[Cite as Disciplinary Counsel v. Davis, 130 Ohio St.3d 440, 2011-Ohio-6016.]




                          DISCIPLINARY COUNSEL v. DAVIS.
 [Cite as Disciplinary Counsel v. Davis, 130 Ohio St.3d 440, 2011-Ohio-6016.]
Attorneys—Misconduct—Indefinite suspension.
  (No. 2011-1081—Submitted August 8, 2011—Decided November 29, 2011.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 10-056.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Sherry Darlene Davis of Waverly, Ohio, Attorney
Registration No. 0068036, was admitted to the practice of law in Ohio in 1997. In
2009, Davis was suspended from the practice of law for two years, with one year
conditionally stayed. Disciplinary Counsel v. Davis, 121 Ohio St.3d 84, 2009-
Ohio-500, 902 N.E.2d 25, ¶ 17. On April 29, 2010, in response to a motion to
show cause filed by relator, Disciplinary Counsel, the court imposed an actual
two-year suspension on Davis. Davis’s term suspension has expired, but the
conditions of her reinstatement remain unfulfilled, and at the present time, Davis
has not applied for reinstatement.
        {¶ 2} On May 27, 2010, relator, Disciplinary Counsel, charged Davis in
a three-count complaint with numerous violations of the Rules of Professional
Conduct. This is Davis’s third appearance before this court. The Board of
Commissioners on Grievances and Discipline recommends that we indefinitely
suspend Davis’s license to practice law. The parties have submitted stipulations
of fact and misconduct for some of the allegations, and a panel of the board
conducted a hearing on the remaining allegations. The panel accepted the parties’
agreed stipulations, made additional findings of fact and conclusions of law, and
recommended that Davis be indefinitely suspended from the practice of law and
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make restitution to her clients. The board agreed, adding that the suspension
should run concurrently to her term suspension that is continuing. We adopt the
board’s findings of fact and conclusions of law that Davis violated ethical
standards incumbent on Ohio lawyers, but we impose a separate indefinite
suspension of Davis’s license to practice law in Ohio.
                                   Misconduct
                       Count 1 (The Cash Station Matter)
       {¶ 3} Joann Taylor paid Davis $300 to work on a custody matter for her
daughter involving Taylor’s grandson. Taylor also hired Davis to do garnishment
and collection work for a business called Cash Station. Davis did no work on the
custody matter prior to her suspension and failed to return the client file and any
unused fees as promised in her postsuspension letter. Disciplinary Counsel also
alleged that Davis failed to return files on uncompleted work and fees to Cash
Station.
       {¶ 4} The board found that during her suspension, Davis continued to
receive checks belonging to Cash Station totaling $1,299.58.          Disciplinary
Counsel alleged that the funds were converted for Davis’s personal use and
rightfully belonged to Cash Station. Testimony from witnesses Taylor (former
manager of Cash Station) and Debra Stone (record-keeper of Cash Station)
showed that the Portsmouth Municipal Court sent checks directly to Davis for
money that Davis collected through her garnishment work. Davis was to keep her
fee and remit the balance to Cash Station. The municipal court received payments
from garnishees and sent checks to Davis from November 26, 2007, until April
30, 2009.
       {¶ 5} Taylor alleged that Cash Station had received only a few checks
from Davis and that there were many more payments owed to it. Disciplinary
Counsel, however, could not provide detailed records with the names of
garnishees, how much of each check was retained by Davis, or how much she sent



