Cincinnati Bar Assn. v. Slattery

SUPREME COURT CASES

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State: Ohio

Court: Supreme Court

Docket No: 1995-0841

Case Date: 01/10/1996

Plaintiff: Cincinnati Bar Assn.

Defendant: Slattery

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Cincinnati Bar Association v. Slattery.

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[Cite as Cincinnati Bar Assn. v. Slattery (1996), _____ Ohio St.3d ______.]

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Attorneys at law -- Misconduct -- Two-year suspension with one year stayed and two-year probation -- Neglect of entrusted legal matters -- Failure to deposit funds into IOLTA -- Failure to comply with CLE requirements. (No. 95-841 -- Submitted September 27, 1995 -- Decided January 10, 1996.)

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ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

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Discipline of the Supreme Court, No. 94-43.

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In a complaint filed on June 20, 1994, and amended on March 2, 1995,

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relator, Cincinnati Bar Association, charged respondent, James J. Slattery, Jr. of

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Cincinnati, Ohio, Attorney Registration No. 0005088, with eight counts of

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professional misconduct involving, inter alia, violations of DR 1-102(A)(6)

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(conduct adversely reflecting on fitness to practice law), 6-101(A)(3) (neglect of

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entrusted legal matter), and 9-102(A)(2) (failure to deposit client funds in

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identifiable bank account), as well as Gov.Bar R. X (failure to comply with

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continuing legal education requirements). A panel of the Board of Commissioners

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on Grievances and Discipline of the Supreme Court ("board") heard the matter on

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March 22, 1995.

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With respect to Count I of the complaint, as amended, the parties stipulated

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that respondent failed to comply with continuing legal education requirements, in

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violation of Gov.Bar R. X, for the two reporting periods preceding issuance of the

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complaint.

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With respect to Count II, the parties stipulated that respondent neglected his

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representation of Shirley Clauss in violation of DR 6-101(A)(3). Clauss paid

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respondent $1,000 in October 1993 to obtain a divorce from her husband. Clauss

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supplied respondent with requested financial documentation, but respondent

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subsequently failed to respond to her efforts to learn the status of her case and

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otherwise failed to communicate effectively with his client. Respondent maintains

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that he earned the $1,000 fee by consulting several times with Clauss's husband's

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attorney and reviewing Clauss's financial information. Respondent claims that he

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did not file the divorce complaint because the couple was considering dissolution

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as an alternative. Nevertheless, Clauss requested a refund of her legal fees in

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December 1993, and respondent also did not reply to this request. Clauss has

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since retained other counsel and respondent gave her file to relator.

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With respect to Count III, respondent acknowledged that he had violated

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DR 9-102(A)(2) by failing to deposit Clauss's funds into an IOLTA account that

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complied with the requirements of R.C. 4705.09.

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With respect to Count IV, the parties stipulated that respondent neglected

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his representation of Sandra and Leroy Willman in violation of DR 6-101(A)(3).

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The Willmans retained respondent on a contingency fee basis to represent them in

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a personal injury claim against the Hamilton County Sheriff's Department, which

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is apparently still pending, and a consumer dispute over the purchase of a

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conversion van, which was arbitrated to a decision against the Willmans. The

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Willmans also had difficulty learning the status of their cases from respondent and

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filed a grievance with relator. Respondent agreed to turn over their file to new

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counsel; however, the Willmans subsequently reconsidered their reasons for his

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discharge.

Prior to issuance of the instant complaint, the Willmans retained

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respondent to represent them in yet a third civil dispute, which was resolved in

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their favor.

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With respect to Count V, the parties stipulated to respondent's alcoholism

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and that this condition had contributed to his neglect of clients, in violation of DR

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1-102(A)(6). Respondent admitted that he had been battling alcoholism at least 3

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since 1993, when he received some treatment, but had subsequently "slipp[ed]"

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into alcohol abuse again.

In July 1994, respondent was hospitalized and

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diagnosed with cirrhosis of the liver and other complications attributable to his

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alcohol consumption. At that time, his prognosis was poor -- doctors advised that

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if he abstained from alcohol, took medication and followed a recommended diet,

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he had a fifty percent chance of living for two more years. In October 1994,

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respondent entered a rehabilitation program and, since December 16, 1994, has

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been living in a long-term residential care facility, the Prospect House, for

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recovering alcoholics.

Respondent has abstained from alcohol since October

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1994, and his prognosis is much improved due, in part, to his participation in an

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experimental liver therapy study being conducted by the Cincinnati Veterans'

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Administration Center. Respondent ceased practicing law voluntarily toward the

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end of 1994 and has had no other employment, although he has been and

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continues to be available to the attorneys retained to succeed him. Respondent

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currently depends on general assistance and food stamps as a consequence of his

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complete commitment to recovery under the supervision of the Prospect House.

