[Cite as Cleveland Metro. Bar Assn. v. Gruttadaurio, 136 Ohio St.3d 283, 2013-Ohio-3662.]




     CLEVELAND METROPOLITAN BAR ASSOCIATION v. GRUTTADAURIO.
   [Cite as Cleveland Metro. Bar Assn. v. Gruttadaurio, 136 Ohio St.3d 283,
                                    2013-Ohio-3662.]
Attorneys—Misconduct—Failure to act with reasonable diligence—Failure to
        place fees into client trust account—Failure to refund unearned fees—
        Failure to perform contracted work—Engaging in conduct that adversely
        reflects on lawyer’s fitness to practice law—Knowingly making false
        statements during disciplinary proceedings—Indefinite suspension.
   (No. 2012-2060—Submitted February 6, 2013—Decided August 28, 2013.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 11-114.
                                ____________________
        Per Curiam.
        {¶ 1} Respondent, John Joseph Gruttadaurio of Chagrin Falls, Ohio,
Attorney Registration No. 0042083, was admitted to the practice of law in Ohio in
1989.
        {¶ 2} In December 2011, a probable-cause panel of the Board of
Commissioners on Grievances and Discipline certified a nine-count complaint
filed by relator, Cleveland Metropolitan Bar Association, alleging that
Gruttadaurio failed to place client fees received pursuant to a flat-fee arrangement
into a client trust account, failed to refund unearned client payments, failed to
advise his clients that he did not carry malpractice insurance, failed to perform
contracted work, and lied to relator’s investigator. Relator further alleged that
Gruttadaurio engaged in dishonesty, fraud, deceit, or misrepresentation, that his
conduct was prejudicial to the administration of justice, and that it adversely
reflected on his fitness to practice law.
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       {¶ 3} The panel found that Gruttadaurio committed most of the charged
misconduct but recommended that alleged violations of Prof.Cond.R. 8.1(a)
(prohibiting knowingly making a false statement of material fact in connection
with a disciplinary matter) and 8.4(c) (prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation) contained in
Count Three of relator’s complaint be dismissed. Based in large part on its view
that these two serious alleged violations were not proven, the panel recommended
that Gruttadaurio be suspended from the practice of law for two years with the
final 18 months of that suspension stayed on conditions. The board adopted the
panel’s findings of fact, conclusions of law, and recommended sanction. Neither
party has filed objections to the board’s report.
       {¶ 4} We adopt the board’s findings of fact and misconduct, but having
thoroughly reviewed the record, we find, contrary to the board, that relator has
proven by clear and convincing evidence that Gruttadaurio engaged in conduct
involving dishonesty, fraud, deceit, or misrepresentation and knowingly made a
false statement of material fact to relator’s investigator during the course of the
disciplinary investigation as alleged in Count Three of relator’s complaint.
Therefore, we find that Gruttadaurio has violated Prof.Cond.R. 8.1(a) and 8.4(c)
as charged in that count, reject the board’s recommended sanction, and
indefinitely suspend Gruttadaurio from the practice of law in Ohio.
                                    Misconduct
                The Aldo Britta Matter—Counts One, Five, and Six
       {¶ 5} Aldo Britta was convicted in 2008 of four counts of gross sexual
imposition and sentenced to eight years in prison. An attorney with the Lake
County public defender’s office filed an appellate brief in the Eleventh District
Court of Appeals on his behalf on July 6, 2009. In June or July 2009, Britta and
his mother, Luigia Britta, retained Gruttadaurio to represent Britta in his appeal in
the Eleventh District and, if necessary, in an appeal to the Supreme Court of Ohio.




