[Cite as Mahoning Cty. Bar Assn. v. Zena, 137 Ohio St.3d 456, 2013-Ohio-4585.]




                   MAHONING COUNTY BAR ASSOCIATION v. ZENA.
          [Cite as Mahoning Cty. Bar Assn. v. Zena, 137 Ohio St.3d 456,
                                      2013-Ohio-4585.]
Attorney discipline—Neglecting entrusted legal matters—Failure to carry out
        employment contract—Intentionally causing damage or prejudice to
        client—Failure to render a full accounting of client funds or property
        upon request—One-year suspension, stayed on conditions.
     (No. 2012-0692—Submitted June 5, 2013—Decided October 23, 2013.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 11-059.
                                  ____________________
        Per Curiam.
        {¶ 1} Respondent, Thomas E. Zena of Boardman, Ohio, Attorney
Registration No. 0007375, was admitted to the practice of law in Ohio in 1972. In
June 2011, relator, Mahoning County Bar Association, filed a multicount
complaint against Zena, charging him with misconduct and violations of the Ohio
Code of Professional Responsibility and the Rules of Professional Conduct.1 The
parties filed agreed stipulations of fact, rule violations, and aggravating and
mitigating factors, and they also recommended a sanction.
        {¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline conducted a hearing on December 20, 2011, at which it heard the
testimony of Zena and his character witnesses—three judges and a court


1. Relator charged respondent with misconduct under the applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the
former and current rules are cited for the same acts, the allegations comprise a single continuing
ethical violation.
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magistrate. The panel received 34 exhibits from relator, plus 12 exhibits and 49
character letters from Zena. The panel acknowledged that Zena’s ethical-rule
violations resulted from issues in his personal life that are now resolved.
       {¶ 3} The parties stipulated that the appropriate sanction for the
misconduct was a two-year suspension, all stayed on conditions. However, based
upon overwhelming evidence in support of Zena’s reputation for honesty and
integrity during his 40-year legal career, the panel recommended that he be
suspended from the practice of law for 12 months, all stayed on the conditions
that he attend three hours of continuing legal education (“CLE”) in law-office
management and be monitored by a law-practice monitor, selected by relator, for
a period of 12 months.
       {¶ 4} The board adopted the panel’s findings of fact, conclusions of law,
and recommended sanction.
       {¶ 5} We remanded the matter on November 26, 2012, for a
determination whether any of the clients harmed by Zena’s conduct were entitled
to restitution. The panel and board now recommend that Zena make restitution of
$3,000 to Joseph and Laurie Taylor.
       {¶ 6} We adopt the board’s findings of fact, conclusions of law, and
recommended sanction.
                                 Stipulated Facts
                                The McOwen Matter
       {¶ 7} In October 2003, Zena was contacted by Barbara McOwen, the
mother of a former client, about some problems she was having with a general
contractor and a subcontractor. Zena agreed to help her, and in January 2004, he
sent McOwen a letter with information about his legal fees and a copy of the
complaint that he had drafted against the contractor. The letter did not mention
that Zena did not carry professional liability insurance.




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        {¶ 8} Zena filed the complaint in February 2004, but he failed to act
reasonably and diligently in representing McOwen. He did not file an answer to
the contractor’s counterclaim, did not respond to requests for discovery, and
failed to appear for a sanctions hearing. He also failed to respond to McOwen’s
numerous inquiries about the case.
        {¶ 9} On June 23, 2005, the court entered a default judgment against
McOwen on the contractor’s counterclaim and sanctioned her for failing to
respond to discovery. That same day, Zena voluntarily dismissed McOwen’s
complaint without her knowledge or consent.
        {¶ 10} McOwen discharged Zena in July 2007, but in August 2008, Zena
filed another complaint for McOwen against a subcontractor. Zena withdrew as
counsel in that case, and with the assistance of new counsel, the parties eventually
settled the case.
        {¶ 11} After consulting with her new counsel, McOwen learned of the
dismissal of her original complaint against the contractor and the default
judgment entered against her on the contractor’s counterclaim. In October 2009,
she filed a motion asking the trial court to vacate the default judgment against her.
The court granted McOwen’s motion, vacated the default judgment, and returned
the case to the active docket in January 2010. Several months later, the contractor
voluntarily dismissed his counterclaim.
                                The Taylor Matter
        {¶ 12} On December 14, 1998, Zena filed a civil complaint for damages
against Terry Harmon Motors, Inc., and General Motors Corporation on behalf of
Joseph and Laurie Taylor. Zena failed to respond to a motion for summary
judgment filed by Harmon Motors, and he also ignored the Taylors’ numerous
requests for information about their case.
        {¶ 13} The court granted summary judgment to Harmon Motors in
October 2000, and on December 18, 2000, the court dismissed the Taylors’ case



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with prejudice but failed to serve the dismissal entry on counsel as required by
Civ.R. 58(B). The Taylors did not learn of the dismissal for almost ten years.
Zena admitted that his failure to diligently follow up on the Taylors’ numerous
inquiries about the case was initially negligent, but that it became misleading with
the passage of time.
                                 The Crum Matter
       {¶ 14} In order to facilitate the settlement of a client’s personal-injury
case, Zena negotiated a reduction of chiropractor J. Murphy Crum’s bill for
services rendered to the injured party.      Zena promised to pay Dr. Crum the
negotiated amount—$1,200—from the settlement proceeds, but he mistakenly
delivered the doctor’s portion of the settlement to the client. Dr. Crum repeatedly
asked Zena for payment from 2004 to 2010. He eventually filed a lawsuit against
Zena and a grievance with relator. Zena never denied that he owed Dr. Crum the
money, but due to financial hardship, he did not satisfy this obligation until
November 2010.
                       Stipulated Disciplinary Violations
       {¶ 15} The parties stipulated that Zena’s conduct in these matters violated
the following Disciplinary Rules: DR 1-104(A) (requiring a lawyer to disclose to
the client that the lawyer lacks professional liability insurance), 6-101(A)(3)
(prohibiting a lawyer from neglecting an entrusted legal matter), 7-101(A)(2)
(prohibiting a lawyer from intentionally failing to carry out a contract of
employment for legal services), and 7-101(A)(3) (prohibiting a lawyer from
intentionally prejudicing or damaging a client during the course of the
professional relationship), and Prof.Cond.R. 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client) and 1.15(d) (requiring a lawyer,
upon request, to promptly render a full accounting of funds or property in which a
client or third party has an interest). The parties also stipulated that four other
violations that were alleged in the complaint should be dismissed.



