[Cite as Disciplinary Counsel v. Nittskoff, 130 Ohio St.3d 433, 2011-Ohio-5758.]




                        DISCIPLINARY COUNSEL v. NITTSKOFF.
                       [Cite as Disciplinary Counsel v. Nittskoff,
                         130 Ohio St.3d 433, 2011-Ohio-5758.]
Attorneys—Misconduct—Failure to file tax returns for estate—Failure to return
        files upon client’s request—Mismanagement of client trust account—
        Failure to cooperate with disciplinary authority—Failure to inform clients
        of lack of professional-liability insurance—Indefinite suspension.
    (No. 2010-2245—Submitted April 6, 2011—Decided November 10, 2011.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 09-089.
                                   __________________
        Per Curiam.
        {¶ 1} Respondent, David Nittskoff, of South Euclid, Ohio, Attorney
Registration No. 0025471, was admitted to the practice of law in Ohio in 1970.
        {¶ 2} In early 2009, relator, Disciplinary Counsel, received a grievance
alleging that Nittskoff had failed to inform his clients that he did not carry
malpractice insurance and had neglected a client matter, causing the client to
incur significant tax penalties.
        {¶ 3} In December 2009, relator filed a formal complaint alleging that
Nittskoff had committed several violations of the Ohio Code of Professional
Responsibility and the Rules of Professional Conduct.1 Nittskoff did not answer.


1. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the
former and current rules are cited for the same acts, the allegations comprise a single continuing
ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894
N.E.2d 31, ¶ 1, fn. 1.
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       {¶ 4} On April 30, 2010, relator filed an amended complaint; again,
Nittskoff did not answer.      Relator filed a motion for default judgment on
September 21, 2010.
       {¶ 5} The matter was referred by the board to a master commissioner,
who made findings of fact and conclusions of law and recommended a one-year
suspension from the practice of law with six months stayed, but without naming
any conditions. The Board of Commissioners on Grievances and Discipline
adopted the findings of fact and conclusions of law of the master commissioner,
but recommended that Nittskoff be suspended from the practice of law for six
months.
       {¶ 6} We issued an order to show cause why the recommendation of the
board should not be adopted by the court. Relator responded, objecting to the
board’s recommendation and requesting this court to enter an order disbarring
Nittskoff. Nittskoff did not file a response.
       {¶ 7} We adopt the board’s findings of fact and conclusions of law, but
suspend Nittskoff from the practice of law in Ohio indefinitely. We additionally
order that as a condition of reinstatement Nittskoff shall satisfy the civil judgment
obtained against him on behalf of the estate of Jack Gordon and shall submit
quarterly progress reports to relator on his payment of the judgment.
                                    Misconduct
       {¶ 8} Nittskoff and the late Jack Gordon formed an attorney-client
relationship beginning in the late 1970s and early 1980s.            Nittskoff also
represented other members of Gordon’s family. Gordon operated a bicycle shop
near downtown Cleveland.
       {¶ 9} Gordon died on September 27, 2005, leaving an estate and the Jack
Gordon Revocable Trust. Stanley P. Frankel, successor trustee of the revocable
trust and administrator of the estate, contacted Nittskoff after Gordon’s death.
Nittskoff then contacted Gordon’s heirs and attempted to determine the extent of



