Opinion
D.D. No. 84-29
Decided March 27, 1985.
Attorneys at law — Misconduct — One-year suspension — Solicitation of clients.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
The Office of Disciplinary Counsel, relator herein, filed a complaint with the Board of Commissioners on Grievances and Discipline of the Bar (the "board") charging Leon S. Heard, respondent herein, with, inter alia, violations of DR 2-103 of the Code of Professional Responsibility. These charges focused upon alleged misconduct by respondent in the solicitation of clients. The facts that follow were developed at a hearing conducted before a three-member panel on June 26, 1984 in the offices of the Supreme Court, Columbus, Ohio, and from agreed stipulations of fact.
Respondent was admitted to the Bar in 1973, and at the time in question was engaged in individual practice in Cleveland Heights, Ohio. Prior to the filing of this complaint, respondent caused to be mailed to persons listed in The Daily Legal News who faced mortgage foreclosure a letter indicating the availability of his services. Subsequent to the mailing, respondent after being notified by the Disciplinary Counsel that this practice violated the Code of Professional Responsibility, agreed to discontinue the practice. Shortly thereafter, respondent's wife, who also had worked as a secretary in his office, and Robert Ferguson started an organization named "Foreclosure Fighter's, Inc." The evidence indicates that this organization was never incorporated. Foreclosure Fighter's attempted to create a financial counseling service and contacted persons listed in The Daily Legal News whose property was the subject of foreclosure. The complaint in the instant matter concerns referrals to respondent from this organization.
The following additional facts are reflected in the record:
1. Letters were sent to persons with property subject to foreclosure. The only essential change from respondent's original letter appears to be the letterhead and the person to whom contact should be made.
2. This correspondence was mailed to non-lawyers who had not sought respondent's advice concerning foreclosure.
3. The office initially used by Foreclosure Fighter's was that of the respondent and was used for several months until another office was obtained in the same building on the same floor.
4. Respondent co-signed the lease on the office used by Foreclosure Fighter's.
5. Respondent paid one half of the rent of the office used by Foreclosure Fighter's and a portion of its expenses.
6. Respondent's legal assistant, James Cameron, worked up to two hours per day for Foreclosure Fighter's. As part of his duties he answered the phone in respondent's office for Foreclosure Fighter's.
7. The telephone used for Foreclosure Fighter's was the telephone in the respondent's legal office.
8. The telephone numbers listed for Foreclosure Fighter's on the letterheads were either respondent's law office number or respondent's home number.
9. The office telephone bill was paid by respondent.
10. The "president" of Foreclosure Fighter's was Bobi McCauley, respondent's wife.
11. A minimum of ten referrals were made to the office of the respondent from Foreclosure Fighter's.
Based upon the foregoing, the board concluded that the conduct of the respondent involved the solicitation of employment through others as proscribed by DR 2-103, and recommended a one-year suspension. Respondent requests that the matter be dismissed, or, in the alternative, that the penalty be reduced.
Mr. Angelo J. Gagliardo, disciplinary counsel, and Mr. Mark H. Aultman, for relator.
Messrs. Carlisle, Birge, McNellie Rini and Mr. Steve I. Helfgott, for respondent.
There can be little doubt that the record supports a finding that respondent violated DR 2-103. The severity of respondent's violations is accentuated by the fact that respondent ignored a specific warning by the Disciplinary Counsel and attempted to accomplish by indirection that which he knew or should have known was violative of the Code of Professional Responsibility.
Respondent argues that his actions were in response to dire socio-economic circumstances of those in financial distress and that his actions should not be subject to sanction, citing N.A.A.C.P. v. Button (1963), 371 U.S. 415, and Brotherhood of RR. Trainmen v. Virginia (1964), 377 U.S. 1. These cases are inapplicable because in the present case the organization referring business to respondent was a sham corporation operating through and financed in large measure by the respondent to attract legal clients.
The citations that follow represent cases where attorneys who solicited clients through improper organizational arrangements or mailings were indefinitely suspended: Cleveland Bar Assn. v. Fleck (1961), 172 Ohio St. 467 [17 O.O.2d 458]; Dayton Bar Assn. v. Herzog (1962), 173 Ohio St. 313 [19 O.O.2d 205]; Columbus Bar Assn. v. Potts (1963), 175 Ohio St. 101 [23 O.O.2d 392]; and Columbus Bar Assn. v. Agee (1964), 175 Ohio St. 443 [26 O.O.2d 1].
In recent years there has been a trend toward leniency as to the imposition of penalties for improper client solicitation. However, this matter involves an aggravated situation in which respondent, after agreeing to discontinue a proscribed practice, resumed essentially the same practice. Thus, we must deny respondent's request for dismissal and adopt the board's findings as well as its recommendation that respondent be suspended for one year.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and WRIGHT, JJ., concur.
C. BROWN, J., dissents.
In my view the sanction of public reprimand is sufficient in this case when the nature of the professional misconduct and the respondent's socio-economic circumstances are thoroughly studied. Furthermore, a public reprimand would be within the spirit, if not the letter of the law, announced by the United States Supreme Court in N.A.A.C.P. v. Button (1963) 371 U.S. 415, and Brotherhood of RR. Trainmen v. Virginia (1964), 377 U.S. 1, where no sanction is imposed for certain categories of referrals of cases and legal matters by organizations to lawyers.