Disciplinary Counsel v. Hanni

[This decision has been published in Ohio Official Reports at 

.]




                OFFICE OF DISCIPLINARY COUNSEL ET AL. v. HANNI.
             [Cite as Disciplinary Counsel v. Hanni, 

.]
Attorneys at law—Misconduct—Six-month suspension with entire sanction
        stayed—Engaging in conduct adversely reflecting on fitness to practice
        law.
      (No. 01-1133—Submitted October 2, 2001—Decided March 13, 2002.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 00-08.
                                  __________________
        Per Curiam.
        {¶ 1} On February 14, 2000, relator Disciplinary Counsel filed a complaint
charging that respondent, Don L. Hanni of Youngstown, Ohio, Attorney

 violated several provisions of the Code of Professional
Responsibility. Relators, Disciplinary Counsel and the Mahoning County Bar
Association, filed an amended complaint against Hanni on August 3, 2000.
Respondent answered, and the matter was submitted to a panel of the Board of
Commissioners on Grievances and Discipline of the Supreme Court (“board”).
        {¶ 2} After a hearing, the panel found that in August 1995, Patrick C.
Connolly sought advice from respondent about a potential extortion scheme
whereby an anonymous party indicated that Connolly would be indicted unless he
paid $60,000. The panel believed that at that first meeting with Connolly, which
lasted about twenty minutes, respondent telephoned the prosecutor’s office and
determined that no charges were pending against Connolly. At the conclusion of
the meeting, respondent asked Connolly for a retainer, and the next day, Connolly
returned, discussed the matter with respondent for about fifteen minutes, and gave
respondent the retainer. Respondent gave Connolly a receipt for $1,500.
                             SUPREME COURT OF OHIO




       {¶ 3} During these meetings, Connolly did not identify any persons who
might be involved in the attempted extortion. Respondent told Connolly that he
would investigate further and would contact Connolly.          Connolly was never
charged with a crime. Connolly called respondent after these two meetings but was
unable to reach him. Respondent, however, did not formally withdraw from
representation. Connolly did not ask for a refund of the retainer, and respondent
did not return any money to Connolly.
       {¶ 4} Three and a half years later, in May 1999, a Columbiana County
Grand Jury indicted Russell J. Saadey, Jr. for, among other things, attempted
extortion of Connolly in 1995. One of the attorneys present for the arrest and
arraignment of Saadey was respondent. At a meeting with Connolly that was
arranged by an FBI agent who perceived a conflict in respondent’s representation
of Saadey, respondent said that he had searched his files and could find no reference
to a previous meeting with Connolly. While he may have met with Connolly in
1995, respondent said, he could not recall how he might have represented him. As
the discussion with the FBI agent and Connolly progressed, respondent said that he
began to remember a few things and would search “one more place.” Shortly
thereafter, respondent sent the agent the notes of his 1995 meeting with Connolly.
       {¶ 5} Respondent then wrote to the agent that he saw no conflict in his
representation of Saadey and, moreover, Connolly had waived any attorney-client
privilege. However, on motion of the county prosecutor, the Court of Common
Pleas of Columbiana County disqualified respondent from representing Saadey.
During the hearing on the motion, respondent attacked the credibility of the state’s
claim that Connolly had engaged respondent.
       {¶ 6} Respondent humiliated and sought to ridicule his former client by
denying his prior representation and by attacking Connolly’s credibility, when in
fact respondent had accepted a substantial retainer from Connolly. Respondent’s
failure to keep adequate records and return the unearned retainer supports the




                                         2
                               January Term, 2002




panel’s conclusion that respondent violated DR 5-105(A) (a lawyer shall refuse
employment if the exercise of his independent professional judgment will be
adversely affected), 1-102(A)(5) (a lawyer shall not engage in conduct prejudicial
to the administration of justice), and 1-102(A)(6) (a lawyer shall not engage in
conduct adversely reflecting on the lawyer’s fitness to practice law). Noting
respondent’s long and distinguished legal career and his role as a community leader,
and considering the fact that he had no prior disciplinary record, the panel
recommended that respondent receive a public reprimand. The board adopted the
findings, conclusions, and recommendation of the panel.
       {¶ 7} We have reviewed the record and note that respondent’s initial
meeting with Connolly involved only Connolly’s concern about possible criminal
charges against him. Neither Connolly’s testimony, nor the material that Connolly
gave to respondent, nor respondent’s notes indicate that Connolly told respondent
that Saadey was involved in attempting to extort money from him. Also, the record
does not support the board’s finding that “[a]t that initial meeting respondent
informed Connolly that no charges were pending.” On the contrary, Connolly
testified that after making a phone call to the prosecutor’s office, respondent told
Connolly that he would find out whether there were charges pending and get back
to him. It was a coworker with political connections who told Connolly that no
charges would be filed against him.
       {¶ 8} However, because respondent kept no clear record of his
representation of Connolly and made no attempt to return Connolly’s unearned
retainer when he had a duty to do so if he no longer intended to represent Connolly,
we find that a more severe penalty is warranted.
       {¶ 9} Therefore, we hereby suspend respondent from the practice of law for
six months with the entire six-month suspension stayed. Costs are taxed to
respondent.
                                                            Judgment accordingly.




                                         3
                            SUPREME COURT OF OHIO




       DOUGLAS, ACTING C.J., SHAW, RESNICK, F.E. SWEENEY, PIETRYKOWSKI
and LUNDBERG STRATTON, JJ., concur.
       COOK, J., concurs in judgment.
       STEPHEN R. SHAW, J., of the Third Appellate District, sitting for MOYER,
C.J.
       MARK L. PIETRYKOWSKI, J., of the Sixth Appellate District, sitting for
PFEIFER, J.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek Beckman,
Assistant Disciplinary Counsel, for relator Office of Disciplinary Counsel.
       Larry D. Wilkes, for relator Mahoning County Bar Association.
       Vincent E. Gilmartin, for respondent.
                              __________________




                                         4