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       {¶ 6} In a written engagement letter dated July 23, 2009, Gruttadaurio
agreed to assume representation in Britta’s appeal by filing a notice of substitution
of counsel, filing a reply brief (if one was necessary), and presenting oral
argument. But he did not notify Britta’s public defender that he had been retained
or file a notice of substitution of counsel in the case. Although Gruttadaurio
attended the oral argument of Britta’s appeal on January 12, 2010, he sat in the
gallery while the public defender argued the case.
       {¶ 7} The engagement letter that Gruttadaurio had provided to Aldo
Britta stated that he would provide legal representation pro bono, but that Britta
would be responsible for the costs of the litigation. Despite the terms of that
agreement, and prior to its execution, Gruttadaurio quoted Luigia Britta a flat fee
of $4,000, which she paid in monthly installments over a ten-month period.
       {¶ 8} On March 15, 2010, the Eleventh District Court of Appeals
affirmed Britta’s convictions. State v. Britta, 11th Dist. Lake No. 2009-L-017,
2010-Ohio-971,     2010    WL      891357.        Notwithstanding    Gruttadaurio’s
representations to Luigia Britta that he would appeal that judgment to this court,
he failed to timely file a notice of appeal and memorandum in support of
jurisdiction on Britta’s behalf. On July 6, 2010, attorney Ken Bossin, who by that
time had been retained to represent Britta, moved this court for leave to file a
delayed appeal. Although we granted the motion for leave, 126 Ohio St.3d 1543,
2010-Ohio-3855, 932 N.E.2d 338, we subsequently declined to accept jurisdiction
over the case. 127 Ohio St.3d 1484, 2010-Ohio-6371, 939 N.E.2d 183.
       {¶ 9} From the time that Luigia Britta retained Gruttadaurio until the
deadline for initiating Britta’s appeal in this court, she made multiple efforts to
reach Gruttadaurio to discuss the case. Gruttadaurio often failed to answer or
return her telephone calls, and her letters to him were returned unclaimed.
       {¶ 10} Gruttadaurio did not inform either of the Brittas that he had failed
to timely file an appeal to this court.       And despite having failed to assume



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representation in Britta’s appeal in the Eleventh District and having failed to file a
timely appeal in this court, Gruttadaurio did not refund any of the fees that he had
collected.
       {¶ 11} The parties stipulated and the board found that Gruttadaurio
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client) as charged in Count One and Prof.Cond.R. 1.4(a)(3)
(requiring a lawyer to keep the client reasonably informed about the status of a
matter) as charged in Count Six. The board also found that by accepting payment
for services he did not perform and failing to refund any of Luigia Britta’s
payments, Gruttadaurio violated Prof.Cond.R. 1.5(a) (prohibiting a lawyer from
making an agreement for, charging, or collecting an illegal or clearly excessive
fee) as charged in Count Five. We adopt these findings of fact and misconduct.
                     The Elizabeth Leroy Matter—Count Two
       {¶ 12} During the pendency of Britta’s appeal in the Eleventh District
Court of Appeals, Luigia Britta retained Gruttadaurio to represent her daughter,
Elizabeth Leroy, in a domestic-relations matter. He filed the complaint, appeared
for at least one pretrial conference, and drafted settlement paperwork, but he
failed to appear at the final hearing. The parties stipulated and the board found
that by failing to attend the final hearing, Gruttadaurio violated Prof.Cond.R. 1.3
as charged in Count Two.
       {¶ 13} We adopt these findings of fact and misconduct and also find that
Gruttadaurio agreed to represent Leroy and to complete all the briefing in Britta’s
appeal to this court for an additional combined fee of $1,000. Gruttadaurio
received the $1,000 payment shortly after that agreement was reached.
                   Failure to Inform Clients Regarding Lack of
                 Malpractice Insurance—Counts Four and Eight
       {¶ 14} When he opened his solo practice in 2009, Gruttadaurio began to
research the cost of malpractice insurance. In his engagement letters at that time,




                                          4
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he advised clients that he was “in the process” of applying for legal-malpractice
insurance, but he failed to advise those clients later that he had discontinued his
efforts to obtain insurance when it became clear to him that he could not afford it.
Moreover, he never advised the Brittas that he did not carry malpractice
insurance. The parties stipulated and the board found that this conduct violated
Prof.Cond.R. 8.4(c) and 1.4(c) (requiring a lawyer to inform the client if the
lawyer does not maintain professional-liability insurance) as charged in Counts
Four and Eight of relator’s complaint. We adopt these conclusions.
      Client-Trust-Account Violations Involving Britta’s Fee—Count Seven
       {¶ 15} Gruttadaurio did not maintain a client trust account during the time
that he represented Britta. Gruttadaurio’s testimony at the disciplinary hearing
establishes that he deposited the funds he had received from Luigia Britta into his
business and personal bank accounts. The board found that his conduct regarding
those funds violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold property of
clients in an interest-bearing client trust account, separate from the lawyer’s own
property) as charged in Count Seven.
       {¶ 16} We adopt the board’s findings of fact as to Count Seven. For the
reasons that follow, we, like the board, do not accept Gruttadaurio’s explanation
justifying his handling of these funds. Gruttadaurio claimed at the disciplinary
hearing that he applied the payments to work that he had already performed on
Britta’s behalf, but he did not maintain records of the hours spent on the case or
the tasks he performed—information that only he could know.
       {¶ 17} In his March 8, 2011 response to relator’s letter of inquiry,
Gruttadaurio acknowledged that his written agreement with Britta required him to
take over Britta’s representation in the Eleventh District Court of Appeals and to
present oral argument before that court. He also acknowledged that he had agreed
to handle that representation for a flat fee of $4,000. But Gruttadaurio stated in
that response that because the Public Defender’s Office was handling the appeal



