[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Simmonds, Slip Opinion No. 2016-Ohio-5599.]




                                        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. 2016-OHIO-5599
                       DISCIPLINARY COUNSEL v. SIMMONDS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Disciplinary Counsel v. Simmonds, Slip Opinion No.
                                   2016-Ohio-5599.]
Attorneys—Misconduct—Failure to act with reasonable diligence—Failure to
        comply as soon as practicable with reasonable requests from clients for
        information—Failure to advise client that fee may be refundable if
        representation not completed—One-year suspension, fully stayed on
        conditions.
    (No. 2016-0259—Submitted April 5, 2016—Decided September 1, 2016.)
        ON CERTIFIED REPORT by the Board of Professional Conduct of the
                            Supreme Court, No. 2015-047.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Rasheed Asani Simmonds of Cincinnati, Ohio, Attorney
Registration No. 0067797, was admitted to the practice of law in Ohio in 1997. In
                            SUPREME COURT OF OHIO




August 2015, relator, disciplinary counsel, filed a complaint with the Board of
Professional Conduct charging Simmonds with professional misconduct in three
client matters. The chairperson of the panel assigned to hear the matter granted the
parties’ joint motion to waive a hearing, and the case was submitted to the panel on
the parties’ agreed stipulations of fact, rule violations, and recommended sanction.
The board has issued a report finding that Simmonds engaged in most of the
charged misconduct and recommending that we sanction him with a one-year
suspension, fully stayed on conditions.
       {¶ 2} Based on our review of the record, we adopt the board’s findings of
fact and misconduct and its recommended sanction.
                                   Misconduct
                       Count one—the Mary Baskin matter
       {¶ 3} In May 2012, Mary Baskin paid Simmonds $1,500 to file with the
Equal Employment Opportunity Commission (“EEOC”) a charge of discrimination
against her former employer. About two months later, Baskin e-mailed Simmonds
seeking an update on her case. In response, Simmonds wrote that he would send
her a draft of the EEOC charge, but he failed to draft or forward the document.
Four months later, Baskin again e-mailed Simmonds requesting information about
her case. Simmonds, however, failed to respond. He likewise failed to respond to
e-mails that Baskin sent him in February 2013 and January 2014. In May 2014—
two years after she first retained him—Baskin contacted Simmonds, and he told her
that he would set up a meeting. Simmonds later admitted that he failed to file
Baskin’s complaint within the applicable statute of limitations. He also failed to
refund any portion of her $1,500 retainer.
       {¶ 4} Based on this conduct, the parties stipulated and the board found that
Simmonds violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable
diligence in representing a client) and 1.4(a)(4) (requiring a lawyer to comply as




                                          2
                                January Term, 2016




soon as practicable with reasonable requests for information from a client). We
agree with these findings of misconduct.
                        Count two—the Dawn Jones matter
       {¶ 5} In June 2014, Dawn Jones retained Simmonds to represent her in an
employment matter, and she signed a fee agreement in which she agreed to pay
both a contingency fee and an “upfront, flat fee of $1,750.” Contrary to the
provision in Prof.Cond.R. 1.5(d)(3) regarding fees denominated as “earned upon
receipt” or in similar terms, Simmonds did not advise Jones that if he did not
complete his representation, she might be entitled to a refund of all or part of that
upfront, flat fee. Jones paid $975 toward the flat fee. About a month after engaging
Simmonds, she sought an update on her case. Simmonds told her that he would
have a draft complaint ready within a couple of weeks. About a month later, Jones
e-mailed Simmonds, again asking about the status of her case, and Simmonds
responded that he would expedite the matter.
       {¶ 6} However, after another month during which Simmonds failed to
contact Jones, she asked him about a refund and about pursuing her case pro se.
Simmonds agreed to refund her fee, but he failed to do so, even though Jones called
him several times attempting to secure at least a partial refund of her money.
       {¶ 7} Based on this conduct, the parties stipulated and the board found that
Simmonds violated Prof.Cond.R. 1.3, 1.4(a)(4), and 1.5(d)(3) (prohibiting a lawyer
from charging a fee denominated as “earned upon receipt” or in similar terms
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 agree.
                     Count three—the Tonya Bowman matter
       {¶ 8} In 2013, Simmonds represented Tonya Bowman in a civil suit against
a doctor and his medical group. Simmonds settled Bowman’s claim with the
medical group and successfully tried the case against the doctor. The medical




