[Cite as Columbus Bar Assn. v. Clovis, 125 Ohio St.3d 434, 2010-Ohio-1859.]




                     COLUMBUS BAR ASSOCIATION v. CLOVIS.
 [Cite as Columbus Bar Assn. v. Clovis, 125 Ohio St.3d 434, 2010-Ohio-1859.]
Attorneys — Misconduct — Lack of diligence in representing client — Charging
        excessive fee — Conduct adversely reflecting on fitness to practice law —
        Failure to cooperate with investigation — Indefinite suspension.
   (No. 2009-2260 — Submitted February 17, 2010 — Decided May 5, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 09-045.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Charles Brandt Clovis of Columbus, Ohio, Attorney
Registration No. 0071950, was admitted to the practice of law in Ohio in May
2000.    In June 2009, relator, Columbus Bar Association, filed a complaint
charging respondent with violations of the Ohio Rules of Professional Conduct
and the Supreme Court Rules for the Government of the Bar. Although the
complaint was served by certified mail at respondent’s office address on June 16,
2009, he failed to file an answer. Therefore, in November 2009, relator moved
for default pursuant to Gov.Bar R. V(6)(F).
        {¶ 2} The board referred the matter to a master commissioner, who
prepared a report for the board’s review.             The board adopted the master
commissioner’s findings of fact and his conclusion that respondent had violated
Gov.Bar R. V(4)(G) and four of the Rules of Professional Conduct by accepting a
$4,000 retainer and failing to perform any work on the client’s behalf and by
failing to respond to the resulting disciplinary investigation. Additionally, the
board accepted the master commissioner’s finding that an alleged violation of
Prof.Cond.R. 8.4(c) should be dismissed for insufficient evidence. We agree that
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respondent committed professional misconduct as found by the board and that his
conduct warrants an indefinite suspension.
                                  Misconduct
       {¶ 3} In support of its motion for default judgment, relator submitted the
affidavits and supporting documentation of the complainant, Assistant Bar
Counsel A. Alysha Clous, and investigator Adam R. Rinehart.
       {¶ 4} The complainant avers that in April 2007, she met with respondent
to secure legal representation for her husband, who wished to file a clemency
petition before the Ohio Parole Board. She executed the flat-rate fee agreement
prepared by respondent and gave him a cashier’s check for $4,000. Respondent
met with the complainant’s husband twice during the summer of 2007 and stated
that he would file the clemency petition by the end of October 2007.         The
complainant had difficulty reaching respondent to receive updates on her
husband’s case, and on the occasions that she did speak with respondent, she
received nothing but excuses.
       {¶ 5} Respondent did not file any documents with the parole board on
his client’s behalf. In August 2008, the complainant informed respondent by
letter that if he did not refund her money and return her paperwork by August 15,
2008, she would file a grievance with relator. Having received no communication
from respondent, she filed a grievance with relator on September 9, 2008. More
than two years after she first sought respondent’s assistance, the complainant,
serving as her husband’s attorney-in-fact, prepared and filed the clemency
petition. As of October 20, 2009, respondent had neither returned the documents
nor refunded the money.
       {¶ 6} The board determined, and we agree, that clear and convincing
evidence demonstrates that respondent violated Prof.Cond.R. 1.3 (a lawyer shall
act with reasonable diligence and promptness in representing a client), 1.5(a) (a
lawyer shall not make an agreement for, charge, or collect an illegal or clearly