                                         5
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effectively and had more experience with the judges on the appellate panel, he
decided to allow the public defender to complete the appeal. Although he claimed
to have advised the Brittas of his decision, Luigia Britta testified that she did not
recall such a conversation.
       {¶ 18} In his response letter to relator, Gruttadaurio admitted that he had
not performed all the promised work, but also claimed that he was entitled to keep
the entire $4,000 flat fee based on his assertions that he had performed
approximately 70 hours of work on the case and that had he billed the case hourly,
“[it] would have been far more costly than the fee paid.” But the key flaw in
Gruttadaurio’s position is that he did not accept the representation on an hourly
fee basis—he agreed to a flat fee for the work and then he did not complete it.
Therefore, he could not have been entitled to retain the entire flat fee.
       {¶ 19} We acknowledge that when representation is undertaken pursuant
to an hourly fee agreement, if the value of the work the attorney has already
performed exceeds the amount of a client’s installment payment, the money
received should not be deposited into the attorney’s client trust account. This is
inherently true because at the time such a payment is remitted, it has already been
earned and rightfully belongs to the attorney.
       {¶ 20} Flat-fee    representation,       however,   is   distinguishable   from
representation pursuant to an hourly fee arrangement.               Comment 6A to
Prof.Cond.R. 1.5 explains that a flat fee “is a fee of a set amount for performance
of agreed work, which may or may not be paid in advance but is not deemed
earned until the work is performed.” The comment further states, “An earned
upon receipt fee is a flat fee paid in advance that is deemed earned upon payment
regardless of the amount of future work performed. When a fee is earned affects
whether it must be placed in the attorney’s trust account, see Rule 1.15, and may
have significance under other laws such as tax and bankruptcy.”




                                            6
                                January Term, 2013




       {¶ 21} While the Rules of Professional Conduct permit an attorney to
deem a fee earned upon receipt, Prof.Cond.R. 1.5(d)(3) prohibits an attorney
from entering into an arrangement for, charging, or collecting fees that are
“earned upon receipt,” “nonrefundable,” or similarly designated “unless the
client is simultaneously advised in writing that if the lawyer does not complete
the representation for any reason, the client may be entitled to a refund of all or
part of the fee based upon the value of the representation pursuant to division (a)
of this rule.”    Otherwise, Prof.Cond.R. 1.15(c) provides:        “A lawyer shall
deposit into a client trust account legal fees and expenses that have been paid in
advance, to be withdrawn by the lawyer only as fees are earned or expenses
incurred.”
       {¶ 22} As we stated in Disciplinary Counsel v. Summers, 131 Ohio St.3d
467, 2012-Ohio-1144, 967 N.E.2d 183, ¶ 18:


                 When a lawyer agrees to represent a client through the
       conclusion of the case for a flat fee, and that lawyer withdraws
       from representation without cause before the work is completed, he
       cannot retain the entire flat fee by resorting to a mathematical
       calculation of his billable hours. To hold otherwise would leave
       clients at the mercy of lawyers who charge significant flat fees to
       provide complete representation only to withdraw when the
       demands of the case become too onerous. While we recognize that
       [the attorney] is entitled to be compensated for the services he has
       provided, [the clients] are also entitled to receive a benefit for their
       flat-fee bargain.


