Disciplinary Counsel v. Watson

[This decision has been published in Ohio Official Reports at 

.]




                  OFFICE OF DISCIPLINARY COUNSEL v. WATSON.
            [Cite as Disciplinary Counsel v. Watson, 

.]
Attorneys at law—Misconduct—One-year suspension—Charging a clearly
        excessive fee—Engaging in conduct involving dishonesty, fraud, deceit, or
        misrepresentation—Engaging in conduct prejudicial to the administration
        of justice—Threatening to file criminal charges solely to obtain advantage
        in a civil matter—Prejudicing or damaging client during course of
        professional relationship—Withdrawing from employment before taking
        reasonable steps to avoid prejudice to client—Surreptitiously recording
        conversations with client’s son and his attorney.
   (No. 2001-1205—Submitted November 27, 2001—Decided May 22, 2002.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 98-70.
                                  __________________
        Per Curiam.
        {¶1} On May 16, 2000, relator, Office of Disciplinary Counsel, filed a
second amended complaint charging respondent, Michael Troy Watson of
Cleveland, Ohio, Attorney 

 in two counts with violating
several provisions of the Code of Professional Responsibility.                  Respondent
answered, and the matter was referred to a panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court.
        {¶2} Based on stipulations of the parties, testimony received during a day
and a half of hearings, and the briefs of the parties, the panel determined that relator
had not proved Count One of its complaint by clear and convincing evidence. With
respect to Count Two, the panel found that in May 1996, respondent was employed
by Ms. Price-Burns, a recently divorced woman, to reopen her divorce decree and
obtain for her a settlement larger than the one she had received. A written fee
agreement between Price-Burns and respondent provided that respondent was to
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receive a minimum fee of $1,500 plus reimbursement of certain expenses and a
contingent fee of one-third of any recovery. Price-Burns paid the $1,500 to
respondent on May 8, 1996.
        {¶3} Respondent filed a Civ.R. 60(B) motion on behalf of Price-Burns to
vacate the judgment entry of divorce in June 1996, and after the first hearing on the
motion, Price-Burns gave respondent a check for $3,000 to cover expenses that he
had incurred. When the check was returned for insufficient funds, respondent
followed the instructions of Price-Burns’s son to renegotiate the check. It was
returned again. Price-Burns discharged respondent, who thereupon informed her
of his intent to report the matter of issuing a bad check to the Shaker Heights Police
Department. Respondent then filed an attorney lien for fees on Price-Burns’s
residence, and filed a civil lawsuit against Price-Burns for attorney fees of
$19,243.77 and for damages exceeding $25,000. Price-Burns counterclaimed
alleging legal malpractice, and, eventually, the matter was settled when Price-Burns
agreed to pay respondent $5,000 and to drop all professional disciplinary
grievances against him. A judge overruled Price-Burns’s Civ.R. 60(B) motion on
October 15, 1997.
        {¶4} The panel also found that on October 10, 1997, after he was discharged
by Price-Burns, respondent filed a motion to withdraw from the case that he had
filed for her. However, between the filing and the granting of the motion to
withdraw, respondent failed to appear at a November 5, 1997 hearing on a motion
for contempt filed by respondent on behalf of Price-Burns. The motion was denied.
        {¶5} The panel found that respondent had entered into a contingent fee
agreement with Price-Burns and then attempted to obtain a fee based on an hourly
rate. The panel concluded that this conduct violated DR 2-106(A) (a lawyer shall
not enter into an agreement for, charge, or collect an illegal or clearly excessive
fee).   It further found that respondent did not disclose his contingent fee
arrangement to the court when he filed the civil suit against Price-Burns and




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concluded that this failure to disclose, which amounted to a misrepresentation to
the court, violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(5) (a lawyer shall not
engage in conduct prejudicial to the administration of justice).
        {¶6} The panel concluded that by threatening to file criminal charges if his
fee was not paid, respondent violated DR 7-105(A) (a lawyer shall not threaten
criminal charges solely to obtain advantage in a civil matter); and that by filing in
the county recorder’s office an attorney’s lien on Price-Burns’s property, although
he had not pursued the matter to judgment as required by case law, respondent
violated DR 1-102(A)(4), 1-102(A)(5), and 7-101(A)(3) (a lawyer shall not
prejudice or damage his client during course of professional relationship).
        {¶7} In addition, the panel found that during the course of his representation
of Price-Burns, respondent dictated her proposed affidavits into a tape recorder and
then asked whether she wished to return to his office to sign the affidavits when
typed or sign a blank paper on which the affidavit would be typed. Price-Burns
chose to sign the blank paper, and the panel concluded that although respondent
acted for the convenience of his client, he violated DR 1-102(A)(5).
        {¶8} The panel also concluded that respondent’s failure to appear at the
November 5, 1997 hearing before the court entered an order approving his
withdrawal as counsel constituted a violation of DR 2-110(A)(2) (a lawyer shall
not withdraw from employment before taking reasonable steps to avoid prejudice
to the client).
        {¶9} Finally, the panel found that during the course of his representation,
respondent surreptitiously recorded his conversations with Price-Burns’s son and
his attorney, and concluded that this conduct was ethically improper. The panel
recommended that respondent be suspended from the practice of law for six months
with the entire suspension stayed. The board found the surreptitious taping violated
DR 1-102(A)(4) and otherwise adopted the findings and conclusions, but not the




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recommendation, of the panel. The board recommended a one-year suspension
with six months of the suspension stayed.
        {¶10} We have examined the record and adopt the findings and conclusions
of the board. However, in view of the nature of respondent’s conduct and his failure
to accept responsibility for the conduct, we believe that a more severe sanction is
appropriate. Respondent is hereby suspended from the practice of law in Ohio for
one year. Costs are taxed to respondent.
                                                             Judgment accordingly.
        MOYER, C.J., DOUGLAS, F.E. SWEENEY, COOK and LUNDBERG STRATTON,
JJ., concur.
        RESNICK and PFEIFER, JJ., dissent and would adopt the recommendation of
the board of a one-year suspension with six months stayed.
                              __________________
        Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First
Assistant Disciplinary Counsel, for relator.
        Michael Troy Watson, pro se.
                              __________________




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