[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Frenden, Slip Opinion No. 2016-Ohio-7198.]




                                       NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-7198
         CLEVELAND METROPOLITAN BAR ASSOCIATION v. FRENDEN.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Cleveland Metro. Bar Assn. v. Frenden, Slip Opinion
                                 No. 2016-Ohio-7198.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
        including failing to provide competent representation to a client and failing
        to keep a client reasonably informed about the status of a legal matter,
        failing to obtain informed consent to settle a case, and engaging in sexual
        activity with a client when a consensual sexual relationship did not exist
        prior to the client-lawyer relationship—Permanent disbarment.
     (No. 2016-0265—Submitted April 5, 2016—Decided October 6, 2016.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2015-015.
                                 __________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Respondent, John Barry Frenden of Cleveland, Ohio, Attorney
Registration No. 0076200, was admitted to the practice of law in Ohio in 2003. In
a July 16, 2015 amended complaint, relator, Cleveland Metropolitan Bar
Association, charged Frenden with professional misconduct arising from his
neglect of client matters, failure to reasonably communicate with his clients, failure
to advise his clients that he did not carry malpractice insurance, failure to reduce
contingent-fee agreements to writing, failure to promptly deliver funds that a client
was entitled to receive, continuing to represent a client when there was a substantial
risk that his ability to represent the client would be limited by his own personal
interest, and engaging in a sexual relationship with a client.
       {¶ 2} Frenden admitted to some of the facts in an untimely answer to the
amended complaint, and the parties stipulated to additional facts. After two days
of hearing, a panel of the Board of Professional Conduct issued a report finding that
Frenden had engaged in all the charged misconduct and recommended that he be
indefinitely suspended from the practice of law. The board adopted the panel’s
findings of fact and misconduct but recommended that Frenden be permanently
disbarred. There are no objections to the board’s report or recommendation.
       {¶ 3} We adopt the board’s findings of fact and conclusions of law and
permanently disbar Frenden from the practice of law in Ohio.
                                    Misconduct
                          Count One: The Dubois Matter
       {¶ 4} Diane Dubois retained Frenden to represent her in a personal-injury
matter arising from a January 4, 2011 motor-vehicle accident in which a semi
backed into the front of a vehicle in which she was a passenger. But Frenden did
not reduce their contingent-fee agreement to writing.
       {¶ 5} Dubois recorded notes of her appointments and communications with
Frenden on her calendar, which showed that on January 10, 2011, he advised her to




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see a chiropractor. But she had no further contact with Frenden in 2011. Frenden
acknowledged that there was never any question about the tortfeasor’s liability for
the accident, but he failed to gather adequate information to fully evaluate the
nature and seriousness of Dubois’s injury claims before he engaged in settlement
negotiations.
       {¶ 6} In the spring of 2012, an adjuster for the tortfeasor’s insurance
company attempted to contact Frenden to discuss Dubois’s case. When those
efforts failed, the adjustor wrote to Frenden and offered to settle Dubois’s claims
for $28,000, claiming that she had preexisting back injuries. Dubois testified that
on July 12, 2012, Frenden told her that he had received a settlement offer of
$83,000—but the insurer had made no such offer and Frenden had made no such
demand. Dubois’s special damages totaled approximately $41,000, and relator’s
expert testified that the settlement value of her case would have greatly exceeded
that value. Frenden admitted that his typical settlement demand would have been
four times that amount—or approximately $164,000—yet he claimed that Dubois
agreed to settle her case for only $35,000.
       {¶ 7} Dubois attempted to discuss the status of the settlement with Frenden
numerous times from late July 2012 through early February 2013, but her efforts
were unsuccessful. In the interim, Frenden informed the insurer that Dubois was a
Medicare recipient. Consequently, on November 28, 2012, the insurer requested
that Frenden have Dubois sign and return a consent form authorizing the insurer to
report her injuries to the Centers for Medicare & Medicaid Services. Frenden
returned the $35,000 settlement check to the insurer on December 18, 2012, and
sought to renegotiate the terms of the settlement due to subrogation issues arising
from Medicare coverage.
       {¶ 8} The insurer refused to renegotiate the settlement, and the statute of
limitations for Dubois’s claim expired on January 4, 2013. More than a month
later, Frenden sent the insurer the authorization for release of medical information,