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her client, Cash Station. Thus, the board concluded that no definitive proof
existed to substantiate Disciplinary Counsel’s claim that Davis kept the entire
amount remitted by the court and converted it.           However, the board also
concluded that the stipulations documented Davis’s repeated failure to reply to
emailed letters of inquiry and requests for documents that she had promised to
submit to Disciplinary Counsel. Further, Davis failed to produce the requested
materials after the single telephone conversation she had with Disciplinary
Counsel.
       {¶ 6} The parties have stipulated, and we agree, that Davis’s conduct
violated Prof.Cond.R. 8.1(b) (requiring a lawyer to respond to a demand for
information from a disciplinary authority) and 8.4(d) (prohibiting conduct that is
prejudicial to the administration of justice) and Gov.Bar R. V(4)(G) (requiring an
attorney to cooperate in a disciplinary investigation). In addition, the board also
concluded, and we agree, that as alleged in the complaint, Davis’s conduct
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence and
promptness in representing a client), 1.16(d) (as part of the termination of
representation, requiring a lawyer to deliver to the client all papers and property to
which the client is entitled), and 1.16(e) (requiring a lawyer who withdraws from
employment to refund promptly any part of a fee paid in advance that has not
been earned).
       {¶ 7} Because Disciplinary Counsel did not present clear and convincing
evidence that Davis converted funds remitted by Portsmouth Municipal Court that
were the rightful possession of Cash Station, the board dismissed the alleged
violation of Prof.Cond.R. 8.4(b) (prohibiting an illegal act that reflects adversely
on the lawyer’s honesty or trustworthiness). Further, the board dismissed alleged
violations of both Prof.Cond.R. 1.5(a) (prohibiting a clearly excessive fee) and
8.4(h) (prohibiting conduct that adversely reflects on the lawyer’s fitness to
practice law).



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                          Count 2 (The O’Rourke Matter)
       {¶ 8} Steven O’Rourke paid Davis $2,500 to appeal from a divorce
judgment. Davis filed an appeal, as well as several motions for stay, which were
denied, after which Davis failed to do any work on the case. In February 2009,
Davis notified O’Rourke of her license suspension and promised to refund any
unused portion of the retainer. O’Rourke made several requests for the return of
his complete file and his retainer, but Davis ignored him, so he filed a grievance.
       {¶ 9} On November 5, 2009, Disciplinary Counsel sent a letter of inquiry
concerning O’Rourke’s grievance by certified mail to the address that Davis had
registered with the Supreme Court Office of Attorney Services. The letter was
returned unclaimed.     A few weeks later, Disciplinary Counsel was able to
communicate with Davis by email, and she claimed ignorance of the grievance
but promised to cooperate. She ignored further emails.
       {¶ 10} O’Rourke testified that the two-year period in which his appeal
was delayed was harmful both to him and to his children, whose company he was
denied. Further, because Davis did not return the $2,500 retainer, he had trouble
retaining another attorney to complete the work. O’Rourke further testified that
Davis also promised to deliver a draft of the appellate brief, which she claimed to
have almost completed, to O’Rourke’s new attorney, but she failed to do so. The
board further noted that as of the date of the board report, neither the retainer nor
files had been returned to O’Rourke.
       {¶ 11} The parties have stipulated, and we agree, that Davis’s conduct
violated Prof.Cond.R. 8.1(b), 8.4(d), and 8.4(h) and Gov.Bar.R. V(4)(G).
       {¶ 12} In addition, the board also concluded, and we agree, that Davis’s
conduct violated Prof.Cond.R. 1.16(d), 1.16(e), and 1.3.
       {¶ 13} The board dismissed an alleged violation of Prof.Cond.R. 1.5(a)
because Disciplinary Counsel failed to prove by clear and convincing evidence




