[Cite as Columbiana Cty. Bar Assn. v. Luther, 133 Ohio St.3d 135, 2012-Ohio-4196.]




              COLUMBIANA COUNTY BAR ASSOCIATION v. LUTHER.
                   [Cite as Columbiana Cty. Bar Assn. v. Luther,
                       133 Ohio St.3d 135, 2012-Ohio-4196.]
Attorney misconduct, including neglecting client matters, failing to reasonably
        communicate with clients, and failing to cooperate in the disciplinary
        investigations—Indefinite suspension.
   (No. 2012-0305—Submitted April 24, 2012—Decided September 19, 2012.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 11-087.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Richard Allen Luther, formerly of East Liverpool,
Ohio, Attorney Registration No. 0020164, was admitted to the practice of law in
Ohio in 1983. In a two-count complaint filed on October 10, 2011, relator,
Columbiana County Bar Association, charged Luther with neglecting client
matters, failing to reasonably communicate with his clients, failing to hold funds
in his client trust account until a dispute over them was resolved, failing to
promptly refund any unearned fee upon his withdrawal from employment, and
failing to cooperate in the disciplinary investigations into the alleged misconduct.
        {¶ 2} Although the Board of Commissioners on Grievances and
Discipline attempted to serve the complaint on Luther by certified mail at multiple
addresses, those mailings were returned marked “unable to forward,” “no such
number,” or “unclaimed.” On December 8, 2011, the board served the complaint
on the clerk of the Supreme Court pursuant to Gov.Bar R. V(11)(B). Luther did
not answer or otherwise respond to the complaint, and relator moved for default.
A master commissioner appointed by the Board of Commissioners on Grievances
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and Discipline made findings of fact and misconduct and recommended that
Luther be indefinitely suspended from the practice of law and be ordered to make
restitution to the client affected by his misconduct. The board adopted the master
commissioner’s report in its entirety, and we adopt the board’s report and
recommendation.
                                      Misconduct
       {¶ 3} In Count One of its complaint, relator alleged that in representing
client Vicki Diddle, Luther violated Prof.Cond.R. 1.3 (requiring a lawyer to act
with reasonable diligence in representing a client), 1.4(a)(2) (requiring a lawyer to
reasonably consult with the client about the means by which the client’s
objectives are to be accomplished), 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), 1.15(e) (requiring a lawyer in possession of funds in which two or more
persons claim an interest to hold those funds in his client trust account until the
dispute is resolved), and 1.16(e) (requiring a lawyer to promptly refund any
unearned fee upon the lawyer’s withdrawal from employment). Relator further
alleged that by failing to respond to its letters of inquiry involving the Diddle
grievance, Luther 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).
       {¶ 4} The board found that the affidavits of Columbiana County Bar
Association Certified Grievance Committee member Tad Herold and secretary
Ron Vest constitute clear and convincing evidence that Luther received relator’s
letters of inquiry regarding the Diddle grievance and that he failed to respond to
relator’s investigation in violation of Prof.Cond.R. 8.1(b).
       {¶ 5} But because the only evidence of the other alleged misconduct in
the Diddle matter consists of a hearsay-filled affidavit by Herold, the board




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recommends that we dismiss the charges alleging violations of Prof.Cond.R. 1.3,
1.4(a)(2) through (4), 1.15(e), and 1.16(e). See former Gov.Bar R. V(6)(F)(1)(b);1
Dayton Bar Assn. v. Sebree, 104 Ohio St.3d 448, 2004-Ohio-6560, 820 N.E.2d
318, ¶ 9 (rejecting sworn statement of relator’s investigator when the allegations
of misconduct set forth in it appeared to have been gleaned entirely from
conversations with the grievant rather than from the affiant’s personal
knowledge).
        {¶ 6} We agree with the board’s conclusions, and thus with respect to
Count One, we find that Luther violated Prof.Cond.R. 8.1(b) and we dismiss the
charges alleging violations of Prof.Cond.R. 1.3, 1.4(a)(2) through (4), 1.15(e), and
1.16(e).
        {¶ 7} In Count Two of the complaint, relator alleged that Luther had
committed the same rule violations as it alleged in Count One, but in relation to
client Lori Guthrie.        Based upon Guthrie’s affidavit and the documentary
evidence incorporated therein, the board found that in June 2010, Luther agreed to
file a complaint for divorce on her behalf, and that by August 18, 2010, he had
accepted $125 for his initial consultation, $2,675 for legal services, and an
additional $299 for filing fees. Luther did not file a divorce complaint, but on
October 13, 2010, Guthrie’s husband did. Although the court scheduled a series
of pretrial hearings, Luther attended only one, and he failed to appear at the final


