[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Dayton Bar Assn. v. Stenson, Slip Opinion No. 2014-Ohio-2339.]




                                        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-2339
                     DAYTON BAR ASSOCIATION v. STENSON.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                  it may be cited as Dayton Bar Assn. v. Stenson,
                         Slip Opinion No. 2014-Ohio-2339.]
Attorneys—Misconduct—Filing           frivolous    complaint—Dismissing        complaint
        without client’s consent—Failing to communicate with client—Failing to
        act with reasonable diligence—Six-month suspension, all stayed.
      (No. 2013-1308—Submitted October 9, 2013—Decided June 4, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                  Discipline of the Supreme Court, No. 2012-077.
                               ____________________
        Per Curiam.
        {¶ 1} Respondent, David Edmund Stenson of Dayton, Ohio, Attorney
Registration No. 0042671, was admitted to the practice of law in Ohio in 1989. In
October 2012, relator, Dayton Bar Association, charged Stenson with six
violations of the Rules of Professional Conduct for preparing and filing a
                                  SUPREME COURT OF OHIO




frivolous pro se complaint on behalf of a client, dismissing that complaint without
the client’s informed consent, and neglecting another client’s legal matter.
          {¶ 2} The parties entered into stipulated findings of fact and misconduct in
which Stenson agreed that he had committed the violations alleged in Counts I
and V of the complaint and in Counts III and IV “as amended.”1 Relator agreed
to withdraw Counts II and VI of its complaint.
          {¶ 3} At the hearing, the panel heard testimony from the two clients
affected by Stenson’s misconduct, Stenson, and two character witnesses. Having
considered this testimony, the parties’ stipulations, the stipulated exhibits, and the
exhibits submitted by Stenson, the panel adopted the parties’ stipulations of fact
and misconduct, permitted relator to withdraw the violations alleged in Counts II
and IV of its complaint, and recommended that Stenson be suspended from the
practice of law for six months, all stayed on the condition that he refund $2,500 of
the fees he received from India R. Huger within 90 days of the order of this
court.2
          {¶ 4} The board adopted the findings of fact, conclusions of law, and
recommendation of the panel. Neither party has objected to the board’s report.
We adopt the board’s findings and recommendation and suspend Stenson from
the practice of law for six months, all stayed on the conditions that Stenson refund
$2,500 of the fees he received from Huger within 90 days of this order and that he
commit no further misconduct.

1
  Paragraph 28 of the parties’ stipulations actually states that Stenson admits that he committed the
violations in Counts III and IV “as amended.” The allegation in Count III that Stenson violated
Prof.Cond.R. 8.4(c) was withdrawn, and Stenson stipulated to a violation of Prof.Cond.R. 8(a)
instead. At the hearing, the parties agreed to withdraw the alleged violation of Prof.Cond.R. 8.4(c)
in Count IV and to have the panel consider the facts associated with that allegation as part of
Counts I and V. Thus, the panel and board found that relator had agreed to withdraw Count IV.
2
 Neither the panel nor the board disposed of Count VI of the complaint, which relator agreed to
withdraw. Because relator presented no evidence regarding the allegations contained in Count VI,
we dismiss it.




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                                 January Term, 2014




                                    Misconduct
                          The Huger Matter—Counts I and III
        {¶ 5} In May 2008, India R. Huger retained Stenson to represent her in a
dispute with a civic organization. She had been disciplined for violating the
internal rules and procedures of the organization while serving as a volunteer.
Stenson advised Huger to resolve her differences with the organization because he
did not believe that a court would afford her the relief she sought. He wrote
several letters on her behalf in an attempt to resolve the matter. His efforts were
unsuccessful, but Huger continued to request his assistance.
        {¶ 6} In February 2009, Stenson sent Huger a proposed pro se complaint
with a letter, advising her:


                After thoroughly reviewing your causes of action, my
        office at this time is unable to go any further in representation of
        you with regard to your issues with the aforementioned
        [organization].
                I’ve provided you with the research showing that your
        action has slim chance of being successful. My office cannot go
        forward based on this research.