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which was purportedly signed by Dubois. However, Dubois testified that she had
never seen the document, that the signature was not hers, and that her name
appeared to be misspelled. In a May 9, 2013 letter to the insurer, Frenden stated
that he had recently discovered that Dubois was a Medicaid recipient—not a
Medicare recipient as he had previously reported. Six days later, he went to
Dubois’s home and had her sign a general release of all claims. He also had her
indorse a second settlement check issued by the insurer, but he did not discuss the
amount of the settlement or show her the front of the check.
       {¶ 9} Frenden waited more than a month to deposit the settlement check in
his client trust account and ignored Dubois’s attempts to contact him about the
settlement.   Nearly one year after Frenden deposited the $35,000 settlement
check—and after Dubois filed a grievance against him—he finally released
$20,820.42 to her, reimbursed Medicaid $ 8,621.67, and distributed the remaining
settlement proceeds to six of her medical providers.
       {¶ 10} The panel found that Frenden had failed to provide competent
representation to Dubois in violation of Prof.Cond.R. 1.1 (requiring a lawyer to
provide competent representation to a client) because he failed to understand the
difference between Medicaid and Medicare claims for subrogation purposes, failed
to obtain medical records related to her accident, failed to evaluate the seriousness
of her claims before negotiating a settlement, and failed to obtain an adequate
settlement of her claims. In addition, the panel found that Frenden violated
Prof.Cond.R. 1.4(a)(1) (requiring a lawyer to inform the client of any decision or
circumstance with respect to which the client’s informed consent is required),
1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the status
of a matter), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with
reasonable requests for information from the client), 1.4(c) (requiring a lawyer to
inform the client if the lawyer does not maintain professional liability insurance
and obtain a signed acknowledgment of that notice from the client), and 1.5(c)(1)




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(requiring an attorney to have set forth a contingent-fee agreement in a writing
signed by the client). Finding that he had forged Dubois’s signature on the medical
release, had her indorse the settlement check without disclosing the settlement
amount, and had delayed distribution of the settlement proceeds, the panel also
concluded that Frenden violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).
                          Count Two: The Sigler Matters
                                  Personal Injury
       {¶ 11} Diane Sigler retained Frenden to file a personal-injury action on
behalf of herself and her minor son for injuries they sustained in a January 2008
motor-vehicle accident. Although Frenden agreed to represent the mother and son
on a contingent-fee basis, he failed to reduce that agreement to a signed writing.
       {¶ 12} Frenden filed a complaint on January 15, 2010, but erroneously
named Sigler’s husband, rather than her son, as a plaintiff. Following the final
pretrial conference, the court ordered the parties to submit trial briefs, motions in
limine, jury interrogatories, and jury instructions no later than seven days before a
trial scheduled for March 3, 2011. Opposing counsel also filed a timely motion in
limine based upon Frenden’s failure to submit an expert report that was necessary
to establish causation of the Siglers’ injuries. Frenden filed none of the required
documents.
       {¶ 13} Frenden voluntarily dismissed the case just days before trial without
Sigler’s knowledge or consent. He refiled the action in February 2012 and once
again erroneously named Sigler’s husband, rather than her son, as a plaintiff. He
failed to appear for a case-management conference and the final pretrial hearing.
He also failed to file additional documents as ordered by the court. Frenden then
settled the case without Sigler’s knowledge or consent on the eve of trial for
$5,000—even though Sigler’s special damages alone were approximately $11,870.