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       {¶ 16} The panel and board adopted the parties’ stipulations of fact and
misconduct and agreed that the remaining violations alleged in relator’s complaint
should be dismissed. We find that there is clear and convincing evidence in
support of the stipulated rule violations.
                                      Sanction
       {¶ 17} In recommending a sanction, the panel and board considered the
ethical duties that the lawyer violated and the sanctions imposed in similar cases.
See Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775
N.E.2d 818, ¶ 16. They also considered the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
       {¶ 18} The parties stipulated that two aggravating factors are present: a
pattern of misconduct and multiple offenses. See BCGD Proc.Reg. 10(B)(1)(c)
and (d). As mitigating factors, they stipulated that Zena has no prior disciplinary
record, has made full and free disclosure to the board and has cooperated in the
proceedings, and has demonstrated his good character and reputation through
character letters and testimony. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (e).
       {¶ 19} The parties further stipulated that the appropriate sanction for
Zena’s misconduct was a two-year suspension, entirely stayed on the conditions
that he be monitored for three years by a law-practice monitor selected by relator,
attend at least three hours of CLE in law-office management during each of those
three years, represent clients in civil matters only with qualified co-counsel to
assist him, and commit no further misconduct. In his closing argument, however,
relator’s counsel indicated that he would not object to a lesser sanction.
       {¶ 20} The panel and board rejected the parties’ stipulated sanction and
recommend that we impose a one-year suspension, all stayed on the conditions
that Zena attend no less than three hours of CLE in law-office management and be
monitored by a law-practice monitor, selected by relator, for a period of 12



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months. On remand from this court to address the propriety of restitution for the
affected clients, the panel and board also recommended that Zena be ordered to
make $3,000 restitution to Joseph and Laurie Taylor, that any money owed to
Barbara McOwen be determined through her pending malpractice action against
Zena, and that no restitution be made to Dr. Crum because Zena has already
satisfied that obligation.
        {¶ 21} We find that there is clear and convincing evidence in support of
the aggravating and mitigating factors.           We agree that Zena presented
overwhelming evidence from four witnesses—an appellate court judge, two
common pleas court judges, and a juvenile court magistrate—and character letters
from 49 individuals (ten judges, two magistrates, 34 attorneys, two former clients,
and a legal secretary) attesting to his reputation for honesty and integrity, his
ability to practice law in general, and his talent as a criminal-defense attorney.
        {¶ 22} Zena has had no prior disciplinary action against him during his
40-year career, and the evidence shows that much of Zena’s misconduct occurred
during a time of great turmoil in his personal life. He testified that the personal
issues he faced have been resolved and should not recur. He also testified that
moving forward, he intends to focus on his criminal-law practice and limit his
civil practice to postdecree domestic-relations motions.
        {¶ 23} The board did not cite any case law in support of its recommended
sanction.   For misconduct similar to Zena’s, we have imposed a one-year
suspension, stayed on conditions, including that the attorney serve one year of
monitored probation and maintain compliance with his mental-health contract
with the Ohio Lawyers Assistance Program.             See Columbus Bar Assn. v.
Micciulla, 106 Ohio St.3d 19, 2005-Ohio-3470, 830 N.E.2d 332, ¶ 26-27.
Micciulla engaged in conduct comparable to Zena’s in the handling of four
separate client matters, but he also failed to maintain complete records of client
funds in his possession and occasionally deposited unearned fees directly into his



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general operating account. Id. at ¶ 17-18. Like Zena, Micciulla had no prior
disciplinary record and no dishonest or selfish motive, and he cooperated during
relator’s investigation. Id. at ¶ 21. He also showed that he was very active in
providing pro bono legal services, presented several letters from professional
acquaintances highly commending his character, and established the existence of
a mental disability that qualified as a mitigating factor pursuant to BCGD
Proc.Reg. 10(B)(2)(g). Id. at ¶ 23-24.
       {¶ 24} The purpose underlying a disciplinary sanction is not to punish the
offender but to protect the public. Disciplinary Counsel v. O’Neill, 103 Ohio
St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53. Based on the foregoing, we
agree with the board’s findings that Zena is no longer a danger to clients and that
no actual suspension from the practice of law is necessary to protect the public
from harm.
       {¶ 25} Accordingly, we suspend Zena from the practice of law for one
year, all stayed on the conditions that he (1) attend at least three hours of CLE on
law-office management within 90 days, (2) serve one year of probation in
accordance with Gov.Bar R. V(9) with a monitor selected by relator, (3) make
restitution to the Taylors in the amount of $3,000 within 90 days, and (4) commit
no further misconduct. If Zena violates the conditions of the stay, the stay will be
lifted, and he shall serve the one-year suspension. Costs are taxed to Zena.
                             ____________________
                                                            Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                             ____________________
       David Comstock Jr., Bar Counsel, and Ronald E. Slipski, for relator.
       John J. Juhasz, for respondent.
                         __________________________



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