[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Rutherford, Slip Opinion No. 2018-Ohio-2680.]




                                        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. 2018-OHIO-2680
                     DISCIPLINARY COUNSEL v. RUTHERFORD.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Disciplinary Counsel v. Rutherford, Slip Opinion No.
                                   2018-Ohio-2680.]
Attorneys—Misconduct—Multiple violations of the Rules of Professional Conduct,
        including neglecting client matters, failing to refund unearned legal fees,
        engaging in dishonest conduct, and failing to cooperate in disciplinary
        investigations—Permanent disbarment.
     (No. 2017-0010—Submitted January 24, 2018—Decided July 11, 2018.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2016-051.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Guy Darius Rutherford, whose last known address was
in Cleveland, Ohio, Attorney Registration No. 0066032, was admitted to the
practice of law in Ohio in 1996.
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                          Summary of Prior Discipline
       {¶ 2} We suspended Rutherford in four different matters starting in 1998
and ending in 2009. Rutherford was suspended in 1998 for nonpayment of child
support, see In re Rutherford, 81 Ohio St.3d 1254, 691 N.E.2d 1049 (1998), and
was reinstated two months later. He was briefly suspended for failing to timely
register as an attorney in 2005 and 2007, see In re Attorney Registration Suspension
of Rutherford, 107 Ohio St.3d 1431, 2005-Ohio-6408, 838 N.E.2d 671; In re
Attorney Registration Suspension of Rutherford, 116 Ohio St.3d 1420, 2007-Ohio-
6463, 877 N.E.2d 305. In 2006, we imposed a stayed six-month suspension for
Rutherford’s neglect of three clients’ matters, failure to deposit unearned fees into
his client trust account, and failure to promptly deliver funds that his clients were
entitled to receive, but we later revoked the stay based on his contempt of our prior
order. See Cuyahoga Cty. Bar Assn. v. Rutherford, 112 Ohio St.3d 159, 2006-Ohio-
6526, 858 N.E.2d 417; Cuyahoga Cty. Bar Assn. v. Rutherford, 118 Ohio St.3d
1512, 2008-Ohio-3441, 889 N.E.2d 1028. He was reinstated in May 2009.
       {¶ 3} On March 11, 2016, we suspended Rutherford’s license on an interim
basis after he failed to answer a December 11, 2015 disciplinary complaint filed by
relator, disciplinary counsel, which alleged that he had abandoned multiple clients,
failed to refund (or failed to timely refund) their retainers, failed to cooperate in
multiple disciplinary investigations, and engaged in additional misconduct.
Disciplinary Counsel v. Rutherford, 145 Ohio St.3d 1247, 2016-Ohio-944, 49
N.E.3d 309. On October 31, 2016, we converted that interim suspension into an
indefinite suspension pursuant to Gov.Bar R. V(14)(E)(1), and that suspension
remains in effect. Disciplinary Counsel v. Rutherford, 147 Ohio St.3d 1245, 2016-
Ohio-7532, 65 N.E.3d 764.
                        Pending Disciplinary Complaint
       {¶ 4} On November 4, 2016, relator filed a new complaint with the Board
of Professional Conduct alleging that Rutherford had engaged in additional




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misconduct, including the neglect of four separate client matters, and had then
failed to cooperate in the ensuing disciplinary investigation. Based on Rutherford’s
failure to file an answer to that complaint, we imposed another interim default
suspension on February 1, 2017. Disciplinary Counsel v. Rutherford, 149 Ohio
St.3d 1261, 2017-Ohio-365, 75 N.E.3d 1271.
       {¶ 5} On September 7, 2017, we granted relator’s motion to remand this
proceeding to the board to seek Rutherford’s permanent disbarment. Thereafter,
relator submitted a motion for default disbarment supported by sworn or certified
exhibits, including the affidavits of four clients, assistant disciplinary counsel, and
relator’s investigator and administrative personnel. See Gov.Bar R. V(14)(F).
       {¶ 6} The motion for default was referred to a master appointed by the board
for disposition pursuant to Gov.Bar R. V(14)(F)(2)(a). The master recommended
that Rutherford be permanently disbarred based on findings that included that he
neglected client matters, failed to refund unearned retainers, and failed to cooperate
in the ensuing disciplinary investigation. The board adopted the master’s findings
of fact and conclusions of law and agreed that Rutherford should be permanently
disbarred. For the reasons that follow, we adopt the board’s report and permanently
disbar Rutherford from the practice of law in Ohio.
                                    Misconduct
       Counts I through III: The Sherrod, Hernandez, and Cedeno Matters
       {¶ 7} Between October 2013 and November 2015, Penny Sherrod, Martha
Hernandez, and Reinaldo Cedeno separately retained Rutherford to file complaints
for divorce. Each of them paid him a retainer of $600 to $800 for attorney fees and
costs. Rutherford did not perform any of the contracted work—although he falsely
advised Sherrod that he had filed a complaint for divorce on her behalf. He also
had little or no communication with these clients after collecting their fees.
Sherrod, Hernandez, and Cedeno each requested a refund of their legal fees, but




