[Cite as Cincinnati Bar Assn. v. Larson, 124 Ohio St.3d 249, 2009-Ohio-6766.]




                    CINCINNATI BAR ASSOCIATION v. LARSON.
[Cite as Cincinnati Bar Assn. v. Larson, 124 Ohio St.3d 249, 2009-Ohio-6766.]
Attorney misconduct, including failing to seek lawful objectives of clients, causing
        damage to clients, failing to promptly pay funds to clients, and failing to
        cooperate in the investigation of misconduct — Two-year suspension, with
        one year stayed on conditions.
           (No. 2009-1267 ⎯ Submitted September 16, 2009 — Decided
                                  December 30, 2009.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 07-088.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Robert K. Larson Jr. of Cincinnati, Ohio, Attorney
Registration No. 0042368, was admitted to the practice of law in Ohio in 1989.
        {¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that we suspend respondent’s license to practice for two years,
staying 18 months of the suspension on conditions that he commit no further
misconduct and complete continuing legal education courses in managing his law
office, his caseload, and his time. The recommendation is based on findings that
respondent misled one client about the status of her driver’s license suspension
and other traffic citations, failed to perform his duties as counsel for that client
and two others, failed to return unearned fees to all three of these clients, and then
failed to cooperate in two of the ensuing disciplinary investigations. We accept
the board’s findings of professional misconduct and the recommendation for a
two-year suspension; however, we order a stay of only one year of the suspension
                                   SUPREME COURT OF OHIO




and, in addition to the cited conditions of the stay, require respondent to complete
one year of monitored probation upon his reinstatement to practice.
         {¶ 3} Relator, Cincinnati Bar Association, charged respondent in a three-
count complaint with violations of the Disciplinary Rules of the Code of
Professional Responsibility, the Rules of Professional Conduct,1 and Gov.Bar R.
V(4)(G) (requiring a lawyer to cooperate in a disciplinary investigation). A panel
appointed by the Board of Commissioners on Grievances and Discipline heard the
case, made findings of misconduct, and recommended a two-year suspension,
stayed in full on conditions of no further misconduct and completion of the
continuing legal education (“CLE”). The board adopted the panel’s findings of
misconduct, but “based on [respondent’s] acts of dishonesty and harm done to
clients,” it modified the recommendation to a two-year suspension, with the last
18 months conditionally stayed.
         {¶ 4} The parties have not objected to the board’s report.
                                           Misconduct
                                 Count I: The Divorce Case
         {¶ 5} In July 2006, a client hired respondent to file for divorce on her
behalf, paying him a $1,000 fee.                 Though she afterward provided all the
information and documentation that he asked for, respondent never filed the
complaint.
         {¶ 6} In September 2006, the client filed her own petition for a civil
protection order against her then-incarcerated husband. The petition also included
a request for the client’s exclusive use of her husband’s truck, which the
domestic-relations court did not grant. After he was released from prison, the


1. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Code of Professional Responsibility. When both the former and current rules are
cited for the same act, the allegation constitutes a single ethical violation. Disciplinary Counsel v.
Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.




                                                  2
                                January Term, 2009




husband filed charges, alleging that his wife had used his truck without
authorization. Though respondent insisted that he had defended the client against
these charges, the client attended two municipal court hearings and at each signed
waivers of counsel. The waivers establish that respondent failed to attend these
hearings.
       {¶ 7} In January 2007, the client sent respondent a letter demanding that
he proceed with her divorce or return the $1,000 fee. When respondent did
neither, the client sued him in small-claims court. The court continued two
hearing dates on respondent’s request, but he never appeared. That April, the
court granted a default judgment against respondent, awarding the client $1,000
and $85 in court costs, which respondent paid only after a bailiff served him with
a writ of execution.
       {¶ 8} Respondent admitted that he had failed to perform his duties as
counsel for this client and had thereby violated DR 7-101(A)(1), (2), and (3)
(prohibiting a lawyer from (1) intentionally failing to seek the lawful objectives of
his client, (2) failing to carry out a contract for professional employment without
proper withdrawal, and (3) causing damage or prejudice to a client during a
professional relationship). He also admitted to having violated DR 9-102(B)(4)
and its counterpart, Prof.Cond.R. 1.15(d) (both requiring a lawyer to promptly pay
funds that a client is entitled to receive). And because he failed to respond to
letters of inquiry about this client’s grievance and came unprepared for a
deposition during relator’s investigation, respondent admitted that he had violated
Gov.Bar R. V(4)(G).      The board found that respondent had committed this
misconduct, as do we.
                        Count II: The Traffic-Citation Case
       {¶ 9} In January 2007, another client paid respondent $300 to defend her
in mayor’s court against traffic citations. The client had already failed to appear
for one court date and feared that her driver’s license might be suspended.



