[This decision has been published in Ohio Official Reports at
96 Ohio St.3d 151.]
CINCINNATI BAR ASSOCIATION v. O’BRIEN.
[Cite as Cincinnati Bar Assn. v. O’Brien, 2002-Ohio-3621.]
Attorneys at law—Misconduct—Indefinite suspension—Engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation—Engaging in
conduct prejudicial to the administration of justice—Engaging in conduct
adversely reflecting on fitness to practice law—Handling a legal matter not
competent to handle—Handling a legal matter without adequate
preparation—Neglect of an entrusted legal matter—Not depositing funds
partially belonging to client and funds presently or potentially belonging to
attorney in separate trust accounts and withdrawing attorney’s portion
before due—Failing to cooperate in disciplinary investigation or hearing.
(No. 2002-0347—Submitted April 10, 2002—Decided July 31, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-88.
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Per Curiam.
{¶1} On October 9, 2000, relator, Cincinnati Bar Association, filed a
complaint charging that respondent, James F. O’Brien of Cincinnati, Ohio,
Attorney Registration No. 0030165, violated several provisions of the Code of
Professional Responsibility with respect to eight separate client matters and that he
violated Gov.Bar R. V(4)(G) by failing to cooperate with relator’s investigation.
Respondent did not answer, and on April 12, 2001, relator filed an amended
complaint restating the allegations of the original complaint and adding a count
with respect to a ninth client matter. Respondent answered the amended complaint,
and the matter was referred to a panel of the Board of Commissioners on
Grievances and Discipline of the Supreme Court (“board”).
SUPREME COURT OF OHIO
{¶2} Based on the answer, stipulations, testimony at a hearing, and other
evidence, the panel found that in 1995, respondent had represented Roger and Jenny
Tatman as intervening lien holders in a foreclosure brought against a third party by
Fifth Third Bank. Respondent, concluding that the Tatmans had no defense, failed
to respond to the bank’s summary judgment motion, and the court entered an order
dismissing the Tatmans’ claims. Respondent did not inform the Tatmans of the
dismissal, but told Roger Tatman that “everything was taken care of.”
{¶3} The panel further found that in February 1998, after respondent was
engaged by Dr. Parneet Sohi to defend him in a suit by a contractor regarding the
construction of a new home, the contractor filed a motion for summary judgment.
Respondent, concluding that Sohi had no available defense, failed to respond, and
in May 1998 the court granted the motion for summary judgment. After respondent
left the law firm that had employed him at the time, the firm sued Sohi for
respondent’s attorney fees. Respondent agreed to pay the law firm’s fees himself
and was substituted as plaintiff in the case against Sohi. The fee case was dismissed
because respondent failed to appear at three successive status conferences. At the
time of the hearing, respondent had not paid the firm as agreed.
{¶4} The panel also found that in 1998, respondent had represented Home
Tech Properties, a defendant in a suit. Respondent did not deliver requested
documents to the plaintiff in the case, and the plaintiff’s motion for sanctions for
failure to make discovery was granted in November 1998. Respondent paid the
sanctions levied against Home Tech.
{¶5} The panel found that respondent, while representing Management Plus
Realty Service, Inc. in an action in Hamilton County, again failed to respond to a
motion for summary judgment, and in January 1999, the court entered judgment
against Management Plus. Respondent later advised the principal shareholder of
his client that the case was “proceeding” when, in fact, it had been dismissed.
Respondent later admitted to his former law firm that he had failed to respond to
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January Term, 2002
the summary judgment motion and agreed to file a Civ.R. 60(B) motion to set aside
the judgment but failed to file that motion.
{¶6} In January 1999, while representing Dr. Donald Lee Hay, against
whom an arbitration award was being enforced, respondent failed to produce
requested documents. When the court penalized Hay $220 in costs for failure to
provide discovery, respondent paid the sum himself.
{¶7} Respondent again failed to respond to discovery requests after having
filed a complaint in 1998 for Brunk Excavating, Inc. against Losantiville Country
Club. Respondent did not file responses to motions to compel discovery or to three
motions for sanctions including dismissal. When the court dismissed Brunk’s
complaint and ordered Brunk to pay over $2,400 in attorney fees to the club,
respondent personally paid the amount. Respondent also failed to appear at a
hearing in June 1999 on the club’s motion for enforcement of the court’s orders.
As a result the court granted the motion and entered final judgment against Brunk
in the amount of $4,481.95. Respondent paid this amount personally.
