Toledo Bar Assn. v. Viren

Full title: TOLEDO BAR ASSOCIATION v. VIREN

Court: Supreme Court of Ohio

Date published: Aug 6, 1986

496 N.E.2d 243 (Ohio 1986)

496 N.E.2d 243

Opinion

D.D. No. 86-14

Decided August 6, 1986.

Attorneys at law — Misconduct — Indefinite suspension — Neglect of legal matters — Failure to perform services for which payment was received and failure to pay monies to clients — Failure to cooperate.

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.

Respondent, Jack P. Viren, Jr., was admitted to the Ohio Bar on April 28, 1978. Relator, the Toledo Bar Association, filed a five-count complaint on July 9, 1985, and an amended complaint on November 29, 1985 with the Board of Commissioners on Grievances and Discipline of the Bar ("board"). The complaint, as amended, charged that respondent violated DR 6-101(A)(3) (neglecting a legal matter entrusted to him); 7-101(A)(1) (failing to seek the lawful objectives of his client); 7-101(A)(2) (failing to carry out a contract of employment to provide professional services); and 9-102(B)(4) (failing to deliver to a client properties and to pay to a client funds in the possession of the attorney to which the client is entitled). The complaint also alleged that respondent violated and continues to violate DR 1-102(A)(5) (engaging in conduct that is prejudicial to the administration of justice); 1-102(A)(6) (engaging in conduct that adversely reflects on his fitness to practice law); and 1-103(A) (failing to cooperate with a tribunal empowered to investigate the conduct of lawyers).

The charges were the result of respondent's representation of Quentin Waite, Edward and Alice Kadas, Malcolm Smith, Margaret Bucklin and Alfred Campolongo. At the time these clients retained Viren, respondent's office was located at 826 Spitzer Building, in Toledo.

The complaint was served on respondent by certified mail on July 19, 1985 at his residence. The respondent was at all times in default for failure to answer. The motion to amend the complaint and the proposed amendment to the complaint were sent by certified mail, but were never claimed. The entry granting the motion was sent to respondent's residence and was not returned as undelivered or unclaimed. On October 28, 1985, the board received the return receipt attached to the "Notice of Formal Hearing" sent to respondent's home. The board found that respondent was properly served with a copy of the complaint, its amendment and the notice of the hearing. The board made the following findings of fact and conclusions of law.

I

Quentin Waite retained the services of respondent to effect a settlement with Hastings Mutual Insurance Company ("Hastings") with respect to a house fire at Waite's residence in Oak Harbor, Ohio. No fee for respondent's services was discussed, but Waite was required to pay respondent $100 "for getting court started." Suit was filed in April 1983 in the Court of Common Pleas of Lucas County and trial was set for January 19, 1984. One day prior to trial, Viren advised Waite he need not go to court the next day because the insurance company had offered to settle the case. However, no amount of settlement was discussed. The case was called the next day and Waite was not present. Having heard nothing more about the settlement, Waite made several calls in March 1984 to Viren for information. Waite continued to call and began to write to respondent, successfully causing respondent to receive a certified letter in July 1984. Respondent never replied to Waite's letters or returned his calls. In October 1984, without the knowledge of Waite, the case was dismissed for lack of prosecution.

During the course of these events, the mortgage company foreclosed on Waite's home, apparently having received no funds in settlement of the mortgage debt. Among the exhibits presented at the disciplinary hearing, however, were two checks issued by Hastings. One check was for $46,978.23, payable to Waite's mortgage company, and the other was for $7,500, payable jointly to Waite and Viren to compensate Waite for loss of personal effects. Waite has never received nor been able to get any accounting for these monies.

The board concluded that with regard to this client, respondent violated DR 6-101(A)(3), 7-101(A)(1) and 7-101(A)(2).

II

Smith retained the services of the respondent in an effort to collect a $5,000 debt. Smith was told at a pretrial hearing that the court awarded him $2,500 which was to be paid bimonthly in $500 installments. Respondent collected the first two payments, from which he deducted his fee. The remaining three payments were supposed to be sent directly to Smith; however, payments three and four were sent to respondent. Respondent eventually sent Smith the third payment but has never accounted for the fourth. Payment five was made directly to Smith. During Smith's attempts to contact Viren with regard to payment four, Smith was told that Viren was no longer affiliated with his office at 826 Spitzer Building.

The board concluded that with regard to this client, respondent violated DR 9-102(B)(4).

III

Margaret Bucklin was a past client of respondent when he undertook to represent her in a child support matter. Bucklin paid respondent $25 for court fees but respondent failed to diligently pursue her case. Viren never responded to Bucklin's calls or letters, and her support matter remains unresolved. She has since been unable to obtain counsel, and respondent still has various papers and receipts, germane to Bucklin's legal matter, which belong to her.

The board concluded that with respect to this client, respondent violated DR 6-101(A)(3), 7-101(A)(1), 7-101(A)(2) and 9-102(B)(4).

IV

Alfred Campolongo retained the services of respondent for the purpose of effectuating a change in child custody. The matter primarily involved the drafting of various documents as the custody change was uncontested. Campolongo paid the respondent $100. Despite repeated assurances that the matter would be taken care of, respondent failed to perform the services for which he was paid. Campolongo had to hire another attorney who was able to facilitate the change. Respondent has never given this client a refund.

The board concluded that with respect to this client, respondent violated DR 6-101(A)(3), 7-101(A)(1) and 7-101(A)(2).

V

Members of the Toledo Bar Association ("bar") grievance investigation committee made efforts to inquire into the alleged wrongdoing of the respondent. Despite numerous efforts to contact Viren by phone and by mail, respondent has failed to cooperate in this investigation. Respondent's whereabouts were unknown at the time of the hearing although registered letters sent to his home address were signed for by a third party. Viren failed to attend the formal hearing of the bar's grievance committee held on June 5, 1985.

The board concluded that with regard to this matter, respondent violated and continues to violate DR 1-102(A)(5), 1-102(A)(6) and 1-103(A).

Relator withdrew count two of the complaint involving Alice and Edward Kadas because they could not be located at the time of the hearing before the panel or the board.

The board recommended that respondent be indefinitely suspended from the practice of law.

John P. Worcester, for relator.

Per Curiam.

Upon a full review of the facts and circumstances of this case, this court finds that ample evidence supports the board's findings that respondent violated DR 6-101(A)(3), 7-101(A)(1) and (2), 9-102(B)(4), 1-102(A)(5) and (6), and 1-103(A). Such neglect and unprofessional actions cannot be tolerated within our profession and should be punished in accordance with our professional rules.

In addition, "respondent's cavalier attitude in failing to appear at any stage of this disciplinary proceeding should not be countenanced, and his [negligence] * * * in the representation of his clients * * * must be accorded appropriate punishment." Disciplinary Counsel v. Kornowski (1986), 24 Ohio St.3d 50, 53.

Accordingly, we concur in the board's recommendation regarding the sanction to be applied in this case, and order that respondent be indefinitely suspended from the practice of law in the state of Ohio. Costs to be taxed to respondent.

Judgment accordingly.

CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.