                                         3
                             SUPREME COURT OF OHIO




Respondent advised the client that he would arrange with the mayor’s court to
forgive the failure to appear, drop a citation for “peeling tires,” and reduce her
speeding ticket to avoid adding points to her driving record.
         {¶ 10} But in mid-February 2007, the client received notice that her
license had been suspended and that she was required to pay a fee to reinstate it.
She again consulted respondent, who advised her that the notice was a mistake
and not to pay the reinstatement fee. When the client afterward continued to
register concerns over the suspension, respondent assured her that he was working
with a prosecutor and would resolve the problem.
         {¶ 11} In mid-March 2007, the client received another notice, this one
indicating that a warrant had been issued for her arrest. When the client consulted
respondent yet again about the license suspension, respondent advised her that if
she had to drive, she should “drive safely.”
         {¶ 12} In April 2007, the client contacted the mayor’s court herself and
paid the reinstatement fee. Her license was reinstated approximately one week
later.   That May, the client wrote to respondent, asking for a $300 refund.
Respondent did not promptly refund the unearned fee and stopped returning the
client’s telephone calls.
         {¶ 13} Respondent admitted that he had failed to perform his duties as
counsel for this client and had thereby violated Prof.Cond.R. 1.1 (requiring a
lawyer to provide competent representation to a client), 1.3 (requiring a lawyer to
act with reasonable diligence and promptness in representing a client), 1.4(a)(3)
(requiring a lawyer to keep a client informed about the representation), 1.15(d),
and 8.4(c) (prohibiting a lawyer from engaging in conduct involving fraud, deceit,
dishonesty, or misrepresentation). Because he failed to respond to a letter of
inquiry about this client’s grievance and came unprepared for a deposition during
relator’s investigation, respondent also admitted to having violated Gov.Bar R.




                                         4
                               January Term, 2009




V(4)(G). The board found that respondent had committed this misconduct, as do
we.
                       Count III: The Juvenile Court Case
       {¶ 14} Another client paid respondent $250 to represent him in a juvenile
court proceeding.     Respondent advised the client that he would obtain a
continuance of a court date scheduled for late October 2007. Respondent failed to
obtain the continuance, and upon the client’s failure to appear, the court issued a
bench warrant for his arrest. Respondent did nothing in the case and yet failed to
promptly refund unearned fees.
       {¶ 15} Respondent admitted that he had failed to perform his duties as
counsel for this client and had thereby violated Prof.Cond.R. 1.3, 1.4, and 1.15(d).
The board found that respondent had committed this misconduct, as do we.
                                     Sanction
       {¶ 16} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties violated by the lawyer in question and
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16.           Before making a final
determination, we also weigh evidence of the mitigating and aggravating factors
listed in BCGD Proc.Reg. 10(B). Lake Cty. Bar Assn. v. Troy, 121 Ohio St.3d 51,
2009-Ohio-502, 901 N.E.2d 809, ¶ 11. We have already identified the duties that
respondent breached to his clients and the public.
                       Sanctions Imposed in Similar Cases
       {¶ 17} Respondent misled one client repeatedly as to what he had
accomplished on her behalf. In two other cases, he totally neglected his client’s
matters. In Disciplinary Counsel v. Davis, 121 Ohio St.3d 84, 2009-Ohio-500,
902 N.E.2d 25, a lawyer failed to notify her client’s insurer of a settlement with a
tortfeasor's insurer, causing the client's insurer to deny a claim for underinsured-
motorist coverage. She then misled the client for years by not telling him of the



