[Cite as Cuyahoga Cty. Bar Assn. v. Kelley, 105 Ohio St.3d 55, 2004-Ohio-7009.]




                CUYAHOGA COUNTY BAR ASSOCIATION v. KELLEY.
                     [Cite as Cuyahoga Cty. Bar Assn. v. Kelley,
                        105 Ohio St.3d 55, 2004-Ohio-7009.]
Attorneys at law — Misconduct — Indefinite suspension — Conduct adversely
        reflecting on fitness to practice law — Failure to carry adequate
        malpractice coverage — Failure to cooperate — Neglect of entrusted
        legal matter — Handling a legal matter without adequate preparation.
(No. 2004-1009– Submitted September 15, 2004—Decided December 29, 2004.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 03-021.
                              _______________________
        Per Curiam.
        {¶ 1} Respondent, Elliott Ray Kelley of Cleveland, Ohio, Attorney
Registration No. 0009587, was admitted to the practice of law in Ohio in 1963.
On December 4, 2003, in its third amended complaint, relator, Cuyahoga County
Bar Association, charged respondent with violating the Code of Professional
Responsibility while representing three different clients. Respondent answered on
January 13, 2004. A panel of the Board of Commissioners on Grievances and
Discipline heard the cause on February 6, 2004. Based on the exhibits and
testimony, the panel made findings of fact, conclusions of law, and a
recommendation.
        {¶ 2} The first of the three matters before the panel began when
respondent was hired by a friend to represent her in her capacity as the guardian
of the estate of her sister, an alleged incompetent. In June 1999, a notice to file
inventory was issued. When that inventory was not forthcoming, a motion to
remove the guardian was filed.
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       {¶ 3} On September 22, 1999, an inventory was filed. Unfortunately, it
was incomplete, omitting, among other things, several certificates of deposit in
the guardianship’s name constituting significantly greater assets than previously
disclosed.
       {¶ 4} A second motion to remove the guardian was filed in the spring of
2001 after a notice to file an account was ignored. Shortly thereafter, respondent
moved to expend funds from the guardianship account for attorney fees, but only
after he had already withdrawn $1,095 from the account for that purpose. That
motion was eventually dismissed for want of prosecution after respondent failed
to attend the hearing thereon, and no order was ever entered that authorized the
payment of these fees.
       {¶ 5} On June 29, 2001, the guardian was removed for failure to file an
account. Later that year, the ward died, and in March 2002, a successor guardian
was appointed.    The successor guardian had considerable difficulty securing
accurate and complete records from respondent.         The successor eventually
determined that significant estate assets had been omitted from the inventory filed
by respondent     and that approximately $15,000 of estate assets remained
unaccounted for because of, among other reasons, respondent’s failure to maintain
complete records of the estate’s affairs. The successor also concluded that the
former guardian may have allowed the assets of the estate to be dissipated.
Finally, the successor noted respondent’s receipt of attorney fees from the
guardianship account without prior authorization.
       {¶ 6} Other irregularities were also unearthed during the investigation.
Relator discovered that respondent had not registered with the Supreme Court or
apprised the court of his correct address. Relator also learned that respondent had
not carried malpractice insurance and had not informed his client of that fact.
Relator also alleged that respondent had ignored its discovery requests and had
failed to attend a scheduled deposition.




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                               January Term, 2004




         {¶ 7} Respondent tried to excuse his misconduct by attributing the
deficient records to the guardian and to his efforts to characterize expenditures
that directly benefited the guardian as allowable expenses. Respondent asserts
that he provided all of the records he had and noted that he ultimately appeared
for his deposition. He also stated that none of his errors were motivated by fraud
or dishonesty and that he was just trying to help his clients the best way that he
could.
         {¶ 8} Relator alleged numerous disciplinary violations in the above
matter. The panel dismissed four of them for lack of clear and convincing
evidence. It did, however, find violations of DR 1-102(A)(6) (barring conduct
adversely reflecting on fitness to practice law), 1-104(A) (requiring a lawyer to
notify clients of failure to carry adequate malpractice coverage), and Gov.Bar
R.V(4)(G) (requiring a lawyer to cooperate in grievance investigation).
         {¶ 9} The second matter arose from respondent’s representation of a
husband and wife in a Chapter 7 bankruptcy proceeding. They first contacted
respondent in October 2000 and formally retained him shortly thereafter.
         {¶ 10} During the bankruptcy proceedings that ensued, it was discovered
that in both the initial and the amended bankruptcy schedules, respondent had not
declared numerous assets. The omissions eventually prompted the bankruptcy
trustee to commence an adversary proceeding against the clients, both objecting to
a discharge in bankruptcy and alleging a conspiracy to commit fraud. The clients
eventually fired respondent and secured new counsel, but they claim that three
years later, they are still experiencing the financial ramifications of respondent’s
mishandling of their case.
         {¶ 11} The wife also alleged that respondent advised her to sign blank
bankruptcy documents and told her to sign her husband’s name as well. She
testified that respondent told the couple that if questioned by the trustee, they