                                           3
                             SUPREME COURT OF OHIO




group, however, began making late payments on the settlement award, and
Simmonds filed a motion to enforce the settlement. Bowman thereafter attempted
to contact Simmonds on numerous occasions, requesting information about the
settlement, an accounting of and receipts for all settlement payments, and an update
regarding how he planned to collect the judgment against the doctor. Simmonds,
however, failed to respond to Bowman’s messages.
       {¶ 9} Based on this conduct, the parties stipulated and the board found that
Simmonds violated Prof.Cond.R. 1.4(a)(4).        We agree with this finding of
misconduct.
                                     Sanction
       {¶ 10} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated,
relevant aggravating and mitigating factors, and the sanctions imposed in similar
cases. See Gov.Bar R. V(13)(A).
                        Aggravating and mitigating factors
       {¶ 11} The board found the following aggravating factors: Simmonds
engaged in multiple offenses, he failed to pay restitution, and by failing to file
Baskin’s EEOC charge within the statute of limitations, he harmed a client’s case.
See Gov.Bar R. V(13)(B)(4), (8), and (9). In mitigation, the board found that he
had no prior discipline, he lacked a dishonest or selfish motive, and he
acknowledged the wrongful nature of his conduct. See Gov.Bar R. V(13)(C)(1)
and (2). The parties stipulated that Simmonds’s misconduct was partially caused
by a mental-health disorder and that he has signed a three-year contract with the
Ohio Lawyers Assistance Program (“OLAP”). The board concluded, however, that
no other evidence was presented regarding the disorder and that even the parties
recognized that the disorder did not meet the requirements of Gov.Bar R.
V(13)(C)(7) to qualify as a mitigating factor.




                                         4
                                January Term, 2016




                               Applicable precedent
        {¶ 12} To support its recommended sanction of a conditionally stayed one-
year suspension, the board cites Cleveland Metro. Bar Assn. v. Fonda, 138 Ohio
St.3d 399, 2014-Ohio-850, 7 N.E.3d 1164. In that case, the attorney neglected two
clients’ cases, failed to reasonably communicate with those clients, and failed to
take reasonable steps to protect their interests after the representation terminated.
Id. at ¶ 5-25. Similar to the circumstances here, the attorney in Fonda had no prior
discipline and lacked a dishonest or selfish motive, and although the board
recognized that he had been diagnosed with a mental disorder and had entered into
an OLAP contract, the attorney’s disorder did not qualify as a mitigating factor
under the board’s regulations. Id. at ¶ 27-28. Consequently, we suspended the
attorney in Fonda for one year but stayed the suspension on conditions, including
that he make restitution and remain in compliance with his OLAP contract. Id. at
¶ 37.
        {¶ 13} We agree with the board that the facts and circumstances in Fonda
are analogous to this case and that a similar sanction is therefore warranted. See
also Trumbull Cty. Bar Assn. v. Yakubek, 142 Ohio St.3d 455, 2015-Ohio-1570, 32
N.E.3d 440, ¶ 14 (noting several cases in which we “imposed one-year stayed
suspensions on attorneys who neglected a few client matters, failed to reasonably
communicate with clients, and either failed to cooperate in relator’s investigation
or failed to promptly deliver funds to which their clients were entitled”).
                                    Conclusion
        {¶ 14} Having considered Simmonds’s ethical infractions, the aggravating
and mitigating factors, and the sanctions imposed in comparable cases, we adopt
the board’s recommended sanction. Rasheed Asani Simmonds is hereby suspended
from the practice of law for one year, with the entire suspension stayed on the
conditions that he (1) remain engaged with OLAP and comply with the terms and
conditions of his OLAP contract, (2) provide proof to relator within 90 days of the




                                          5
                             SUPREME COURT OF OHIO




court’s disciplinary order that he has paid restitution to Mary Baskin in the amount
of $1,500 and to Dawn Jones in the amount of $975, (3) refrain from any further
misconduct, and (4) pay the costs of these proceedings. If Simmonds fails to
comply with any condition of the stay, the stay will be lifted and he will serve the
entire one-year suspension. Costs are taxed to Simmonds.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant
Disciplinary Counsel, for relator.
       Rasheed Asani Simmonds, pro se.
                               _________________




                                         6