                                         5
                             SUPREME COURT OF OHIO




denial. We suspended the lawyer’s license for two years, staying the second year
on conditions including monitored probation, explaining:
       {¶ 18} “In sanctioning lawyers who have engaged in a sustained course of
conduct to conceal from their clients a failure to competently pursue claims on
their behalf, we have typically imposed a suspension of at least two years. See,
e.g., Disciplinary Counsel v. Manning, 111 Ohio St.3d 349, 2006-Ohio-5794, 856
N.E.2d 259, ¶ 14 (‘The number and intricacy of respondent's lies to his clients, the
three-and-a-half-year period during which he continued to mislead them, and the
large number of ethical violations found by the board all justify the recommended
two-year suspension’). But we have sometimes stayed the last year of a two-year
suspension when it was warranted by the circumstances of the case. See, e.g.,
Cuyahoga Cty. Bar Assn. v. Glaeser, 120 Ohio St.3d 350, 2008-Ohio-6199, 899
N.E.2d 140 (lawyer candidly admitted wrongdoing and had only recently been
admitted to the bar when he committed the misconduct).” Id. at ¶ 15.
       {¶ 19} A two-year suspension with one year stayed is as appropriate here
as it was in Davis, considering the nature of respondent’s misconduct. Though he
did not hide his inaction for years, respondent did deceive one client and ignored
two others. Moreover, respondent is a seasoned professional, whereas Davis was
inexperienced. Davis, 121 Ohio St.3d 84, 2009-Ohio-500, 902 N.E.2d 25, ¶ 16.
And as in Davis, respondent evaded inquiries of disciplinary authorities during the
disciplinary process.   Id. at ¶ 11. Both respondent and Davis also inflicted
financial injury: respondent failed to promptly return unearned fees to three
clients; Davis’s actions foreclosed her client’s ability to claim insurance proceeds.
                        Mitigating and Aggravating Factors
       {¶ 20} In mitigation, the board found that respondent had no record of
having previously violated the Disciplinary Rules or the Rules of Professional
Conduct. See BCGD Proc.Reg. 10(B)(2)(a). Respondent also produced medical
evidence to show that he had a debilitating sleep disorder during the time of these




                                          6
                                 January Term, 2009




events, that the condition had compromised his energy level and focus, and that
with treatment his concentration and productivity have improved. The board also
accepted the favorable assessments of respondent’s character and competence by
three judges, given pursuant to subpoenas. All commended his performance in
their courts, and none voiced any misgivings as to his integrity. See BCGD
Proc.Reg. 10(B)(2)(e).       But these character references also commented that
respondent was at times late for court.
          {¶ 21} Acknowledging his problems with managing his office, caseload,
and time, respondent testified that he had started using new scheduling software
and had recently been interviewing candidates to fill a position of office assistant.
He attributed his problems to the expansion of his practice in terms of the number
of cases and the jurisdictions covered. When asked for an explanation for his
repeated misconduct, respondent answered: “[I]t was poor organization, poor
management, and having too big of a case load spread out over too many counties
where I wasn’t in the office as much as I needed to be to pay attention to my
cases.”
          {¶ 22} As the board noted, however, neither a voluminous caseload nor
excessive travel can explain respondent’s misrepresentations to the client in Count
II. And although respondent admitted wrongdoing, we share the board’s concerns
about his evasiveness in discussing these events. When asked by one of the panel
members to explain how his having a busy practice resulted in his lying to this
client, respondent stated:
          {¶ 23} “I talked to one of the — I came to realize, and I think I had said
this earlier, that they don’t have a prosecutor up there at all times. And I spoke to
someone up there, it was one of the deputies I was able to get ahold of, told them
what I wanted to do, told them what my intention was. His position was, or what
he had said was, I think we can work that out.




                                          7
                              SUPREME COURT OF OHIO




        {¶ 24} “Did I probably relay it inappropriately to [the client]? The answer
is yes. I can’t specifically recall what I told her. I did tell her who the prosecutor
was, I did tell her I talked to someone. I did tell her that it’s taken care of, this is
the route it’s going on. It hadn’t been effectively taken care of yet, and I didn’t
just make it up out of thin air. It was based on that conversation.”
        {¶ 25} Not until this exchange with a panel member did respondent finally
acknowledge having misled his client:
        {¶ 26} “Q: So at the time you made the representation to [the client] that
her license would not be suspended, you had no basis in fact for making that
statement?
        {¶ 27} “A: It was my expectation, but, no, it was nothing more than that.
        {¶ 28} “Q: Did you, in fact, tell her that that was nothing but an
expectation?
        {¶ 29} “A: No.
        {¶ 30} “Q: So you, in fact, told her that her license would not be
suspended?
        {¶ 31} “A: Correct.
        {¶ 32} “Q: The same with regard to the [traffic citation for] the peeling of
the tires?
        {¶ 33} “A: Correct.
        {¶ 34} “Q: And the failure to appear?
        {¶ 35} “A: Correct.
        {¶ 36} “Q: And the speeding?
        {¶ 37} “A: Correct.
        {¶ 38} “Q: Why did you tell her things had happened or would happen
when you had no basis upon which to make that statement? What is going on?
        {¶ 39} “A: Again, it was my expectation, it was based on my experience.
It seemed like that’s how it would work out based on the conversation I had with




