[Cite as Cleveland Metro. Bar Assn. v. Kelly, 132 Ohio St.3d 292, 2012-Ohio-2715.]




           CLEVELAND METROPOLITAN BAR ASSOCIATION v. KELLY.
                     [Cite as Cleveland Metro. Bar Assn. v. Kelly,
                        132 Ohio St.3d 292, 2012-Ohio-2715.]
Attorneys at law—Misconduct—Neglect of entrusted legal matter—Failure to
        cooperate in disciplinary investigation—Indefinite suspension.
     (No. 2011-2038—Submitted January 18, 2012—Decided June 20, 2012.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 11-037.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Thomas R. Kelly of Lakewood, Ohio, Attorney
Registration No. 0040319, was admitted to the practice of law in Ohio in 1988.
On November 3, 2009, we suspended him for his failure to register as an attorney
for the 2009-to-2011 biennium. In re Attorney Registration Suspension of Kelly,
123 Ohio St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256.                     That suspension
remains in effect.
        {¶ 2} On April 11, 2011, relator, Cleveland Metropolitan Bar
Association, filed a three-count complaint alleging that Kelly had violated the
Disciplinary Rules of the Code of Professional Responsibility and the Rules of
Professional Conduct in his representation of two clients and that he had failed to
cooperate in the ensuing disciplinary investigations.1
        {¶ 3} Although the Board of Commissioners on Grievances and
Discipline served the complaint by certified mail and Kelly signed for it, he did


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 Disciplinary Rules of the Code of Professional Responsibility.
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not file an answer. Consequently, relator moved the board to find Kelly in
default.
          {¶ 4} The board appointed a master commissioner, who found Kelly in
default and found that relator had proved by clear and convincing evidence that
Kelly had neglected one client’s legal matter and had failed to respond to the
ensuing disciplinary investigation, but concluded that there was insufficient
evidence to support relator’s allegations regarding a second client. Based upon
her findings of misconduct, the master commissioner recommended that Kelly be
indefinitely suspended from the practice of law.
          {¶ 5} The board adopted the master commissioner’s findings of fact and
misconduct and recommends that count two of the complaint be dismissed.
However, the board recommends that Kelly be suspended from the practice of law
for two years, with one year stayed on the condition that he refund $1,200 to his
client.    We adopt the board’s findings of fact and misconduct, with some
modification, as our own, and dismiss count two of relator’s complaint. However,
based upon the sanctions imposed for comparable misconduct, we indefinitely
suspend Kelly from the practice of law in Ohio.
                                   Misconduct
          {¶ 6} With respect to count one, the board found that in June 2009,
Robert E. Jakubs retained Kelly to represent him in a divorce. He paid Kelly
$1,000 in three installments. Kelly wrote three letters to Jakubs’s wife suggesting
dissolution of the marriage and twice met with Jakubs to discuss the status of the
case. After those meetings, Kelly failed to respond to Jakubs’s telephone calls for
three weeks. He later spoke with Jakubs and requested an additional $200 for
filing fees. Jakubs paid the money but never heard from Kelly again. Jakubs
filed his action pro se and then hired another attorney. Kelly has not refunded his
money.




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                                January Term, 2012




       {¶ 7} Although relator’s complaint charged Kelly with violations of
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(4) (requiring a lawyer to comply as soon as
practicable with reasonable requests for information from the client), 1.5(a)
(prohibiting a lawyer from making an agreement for, charging, or collecting an
illegal or clearly excessive fee), and 1.16(e) (requiring a lawyer to promptly
refund any unearned fee upon the lawyer’s withdrawal from employment), the
master commissioner and board found only that he had “neglected the
representation of Jakubs.”
       {¶ 8} We agree that Kelly violated Prof.Cond.R. 1.3 but also find that he
failed to keep Jakubs reasonably informed about the status of his matter and failed
to comply with his reasonable requests for information in violation of
Prof.Cond.R. 1.4(a)(4). Moreover, by collecting his fee from Jakubs and then
failing either to perform the work or refund the money, Kelly violated
Prof.Cond.R. 1.5(a) and 1.16(e). See, e.g., Columbus Bar Assn. v. Harris, 108
Ohio St.3d 543, 2006-Ohio-1715, 844 N.E.2d 1202 (finding that an attorney who
received a $2,000 retainer but did not file any pleadings or return the client’s calls
and refunded only $860 after the representation was terminated charged an illegal
or clearly excessive fee).
       {¶ 9} The second count of relator’s complaint alleges that Kelly
voluntarily dismissed a malpractice action against a nursing home without his
client’s consent and that his failure to attach a Civ.R. 10(d) affidavit of merit to
the refiled complaint resulted in the subsequent dismissal of the action. Relator
alleged that Kelly’s conduct with respect to this client prior to February 1, 2007,
violated DR 6-101(A)(1) (prohibiting a lawyer from handling a matter that he is
not competent to handle without obtaining assistance from a lawyer who is
competent to handle it), 6-101(A)(3) (prohibiting neglect of an entrusted legal
matter), 7-101(A)(1) (prohibiting a lawyer from intentionally failing to seek the