        {¶ 7} Despite having advised Huger that he could not continue with the
representation, Stenson revised the proposed pro se complaint at her request.
Although that pro se complaint did not comport with Huger’s wishes, Stenson
filed it in the Montgomery County Court of Common Pleas on Huger’s behalf on
March 10, 2009. Huger received the answer and scheduling order providing for a
telephone status conference. Stenson did not enter a formal appearance in the
proceeding, but participated in the telephone conference on Huger’s behalf. He




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continued to correspond and meet with Huger for several months, primarily to
advise her on discovery issues.
        {¶ 8} The defendant in Huger’s case moved for summary judgment and
sanctions for frivolous conduct on September 24, 2009.                   Without obtaining
Huger’s permission, Stenson voluntarily dismissed her complaint on November 9,
2009.     While the dismissal rendered the defendant’s motion for summary
judgment moot, the motion for sanctions remained pending.
        {¶ 9} Stenson continued to represent Huger at the hearing on the motion
for sanctions and received approximately $5,000 from her during his
representation. On February 22, 2010, the court granted the motion and ordered
Huger to pay sanctions of $10,400, stating: “To file a lawsuit under these
circumstances is unjustified. This conduct is designed to harass the defendants. It
lacks evidentiary support.”
        {¶ 10} Stenson admitted that he failed to fully communicate or confirm in
writing to Huger the intended scope of or limits on his representation when he
signed and filed the pro se complaint on her behalf.3               He also stipulated that
while he believed that there was a strategic advantage to voluntarily dismissing
Huger’s suit before trial, she did not approve of or consent to this strategy. He
acknowledged, and the board agreed, that by signing and filing the voluntary
dismissal without Huger’s consent, he failed to abide by her decisions concerning
the objectives of the representation and whether to settle the matter in violation of
Prof.Cond.R. 1.2(a) (requiring a lawyer to abide by the client’s decisions
concerning the objectives of representation, to consult with the client as to means
by which they are to be pursued, and to abide by a client’s decision whether to
settle a matter), and 8.4(a) (prohibiting a lawyer from violating or attempting to
violate the Ohio Rules of Professional Conduct).

3
  But he did not enforce the limits he attempted to set, as he continued to represent Huger even
after he prepared the pro se complaint on her behalf.




                                               4
                                      January Term, 2014




         {¶ 11} We adopt these findings of fact and misconduct.
                                The Bonner Matter—Count V
         {¶ 12} In February 2009, Tyronne Bonner, the principal of BSI Security
Services in Dayton Ohio, received a notice from the Ohio Department of Public
Safety (“ODPS”) advising him that the agency intended to revoke or suspend the
company’s Class C security-guard license. This notice apparently stemmed from
BSI’s failure to register or renew the registration of certain employees. The
notice informed Bonner that BSI had 30 days from mailing date of the notice to
request an administrative hearing on the matter.
         {¶ 13} Bonner hired Stenson to represent the company and provided him
with a copy of the ODPS notice. While Stenson requested information about the
matter from the agency, he did not submit a timely request for a hearing.
Consequently, on May 12, 2009, ODPS issued an order revoking BSI’s license.4
Appeals from the administrative order were unsuccessful because Stenson had
failed to timely request a hearing.
         {¶ 14} Stenson mistakenly believed that the requests he had made to
ODPS for additional information extended his time for filing a request for hearing
on BSI’s behalf.        Therefore, he admits that he failed to act with reasonable
diligence and promptness in violation of Prof.Cond.R. 1.3 (requiring a lawyer to
act with reasonable diligence in representing a client). The board adopted these
stipulations of fact and misconduct, and so do we.
                                             Sanction
         {¶ 15} 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

4
 We note that the order provided that, in lieu of the revocation of its license, BSI could pay a civil
penalty of $35,230 within 60 days.