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that Davis made an agreement for, charged, or collected a clearly excessive fee.
We concur and dismiss this charge.
                           Count 3 (The Shreck Matter)
       {¶ 14} In March 2005, John and Carolyn Shreck hired Davis to prepare an
estate plan for them. When they learned in 2009 of Davis’s license suspension,
they contacted her to obtain their original wills and estate-planning documents.
The Shrecks left multiple telephone messages for Davis that went unreturned, and
they sent a letter to her by certified mail, which was returned unclaimed. The
Shrecks were ultimately able to obtain their original wills from Davis’s former
law firm, but when they were unable to obtain their complete files, they filed a
grievance with Disciplinary Counsel.
       {¶ 15} Disciplinary Counsel mailed a letter of inquiry to the address that
Davis had registered with this court, but it was returned unclaimed. Davis replied
to Disciplinary Counsel’s email, stating that she was unaware of any new
grievances but would promptly send the requested documents as soon as she
received the new grievances. Disciplinary Counsel mailed a second letter of
inquiry by regular mail, which was not returned, but no response was received.
The board found that the signed stipulations established Davis’s failure to reply to
the grievance or to the email correspondences requesting the return of the
Shrecks’ estate-planning file.
       {¶ 16} The parties have stipulated, and we agree, that Davis’s conduct
violated Prof.Cond.R. 1.16(d), 8.1(b), 8.4(d), and 8.4(h) and Gov.Bar.R. V(4)(G).
                          Aggravation and Mitigation
       {¶ 17} The panel and board found the following aggravating factors
pursuant to 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.”):       Davis has been previously disciplined; she
exhibited a dishonest or selfish motive by accepting client retainers, performing



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little to no work, and then failing to return the client retainers and failing to make
restitution; she engaged in a pattern of misconduct involving three clients and
multiple offenses; she failed to cooperate in the disciplinary process; she refused
to acknowledge the wrongful nature of her conduct; and she harmed vulnerable
victims. BCGD Proc.Reg. 10(B)(1)(a), (b), (c), (d), (e), (g), and (h).
           {¶ 18} The board concluded, and we agree, that there are no mitigating
factors.
                                      Sanction
           {¶ 19} When imposing sanctions for attorney misconduct, in addition to
weighing aggravation and mitigation, we consider all relevant factors, including
the duties violated by the lawyer in question 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.
           {¶ 20} We have identified Davis’s breaches of her duties to her clients,
the legal profession, and the judicial system. The stipulations submitted by the
parties contain no recommended sanction. At the hearing, Disciplinary Counsel
requested an indefinite suspension based on the nature of the misconduct, the
harm caused, the lack of mitigation, the profusion of aggravating factors, and
precedent.
           {¶ 21} Disciplinary Counsel cited three cases in support of his
recommendation to the panel, all of which we find similar to the case at bar. In
Cleveland Metro. Bar Assn. v. Gottehrer, 124 Ohio St.3d 519, 2010-Ohio-929,
924 N.E.2d 825, we indefinitely suspended an attorney for accepting retainers in
two cases in which he failed to do the work, failed to respond to communications
from clients, failed to return retainers, and failed to cooperate with the
disciplinary process. Id. at ¶ 3. In Columbus Bar Assn. v. Clovis, 125 Ohio St.3d
434, 2010-Ohio-1859, 928 N.E.2d 1078, we indefinitely suspended an attorney
for failing to do work, failing to return documents and a $4,000 retainer, and



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failing to cooperate in the disciplinary process. Id. at ¶ 2. Finally, in Columbus
Bar Assn. v. Van Sickle, 128 Ohio St.3d 376, 2011-Ohio-774, 944 N.E.2d 677, we
indefinitely suspended an attorney for practicing while under a license
suspension, failing to register with the Supreme Court, failing to complete work,
and failing to respond to requests for return of funds and documentation. That
respondent had shown some evidence of past depression. Id. at ¶ 15.
       {¶ 22} Having considered the aggravating factors and the fact that no
mitigating factors exist in this case, and having considered the sanctions
previously imposed for comparable conduct, we adopt the board’s recommended
sanction of an indefinite suspension. We also order Davis to make restitution to
her clients Joann Taylor and Steven O’Rourke.
       {¶ 23} Accordingly, we indefinitely suspend Sherry Darlene Davis from
the practice of law. We condition any future reinstatement on the submission of
proof that Davis has fulfilled the conditions of both her term suspension and her
indefinite suspension and has made restitution as follows: $300 to Joann Taylor,
an accounting to Cash Station and return of any funds not accounted for, and
$2,500 to Steven O’Rourke. Costs are taxed to Davis.
                                                           Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                             __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
       Sherry Darlene Davis, pro se.
                           ______________________




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