Rohrer, 124 Ohio St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180, at ¶ 26, 54. In mitigation, the attorney had no prior disciplinary record, displayed a cooperative attitude in the disciplinary proceedings, had already had sanctions imposed on him by the juvenile court, and had presented evidence attesting to his good character and reputation. Id. at ¶ 32. Aggravating factors included the attorney‘s commission of multiple offenses and a selfish or dishonest motive. Id. at ¶ 34, 36.
{¶ 13} Another case resulted in a sanction between the two in severity. Disciplinary Counsel v. Nicks, 124 Ohio St.3d 460, 2010-Ohio-600, 923 N.E.2d 598. In Nicks, we imposed a two-year suspension, with 18 months stayed on conditions for violations of
{¶ 14} This case is different from two of the three cases cited above. The record does not demonstrate that any of respondent‘s clients suffered economic harm or prejudice as a result of his tardiness or failure to appear at scheduled hearings as the clients did in Gottehrer. But respondent engaged in a pattern of misconduct by arriving late or failing to attend numerous hearings for various clients over a period of several years, while the misconduct in Rohrer was a single occurrence, and the attorney cooperated in the disciplinary proceeding and presented evidence in mitigation.
{¶ 15} The case involving misconduct most comparable to respondent‘s tardiness and failure to attend scheduled hearings is Nicks, which involved multiple violations of a local court rule. Nicks‘s conduct, however, was arguably more egregious than respondent‘s because he engaged in conduct involving fraud, deceit, dishonesty, or misrepresentation and retained client funds intended to pay estate taxes. But the severity of his misconduct was also tempered by his cooperation in the disciplinary proceedings, acknowledgement of the wrongfulness of his misconduct, and his diagnosed chemical dependence.
{¶ 16} Having reviewed the record, weighed the aggravating and mitigating factors, and considered the sanctions imposed for comparable conduct, we adopt the board‘s recommended sanction of a two-year suspension from the practice of law, with the second year stayed on condition of no further violations, two years of monitored probation upon respondent‘s return to the practice of law, and eight hours of continuing legal education in law-office management in addition to the continuing-legal-education requirements of
{¶ 17} Accordingly, Michael A. Sakmar is suspended from the practice of law in Ohio for two years, with the second year of the suspension stayed on condition of no further violations. If respondent fails to comply with the condition of the stay, the stay will be lifted, and he will serve the entire two-year suspension. Upon his
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
Ronald E. Slipski and David C. Comstock Jr., for relator.