Opinion
No. 90-796
Submitted October 2, 1990 —
Decided January 9, 1991.
Attorneys at law — Misconduct — Public reprimand — Failing to withdraw from employment upon being discharged by client — Conflict of interest arising out of representing both the driver of and a passenger in a car involved in an accident.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-07.
On October 23, 1989, relator, Toledo Bar Association, filed an amended complaint alleging three counts of misconduct against respondent, Gary E. Gabriel. Counts I and II arose out of respondent's failure to cease representation of his client, Peggy Heath, after she discharged him by letter. Relator charged that respondent thereby violated DR 2-110(B)(4) (failing to withdraw from employment upon being discharged by client), 7-101(A)(3) (intentionally prejudicing or damaging a client during the course of the professional relationship), 5-103 (acquiring a proprietary interest in the course of action conducted for the client), and 1-102(A)(6) (engaging in conduct which adversely reflects upon one's fitness to practice law).
Count III concerned a conflict of interest arising out of respondent's representation of both the driver of and a passenger in a car involved in an accident. Relator charged that respondent thereby violated DR 5-101 (accepting employment without the consent of the clients after full disclosure when the exercise of his professional judgment on behalf of the clients might reasonably be affected by his own financial, business, property, or personal interests), 5-105(A) (failing to decline proffered employment when the exercise of his independent professional judgment on behalf of his clients was likely to be adversely affected by its acceptance), 5-105(B) (continuing multiple employment when the exercise of his independent professional judgment was likely to be adversely affected by his representation of another client), 5-105(C) (representing multiple clients where the interest of each could not be adequately represented, and where each failed to consent to the representation after full disclosure of the possible effect of such representation on the exercise of respondent's professional judgment on behalf of each), and 1-102(A)(6).
Prior to the hearing before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court, relator and respondent jointly stipulated that all the facts set forth in the complaint were admitted. Further, respondent admitted to violating DR 2-110(B)(4) as charged in Count I, and DR 5-105(A), (B), and (C) as charged in Count III, but asserted that his conduct did not adversely reflect on his fitness to practice law. At the hearing, respondent was the only witness called, and his testimony was offered in mitigation only.
With respect to Counts I and II, the stipulated facts indicate that respondent was hired by Heath to represent her in a personal injury action. While Heath was still hospitalized for her injuries, she signed a contingent fee contract with respondent. By a letter mailed on or about January 16, 1988, Heath discharged respondent as her attorney. Thereafter, respondent continued to act as her attorney by various admitted acts occurring between January 20, 1988 and February 18, 1988, including, on February 16, filing a complaint on behalf of Heath in the Court of Common Pleas of Wood County, and instructing insurance companies to deal only with him. On or about February 16, 1988, Heath's new counsel sent a letter to respondent advising him that Heath no longer wished to retain him as counsel; however, respondent continued to hold himself out as her attorney. On February 18, 1988, respondent again instructed an insurance company to deal only with him. On February 19, 1988, Heath's new counsel filed a motion for substitution of counsel in the Court of Common Pleas of Wood County. On April 18, 1988, the court ordered that Heath's new counsel, and not respondent, had authority to represent her in connection with the claim. Thereafter, respondent filed a complaint for declaratory judgment and injunction seeking to enforce his entitlement to the full contingency fee of the contract he had with Heath.
In mitigation testimony, respondent asserted that his professionalism required him not to withdraw from his representation of Heath and leave her rights unprotected.
The panel accepted respondent's admission of having violated DR 2-110(B)(4) and made no findings with regard to the alleged violations of DR 7-101(A)(3), 5-103 and 1-102(A)(6), stating that respondent's admission to having violated DR 2-110(B)(4) made any such findings unnecessary.
With respect to Count III, the complaint reflects that at the same time respondent accepted employment by Risa McClellan, the driver in an automobile accident, he also accepted employment by Erma Wright, the passenger in McClellan's car, and Wright's husband. All three employed respondent to make a claim or file suit against all parties who could be liable for the injuries or damages sustained by each client. Respondent's representation of all parties was likely to adversely affect the exercise of his independent professional judgment on behalf of each of them, and he failed to disclose this to them and obtain their consent to joint representation after full disclosure.
Ultimately, McClellan was convicted in the Toledo Municipal Court of failure to yield. Respondent subsequently withdrew from his representation of McClellan and, on behalf of the Wrights, filed an action against her. McClellan then filed a motion to disqualify respondent as counsel for the Wrights. Thereafter, respondent was granted permission by the court to withdraw as the Wrights' counsel.
The panel accepted respondent's admission of having violated DR 5-105(A), (B) and (C), and made no findings with regard to the alleged violations of DR 5-101 and 1-102(A)(6), again stating respondent's admission to the aforementioned Disciplinary Rules made any such further findings unnecessary.
Respondent requested a reprimand. In support of his recommendation, he presented many letters of recommendation from judges and lawyers, which spoke favorably of respondent's competency, his integrity and, in particular, of his aggressiveness as an advocate for his clients. Respondent also offered as mitigation his record of thirty-four years in the practice of law with no Disciplinary Rule violations, and his former positions as judge and as acting law director for the Bureau of Workers' Compensation.
In light of the foregoing, the panel recommended that respondent be publicly reprimanded. The panel noted that the respondent had enjoyed a good reputation for over thirty-four years. In addition, as indicated by testimony and numerous letters of reference, the panel found the respondent to have been competent and zealous in his representation of clients.
The board adopted the panel's findings and recommendation.
Martin J. Witherell and John N. MacKay, for relator.
Arthur Wilkowski, for respondent.
Having thoroughly reviewed the record, we find that respondent committed the misconduct found by the board. We concur with the board's findings and recommendation. Accordingly, we hereby publicly reprimand respondent. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, DOUGLAS, H. BROWN and REILLY, JJ., concur.
HOLMES and WRIGHT, JJ., dissent.
ARCHER E. REILLY, J., of the Tenth Appellate District, sitting for RESNICK, J.
I would suspend respondent for a minimum of six months.
HOLMES, J., concurs in the foregoing dissenting opinion.