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Rutherford complied only with Cedeno’s request—nearly one year after it was
made.
        {¶ 8} The board found and we agree that by engaging in the described
conduct, Rutherford committed three violations each of Prof.Cond.R. 1.3 (requiring
a lawyer to act with reasonable diligence in representing a client), 1.4(a)(3)
(requiring a lawyer to keep the client reasonably informed about the status of a
matter), 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)
and a single violation of Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation).
                              Count IV: The Vega Matter
        {¶ 9} In June 2015, Rinaldo Vega hired Rutherford to represent Vega’s son
in pending criminal and immigration matters. Vega had advanced Rutherford
$4,500 in attorney fees by October 15, 2015, and Rutherford informed him that he
had filed an application to inspect sealed records in the criminal case. After
numerous failed attempts to communicate with Rutherford, Vega retained another
attorney to represent his son in the immigration case only. Rutherford met with the
immigration attorney to discuss the case and promised to forward the files in his
possession. Although Rutherford responded to the immigration attorney’s e-mailed
inquiry about the status of the files and did forward some documents, he never
provided most of the files.
        {¶ 10} After Vega’s son was found guilty of several offenses in his criminal
case, Rutherford filed a motion for leave to file a delayed appeal. The court of
appeals granted the motion and sent a copy of its order to Rutherford’s address of
record, directing him to file a notice of appeal and a completed docketing statement
on or before February 16, 2016, but the mailing was returned by the postal service
marked “attempted-not known” and “unable to forward.” Rutherford took no




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further action on behalf of Vega’s son, and the appeal was dismissed for failure to
prosecute.    Vega filed a grievance with relator and requested a refund, but
Rutherford has not refunded any portion of Vega’s $4,500 retainer.
       {¶ 11} The board found that Rutherford’s conduct in Vega’s son’s cases
violated Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4) (requiring a lawyer to comply as
soon as practicable with reasonable requests for information from the client),
1.16(e), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is
prejudicial to the administration of justice). We adopt these findings of fact and
misconduct.
                          Count V: Failure to Cooperate
       {¶ 12} Beginning in February 2016, relator sent multiple letters of inquiry
and a notice of intent to file a complaint to the addresses that Rutherford had
registered with the Office of Attorney Services. Many, but not all, of those letters
were returned marked “attempted-not known,” “unable to forward,” “addressee
unknown,” or “not deliverable as addressed.” Relator also sent those documents to
the e-mail address Rutherford had registered with the Office of Attorney Services,
and relator received responses from relator’s e-mail server that the deliveries had
been completed. But Rutherford failed to contact relator and never provided any
written response to relator’s letters or e-mails. He also failed to provide relator or
the Office of Attorney Services with a valid residential or office address.
       {¶ 13} In March 2016, relator’s investigator attempted several times to
personally serve Rutherford at his residential and office addresses. The investigator
learned that Rutherford had been evicted from his residence and that the building-
management company had no forwarding address. He also learned that although
Rutherford had not been seen at his office in months, the building receptionist had
continued to place mail in his office. The investigator left letters of inquiry
regarding the Sherrod and Hernandez matters on Rutherford’s desk, which had
stacks of unopened mail on it.




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       {¶ 14} After attempted service of relator’s complaint on Rutherford failed,
that document and subsequent orders of this court were served on the clerk of this
court in conformity with Gov.Bar R. V(27)(B).
       {¶ 15} The board found that Rutherford violated 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(9)(G) (requiring a lawyer to cooperate in a disciplinary investigation). Relator’s
complaint also charged that Rutherford’s failure to provide his current residential
and office addresses to the Office of Attorney Services violated Gov.Bar R.
VI(4)(B) (requiring each attorney admitted to the practice of law in Ohio to provide
the Office of Attorney Services with the attorney’s current residential address,
office address, office telephone number, and office or personal e-mail address), and
the board found that Rutherford failed to comply with those requirements. We
adopt the board’s findings of fact and misconduct with respect to this count.
                                     Sanction
       {¶ 16} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
       {¶ 17} As aggravating factors, the board found that Rutherford acted with a
selfish motive, engaged in a pattern of misconduct, committed multiple offenses,
took advantage of vulnerable clients, and failed to make restitution. See Gov.Bar
R. V(13)(B)(2), (3), (4), (8), and (9). We also note that he has a history of prior
discipline, including sanctions for the same type of misconduct that we sanction
him for today. See Gov.Bar R. V(13)(B)(1). No mitigating factors are present. See
Gov.Bar R. V(13)(C).
       {¶ 18} In recommending that we permanently disbar Rutherford, the board
cited multiple cases in which we held that the presumptive sanction for attorneys




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who accept retainers and fail to carry out contracts of employment is disbarment
because the conduct is “ ‘tantamount to theft of the fee from the client.’ ” E.g.,
Disciplinary Counsel v. Henry, 127 Ohio St.3d 398, 2010-Ohio-6206, 939 N.E.2d
1255, ¶ 33, quoting Cincinnati Bar Assn. v. Weaver, 102 Ohio St.3d 264, 2004-
Ohio-2683, 809 N.E.2d 1113, ¶ 16.
       {¶ 19} Having independently reviewed the record, we agree that relator has
submitted clear and convincing evidence that Rutherford collected retainers from
several clients, failed to perform the contracted legal services for those clients, and,
in most cases, failed to return any portion of their retainers. Furthermore, relator
has established that Rutherford lied about the status of a client’s case, prejudiced
the administration of justice when another client’s delayed criminal appeal was
dismissed as a result of his inaction, and failed to cooperate in multiple disciplinary
investigations.   Given the nature of Rutherford’s misconduct, the extensive
aggravating factors present (including his prior discipline for similar acts), the
complete absence of mitigating factors, and the sanctions we have imposed for
comparable misconduct, we agree that permanent disbarment is warranted.
       {¶ 20} Accordingly, Guy Darius Rutherford is permanently disbarred from
the practice of law in Ohio. Costs are taxed to Rutherford.
                                                               Judgment accordingly.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEWINE, JJ., concur.
       DEGENARO, J., not participating.
                                _________________
       Scott J. Drexel, Disciplinary Counsel, and Stacy Solochek Beckman and
Michelle R. Bowman, Assistant Disciplinary Counsel, for relator.
                                _________________




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