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the trust’s assets. He then prepared partially completed handwritten drafts of
probate court filings and conferred with Frankel.
       {¶ 10} In 2006 and early 2007, Frankel continued to ask Nittskoff for the
status of Gordon’s estate. Nittskoff informed Frankel that everything was being
taken care of and that he would take care of any tax penalty that might be
assessed. Frankel terminated Nittskoff on April 2, 2007, due to poorly prepared
probate forms, errors in draft estate-tax returns, and his failure to file estate-tax
returns, which Frankel feared would lead to interest and penalties.
       {¶ 11} On November 5, 2007, the Internal Revenue Service informed
Frankel that an estate-tax return had not been filed and that the Jack Gordon estate
owed a penalty of $317,146.20 and interest in the amount of $134,358.26, totaling
$451,504.46.    Frankel then repeatedly requested that Nittskoff pay both the
penalty and interest or reimburse the estate for the entire amount. Nittskoff never
paid either the penalty or interest, nor did he ever respond to Frankel. The estate
paid the taxes, penalty, and interest.
       {¶ 12} In October 2008, Frankel filed a legal-malpractice claim against
Nittskoff and Nittskoff’s law firm in the Cuyahoga County Court of Common
Pleas. See Frankel v. Nittskoff, Cuyahoga C.P. No. CV-08-673876. In April
2009, the court entered a default judgment against Nittskoff and the firm in the
amount of $451,504.46, and Frankel filed a judgment lien. In March 2010, acting
pro se, Nittskoff filed a motion for relief from judgment pursuant to Civ.R. 60(B),
but the motion was denied.
       {¶ 13} Frankel, through his attorney, also requested that Nittskoff return
all file materials relating to the trust and the estate, but Nittskoff did not comply.
Frankel stated in an affidavit dated September 8, 2010, that Nittskoff still had not
returned any of the requested materials.




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        {¶ 14} On March 25, 2009, relator sent Nittskoff a letter of inquiry
regarding the grievance. However, Nittskoff did not respond, nor did he respond
to relator’s second inquiry.
        {¶ 15} On July 21, 2009, in response to a notice of deposition and
subpoena duces tecum, Nittskoff appeared at relator’s office with the requested
materials. During the deposition, Nittskoff testified that he had failed to maintain
professional-liability insurance for himself and his firm and that he had not
informed any of his clients of this fact.
        {¶ 16} In 2009, Nittskoff maintained an interest-bearing account at
Charter One Bank. On October 27, 2009, relator received a notice from the bank
that the IOLTA account was overdrawn.            During its investigation, relator
discovered that the certificate of authority for the Nittskoff firm had been
canceled by the Ohio secretary of state in 2007 for failure to pay franchise taxes.
        {¶ 17} On November 30, 2009, relator sent a letter of inquiry regarding
the IOLTA-account overdraft via certified mail; Nittskoff did not respond. Nor
did Nittskoff send a response to relator’s second letter of inquiry, sent on
December 31, 2009.
        {¶ 18} On December 4, 2009, a probable-cause panel certified the matter
to the board. The first formal complaint was filed on December 7, 2009, asserting
two counts: (1) that Nittskoff failed to file the requisite tax returns for the Jack
Gordon estate, did not reimburse the estate for the tax penalties assessed against
it, and failed to pay the judgment obtained against him by the successor trustee
and the estate administrator and (2) that he failed to inform any of his clients,
including Frankel, that neither he nor the Nittskoff firm maintained professional-
liability insurance.
        {¶ 19} Nittskoff never filed an answer. On April 30, 2010, relator filed an
amended complaint to add a third count, alleging that Nittskoff failed to maintain




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sufficient funds in his IOLTA account and failed to respond to relator’s letters of
inquiry. Again, Nittskoff did not file an answer.
       {¶ 20} On September 21, 2010, relator filed a motion for default. The
master commissioner recommended a sanction of a one-year suspension from the
practice of law with six months suspended. The board adopted the findings of
fact and conclusions of law of the master commissioner and granted the motion
for default. However, the board rejected relator’s recommendation that Nittskoff
be disbarred and recommended that he be suspended from the practice of law for
six months.
                                    Count One
       {¶ 21} With respect to count one, which pertains to Nittskoff’s conduct
regarding the Gordon estate and trust matters, the board found by clear and
convincing evidence that he had violated DR 1-102(A)(5) and Prof.Cond.R.
8.4(d) (engaging in conduct prejudicial to the administration of justice), DR 1-
102(A)(6) and Prof.Cond.R. 8.4(h) (engaging in conduct that adversely reflects on
the lawyer’s fitness to practice law), DR 6-101(A)(1) (handling a legal matter that
he is not competent to handle), 6-101(A)(3) (neglecting a legal matter entrusted to
him) and Prof.Cond.R. 1.1 (failing to provide competent legal representation to a
client), 1.3 (failing to act with reasonable diligence and promptness), 1.4(a)(2)
(failing to reasonably consult with a client about the means for achieving the
client’s objectives), 1.4(a)(3) (failing to keep the client reasonably informed),
1.4(a)(4) (failing to respond to requests for information from the client), and
1.4(b) (failing to explain a matter so as to permit the client to make informed
decisions).
                                    Count Two
       {¶ 22} On count two, the board further found by clear and convincing
evidence that Nittskoff’s failure to inform his clients that he did not maintain
professional-liability insurance constituted a violation of DR 1-102(A)(6) and 1-



