[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Medina Cty. Bar Assn. v. Malynn, Slip Opinion No. 2014-Ohio-5261.]




                                        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. 2014-OHIO-5261
                MEDINA COUNTY BAR ASSOCIATION v. MALYNN.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
                may be cited as Medina Cty. Bar Assn. v. Malynn,
                         Slip Opinion No. 2014-Ohio-5261.]
Attorneys at law—Misconduct—Violations of the Rules of Professional Conduct,
        including failing to provide competent representation to a client, failing to
        keep a client reasonably informed about the status of a matter, and failing
        to advise a client in writing that the client may be entitled to refund of a
        fee denominated as “nonrefundable” if the lawyer does not complete
        representation—Indefinite suspension.
    (No. 2014-0543—Submitted May 28, 2014—Decided December 4, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                  Discipline of the Supreme Court, No. 2013-020.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, Steven Reynolds Malynn of Medina, Ohio, Attorney
Registration No. 0067339, was admitted to the practice of law in Ohio in 1996. In
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November 2011, we suspended Malynn’s license for failing to register. In re
Attorney Registration Suspension of Malynn, 130 Ohio St.3d 1420, 2011-Ohio-
5627, 956 N.E.2d 310. In March 2012, we suspended him for two years, with the
final six months stayed, for neglecting multiple client matters, failing to preserve
the identity of client funds, failing to cooperate in the disciplinary process, and
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Medina Cty. Bar Assn. v. Malynn, 131 Ohio St.3d 377, 2012-Ohio-1293, 965
N.E.2d 299. As conditions for reinstatement, we mandated that Malynn (1)
submit evidence showing that he had completed a mental-health evaluation and
followed all resulting treatment recommendations and (2) provide proof to a
reasonable degree of medical certainty that he is competent to return to the
ethical, professional practice of law.    Id. at ¶ 19.   Although Malynn’s term
suspension has expired, he has not applied for reinstatement. Therefore, both his
term suspension and his attorney-registration suspension remain in effect.
       {¶ 2} In the present case, relator, Medina County Bar Association,
charged Malynn with professional misconduct for neglecting a client matter
during the time period prior to his attorney-registration and term suspensions.
The parties entered into a comprehensive list of stipulated facts and rule
violations, and they jointly recommended that Malynn serve an indefinite
suspension, with the suspension to run concurrently with Malynn’s term
suspension.   In addition, the parties recommended that as a condition for
reinstatement, Malynn provide satisfactory evidence from a board-certified
mental-health physician that he is able to return to the practice of law. The three-
member panel appointed to hear the matter granted the parties’ joint request to
waive a formal hearing, adopted the parties’ stipulations, and concurred in the
recommended sanction.       The Board of Commissioners on Grievances and
Discipline issued a report adopting the panel’s findings of fact and misconduct
and the recommended sanction of an indefinite suspension with a condition on




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reinstatement. However, the board rejected the panel’s determination that Malynn
serve the indefinite suspension concurrently with his term suspension, and instead
the board recommends that we impose an indefinite suspension effective on the
date of this order.     Neither party has objected to the board’s report and
recommendation.
       {¶ 3} Upon our review of the record, we adopt the board’s findings of
fact and misconduct and agree that the board’s recommended sanction is
appropriate in this case.
                                    Misconduct
       {¶ 4} According to the parties’ stipulations, in June 2008, Lonnie and
Karen Hill retained Malynn to file a breach-of-contract suit against their former
business partners. In a written fee agreement, Lonnie Hill agreed to pay Malynn a
$4,000 “nonrefundable retainer.”      Contrary to the provision in Prof.Cond.R.
1.5(d)(3) regarding “nonrefundable” fees, the fee agreement did not also advise
the Hills that if Malynn did not complete his representation, they might be entitled
to a refund of all or part of that retainer. In October 2008, Malynn filed a
complaint on behalf of the Hills, but over the next 18 months, he completely
neglected the matter. Specifically, he failed to respond to discovery requests,
failed to comply with court orders, and failed to oppose the defendants’ various
motions, including dispositive motions and a motion for sanctions. As a result, in
March 2010, the trial court sanctioned the Hills by dismissing their complaint
without prejudice. Malynn did not send the Hills copies of any motions or orders
filed in the case, and he did not inform them of his failure to prosecute the matter.
       {¶ 5} In March 2011, a year after the dismissal, Malynn refiled an
identical complaint on behalf of the Hills. But again, Malynn failed to respond to
the defendants’ discovery requests and a subsequent motion for sanctions. In
August 2011, the trial court dismissed the Hills’ case with prejudice, finding that
the failure to comply with the court’s discovery orders was “unmitigated, willful,