       {¶ 23} Here, there is no evidence that Gruttadaurio advised either Luigia
Britta or Aldo Britta in writing that they would be entitled to a refund of all or



                                          7
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part of the fee if he did not complete Britta’s representation. While Gruttadaurio
may have been entitled to collect part of the flat fee based on the work he had
already performed, the record shows that he clearly did not complete all the
services that were necessary to earn the entire flat fee. In fact, Gruttadaurio
admitted that he failed to enter an appearance in the court of appeals, that he
failed to orally argue the case before the court of appeals, and that the notice of
appeal and memorandum in support of jurisdiction that he prepared for Britta
were never filed in this court. Therefore, we adopt the board’s finding that
Gruttadaurio violated Prof.Cond.R. 1.15(a) by failing to place any portion of
Britta’s flat fee into a client trust account.
                  Conduct Adversely Reflecting on Gruttadaurio’s
                        Fitness to Practice Law—Count Nine
        {¶ 24} In Count Nine of the complaint, relator alleged that Gruttadaurio’s
conduct with respect to Counts One through Eight violated Prof.Cond.R. 8.4(h)
(prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law). The parties stipulated that his conduct with
respect to all those counts, with the exception of Counts Three, Five, and Seven,
violated Prof.Cond.R. 8.4(h) as charged. The board found that Gruttadaurio’s
conduct with respect to all those counts, with the exception of Count Three,
violated Prof.Cond.R. 8.4(h). We agree that multiple violations of Prof.Cond.R.
8.4(h) were proven.
                 Misrepresentations to Relator’s Investigator about
                            the Britta Matter—Count Three
        {¶ 25} In Count Three of the complaint, relator alleged that Gruttadaurio
violated Prof.Cond.R. 8.1(a) and 8.4(c) by falsely advising relator’s investigator
that he had mailed Britta’s notice of appeal and memorandum in support of
jurisdiction to this court and had served them on the prosecuting attorney by
regular United States mail, when Gruttadaurio knew that he had not done so.




                                             8
                               January Term, 2013




Relator further alleged that by failing to mail the documents to this court,
Gruttadaurio delayed Britta’s appeal to this court, thereby violating Prof.Cond.R.
8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice).
       {¶ 26} The board found that in the course of the disciplinary investigation,
Gruttadaurio stated that he had prepared and mailed Britta’s notice of appeal and
memorandum in support of jurisdiction to this court on or about April 21, 2010,
by regular United States mail, and also stated that he had mailed copies of the
documents to the prosecutor. The board also found that Gruttadaurio stated to the
investigator that he had called this court “on a couple of occasions” and was
informed that the documents were “in the system,” but that they were not yet on
the docket, and was informed that this circumstance “was not unusual.”
       {¶ 27} The board found that at a second meeting with the investigator,
however, Gruttadaurio stated that “he may not have called” this court to follow up
on the filings as he had previously represented. Gruttadaurio also produced a
ledger during the second meeting that referred to a payment to this court and
stated that his first indication that the documents might not have been received by
this court was when he discovered that the check for the filing fee had not cleared
his account.
       {¶ 28} As alleged in the complaint, the board found that the documents
were not received by this court or by the prosecuting attorney in Britta’s case and
that the United States Postal Service had not returned the documents to
Gruttadaurio.
       {¶ 29} Relator offered into evidence the cover letter, notice of appeal, and
memorandum in support of jurisdiction that Gruttadaurio claimed to have timely
mailed, and Gruttadaurio testified, “I prepared them for mailing. What happened
after that, I honestly don’t know.” This testimony, however, even if it was




                                        9
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accurate, does not insulate from scrutiny certain other statements made by
Gruttadaurio that are highly problematic.
       {¶ 30} The board concluded that Gruttadaurio’s conduct in this matter
was prejudicial to the administration of justice in violation of Prof.Cond.R. 8.4(d).
Citing insufficiency of the evidence, however, the board recommends that the
claimed violations of Prof.Cond.R. 8.1(a) and 8.4(c) arising out of Gruttadaurio’s
allegedly false statements to relator’s investigator be dismissed.
       {¶ 31} In attorney-discipline matters, “[t]he Supreme Court is not bound
by the conclusion of either the panel or the board regarding the facts or law when
determining the propriety of an attorney’s conduct and the appropriate sanction.”
Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 181, 754 N.E.2d 219 (2001),
citing Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 330, 708 N.E.2d 193
(1999). Nonetheless, we typically defer to the factual findings of the panel and
board unless the record weighs heavily against those determinations. Disciplinary
Counsel v. Heiland, 116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 39,
citing Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649, 800
N.E.2d 1117, ¶ 8. Having independently reviewed the record in this case, we
cannot agree with the board’s recommendation to dismiss the alleged violations of
Prof.Cond.R. 8.1(a) and 8.4(c).
       {¶ 32} Gruttadaurio admitted at the disciplinary hearing that he had
initially told relator’s investigator, Howard Mishkind, that he had timely mailed
the Britta appeal documents to this court via regular United States Mail. He also
advised Mishkind the first time they met that he had made one or two calls to the
clerk of this court to check on the status of the filing. He met with Mishkind a
second time within about a week of the first meeting, however, and reported that
he could not find any telephone records to confirm that he had called the Supreme
Court of Ohio to check the status of the filing. At that time, he acknowledged that
he might not have placed such a call.