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104(A) (failing to inform a client that the lawyer does not maintain professional-
liability insurance).
                                   Count Three
        {¶ 23} On the third and final count of the amended complaint, the board
found that Nittskoff’s misconduct in allowing an overdraft of his IOLTA account
and his failure to respond to relator’s two letters of inquiry violated Prof.Cond.R.
8.1(b) (failing to respond to a request for information from a disciplinary
authority in connection with a disciplinary matter) and 8.4(h).
                                     Sanction
        {¶ 24} 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 on sanctions, we also weigh evidence of the aggravating and
mitigating factors listed in Section 10(B) of the Rules and Regulations Governing
Procedure on Complaints and Hearings Before the Board of Commissioners on
Grievances and Discipline (“BCGD Proc.Reg.”).            Disciplinary Counsel v.
Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
        {¶ 25} The board found that Nittskoff’s lack of cooperation in the
disciplinary process, including his failure to answer the complaint and the
amended complaint, was an aggravating factor.              See BCGD Proc.Reg.
10(B)(1)(e). The board also found an aggravating factor in the vulnerability of
and resulting harm to the victims of Nittskoff’s misconduct.            See BCGD
Proc.Reg. 10(B)(1)(h).
        {¶ 26} As mitigating factors, the board found that Nittskoff had no prior
disciplinary record and no dishonest or selfish motive. See BCGD Proc.Reg.
10(B)(2)(a) and (b). The board also found that Nittskoff’s compliance with the
subpoena duces tecum demonstrated a full and free disclosure to the board and a



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cooperative attitude toward the proceedings. See BCGD Proc.Reg. 10(B)(2)(d).
However, we believe that any mitigating effect of Nittskoff’s compelled
appearance at the deposition is outweighed by his failure to respond to relator’s
correspondence and his failure to file an answer or otherwise appear in this action.
The board found the imposition of other penalties or sanctions, namely the civil
judgment against Nittskoff, to be mitigating under BCGD Proc.Reg. 10(B)(2)(f).
       {¶ 27} Relator filed objections to the board’s report, arguing that
Nittskoff’s conduct warrants disbarment rather than a six-month suspension as
recommended by the board. Relator argues that the board erroneously relied on
Nittskoff’s “entirely unverified” deposition testimony. Had Nittskoff participated
in the formal disciplinary process as required, relator argues, relator would have
been able to test Nittskoff’s statements through regular discovery.
       {¶ 28} Relator further argues that the board relied on claims by Nittskoff
that are entirely irrelevant to the disciplinary case and the determination of the
appropriate sanction. For example, the board cited Nittskoff’s testimony that he
did not ask the IRS for an extension to file tax returns because he did not believe
that the estate was large enough to pay taxes. Relator argues that while that
statement may be an accurate reflection of Nittskoff’s reasoning, it is not relevant
or mitigating.    As another example, relator cites the board’s reliance on
Nittskoff’s “irrelevant and hearsay” deposition testimony to conclude that the
value of Gordon’s bicycle shop was zero.
       {¶ 29} Relator argues that the only relevant information the board needed
in order to determine the appropriate sanction in the Gordon matter is that (1)
Nittskoff agreed to provide legal representation to the Jack Gordon estate and to
Frankel and (2) Nittskoff did not file certain estate-tax returns and failed to ask for
an extension of time to file. Relator argues that “[t]his Court should reject the
board’s recommendation and enter a sanction that is consistent with the facts of
this case and prior decisions.”