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Frenden admitted that his typical settlement demand would have been close to
$46,000.
         {¶ 14} Opposing counsel sent Frenden a settlement check and release on
November 19, 2012, and asked him not to negotiate the check until the release was
signed. But Frenden disregarded that request and deposited the check into his client
trust account on February 21, 2013, without obtaining Sigler’s signature on the
check or on the release. He failed to provide a requested accounting. Sigler filed
a malpractice action against Frenden in March 2015.
                             Domestic-Relations Matter
         {¶ 15} In October 2012, Frenden began to represent Sigler in a divorce
proceeding initiated by her husband. Sigler paid $1,500 in advance but did not
recall having a written fee agreement.
         {¶ 16} Frenden did not comply with Sigler’s requests that he hire a forensic
accountant and file a motion to compel her husband to provide certain documents.
He also failed to keep appointments with Sigler and failed to obtain financial
information from her in a timely manner. Frenden changed his telephone number
during the representation but did not give Sigler the new number. He also failed to
file a pretrial statement, a witness list, and a list of exhibits. Although Sigler copied
over 725 pages of documents for Frenden to produce in discovery and witnessed
him deliver them to opposing counsel, Frenden failed to document the submission
of discovery, and opposing counsel denied having received the documents. Fearing
that the evidence would be excluded at trial, Sigler personally delivered the
documents to opposing counsel and obtained a signed receipt just two days before
trial.
         {¶ 17} Frenden admitted that he was not prepared for the trial, but the
parties and their counsel began settlement negotiations using a draft agreement
prepared by the husband’s attorney. Sigler ultimately received the marital home
with a negotiated net equity of $100,000, assumed liability for all the debt




                                           6
                                January Term, 2016




(approximately $143,000), and paid her former husband approximately $72,000.
Although her former husband received one-half of her Individual Retirement
Account (“IRA”), she did not receive any portion of his IRA. Sigler wanted to
indicate on the agreement that her signature was made under duress, but Frenden
would not permit her to do so. As they were leaving the courthouse, Frenden
mentioned that he had no malpractice insurance.
       {¶ 18} The proceeds from Sigler’s personal-injury settlement remained in
Frenden’s client trust account at the time of his disciplinary hearing. Frenden
claimed that ownership of the funds was in dispute and that Sigler owed him an
additional $10,000 in attorney fees for her divorce.
                              Findings of Misconduct
       {¶ 19} The panel found that Frenden had failed to competently represent
Sigler, neglected her legal matters, failed to keep her reasonably informed about
the status of her legal matters, failed to obtain her informed consent to the
settlement of her case, failed to notify her in writing that he did not maintain
professional liability insurance, and failed to reduce his contingent-fee agreement
to writing, thereby violating Prof.Cond.R. 1.1, 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client), 1.4(a)(1), 1.4(a)(3), 1.4(c), and
1.5(c)(1). The panel also found that he violated Prof.Cond.R. 1.15(d) (requiring a
lawyer to promptly deliver funds or other property that the client is entitled to
receive) by failing to distribute Sigler’s settlement proceeds and 8.4(d) (prohibiting
conduct that is prejudicial to the administration of justice) by failing to appear at a
case-management conference, failing to file a notice of transmission of discovery,
and by failing to file a pretrial statement in Sigler’s personal-injury matter.
Furthermore, the board found that Frenden violated Prof.Cond.R. 8.4(h) by failing
to honor opposing counsel’s request that he have Sigler sign the release before
negotiating the settlement check.




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                              SUPREME COURT OF OHIO




           Count Three: The Divorce and Juvenile Court Proceedings of A.S.
       {¶ 20} Frenden first met A.S. at a club where she worked as an exotic
dancer. He began to represent her in a divorce in October 2013. Frenden filed an
answer and counterclaim on behalf of A.S., but waited nearly three months to seek
court-ordered support for her and her three children—a preteen and infant twins.
After the domestic-relations court certified the allocation of parental rights and
responsibilities to the juvenile court, Frenden represented A.S. in that proceeding
as well.
       {¶ 21} Frenden did not advise A.S. in writing that he did not carry
professional liability insurance in violation of Prof.Cond.R. 1.4(c). A.S. estimated
that she paid Frenden approximately $3,000 for his representation. She also
testified that he was always asking for more money, that he asked her to use her
government food card to buy him groceries, and that he had her clean his house in
exchange for a $20 per hour credit applied to her legal fees. But Frenden did not
maintain records of the payments A.S. made or submit any billing invoices to her.
       {¶ 22} At one point, Frenden sent A.S. a text in which he threatened to take
her twins to Children and Family Services if she did not give him more money. He
also took risqué pictures of her and planned to publish them on a calendar, claiming
that he would give her half the money and apply the remainder to her attorney fees.
A.S. testified that she engaged in sexual relations with Frenden while he was
representing her because she felt it was the only way to get him to leave her alone.
The panel found that this conduct violated Prof.Cond.R. 8.4(h) and 1.8(j)
(prohibiting a lawyer from soliciting or engaging in sexual activity with a client
unless a consensual sexual relationship existed prior to the client-lawyer
relationship).
       {¶ 23} A.S. allowed Frenden’s secretary (and former girlfriend), Amber
Bell, to take physical custody of her twins in early 2014. A.S. expressed her desire
to have the children returned to her as early as March of that year, but Bell




