Cleveland Bar Ass'n v. Glatki

[This opinion has been published in Ohio Official Reports at 

88 Ohio St.3d 381

.]




                     CLEVELAND BAR ASSOCIATION v. GLATKI.
              [Cite as Cleveland Bar Assn. v. Glatki, 

2000-Ohio-354

.]
Attorney at law—Misconduct—Permanent disbarment—Engaging in a pattern of
        neglect with respect to client matters that caused potentially serious harm
        to clients—Accepting retainer and not refunding the unearned portions
        upon request—Receiving records and not returning them upon request.
      (No. 99-2270—Submitted February 9, 2000—Decided April 5, 2000.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 99-27.
                                  __________________
        {¶ 1} In June 1997, Hyancinth Marson and her husband paid respondent,
Susan M. Glatki of Beachwood, Ohio, Attorney 

Registration No. 0052533,

 a
retainer of $250 to represent them in an adoption matter. The Marsons did not hear
from respondent for several months, despite repeated attempts by them to contact
her about the status of their case. Finally, in October 1997, respondent telephoned
the Marsons and assured them that she would proceed with the adoption.
Respondent, however, never filed for adoption. In December 1997, the Marsons
hired a new attorney, who requested that respondent deliver their file to her,
including records, i.e., medical reports and birth certificate, that the Marsons had
given respondent.      Respondent never returned the requested records, and the
Marsons had to obtain the copies of the records themselves a second time.
        {¶ 2} In August 1995, Lisa Nagle retained respondent to represent her in
recovering a loan she had made to her former employer. Nagle paid respondent
$650 in attorney fees. Respondent filed a complaint that was dismissed because
respondent failed to appear for a scheduled hearing. After the dismissal was
vacated, the defendants in the case filed a counterclaim against Nagle. Respondent
                             SUPREME COURT OF OHIO




never notified Nagle of the pretrial or trial dates and erroneously advised Nagle that
judgment would be entered in her favor. On the day before trial, respondent failed
to attend the final pretrial conference and instead filed a notice of dismissal without
Nagle’s permission. The court dismissed Nagle’s complaint and granted a default
judgment on the defendants’ counterclaim against Nagle in the amount of $2,000.
Respondent never informed Nagle that the default judgment had been entered
against her, that a judgment lien had been placed on her residence, or that her
complaint had been dismissed. Nagle subsequently negotiated her own settlement
of the dispute with her former employer.
        {¶ 3} In August 1997, Julie R. Hamilton paid respondent a $500 retainer to
file a motion for temporary emergency custody to remove her daughter from her
ex-husband’s custody. In September 1997, respondent prepared the motion and an
affidavit that Hamilton signed, and respondent advised Hamilton that she would
file the motion immediately. Respondent did not file the motion and did not
respond to Hamilton’s inquiries about the motion until July 1998. At that time,
respondent had Hamilton sign another affidavit and again assured her that the
motion would be filed immediately. But respondent did not file the motion and
stopped all communication with Hamilton.
        {¶ 4} In September 1997, Eugene Jones paid respondent a retainer of $500
to draft the necessary documents for his divorce. Respondent did not draft the
documents and did not respond to Jones’s attempts to contact her. In June 1998,
Jones terminated respondent’s representation of him and requested a refund of the
retainer.   Respondent never returned any portion of the retainer, and Jones
eventually representing himself in divorce proceedings brought by his wife, who
had retained her own attorney.
        {¶ 5} In May 1997, Ralph E. Spyres paid respondent a retainer of $500 and
later paid her an additional $1,000 to represent him in obtaining back child support
payments. Respondent failed to provide Spyres with copies of pleadings that she




                                           2
                                   January Term, 2000




claimed to have filed on his behalf, and in February 1998, Spyres notified
respondent that he was terminating her representation. Spyres requested a billing
statement for all work performed by respondent, a copy of his file, and all child
support payments that she had obtained on his behalf. Respondent never provided
Spyres a billing statement or a copy of his file. Spyres also believed that respondent
kept any child support funds she obtained for her own personal use.
       {¶ 6} Marson, Nagle, Hamilton, Jones, and Spyres filed grievances against
respondent with relator, Cleveland Bar Association. Respondent did not respond
to relator’s inquiries about the grievances or otherwise cooperate with relator’s
investigation of the grievances.
       {¶ 7} On July 6, 1999, relator filed an amended complaint charging
respondent with multiple violations of the Disciplinary Rules and a Rule for the
Government of the Bar. After respondent failed to answer, the matter was referred
to a master commissioner under Gov.Bar R. V(6)(F)(2) on relator’s motion for
default judgment.
       {¶ 8} The master commissioner found the facts as previously set forth and
further found that relator had not sufficiently documented its allegation that
respondent had retained child support funds recovered on behalf of Spyres. The
master commissioner concluded that respondent’s conduct with respect to all five
clients violated DR 6-101(A)(3) (neglecting an entrusted legal matter), 7-101(A)(1)
(failing to seek lawful objectives of client), and 7-101(A)(2) (failing to carry out
contract of employment).       The master commissioner further concluded that
respondent violated DR 9-102(B)(4) (failing to promptly pay or deliver to client
upon request the funds, securities, or other properties in the possession of the lawyer
that the client is entitled to receive) “with respect to each grievant by failing to
return the unearned portion of their respective retainers.”
       {¶ 9} The master commissioner found respondent’s conduct to be similar to
that of the respondent in Columbus Bar Assn. v. Emerson (1999), 