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                             SUPREME COURT OF OHIO




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.
       {¶ 16} The only aggravating factor found by the board was that Stenson
engaged in multiple acts of misconduct. See BCGD Proc.Reg. 10(B)(1)(d). In
mitigation, the board found that Stenson has no prior disciplinary record, did not
act with a dishonest motive, exhibited a cooperative attitude toward the
disciplinary proceedings, and has a good character and reputation within the
Dayton legal community, apart from the charged misconduct.             See BCGD
Proc.Reg. 10(B)(2)(a), (b), (d), and (e).
       {¶ 17} Relator recommended that at a minimum, Stenson serve a stayed
suspension as a result of his misconduct. Stenson argued that a public reprimand
was the proper sanction for his misconduct. But neither party offered any legal
authority to support its recommendation.
       {¶ 18} The board recommends that Stenson be suspended from the
practice of law for six months, all stayed on the condition that he refund $2,500 of
the fees he received from Huger within 90 days of this court’s order. The basis
for the amount of the monetary award to Huger appears to be Stenson’s testimony
that at the start of the sanction hearing, opposing counsel stated that his fees to
date for defending the action were approximately $2,500—at which point,
Stenson advised Hager to “stop the bleeding” and negotiate with the organization
about her underlying concerns. Because Huger insisted on proceeding with the
sanctions hearing—against Stenson’s advice—her opponent’s attorney fees, and
hence the award against her when she lost, amounted to $10,400.
       {¶ 19} In support of its recommended sanction, the board cited three cases
imposing stayed suspensions of six months and one case imposing a nine-month
stayed suspension for misconduct comparable to Stenson’s. See Disciplinary
Counsel v. Shuler, 129 Ohio St.3d 509, 2011-Ohio-4198, 954 N.E.2d 593




                                            6
                                January Term, 2014




(imposing a conditionally stayed six-month suspension for an attorney who
neglected two client matters and initially failed to cooperate in the resulting
disciplinary investigation); Cleveland Metro. Bar Assn. v. Thomas, 125 Ohio
St.3d 24, 2010-Ohio-1031, 925 N.E.2d 959 (imposing a six-month conditionally
stayed suspension for an attorney who neglected a client’s bankruptcy matter,
accepted a settlement offer on behalf of a personal-injury client without authority
to do so, failed to appear at the final pretrial conference or at the trial after the
client refused to sign the release or negotiate the settlement check, and failed to
timely advise the client that the court dismissed her case without prejudice);
Cuyahoga Cty. Bar Assn. v. Drain, 120 Ohio St.3d 288, 2008-Ohio-6141, 898
N.E.2d 580 (imposing a six-month conditionally stayed suspension for an attorney
who neglected a client’s case by repeatedly missing crucial deadlines and
destroying virtually all of the client’s prospects for recovery against him for
malpractice by canceling his professional liability insurance); Cleveland Metro.
Bar Assn. v. Sherman, 126 Ohio St.3d 20, 2010-Ohio-2469, 929 N.E.2d 1061
(adopting the parties’ consent-to-discipline agreement and imposing a nine-month
stayed suspension for an attorney who neglected a client’s legal matter,
voluntarily dismissed the client’s case without her knowledge or consent, and
failed to advise another client that he did not maintain professional liability
insurance).
       {¶ 20} Having considered Stenson’s misconduct, the aggravating and
mitigating factors present in this case, and sanctions we have imposed for
comparable misconduct, we agree with the board’s recommendation of the
appropriate sanction in this case.      Accordingly, David Edmund Stenson is
suspended from the practice of law in Ohio for six months, all stayed on the
conditions that he refund $2,500 of the fees he received from Huger within 90
days of this order and commit no further misconduct. Costs are taxed to Stenson.
                                                             Judgment accordingly.



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                           SUPREME COURT OF OHIO




       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                            ____________________
       David P. Mesaros, for relator.
       David P. Williamson, for respondent.
                         ________________________




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