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No evidence was submitted to prove Count VI of the complaint, as

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amended. 4

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With respect to Count VII, the parties stipulated that respondent neglected

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his representation of William Hobbs in violation of DR 6-101(A)(3). Hobbs

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retained respondent to represent him in an action for injuries he sustained in the

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parking lot of a lounge, where he had either passed out or been assaulted and had

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also been run over by one of his co-workers. Respondent filed the suit against the

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lounge and the co-worker, but learned that the lounge was uninsured, that its

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corporate charter had been revoked and the lounge owners were judgment proof,

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and that the co-worker could not be located for service of process, making the

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likelihood of recovery remote.

After respondent advised Hobbs of these

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developments, Hobbs moved without leaving respondent his new address.

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Respondent subsequently appeared before the trial court on a number of occasions

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for status conferences in Hobbs's cause of action; however, respondent did not

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appear on the date set for trial, and Hobbs's case was dismissed with prejudice.

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Respondent conceded that he neglected Hobbs's cause by failing to appear and

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failing to dismiss the case voluntarily before the dismissal.

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With respect to Count VIII, the parties stipulated that respondent neglected

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his representation of Michael J. Younger in violation of DR 6-101(A)(3).

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Respondent agreed to represent Younger on a contingency-fee basis in a lender5

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liability claim against a bank for failure to execute a previously approved loan to

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purchase certain business property from the city of Cincinnati. Respondent also

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agreed to represent Younger on a contingency-fee basis in an action against the

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city of Cincinnati for the sale of the business property when Younger's other

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attorneys withdrew from the action. Respondent attempted to diligently represent

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Younger in both matters and to defend him in others and had some success.

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However, in February 1994, respondent failed to respond timely to discovery

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requests, and he subsequently failed to comply with a court-ordered deadline to

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produce the discovery.

Respondent escaped the imposition of sanctions by

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supplying some of the requested materials at the hearing on the motion for

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sanctions; however, the court later determined that he had not fully responded to

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the order compelling discovery, and it dismissed Younger's case with prejudice.

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From the stipulations and respondent's testimony at the hearing, the panel

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determined that he had violated each of the cited Disciplinary Rules, as well as Gov.Bar R. X.1

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In recommending a sanction for this misconduct, the panel

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considered respondent's committed efforts to recover from alcoholism. It also

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considered testimony and correspondence from respondent's friends and

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professional acquaintances, all of whom described his integrity and competence 6

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apart from his addiction to alcohol.

The panel recommended the sanction

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suggested by relator, with some modification.

The panel recommended that

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respondent receive a two-year suspension from the practice of law, with one year

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of this period suspended on the following conditions of probation:

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"a) Respondent is to provide proof of the establishment and maintenance of

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an attorney's trust (I.O.L.T.A.) account for the holding of client funds.

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"b) Respondent shall satisfactorily complete all necessary continuing legal

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education requirements and be currently registered;

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"c) Respondent shall abstain from the use of alcohol and shall be subject to

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random testing for alcohol consumption by a physician, or other medical

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personnel, as selected by, and reporting to, Relator, in order to verify compliance

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with this requirement;

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"d) Respondent shall regularly attend after care or other alcohol counseling

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sessions, as set forth in the Prospect House program; shall attend meetings of

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Alcoholics Anonymous, if so directed; and shall become involved with the Ohio

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Lawyers Assistance Program;

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"e) Respondent's practice of law shall be monitored by an attorney selected

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by the Cincinnati Bar Association, upon such terms and conditions as may be

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appropriate;

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"f) If Respondent should fail to comply with any of the conditions of

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probation, probation shall cease and the balance of the suspension shall become

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effective."

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The board adopted the panel's report, including its findings of fact,

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conclusions of law and recommendation.

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Peter J. Rosenwald and James J. Condit, for relator.

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James H. Coogan, for respondent.

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Per Curiam. Upon review of the record, we concur in the board's findings

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that respondent violated DR 1-102(A)(6), 6-101(A)(3) and 9-102(A)(2), as well as

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Gov.Bar R. X. We also agree, in the main, with the board's recommendation;

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however, we consider a two-year probation period more appropriate for the

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public's protection. Moreover, consistent with relator's suggested sanction, we

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are inclined to credit respondent for the purpose of his actual suspension period

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from December 16, 1994, the date on which he conscientiously entered the

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Prospect House and had already ceased practicing law on his own accord. 8

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Therefore, we order that respondent be suspended from the practice of law in Ohio

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for two years; however, one year of this sanction is suspended, respondent is

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placed on probation for two years under the conditions established by the board,

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and the period of his actual suspension is deemed to have commenced on

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December 16, 1994. Costs taxed to respondent.

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Judgment accordingly.

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MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ.,

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concur.

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COOK, J., concurs in part and dissents in part.

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The panel found, as a matter of fact, that respondent failed to attend and report the credit hours required by Gov. Bar R. X, but it did not specify the violation of Gov.Bar R. X in its conclusions of law. COOK, J., concurring in part and dissenting in part. I concur with the

sanction imposed by the majority, with the exception that I would impose two

years of actual time suspended from the practice of law.

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