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       {¶ 30} We repeatedly have recognized that neglect of an entrusted legal
matter, coupled with a failure to cooperate in the ensuing disciplinary
investigation, warrants an indefinite suspension. See, e.g., Disciplinary Counsel
v. Meade, 127 Ohio St.3d 393, 2010-Ohio-6209, 939 N.E.2d 1250, ¶ 20. Meade
involved an attorney who failed to cooperate in multiple disciplinary
investigations, failed to act with reasonable diligence and promptness in
representing a client resulting in the dismissal of an appeal of a deportation order,
and failed to deliver the client’s file to her new counsel. We ordered an indefinite
suspension. See also Disciplinary Counsel v. Hoff, 124 Ohio St.3d 269, 2010-
Ohio-136, 921 N.E.2d 636, ¶ 10 (indefinite suspension imposed on attorney who
failed to return unearned fees and failed to cooperate with disciplinary
authorities); Cleveland Bar Assn. v. Davis, 121 Ohio St.3d 337, 2009-Ohio-764,
904 N.E.2d 517 (indefinite suspension appropriate for attorney who neglected
several of his clients, failed to refund retainers for work he did not perform, and
failed to cooperate in the disciplinary investigation); Disciplinary Counsel v.
Mathewson, 113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891 (attorney
indefinitely suspended for neglecting clients’ cases, mismanaging his client trust
account, and failing to cooperate throughout the disciplinary process); Columbus
Bar Assn. v. Harris, 108 Ohio St.3d 543, 2006-Ohio-1715, 844 N.E.2d 1202
(indefinite suspension imposed on attorney who neglected clients’ cases, failed to
keep clients apprised of the status of their cases, allowed her malpractice
insurance to lapse, and did not cooperate with the disciplinary process).
       {¶ 31} The facts of this case are closer to the facts in the foregoing
decisions than to those in which less severe sanctions were imposed. Here, the
evidence demonstrates clearly that Nittskoff neglected his client by failing to
properly file estate-tax returns or request an extension, thereby causing the client
to incur a significant tax penalty, totaling $451,504.46. Moreover, Nittskoff
neglected to maintain professional-liability insurance and did not inform his



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clients of that fact. Nittskoff also neglected to maintain adequate records of his
IOLTA account, which ultimately resulted in an overdraft. Finally, when relator
attempted to investigate the IOLTA-account matter, Nittskoff failed to cooperate.
       {¶ 32} In accordance with our previous decisions involving neglect of
entrusted legal matters combined with a failure to cooperate in the ensuing
disciplinary investigation, we hereby indefinitely suspend Nittskoff from the
practice of law in Ohio. We further order as a condition of reinstatement that
Nittskoff shall satisfy the civil judgment obtained against him on behalf of the
estate of Jack Gordon and shall also submit quarterly progress reports to relator
on his payment of the judgment.
       {¶ 33} Costs are taxed to Nittskoff.
                                                           Judgment accordingly.
       O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
       PFEIFER, J., dissents.
                                __________________
       PFEIFER, J., dissenting.
       {¶ 34} I agree with the majority that attorney Nittskoff violated several
provisions of the Ohio Code of Professional Responsibility and the Rules of
Professional Conduct and that he should be sanctioned.       I dissent because I
believe that an indefinite suspension is excessive given the misconduct that
Nittskoff committed.
       {¶ 35} At its core, this case is a garden-variety malpractice case. Based
merely on the malpractice, it is unlikely that this court would have indefinitely
suspended Nittskoff from the practice of law. But this case also includes repeated
failures to respond and cooperate in the disciplinary process. In my opinion, that
aggravating factor does not outweigh the underlying malpractice case and the
mitigating factors.



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       {¶ 36} The majority opinion cites five prior disciplinary cases to justify its
imposition of an indefinite suspension. In four of those cases, the attorney who
was indefinitely suspended committed violations involving multiple clients. This
case does not involve multiple clients; only one client was neglected, though the
neglect was substantial and the effect was extremely expensive for the client. The
fifth case cited by the majority opinion involved more aggravating factors than
this case, including a selfish motive, which is lacking in this case.
       {¶ 37} Viewing the case as a whole and after considering all the
aggravating and mitigating factors, I conclude that the violations do not rise to the
level necessary to impose an indefinite suspension. I would impose the sanction
recommended by the Board of Commissioners on Grievances and Discipline and
suspend Nittskoff from the practice of law for six months.
                               __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, Chief
Assistant Disciplinary Counsel, for relator.
                            ______________________




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