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excessive fee), and 8.4(h) (no lawyer shall engage in any other conduct that
adversely reflects on the lawyer’s fitness to practice law). The board determined,
and we agree, however, that the record does not contain sufficient evidence to
support a finding that respondent violated Prof.Cond.R. 8.4(c) (forbidding
conduct involving dishonesty, fraud, deceit, or misrepresentation). See Gov.Bar
R. V(6)(F)(1)(b) (requiring “[s]worn or certified documentary prima facie
evidence” in support of a motion for default); Dayton Bar Assn. v. Sebree, 104
Ohio St.3d 448, 2004-Ohio-6560, 820 N.E.2d 318. Therefore, we dismiss the
allegation that respondent violated Prof.Cond.R. 8.4(c).
                               Failure to Cooperate
       {¶ 7} In September 2008, relator sent respondent two separate letters
requesting his written response to the grievance, but respondent never
acknowledged the letter or provided a written response. Relator also attempted to
contact respondent by telephone to discuss the grievance. When respondent did
not answer, a member of relator’s grievance committee left voicemail messages,
but respondent did not return the calls. The committee member followed up with
a letter to respondent, requesting a response to the letters and telephone calls, but
he never heard from respondent.
       {¶ 8} In May 2009, relator sent a notice of intent to file a formal
complaint against respondent pursuant to Gov.Bar R. V(4)(I)(2).               Again,
respondent failed to acknowledge relator’s correspondence. Finally, on June 15,
2009, relator filed its complaint against respondent. Although the complaint was
served by certified mail on June 16, 2009, and signed for by Krista O’Neill,
respondent did not file an answer.
       {¶ 9} Therefore, the board found, and we agree, that respondent violated
Gov.Bar R. V(4)(G) (no attorney shall neglect or refuse to assist or testify in an
investigation or hearing) and Prof.Cond.R. 8.1(b) (no attorney shall fail to




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disclose a material fact or knowingly fail to respond to a demand for information
from a disciplinary authority).
                                    Sanction
       {¶ 10} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
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.             In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
       {¶ 11} The record demonstrates by clear and convincing evidence that
respondent failed to act with reasonable diligence and promptness in representing
a client, charged an excessive fee, engaged in conduct adversely reflecting on his
fitness to practice law, failed to respond to a demand for information from a
disciplinary authority, and failed to cooperate in the investigation of this
disciplinary matter.
       {¶ 12} In aggravation, the board found that (1) this court had suspended
respondent’s license to practice law on November 3, 2009, for failure to register,
In re Attorney Registration Suspension, 123 Ohio St.3d 1475, 2009-Ohio-5786,
915 N.E.2d 1256, (2) respondent failed to cooperate in the disciplinary process,
(3) respondent has not acknowledged the wrongful nature of his misconduct, and
(4) respondent has not attempted to make restitution for the unearned fees charged
in this matter. See BCGD Proc.Reg. 10(B)(1)(a), (e), (g), and (i). The record
contains no evidence of any mitigating factors. Having weighed these factors, the
board recommends that we indefinitely suspend respondent from the practice of
law.




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                               January Term, 2010




       {¶ 13} We have recognized that “ ‘[a] lawyer’s neglect of legal matters
and failure to cooperate in the ensuing disciplinary investigation generally warrant
an indefinite suspension from the practice of law in Ohio.’ ” Cleveland Metro.
Bar Assn. v. Kaplan, 124 Ohio St.3d 278, 2010-Ohio-167, 921 N.E.2d 645, ¶ 15,
quoting Akron Bar Assn. v. Goodlet, 115 Ohio St.3d 7, 2007-Ohio-4271, 873
N.E.2d 815, ¶ 20; see also Disciplinary Counsel v. Gosling, 114 Ohio St.3d 474,
2007-Ohio-4267, 873 N.E.2d 282, ¶ 12; Cuyahoga Cty. Bar Assn. v. Wagner, 113
Ohio St.3d 158, 2007-Ohio-1253, 863 N.E.2d 164, ¶ 13-14.            We have also
recognized that “[t]aking retainers and failing to carry out contracts of
employment is tantamount to theft of the fee from the client.” Cincinnati Bar
Assn. v. Weaver, 102 Ohio St.3d 264, 2004-Ohio-2683, 809 N.E.2d 1113, ¶ 16.
And we have imposed an indefinite suspension for such conduct. See, e.g.,
Dayton Bar Assn. v. Fox, 108 Ohio St.3d 444, 2006-Ohio-1328, 844 N.E.2d 346;
Disciplinary Counsel v. Tyack, 107 Ohio St.3d 35, 2005-Ohio-5833, 836 N.E.2d
568.
       {¶ 14} Having weighed respondent’s conduct and the aggravating and
mitigating factors and having considered the sanctions imposed for comparable
conduct, we adopt the board’s recommended sanction of an indefinite suspension.
Accordingly, Charles Brandt Clovis is indefinitely suspended from the practice of
law in the state of Ohio. Costs are taxed to respondent.
                                                            Judgment accordingly.
       PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
       BROWN, C.J., not participating.
                              __________________
       Bruce A. Campbell, Bar Counsel, and A. Alysha Clous, Assistant Bar
Counsel, for relator.
                           ______________________



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