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and in bad faith.” Again, Malynn had not sent the Hills copies of the motions and
orders, and he failed to inform them that he had not prosecuted their case.
       {¶ 6} Based on this conduct, the parties stipulated and the board found
that Malynn “consistently and consciously disregarded his duty to the Hills and to
the court” and that his nonfeasance resulted in court-imposed sanctions causing
the Hills’ breach-of-contract claims to be “forever dismissed and discharged.”
The parties stipulated and the board found that Malynn’s conduct violated
Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation to a
client), 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), and 1.5(d)(3) (prohibiting a lawyer from charging a fee
denominated as “nonrefundable” without simultaneously advising the client in
writing that the client may be entitled to a refund of all or part of the fee if the
lawyer does not complete the representation). We concur in the board’s findings
of misconduct.
       {¶ 7} In addition, the parties stipulated that Malynn failed to notify the
Hills in a separate written notice that he did not maintain professional liability
insurance. Accordingly, the board found, and we agree, that Malynn violated
Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client on a separate written
form that the lawyer does not maintain professional liability insurance).
                                     Sanction
       {¶ 8} When imposing sanctions for attorney misconduct, we consider
several 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(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.          However, because each




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disciplinary case is unique, we are not limited to the factors specified in BCGD
Proc.Reg. 10(B) and may take into account all relevant factors in determining
which sanction to impose.
                       Aggravating and mitigating factors
       {¶ 9} The parties stipulated, and the board found, that the following
aggravating factors are present: (1) prior discipline, (2) a pattern of misconduct,
and (3) multiple offenses. See BCGD Proc.Reg.10(B)(1)(a), (c), and (d). We
agree and also note that Malynn’s misconduct harmed his clients, who lost the
ability to pursue some of their claims.       See BCGD Proc.Reg. 10(B)(1)(h).
Another aggravating factor is that some of Malynn’s misconduct occurred while
he was being investigated for substantially similar conduct in his previous
disciplinary case. The parties stipulated that at the hearing in the prior matter,
Malynn testified that he was competent to practice law, although at that time—
June 2011—he had not timely responded to outstanding discovery requests in the
Hills’ refiled case. And in the two months after his prior disciplinary hearing, he
did nothing to prevent the Hills’ case from being dismissed again.
       {¶ 10} In mitigation, the parties stipulated, and the board agreed, that
Malynn lacked a dishonest or selfish motive, he made a good-faith effort to rectify
the consequences of his misconduct because he eventually refunded the Hills’
$4,000 retainer, and he had a cooperative attitude toward the disciplinary process.
See BCGD Proc.Reg.10(B)(2)(b), (c), and (d). Although we concur in these
findings, we give the fact that Malynn returned his clients’ retainer little
mitigating value. Malynn refunded the money four years after it had been paid
and only after the disciplinary investigation had commenced. See Cincinnati Bar
Assn. v. Grote, 127 Ohio St.3d 1, 2010-Ohio-4833, 935 N.E.2d 832, ¶ 18 (giving
the fact that an attorney refunded a retainer “little mitigating value” when the
attorney did not return the money in a timely fashion and only after the attorney
had been contacted by relator).




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                                 Applicable precedent
         {¶ 11} To support its recommended sanction, the board primarily relies on
Grote, in which we indefinitely suspended an attorney for neglecting a client
matter and for failing to notify the client that she lacked malpractice insurance.
The attorney in Grote also had previously been disciplined for neglecting client
matters, she had harmed her client’s cause, and although she had returned her
client’s retainer, the refund was not timely. Id. at ¶ 14-18. As we explained in
Grote:


         We have indefinitely suspended attorneys for misconduct that
         demonstrates a pattern of neglect. See Cincinnati Bar Assn. v.
         Harmon (1985), 17 Ohio St.3d 69, 17 OBR 134, 477 N.E.2d 629;
         Disciplinary Counsel v. Schiller, 123 Ohio St.3d 200, 2009-Ohio-
         4909, 915 N.E.2d 324. In Harmon, we indefinitely suspended an
         attorney for neglecting two legal matters. The attorney in that case
         had recently been disciplined for neglecting other legal matters. In
         Schiller, although the attorney had no prior disciplinary record, we
         indefinitely suspended him for neglecting multiple legal matters
         and failing to advise clients that he did not have professional-
         liability insurance.


Id. at ¶ 19. We agree with the board that Grote supports the sanction of an
indefinite suspension in this case.
                                      Conclusion
         {¶ 12} Having reviewed the record and the aggravating and mitigating
factors, and having considered the sanctions imposed for comparable conduct, we
adopt the board’s recommended sanction. Accordingly, we indefinitely suspend
Malynn from the practice of law. His suspension is effective on the date of this




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order. Any future reinstatement is conditioned on the submission of proof from a
qualified mental-health professional demonstrating that Malynn is capable of
returning to the competent, ethical, and professional practice of law. Costs are
taxed to Malynn.
                                                           Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                         _________________________
       William E. Steiger II, Patricia Walker, and Daniel Maynard, for relator.
       Steven Reynolds Malynn, pro se.
                         _________________________




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