                                         10
                                January Term, 2013




       {¶ 33} At the disciplinary hearing, Gruttadaurio testified that he had
prepared the documents and put them in the envelopes, but that he did not know
what happened after that. He then attempted to explain his initial false statement
to Mishkind, stating:


       Quite frankly, given everything that had happened, I honestly
       believe that I sort of—not sort of—blurred what happened, what I
       knew should have happened. And I—I think, sitting there in the
       moment with Mr. Mishkind, I made what I believed, in my mind,
       to be an accurate statement; and replaying it as he left and as I
       went back over my records, I realized that it was in error. And
       that’s all.


       {¶ 34} Thus Gruttadaurio claims that he made the false representations
regarding both the mailing of the documents and the calls to this court when put
on the spot in his first meeting with relator’s investigator. He contends that he
believed those statements to be true when he made them, and he represents that
further investigation caused him to realize his “error.”
       {¶ 35} Gruttadaurio’s explanation might be credible if his statement to
relator’s investigator was his first claim that he had mailed Britta’s notice of
appeal. But he first made those representations in a March 8, 2011 letter to
relator—a letter that according to his own testimony was sent two to three months
before he first met with Mishkind. In that letter, Gruttadaurio stated:


       As I expected, I didn’t have much of a problem fashioning the
       necessary paperwork to file, so due to other obligations I decided
       to mail the filing package to the Court. I did so with a week to




                                         11
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       spare before my deadline, but unfortunately in an ill-advised fit of
       economy, I sent it regular mail.
               At this point, there is no sense in stating anything other
       than that I dropped the ball. I called the Court once to confirm the
       filing, but they told me that it was not in the system, but given the
       timing was probably in process. After that, the matter moved to
       waiting for a scheduling order, and I did not notice that there was a
       problem until a few months down the road when I realized that my
       check for the filing fee had not cleared.


       {¶ 36} Gruttadaurio made this statement in a four-page, single-spaced
letter, in which he first apologized for his delay in responding to relator’s inquiry,
stating, “While it took [me] longer than I had hoped to track down elements of my
files due to changes in my computing equipment, I should have contacted you for
a time extension.” Thus, contrary to his claim that he blurred what should have
happened with what did happen in the heat of the moment during his first meeting
with relator’s investigator, it is evident that he had already engaged in careful
reflection and review of his records before he made the false representations in his
earlier letter to relator. Although Gruttadaurio testified that he had no difficulties
with his memory or cognition, his recall of the events surrounding the alleged
mailing became conveniently less clear when he realized that relator’s
investigation was not going away.
       {¶ 37} Gruttadaurio’s representations that he had called this court to
inquire about the alleged filing of Britta’s documents further demonstrate that he
knew his statements were false when he made them. While he claimed to have
made at least one such call in both his March 8, 2010 letter and in his first
interview with relator’s investigator—even going so far as to relate what a court
employee supposedly told him about the status of the case—he later




                                          12
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acknowledged to the investigator that he might not have made such a call. And
when asked at the disciplinary hearing whether he had ever placed a call to this
court’s clerk’s office to check on the status of the filing, he completed his
backpedaling and testified, “I don’t believe so, no.”
       {¶ 38} Our review of Gruttadaurio’s testimony shows that it is not
plausible that he could have made a call to this court regarding another case and
misremembered that call as related to Britta’s appeal.        He testified at the
disciplinary hearing that he had filed only two previous cases in this court—both
during his previous tenure with a large firm where the legal assistants handled the
filing of court documents. One would reasonably expect an attorney with no
cognitive deficits to recall details of his rare interactions with this court—
particularly when, as here, he was concerned about whether his client’s appeal
documents had been timely received by the court. We find that Gruttadaurio’s
claims that he neither intentionally failed to cooperate nor attempted to hide what
had happened ring false and are belied by the record.
       {¶ 39} Thus, despite the board’s findings to the contrary, we find that in
addition to establishing a violation of Prof.Cond.R. 8.4(d) regarding Count Three
of the complaint, relator has proven by clear and convincing evidence that
Gruttadaurio also knowingly made false statements of material fact in the course
of a disciplinary investigation and thereby engaged in conduct involving
dishonesty, fraud, deceit, or misrepresentation in violation of Prof.Cond.R. 8.1(a)
and 8.4(c) as charged in Count Three.
                                     Sanction
       {¶ 40} 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