                                           8
                                January Term, 2009




one of the deputies. I had anticipated it would work out that way. It simply just
hadn’t happened yet, and I should not have made that statement.”
       {¶ 40} Even if respondent’s busy workload greatly contributed to his
misconduct, his hearing testimony showed that he had made few concrete changes
for the future. He repeatedly referred to a general ambition to limit the number of
his cases, the counties in which he practiced, and the time he spent out of the
office. But these goals remain largely aspirational.
       {¶ 41} Also weighing against respondent are the aggravating factors that
his acts and omissions demonstrate a pattern of misconduct and caused all three
clients harm, including putting two at risk of arrest.       See BCGD Proc.Reg.
10(B)(1)(c) and (h). Respondent in addition failed to respond during relator’s
investigations until compelled by subpoena. See BCGD Proc.Reg. 10(B)(1)(e).
Finally, the board doubted that respondent, given his evasive answers, fully
accepted responsibility for his misconduct. We accept the board’s findings as to
the evidence of mitigating and aggravating factors.
                                      Disposition
       {¶ 42} Based on these circumstances and the cited precedent, we find the
appropriate sanction to be a two-year suspension from practice with a stay of the
last year under conditions designed to help ensure respondent’s ethical practice of
law in this state. Respondent is therefore suspended from the practice of law in
Ohio for two years; however, the last year of the suspension is stayed on the
following conditions: (1) respondent shall commit no further misconduct, (2) in
addition to the requirements of Gov.Bar R. X, respondent shall complete 12 hours
of CLE training in law-office, caseload, and time management, and (3) respondent
shall complete one year of monitored probation pursuant to Gov.Bar R. V(9)
under the auspices of a lawyer appointed by relator. If respondent fails to comply
with the terms of the stay and probation, the stay will be lifted and respondent will
serve the full two-year suspension.



                                          9
                              SUPREME COURT OF OHIO




          {¶ 43} Costs are taxed to respondent.
                                                             Judgment accordingly.
          PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
          MOYER, C.J., dissents.
                                   __________________
          MOYER, C.J., dissenting.
          {¶ 44} I respectfully dissent from the majority decision in regard to the
sanction imposed on respondent. Respondent agreed to represent several clients
in various cases, but failed to do so. He did not promptly reimburse unearned
fees; he did not return his client’s phone calls. Respondent misled the client in
Count II about the progress of the case, concealing his inaction.
          {¶ 45} Respondent’s dishonesty and lack of responsibility exposed his
clients to possible arrest, loss of driving privileges, and fines. This lack of
responsibility was exacerbated by respondent’s failure to adequately participate in
the investigation of the complaints detailed in Counts I and II, as well as his
unwillingness to admit that he had misled the client in Count II, until he was
strongly questioned at his hearing by a panel member.
          {¶ 46} These serious ethical violations demonstrate a course of conduct of
unethical and dishonest behavior, warranting a stricter sanction than the partially
stayed suspension ordered by the majority.         The majority is correct that a
suspension of at least two years is appropriate in this case. See Disciplinary
Counsel v. Manning, 111 Ohio St.3d 349, 2006-Ohio-5794, 856 N.E.2d 259, ¶ 14.
But in my opinion, respondent, like Manning, did not produce mitigating evidence
sufficient to warrant leniency, id., and I would not stay the suspension. I would
therefore impose a two-year suspension from the practice of law, with no time
stayed.
                                   __________________




                                           10
                             January Term, 2009




       Strauss & Troy, L.P.A., Franklin A. Klaine Jr., and Diane Schneiderman;
Porter Wright Morris & Arthur, L.L.P., and Carolyn A. Taggart; and David C.
Wagner, for relator.
       John H. Burlew, for respondent.
                          ______________________




                                         11