                                          8
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maintained physical custody of the children until after Mothers’ Day 2014. Bell
also retained an attorney and, for a time, sought permanent custody of the twins.
Frenden continued to represent A.S. in her domestic-relations and juvenile cases
even after she had requested that Bell return the twins to her, and he failed to advise
her how to regain physical custody of her children. The panel found that his
continued representation violated Prof.Cond.R. 1.7(a)(2) (providing that a lawyer’s
continued representation of a client creates a conflict of interest if there is a
substantial risk that the lawyer’s ability to represent the client will be materially
limited by the lawyer’s responsibilities to another client, former client, or third
person, or by the lawyer’s own personal interests).
       {¶ 24} The panel determined that Frenden had engaged in conduct that was
prejudicial to the administration of justice in violation of Prof.Cond.R. 8.4(d) when
he failed to appear at A.S.’s May 2014 divorce hearing. Although he claimed that
he did not represent her at that time, the docket showed that he did not move to
withdraw as her counsel until early July. Moreover, the panel found that Frenden
had failed to act with reasonable diligence to obtain temporary support for A.S. in
her divorce proceeding, that he had failed to reasonably consult with her about the
means by which her objectives were to be accomplished, and that he had failed to
appear at a hearing in violation of Prof.Cond.R. 1.3 and 1.4(a)(2).
                   Count Four: Client-Trust-Account Violations
       {¶ 25} At the time of Frenden’s disciplinary hearing, he could not properly
account for approximately $18,000 that remained in his client trust account. He
admitted that his client-trust-account records were inaccurate and in disarray and
that he did not even know what the term “reconciliation” meant. The evidence also
shows that in two separate cases, he disbursed more money than he had received.
On these facts, the panel concluded that Frenden violated Prof.Cond.R. 1.15(a)
(requiring a lawyer to hold funds belonging to a client or third party in a client trust




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account separate from his own property and to maintain certain records regarding
the funds held in that account).
                                      Sanction
       {¶ 26} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties the lawyer violated, relevant
aggravating and mitigating factors, and the sanctions imposed in similar cases. See
Gov.Bar R. V(13)(A).
       {¶ 27} The panel found as a mitigating factor that Frenden had no prior
disciplinary record. See Gov.Bar R. V(13)(C)(1). It also found that he had
experienced a stressful period in his life after discovering that he was not the father
of a child he had believed to be his. He claimed that his sadness made it difficult
to perform as an attorney, but he testified that he had never been diagnosed with
depression, that he was not under the care of a psychiatrist, and that he remained
able to function. Although Frenden’s doctor had prescribed Adderall for attention
deficit three or four years before the disciplinary hearing, Frenden believed that the
treatment had been effective and made no claim that any mental disorder
contributed to his misconduct. See Gov.Bar R. V(13)(C)(7). Nonetheless, the panel
attributed some mitigating effect to the stress that Frenden experienced upon
learning that he had not fathered the child.
       {¶ 28} Aggravating factors found by the panel include Frenden’s dishonest
and selfish motive; his pattern of misconduct involving multiple offenses; his
failure to cooperate in the disciplinary process—as demonstrated by his repeated
requests for extensions of time as deadlines approached and his failure to provide
complete responses to relator’s investigator; his false statements to relator’s
investigator about his application to obtain professional liability insurance; the
harm he caused to vulnerable clients; and his failure to distribute Sigler’s settlement
proceeds. See Gov.Bar R. V(13)(B)(2), (3), (4), (5), (6), (8), and (9).