{¶8} Representing Evergreen Farm Estates Home Owners Association, Inc.
in an action in Butler County, Ohio, respondent failed to respond to discovery
requests or an order to compel. In March 2000, the court ordered the association to
pay the attorney fees of the defendant in the amount of $1,264. This amount was
paid by respondent.
{¶9} In representing Jeffrey Welsh in a wrongful foreclosure action in
Butler County, respondent advised the court that the case had been settled or that
he expected it to be settled, although he had not informed Welsh of the settlement
discussions and had no authorization from him to settle. On the basis of
respondent’s representations, the court entered an order that the case was settled
and would be dismissed with prejudice unless the court was otherwise advised
within sixty days. The sixty-day period passed without settlement being entered or
respondent taking any other action in the case.
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SUPREME COURT OF OHIO
{¶10} Although relator advised respondent by certified letter and telephone
messages in April and May 2000 of a grievance filed against him with respect to
the eight matters in the original complaint, respondent did not respond. In June
2000, respondent did appear for a three-hour deposition in response to relator’s
subpoena duces tecum, but failed to deliver documents to relator as he promised at
the deposition. Relator then filed its amended complaint in April 2001.
{¶11} When the count added by the amended complaint was considered by
the panel, it found that in November 2000, respondent had agreed to serve as escrow
agent for a real estate transaction between his client, buyer Shaun W. Lee, and seller
James J. Robbins. It found that respondent was to receive $121,072.69 and
promptly make specific disbursements. It further found that respondent not only
failed to deposit some of the funds into his lawyer’s trust account, but also failed to
pay off the mortgage debt as agreed and, in addition, withdrew $29,218.29 from
the escrow funds without any authorization. Moreover, respondent falsely
represented that he had paid off the mortgage by mailing a certified check that had
been “lost” and using funds from his lawyers’ trust account to make a mortgage
payment, thereby concealing the fact that the mortgage had not been paid.
Ultimately, in January 2001, respondent paid off the mortgage from his own funds.
{¶12} The panel found that respondent’s conduct in these matters violated
DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation), 1-102(A)(5) (a lawyer shall not engage in conduct
prejudicial to the administration of justice), 1-102(A)(6) (a lawyer shall not engage
in conduct adversely reflecting on the lawyer’s fitness to practice law), 6-101(A)(1)
(a lawyer shall not handle a legal matter that he is not competent to handle), 6-
101(A)(2) (a lawyer shall not attempt to handle a legal matter without preparation
adequate in the circumstances), 6-101(A)(3) (a lawyer shall not neglect an entrusted
legal matter), and 9-102(A)(2) (funds partially belonging to clients and funds
presently or potentially belonging to a lawyer must be deposited in a separate trust
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January Term, 2002
account and the portion belonging to the lawyer may not be withdrawn until due).
The panel also found that respondent’s initial failure to cooperate with relator
violated Gov.Bar R. V(4)(G) (no attorney shall neglect or refuse to assist or testify
in a disciplinary investigation or hearing).
{¶13} The panel received mitigating evidence to the effect that respondent
is being treated by a psychiatrist for depression and has come to understand his
pattern of avoidance and its role in damaging his clients, that he is willing to work
with the Ohio Lawyers Assistance Program as he pursues his treatment, that he has
had no prior disciplinary actions, that none of his clients suffered a financial loss,
and that he showed great remorse and contrition for his conduct. The panel
recommended that respondent be suspended indefinitely from the practice of law
with the date of suspension effective February 1, 2002, when respondent agreed to
cease practicing law. As one of the conditions of filing for reinstatement,
respondent is to enter into and successfully complete a contract with Ohio Lawyers
Assistance Program.
{¶14} The board adopted the findings, conclusions, and recommendation
with conditions of the panel.
{¶15} On review of the record, we adopt the findings, conclusions, and
recommendation of the board. Respondent is hereby suspended indefinitely from
the practice of law in Ohio with the date of suspension effective February 1, 2002.
As one of the conditions of filing for reinstatement, respondent shall enter into and
successfully complete a contract with Ohio Lawyers Assistance Program. Costs
are taxed to respondent.
Judgment accordingly.
MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
DOUGLAS, J., concurs in judgment only.
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SUPREME COURT OF OHIO
John B. Pinney and John G. Slauson, for relator.
Gary J. Leppla, for respondent.
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