1. Former Gov.Bar R. V(6)(F) provided:

        (1) Motion. A motion for default shall contain all of the following:
             ***
        (b) Sworn or certified documentary prima facie evidence in support of the
        allegations made.

64 Ohio St.3d XCVII. Recent amendments to Gov.Bar R. V(6) and the addition of Gov.Bar R.
V(6a) have altered the procedure for obtaining default judgments in attorney-discipline
proceedings initiated after August 1, 2012, to permit this court to impose interim default
suspensions. Because this case was initiated prior to August 1, 2012, we apply the former version
of the rule. See Gov.Bar R. XX(2)(LLLL).




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divorce hearing on April 18, 2011. Throughout his representation, Luther failed
to return numerous phone calls, and after Guthrie filed her grievance, Luther
advised her that he would refund some of her money, but only if she dismissed
her grievance.
          {¶ 8} Based upon these facts, the board found that Luther had violated
Prof.Cond.R. 1.3, 1.4(a)(2), (3), and (4), and 1.16(e) in his handling of the Guthrie
matter. But because relator presented no evidence to prove that Luther had
removed the money he had received from Guthrie from his trust account, the
board recommends that we dismiss the charge that he violated Prof.Cond.R.
1.15(e).
          {¶ 9} The board also found that the affidavits of grievance-committee
member Herold and secretary Vest constitute clear and convincing evidence that
Luther received relator’s letters of inquiry regarding the Guthrie grievance and
that he failed to respond to relator’s investigations in violation of Prof.Cond.R.
8.1(b).
          {¶ 10} We adopt these findings of fact and misconduct, and we dismiss
the charge alleging a violation of Prof.Cond.R. 1.15(e).
                                     Sanction
          {¶ 11} In imposing a sanction for attorney misconduct, we consider the
aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B)(1) and (2).
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.
          {¶ 12} The board did not find any mitigating factors in this case.
Aggravating factors, however, include that Luther is currently under an attorney-
registration suspension, see In re Attorney Registration Suspension of Luther, 130
Ohio St.3d 1420, 2011-Ohio-5627, 956 N.E.2d 310, he committed multiple
offenses, and he failed to cooperate in the disciplinary process.        See BCGD
Proc.Reg. 10(B)(1)(a), (d), and (e). In light of these factors, relator and the board




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recommend that Luther be indefinitely suspended for his misconduct. The board
further recommends that any future reinstatement be conditioned upon his refund
of any unearned fees to Guthrie.
          {¶ 13} We have previously recognized that neglect of an entrusted legal
matter coupled with a failure to cooperate in the ensuing disciplinary investigation
warrants an indefinite suspension, and we agree with the board that an indefinite
suspension is warranted in this case. See, e.g., Disciplinary Counsel v. Hoff, 124
Ohio St.3d 269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10; Cleveland Bar Assn. v.
Davis, 121 Ohio St.3d 337, 2009-Ohio-764, 904 N.E.2d 517, ¶ 17; Disciplinary
Counsel v. Mathewson, 113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891,
¶ 19.
          {¶ 14} Accordingly, Richard Allen Luther is indefinitely suspended from
the practice of law in Ohio; he is further ordered to make restitution of the full
$3,099 to Lori Guthrie within 30 days of the date of this order. Costs are taxed to
Luther.
                                                            Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                                __________________
          Timothy A. Barry, for relator.
                              ______________________




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