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listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
       {¶ 41} The board found that four of the aggravating factors identified in
BCGD Proc.Reg. 10(B)(1) are present—a pattern of neglect, multiple offenses,
failure to fully acknowledge the wrongful nature of the misconduct, and failure to
make timely restitution. See BCGD Proc.Reg. 10(B)(1)(c), (d), (g), and (i). As
mitigating factors, the board cites the absence of a prior disciplinary record, the
absence of a dishonest or selfish motive, and a cooperative attitude toward the
disciplinary proceedings. See BCGD Proc.Reg. 10(B)(2)(a), (b), and (d).
       {¶ 42} Relator argued at the disciplinary hearing that Gruttadaurio’s
misconduct warrants a two-year actual suspension from the practice of law. In
support of that sanction, relator cited our decisions in Disciplinary Counsel v.
Manning, 111 Ohio St.3d 349, 2006-Ohio-5794, 856 N.E.2d 259 (imposing a
two-year actual suspension on an attorney who had accepted money from clients,
deposited it into his law firm’s operating account, failed to perform the contracted
work, falsely advised the clients that he had filed a malpractice action on their
behalf, and fabricated a settlement agreement to avoid being sued by the clients
for malpractice), and Cincinnati Bar Assn. v. Larson, 124 Ohio St.3d 249, 2009-
Ohio-6766, 921 N.E.2d 618 (imposing a two-year suspension with the second
year stayed on conditions on an attorney who had failed to perform his duties as
counsel for three clients, failed to return their unearned fees, misled one of those
clients about the status of her driver’s license suspension and other traffic
citations, and failed to cooperate in two of the disciplinary investigations;
mitigating factors included the absence of a prior disciplinary record, a
debilitating sleep disorder that compromised the attorney’s energy level and
focus, and letters from three judges attesting to the attorney’s good character and
competence).




                                        14
                                 January Term, 2013




        {¶ 43} Gruttadaurio argued in favor of a suspension for a definite term,
fully or at least partially stayed on the conditions that he attend courses in law-
office management, make restitution to Luigia Britta, and have a mentor oversee
his office practices.
        {¶ 44} Citing Gruttadaurio’s “genuine remorse” and his “efforts to
improve the management of his practice,” the board found that his penalty
“should not be as severe as the sanctions imposed in Manning or Larson.”
Therefore, the board recommends that Gruttadaurio be suspended for two years
with the final 18 months stayed on the conditions that he be required to certify to
the Supreme Court that he has completed six hours of continuing legal education
(“CLE”) in law-office management and has made restitution of $4,000 to Luigia
Britta. Additionally, the board recommends that he be required to serve a two-
year period of monitored probation upon his return to the active practice of law.
        {¶ 45} While Gruttadaurio may have shown some remorse for his
stipulated misconduct, it was more than outweighed by his failure to acknowledge
the wrongful nature of what are arguably his most egregious acts—his claims that
he earned the entire flat fee he collected in the Britta matter and his false
statements to relator’s investigators that he had mailed Britta’s appeal documents
when he knew that he had not done so. Moreover, our review of the record shows
only that Gruttadaurio is willing to participate in CLE and to work with a mentor
to improve his practice—not that he has actually engaged in such efforts.
Therefore, we cannot in good conscience consider Gruttadaurio’s claimed
remorse, his alleged cooperation in the disciplinary proceeding, or his alleged
efforts to improve the management of his practice as mitigating factors weighing
in favor of a lesser sanction.
        {¶ 46} We find that like Manning and Larson, Gruttadaurio accepted
money from his clients and failed to perform the promised work.              While
Gruttadaurio did not affirmatively misrepresent to his clients the status of their