84 Ohio St.3d 3

                             SUPREME COURT OF OHIO




375, 

704 N.E.2d 238

, and recommended that she be indefinitely suspended from
the practice of law in Ohio. The Board of Commissioners on Grievances and
Discipline of the Supreme Court (“board”) adopted the findings, conclusions, and
recommendation of the master commissioner.
                                 __________________
        Jones, Day, Reavis & Pogue and Robert S. Faxon; Willacy & Lopresti and
Keith A. Ganther, for relator.
                                 __________________
        Per Curiam.
        {¶ 10} In disciplinary proceedings, the complaint must allege the specific
misconduct that violates the Disciplinary Rules, and the relator must prove such
misconduct by clear and convincing evidence. Ohio State Bar Assn. v. Reid (1999),

85 Ohio St.3d 327, 331

, 

708 N.E.2d 193, 197

; Gov.Bar R. V(6)(J). Applying this
standard here, we adopt the findings and conclusions of the board insofar as it
concluded that respondent’s conduct regarding her five clients violated DR 6-
101(A)(3), 7-101(A)(1), and 7-101(A)(2). We further find that although the board
did not so conclude, relator charged and proved by the requisite clear and
convincing evidence that respondent’s conduct in the Marson, Nagle, and Hamilton
matters violated DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation). Relator misrepresented the status of each of these
cases to her clients.
        {¶ 11} We also disagree with the board’s conclusion that respondent
violated DR 9-102(B)(4) with respect to each client by failing to return the unearned
portions of their respective retainers. Relator never charged any violation of this
Disciplinary Rule in the Nagle and Hamilton matters. See Disciplinary Counsel v.
Simecek (1998), 

83 Ohio St.3d 320, 322

, 

699 N.E.2d 933, 934-935

 (procedural due
process requires fair notice of the precise nature of attorney disciplinary charges).




                                          4
                                  January Term, 2000




And there was no evidence of a request for a refund of the retainer, which is
required for a violation of DR 9-102(B)(4), in either the Nagle or Hamilton matters.
        {¶ 12} Nevertheless, we concur in the board’s conclusion that respondent
violated DR 9-102(B)(4) by not refunding the retainer upon request in the Jones
matter because the violation was both properly charged and proven. We further
conclude that respondent violated DR 9-102(B)(4) in the Marson and Spyres
matters, but by failing to provide copies of their files upon request rather than the
unearned portions of their retainers as the board determined. Like the Nagle and
Hamilton matters, there was no evidence that Marson or Spyres requested refunds
of their retainers.
        {¶ 13} Based on the foregoing facts and conclusions, we next consider the
appropriate sanction. In determining the appropriate sanction, we consider not only
the duty violated but also the lawyer’s mental state, the injury caused, and the
existence of aggravating or mitigating circumstances. See Warren Cty. Bar Assn.
v. Bunce (1998), 

81 Ohio St.3d 112, 115

, 

689 N.E.2d 566, 568

.
        {¶ 14} Under the first three steps of this determination, the American Bar
Association’s Standards for Imposing Lawyer Sanctions support disbarment of
respondent, who engaged in a pattern of neglect with respect to client matters that
caused potentially serious injuries to her clients. See Disciplinary Counsel v.
Brown (1999), 

87 Ohio St.3d 316, 320-321

, 

720 N.E.2d 525, 529

, quoting
American Bar Association Center for Professional Responsibility, Standards for
Imposing Lawyer Sanctions (1991 & Amend.1992), Standard 4.41. Respondent
also violated duties to three of her clients by not returning upon request the property
or money to which they were entitled. Further, respondent violated duties to the
public, DR 1-102(A)(4), and the profession, Gov.Bar R. V(4)(G).
        {¶ 15} Under the final step of our determination, we note that there was
evidence of several aggravating circumstances, i.e., a pattern of misconduct,
multiple offenses, lack of cooperation in the disciplinary process, and, in the Jones




                                          5
                            SUPREME COURT OF OHIO




matter, a failure to make restitution. See Board of Commissioners on Grievances
and Discipline, Proposed Rules and Regulations Governing Procedure on
Complaints and Hearings, Section 10(A), Guidelines for Imposing Lawyer
Sanctions, Ohio Official Reports, Nov. 22, 1999 Advance Sheets. By contrast, no
evidence of any mitigating circumstances is evident from the record.
       {¶ 16} Therefore, we are persuaded that a more severe sanction than the
indefinite suspension recommended by the board is warranted. We note that unlike
Emerson, the case the board relied upon, some violations of DR 9-102(B)(4) were
charged and proven here. We hold that accepting retainers and not refunding the
unearned portions of them upon request, as in the Jones matter, and receiving
records and not returning them upon request, as in the Marson matter, are
tantamount to a misappropriation of client funds and property. As we have
consistently held, the normal sanction for misappropriation of client funds coupled
with neglect of client matters is disbarment. Cincinnati Bar Assn. v. Komarek
(1998), 

84 Ohio St.3d 90, 96

, 

702 N.E.2d 62

, 67. No mitigating circumstances exist
that would warrant a lesser sanction here.
       {¶ 17} Based on the foregoing, respondent is hereby permanently disbarred
from the practice of law in Ohio. Costs taxed to respondent.
                                                           Judgment accordingly.
       MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and COOK, JJ., concur.
       F.E. SWEENEY and LUNDBERG STRATTON, JJ., dissent and would suspend
respondent indefinitely.
                              __________________




                                         6