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should aver that the signatures were genuine. Respondent vigorously denied these
allegations.
       {¶ 12} The panel dismissed these latter allegations for lack of clear and
convincing evidence. It did, however, find that respondent had mishandled his
clients’ bankruptcy schedules to their detriment. Accordingly, the panel found
violations of DR 1-102(A)(6), 6-101(A)(2) (prohibiting the handling of a legal
matter without adequate preparation), and 6-101(A)(3) (prohibiting neglect of a
legal matter). Again, respondent’s lack of malpractice insurance and his failure to
disclose that he was uninsured violated DR 1-104.
       {¶ 13} The remaining counts stemmed from respondent’s representation
of a client in a personal injury matter. Respondent ultimately settled the claim but
failed to pay a hospital bill even though funds had been set aside for payment of
such expenses. These funds, moreover, were never deposited in a trust account
but were instead placed in respondent’s personal checking account. The hospital
eventually undertook collection action against the client.
       {¶ 14} As was the case in the guardianship matter, incomplete and
delayed records hampered investigation. The panel found that while respondent’s
failure to cooperate was not necessarily intentional, it was neglectful and
amounted to a violation of Gov.Bar R. V(4)(G). The panel also found violations
of DR 1-102(A)(6), 6-101(A)(2) and (3), 7-101(A)(3) (barring conduct that
prejudices or damages a client), 9-102(A) (requiring a lawyer to deposit client
funds in a trust account), and 9-102(B)(4) (requiring a lawyer to return
undistributed funds received in settlement of a claim).
       {¶ 15} Other overall deficiencies were discovered at the panel hearing.
Although respondent ultimately cured his lack of registration with the Supreme
Court as required by Gov.Bar R. VI, he was, at that time, suspended from the
practice of law because of his failure to meet the continuing legal education
requirements of Gov.Bar R. X.




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       {¶ 16} In considering the appropriate penalty, the panel considered both
aggravating and mitigating evidence. As to the former, the panel noted that
respondent had already been suspended for two years for similar misconduct. See
Cleveland Bar Assn. v. Kelley (1994), 71 Ohio St.3d 147, 642 N.E.2d 613. The
panel also considered respondent’s CLE suspension.
       {¶ 17} In mitigation, the panel found respondent to be well-meaning and
without malice or selfish motive.      It also noted respondent’s long-standing
representation of clients who needed legal services but who did not qualify for pro
bono representation. The panel also found that respondent indeed recognized the
deficiencies in his practice habits. This finding, however, was tempered by the
concern that respondent did not comprehend the seriousness of his failure to
satisfy the rules governing the practice of law in Ohio or the consequences to his
clients of his inadequate services.
       {¶ 18} The panel concluded, “Respondent’s clients would have been
better served by other counsel, or even no counsel, than by the services rendered
by Respondent.      The Panel finds that the misconduct involved in these
proceedings is likely to be repeated, and that the public, therefore, is at risk, so
long as Respondent remains actively practicing law.” The panel accordingly
recommended that respondent be indefinitely suspended from the practice of law,
with readmission contingent not only on the conditions of readmission imposed
by Gov.Bar R. V but also upon respondent’s successful completion of 12 hours of
continuing legal education with respect to law office operations and the
requirements of the Rules for the Government of the Bar and on the condition that
for a period of two years following readmission, respondent be placed on
probation under the supervision of one or more monitoring attorneys, pursuant to
Gov.Bar R. V(9), to monitor respondent’s practice.
       {¶ 19} The board adopted the findings of fact, conclusions of law, and
recommendation of the panel and additionally recommended that the cost of these




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proceedings be taxed to the respondent. We, in turn, adopt the board’s report in
full. Respondent has committed serious misconduct. These incidents, moreover,
are not isolated – respondent has already been severely sanctioned for similar
violations. His history reinforces our concern that similar misconduct is very
likely to continue if respondent is not suspended.
       {¶ 20} Accordingly, respondent is hereby indefinitely suspended from the
practice of law in Ohio with readmission contingent on the following conditions:
(1) that he comply with all conditions of readmission imposed by Gov.Bar R. V
and (2) that he successfully complete 12 hours of continuing legal education with
respect to law office operations and the Rules for the Government of the Bar, in
addition to the requirements set forth in Gov.Bar R. X(3)(G). If readmitted, for a
period of two years following readmission, respondent shall be placed on
probation under the supervision of one or more monitoring attorneys, pursuant to
Gov.Bar R. V(9), to monitor his practice.
       {¶ 21} Costs are taxed to respondent.
                                                           Judgment accordingly.
       MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON,
O’CONNOR and O’DONNELL, JJ., concur.
                             ___________________
       Ellen S. Mandell and Steven M. Ott, for relator.
       Elliott Ray Kelley, pro se.
                           _______________________




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