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           {¶ 29} The panel considered the sanctions we have imposed in cases
involving comparable acts of misconduct. For example, in Disciplinary Counsel v.
Hines, 133 Ohio St.3d 166, 2012-Ohio-3929, 977 N.E.2d 575, we imposed a 12-
month suspension with six months stayed on the license of an attorney who had
engaged in a romantic relationship with a vulnerable client and had left her without
legal assistance at a critical juncture in her case. And in Cleveland v. Kodish, 110
Ohio St.3d 162, 2006-Ohio-4090, 852 N.E.2d 160, we indefinitely suspended an
attorney who neglected her clients’ bankruptcy cases, ignored their efforts to
communicate, simultaneously represented clients with adverse interests without
obtaining their informed consent or notifying the bankruptcy court, issued a check
from her client trust account that was returned for insufficient funds, and engaged
in a consensual sexual relationship with the representative of two of her corporate
clients.
           {¶ 30} But the panel also considered and found Frenden’s conduct most
analogous to that in cases in which we permanently disbarred attorneys who failed
to competently represent clients, dismissed or settled legal matters without their
clients’     consent,   fraudulently   executed     settlement    documents,     either
misappropriated or failed to distribute settlement proceeds, and continued to
represent clients whose interests conflicted with the interests of the attorney or other
clients. See Lake Cty. Bar Assn. v. Davies, 144 Ohio St.3d 558, 2015-Ohio-4904,
45 N.E.3d 975; and Disciplinary Counsel v. Longino, 128 Ohio St.3d 426, 2011-
Ohio-1524, 945 N.E.2d 1040.
           {¶ 31} The panel acknowledged that Frenden’s misconduct, like that of
Davies and Longino, is sufficient to warrant permanent disbarment. However,
based upon relator’s recommendation that Frenden be indefinitely suspended from
the practice of law and the presence of two mitigating factors—the absence of a
prior disciplinary record and Frenden’s stress upon learning that he was not the
father of the child he had believed to be his—the panel recommended that Frenden




                                          11
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be indefinitely suspended from the practice of law with certain conditions on his
reinstatement.
       {¶ 32} The board adopted the panel’s findings of fact and misconduct.
Noting the egregious nature of Frenden’s conduct, however, which according to the
board involved theft and forgery but also harm to vulnerable clients, the board
recommended that Frenden be permanently disbarred from the practice of law in
Ohio. No one has objected to the board’s recommendation.
       {¶ 33} The record in this case clearly and convincingly demonstrates that
Frenden neglected the legal matters of his clients, failed to provide them with
competent representation, settled their personal-injury cases without proper
preparation or client authorization and for far less than their estimated worth, forged
a client’s signature on a medical release, unreasonably delayed the distribution of
settlement proceeds to one client, and entirely failed to distribute any settlement
proceeds to another. He also failed to advise his clients that his professional
liability insurance had been cancelled in November 2011, thus depriving them of a
significant avenue for recourse.
       {¶ 34} Frenden’s trust account records are incomplete and inaccurate. He
has misappropriated some client funds—distributing more money than he received
in some cases and less in others—and he could not identify who was entitled to
receive the more than $18,000 that remained in his client trust account at the time
of his disciplinary hearing. Frenden also engaged in a sexual relationship with a
client, threatened to turn that client’s children over to Children and Family Services
if she did not give him more money, arranged for his secretary to take physical
custody of the client’s young children, and then failed to withdraw from the
representation when the client sought to have the children returned to her. We
therefore adopt the board’s findings of fact and misconduct and agree that the
above-described conduct—which began in 2008—manifests a significant




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deficiency in Frenden’s core ethical obligations of honesty, trustworthiness,
diligence, and reliability.
           {¶ 35} We find that Frenden’s misconduct is analogous to that found in
Longino and Davies. And because we find that the numerous aggravating factors
present in this case far outweigh the two mitigating factors identified and relied
upon by the panel, we agree that permanent disbarment is the proper sanction for
Frenden’s misconduct.
           {¶ 36} Accordingly, John Barry Frenden is permanently disbarred from the
practice of law in Ohio. Costs are taxed to Frenden.
                                                             Judgment accordingly.
           O’CONNOR, C.J., and PFEIFER, LANZINGER, FRENCH, and O’NEILL, JJ.,
concur.
           O’DONNELL and KENNEDY, JJ., dissent, and would indefinitely suspend
respondent.
                                 _________________
           McDonald Hopkins L.L.C., R. Jeffrey Pollock, and Kathleen J. Sanz, for
relator.
           John B. Frenden, pro se.
                                 _________________




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