                                         15
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cases for extended periods of time as Manning and Larson did, he deceived his
clients by advising them that he was in the process of obtaining malpractice
insurance and failing to advise them that he later decided that he could not afford
such coverage. He also failed to reasonably communicate with his clients given
that he did not respond to Leroy’s calls about her final divorce hearing and
stopped answering Luigia Britta’s calls following the deadline for filing Britta’s
appeal with this court, conceding that he was “scared to death” that he had
screwed up.
       {¶ 47} Throughout the disciplinary proceedings, Gruttadaurio refused to
acknowledge the wrongful nature of his conduct with respect to some of his most
egregious acts—his handling of the flat fees and his false statements in the course
of the disciplinary proceedings. He maintained that he was not required to deposit
Luigia Britta’s payments into a client trust account because, in his opinion, he had
already earned the money—even though he had not completed all the promised
tasks. He ultimately conceded that Britta’s notice of appeal and memorandum in
support of jurisdiction were not filed in this court, admittedly rendering his
representation “valueless” to Britta.    Finally, his self-serving statements and
misrepresentations in the course of the disciplinary proceedings are indicative of a
calculated attempt to avoid accepting responsibility for his deficient
representation.
       {¶ 48} We have recognized that the act of accepting retainers or legal fees
and failing to carry out contracts of employment is tantamount to theft of the fee
from the client and that the presumptive sanction for that offense is disbarment.
See, e.g., Columbus Bar Assn. v. Moushey, 104 Ohio St.3d 427, 2004-Ohio-6897,
819 N.E.2d 1112, ¶ 16, citing Disciplinary Counsel v. Sigall, 14 Ohio St.3d 15,
17, 470 N.E.2d 886 (1984), and Disciplinary Counsel v. France, 97 Ohio St.3d
240, 2002-Ohio-5945, 778 N.E.2d 573, ¶ 11. That presumption, however, may be
tempered with sufficient mitigating evidence, which may include a substantial




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period of legal practice with no prior disciplinary offenses. See, e.g., Disciplinary
Counsel v. Smith, 101 Ohio St.3d 27, 2003-Ohio-6623, 800 N.E.2d 1129, ¶ 9
(attorney who had been licensed for approximately 45 years without any previous
ethical infraction indefinitely suspended for misappropriating client funds). In
this case, Gruttadaurio practiced law for 30 years without incident before
committing the charged misconduct.
       {¶ 49} We have also explained: “A lawyer who engages in a material
misrepresentation to a court * * * violates, at a minimum, the lawyer’s oath of
office that he or she will not ‘knowingly * * * employ or countenance any * * *
deception, falsehood, or fraud.’ ” Disciplinary Counsel v. Fowerbaugh, 74 Ohio
St.3d 187, 190, 658 N.E.2d 237 (1995), quoting former Gov.Bar R. I(8)(A).
       {¶ 50} Because we have found that Gruttadaurio has engaged in
dishonesty not only in his handling of his client matters but also in the
disciplinary proceedings before this court, we find that his conduct is most
analogous to those attorneys who have taken their clients’ money, failed to
perform the promised legal work, and then failed to cooperate in the resulting
disciplinary investigation.    We have repeatedly held that such misconduct
warrants an indefinite suspension from the practice of law. See Disciplinary
Counsel v. Mathewson, 113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891,
¶ 19 (attorney indefinitely suspended for neglecting clients’ cases, mismanaging
his client trust account, and failing to cooperate throughout the disciplinary
process); Cleveland Bar Assn. v. Verbiski, 86 Ohio St.3d 627, 628, 716 N.E.2d
702 (1999) (attorney indefinitely suspended for failure to seek the lawful
objectives of her client, failure to timely refund an unearned retainer, and failure
to cooperate in the ensuing disciplinary investigation).
       {¶ 51} Accordingly, John Joseph Gruttadaurio is indefinitely suspended
from the practice of law in Ohio. Costs are taxed to Gruttadaurio.
                                                             Judgment accordingly.



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                           SUPREME COURT OF OHIO




       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH,
JJ., concur.
       PFEIFER and O’NEILL, JJ., dissent and would impose a two-year suspension
with 18 months stayed on conditions as recommended by the board.
                           ____________________
       Heather M. Zirke, Assistant Bar Counsel; Bolek Besser Glesius, L.L.C.,
and Cathleen M. Bolek; and Dunson & Dunson Co., L.P.A., and Joseph P.
Dunson, for relator.
       John Joseph Gruttadaurio, pro se.
                         ________________________




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