Opinion
No. 89-1097
Submitted August 15, 1989 —
Decided September 27, 1989.
Attorneys at law — Misconduct — Indefinite suspension — Failure to inform client of dismissal of case — Failure to return funds deposited with and returned by clerk of court.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 88-59.
In July 1988, Hae K. Han filed a grievance with relator, Disciplinary Counsel, against respondent, M. Eugene Farley, a.k.a. Eugene M. Farley. According to the complaint, Han retained Farley to represent him in a civil action in Cleveland Municipal Court, case No. 84-CVH-32180. Han gave respondent three checks, each in the amount of $1,029.95, that were to be deposited with the clerk of courts. Two of the checks were placed in an escrow account with that court. The third check was kept by Farley.
The Cleveland Municipal Court dismissed Han's case for failure of the plaintiff to perfect service of the summons and complaint upon the defendant. According to a journal entry, plaintiff received notice of the proposed dismissal but failed to respond. Thereafter, the clerk of courts released the monies that it had held in escrow to respondent. Farley neither advised Han that case No. 84-CVH-32180 had been dismissed nor returned the client's funds.
After learning of the dismissal, Han demanded a refund. Respondent returned the check that had never been deposited with the clerk of courts. He did not, however, remit the balance to Han. Han then commenced an action against Farley in the Court of Common Pleas of Cuyahoga County. Following Farley's failure to answer or otherwise plead, the trial court granted a judgment in favor of Han.
Based on Han's grievance, relator sent respondent a letter of inquiry in July 1988. Although Farley requested and received an extension of time in which to respond, he did not file a reply. A second letter of inquiry was then sent in October 1988. Again, Farley did not respond.
In December 1988, relator filed a complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board"). The complaint alleged violation of DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); 1-102(A)(6) (engaging in conduct that adversely reflects on fitness to practice law); 6-101(A)(3) (neglecting a legal matter entrusted); 7-101(A)(2) (failure to carry out a contract of employment); 7-101 (A)(3) (damaging a client during the course of the professional relationship); 9-102(B)(1) (failure to promptly notify a client of the receipt of his funds); and 9-102(B)(4) (failure to promptly deliver to a client, as requested, the client's funds). The complaint also alleged that by failing to cooperate in the investigation, respondent had violated Gov. Bar R. V(5)(a), paragraph 10.
Notice of the complaint was sent to Farley in December 1988. Respondent did not answer. In January 1989, the board perfected personal service of the complaint on respondent. Thereafter, Farley advised relator in a telephone conversation that he was seriously ill. Respondent was granted an extension of time in which to respond to the complaint. No answer was filed. Based on Farley's failure to answer, relator moved for a default order pursuant to Gov. Bar R. V(13).
A panel of the board found that because respondent failed to communicate or to cooperate with relator in the investigation, the charges of ethical misconduct were valid, and that Farley had violated the above-designated Disciplinary Rules. The panel also noted that due to respondent's lack of cooperation, it was without information needed regarding any mitigating factors. The panel unanimously recommended that respondent be indefinitely suspended from the practice of law.
In June 1989, the board considered the matter and adopted the panel's findings of fact, conclusions of law and recommendation. The board further recommended that costs be taxed to respondent.
J. Warren Bettis, disciplinary counsel, and Charles T. Brown, for relator.
On June 26, 1989, we issued an order requiring respondent to show cause why the recommendation of the board should not be confirmed and the disciplinary order so entered. We also ordered that any objections to the findings of fact and recommendation of the board, together with a brief in support thereof, shall be due on or before July 17, 1989.
In a letter dated July 11, 1989, respondent notified us of his intent to file objections by July 29, 1989. On July 18, 1989, we advised respondent that he was out of rule, and that he should submit his objections as soon as possible and accompany them with a motion for leave to file instanter. All that was received by the court was a second letter from respondent dated August 22, 1989.
We concur in the findings of misconduct and in the recommendation of the board. Respondent is hereby ordered indefinitely suspended from the practice of law in Ohio. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.