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lawful objectives of his client), and 7-101(A)(2) (prohibiting a lawyer from
intentionally failing to carry out a contract of employment for legal services) and
that his conduct after that date violated Prof.Cond.R. 1.3 and 1.4(a)(3).
       {¶ 10} The master commissioner and board, however, found that the only
evidence submitted in support of these allegations was a certified copy of the
malpractice complaint filed on behalf of the affected client and concluded that it
did not clearly and convincingly demonstrate that Kelly committed the alleged
misconduct.    Like the complaint in the disciplinary action, the malpractice
complaint contains statements of the respondent’s alleged misconduct—not
findings by a court that the alleged misconduct occurred.               Gov.Bar R.
V(6)(F)(1)(b) specifies that a motion for default shall contain “[s]worn or certified
documentary prima facie evidence in support of the allegations made.” We have
previously instructed relators to submit evidence that directly establishes the
charges of misconduct, preferably in the form of affidavits executed by the
grievants themselves. Dayton Bar Assn. v. Sebree, 104 Ohio St.3d 448, 2004-
Ohio-6560, 820 N.E.2d 318, ¶ 9. And when the grievant is unavailable, an
affidavit executed by an investigator may suffice, provided the affidavit explains
why the grievant’s sworn statement is unobtainable in addition to reciting the
investigator’s own knowledge of the alleged misconduct. Id. Therefore, we
adopt the board’s implicit finding that a certified copy of an unsworn malpractice
complaint is not an adequate substitute for a grievant’s affidavit, and we dismiss
the allegations contained in count two of relator’s complaint.
       {¶ 11} With regard to count three of relator’s complaint, the master
commissioner and board found that relator had engaged in extensive efforts to
inform Kelly of the grievance and the malpractice suit filed against him and to
obtain his cooperation in the resulting disciplinary investigation.         Numerous
letters mailed to the address Kelly had provided to the Office of Attorney Services
were returned unclaimed. Relator also attempted to hand-deliver a letter, but it




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appeared that Kelly no longer resided at his registered address.           A private
investigator retained by relator was unable to locate Kelly.
       {¶ 12} On September 16, 2010, Kelly called relator’s office and spoke
with Heather Zirke, assistant counsel. He advised her that he had received a letter
from relator regarding the Jakubs grievance and that he was aware of the
malpractice suit against him. He provided relator with an updated address and
stated that he did not intend to practice law any longer. He later spoke with
relator’s investigator and stated that he would retain legal counsel. Relator sent
several letters to Kelly’s new address by regular and certified mail, notifying him
that the board had found probable cause that he had violated disciplinary rules and
stating relator’s intent to file a complaint with the board, but the certified letters
were returned unclaimed, and Kelly did not respond.
       {¶ 13} Based upon these facts, the master commissioner and board found
that Kelly had failed to cooperate with relator’s investigation, in violation of
Prof.Cond.R. 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a
demand for information by a disciplinary authority during an investigation) and
Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a disciplinary
investigation). We adopt the board’s finding of fact and misconduct.
                                      Sanction
       {¶ 14} 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 BCGD Proc.Reg. 10. Disciplinary Counsel v. Broeren, 115 Ohio St.3d
473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
       {¶ 15} As aggravating factors in this case, we find that Kelly has refused
to acknowledge the wrongful nature of his conduct, caused harm to a vulnerable



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client, and failed to make restitution. See BCGD Proc.Reg. 10(B)(1)(g), (h), and
(i). The only mitigating factor is that, except for his current attorney-registration
suspension, Kelly does not have a prior disciplinary record. See BCGD Proc.Reg.
10(B)(2)(a).
       {¶ 16} The master commissioner found that an indefinite suspension was
the appropriate sanction for Kelly’s misconduct.            The board, however,
recommends that Kelly be suspended from the practice of law in Ohio for two
years, with one year stayed on the condition that he refund the $1,200 he received
from Jakubs.
       {¶ 17} An attorney’s neglect of an entrusted legal matter and failure to
cooperate in the ensuing disciplinary investigation generally warrant an indefinite
suspension. Disciplinary Counsel v. Hoff, 124 Ohio St.3d 269, 2010-Ohio-136,
921 N.E.2d 636, ¶ 10; Disciplinary Counsel v. Mathewson, 113 Ohio St.3d 365,
2007-Ohio-2076, 865 N.E.2d 891, ¶ 19. Kelly not only neglected a client’s legal
matter and failed to cooperate in the resulting disciplinary investigation; he also
failed to keep his client reasonably informed about the status of his matter, failed
to comply with his reasonable requests for information, and in effect
misappropriated that client’s funds by collecting and retaining a fee without
performing the work.       Thus, we agree that an indefinite suspension, as
recommended by the master commissioner, is the appropriate sanction for this
misconduct.
       {¶ 18} Accordingly, Thomas R. Kelly is indefinitely suspended from the
practice of law in Ohio. Costs are taxed to Kelly.
                                                             Judgment accordingly.
       O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
       PFEIFER and O’DONNELL, JJ., dissent and would impose a two-year
suspension, with one year stayed on condition, as recommended by the board.




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                               __________________
           Frantz Ward, L.L.P., Patrick F. Haggerty, and Andrew M. Szilagyi, for
relator.
                             ______________________




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