[Cite as Disciplinary Counsel v. Noel, 126 Ohio St.3d 56, 2010-Ohio-2714.]




                          DISCIPLINARY COUNSEL v. NOEL.
  [Cite as Disciplinary Counsel v. Noel, 126 Ohio St.3d 56, 2010-Ohio-2714.]
Attorney misconduct, including neglecting entrusted legal matters and failing to
        cooperate in disciplinary investigation — Two-year suspension with six
        months stayed on conditions.
   (No. 2009-2301 — Submitted February 17, 2010 — Decided June 17, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 09-046.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Gerald Thomas Noel Jr. of Columbus, Ohio, Attorney
Registration No. 0063972, was admitted to the practice of law in Ohio in 1994. In
June 2009, relator, Disciplinary Counsel, filed a complaint charging respondent
with violations of the Code of Professional Responsibility, the Ohio Rules of
Professional Conduct, and the Supreme Court Rules for the Government of the
Bar. Although the complaint was served upon respondent by certified mail at his
home address on August 15, 2009, he failed to file an answer. In November
2009, relator moved for default pursuant to Gov.Bar R. V(6)(F).
        {¶ 2} The board referred the motion to a master commissioner, who
found that respondent had neglected two client matters, failed to promptly deliver
a client’s file at the conclusion of his representation, knowingly ignored his
obligation to provide requested discovery in a civil action, and failed to cooperate
in a disciplinary investigation by (1) failing to respond to a demand for
information from a disciplinary authority and (2) knowingly making false
statements of fact in connection with the disciplinary investigation. The master
commissioner concluded that this conduct violated Gov.Bar R. V(4)(G), DR 6-
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101(A)(3), and five of the Rules of Professional Conduct and recommended that
respondent be suspended from the practice of law for two years, with six months
stayed on the conditions that respondent (1) engage in no further misconduct and
(2) complete at least six hours of continuing legal education in law-office
management.
       {¶ 3} The board adopted the master commissioner’s findings, including
that the materials offered in support of the motion for default were sufficient, and
his conclusions of law. While the board agreed that we should impose a two-year
suspension, it recommended that 18 months of that suspension be stayed on the
conditions recommended by the master commissioner.
                                    Misconduct
       {¶ 4} In a disciplinary proceeding, relator must prove a lawyer’s
professional misconduct by clear and convincing evidence. Gov.Bar R. V(6)(J);
Akron Bar Assn. v. Catanzarite, 119 Ohio St.3d 313, 2008-Ohio-4063, 893
N.E.2d 835, ¶ 5. And pursuant to Gov.Bar R. V(6)(F)(1)(b), a motion for default
in a disciplinary proceeding must be supported by “[s]worn or certified
documentary prima facie evidence in support of the allegations made.”
       {¶ 5} Relator submitted transcripts of respondent’s December 18, 2008
and February 6, 2009 deposition testimony, seven purported affidavits, and 65
additional exhibits in support of its motion for default.        But the purported
affidavits are photocopies, not the original signed and notarized documents.
Moreover, relator has not provided an investigator’s affidavit to authenticate the
other exhibits submitted in support of its motion for default. See, e.g., Lorain Cty.
Bar Assn. v. Robinson, 121 Ohio St.3d 24, 2009-Ohio-262, 901 N.E.2d 783, ¶ 3.
Because these documents are neither sworn nor certified as required by Gov.Bar
R. V(6)(F)(1)(b), they are not proper evidence in support of a default motion.
Therefore, in ruling upon relator’s default motion, we consider only the




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transcripts of respondent’s deposition testimony and the exhibits admitted during
the deposition.
                                       Count I
       {¶ 6} The allegations in Count I relate to respondent’s failure to take all
the steps necessary to perfect a client’s appeal of a criminal conviction in the
United States Court of Appeals for the Sixth Circuit.          Due to respondent’s
inaction, the court dismissed the client’s appeal for want of prosecution.
       {¶ 7} Respondent’s deposition reveals that he had represented the client
at trial and that at the conclusion of the sentencing hearing, he informed the trial
court that his client wished to appeal. He also informed the court that his client
was indigent and needed court-appointed counsel. At the court’s direction, the
clerk prepared and filed a notice of appeal. Respondent had never handled an
appeal in the Sixth Circuit and was not familiar with that court’s local rules,
including 6 Cir.R. 101(a), which provides, “Trial counsel in criminal cases,
whether retained or appointed by the district court, is responsible for the
continued representation of the client on appeal until specifically relieved by this
court.” Believing that the trial court had granted his request to withdraw from
representation, respondent did not pay the required filing fee, file a form of
appearance, or file a transcript purchase order in the client’s appeal.
       {¶ 8} Respondent had no knowledge of any letters from the appellate
court regarding the status of the appeal until he began to prepare for his deposition
in this case. He then discovered the letters in the file and assumed that his
secretary, believing the case to be closed, had filed the correspondence without
showing it to him.      Respondent did admit certain facts.        He had received
telephone calls from the appellate court concerning the status of the appeal and
agreed to provide documentation of his withdrawal. He failed to provide the
requested information and failed to follow the caller’s instructions to properly
withdraw from the case. Respondent testified that the case was not on his “high-



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priority burner,” because he thought that his representation had ended with the
sentencing hearing.
       {¶ 9} Respondent also admitted that he had received two letters from
relator about this client’s grievance and that he had not submitted a response. He
claimed that he had forgotten to respond to the first letter and that he had drafted a
response to the second letter but had never mailed it. He did not recall receiving a
third letter from relator, but did recall the letter’s content, which warned that a
subpoena would be issued to compel his appearance if he did not respond.
Respondent claimed that the subpoena arrived shortly after the letter and before
he had the chance to prepare a response.
       {¶ 10} Throughout his deposition testimony, respondent attempted to
justify his inaction and deny responsibility for his misconduct. He claimed, “I
asked to get off of it [the appeal]. I wasn’t paid for it. I didn’t have any money to
pay for his filing fee or anything.” And he claimed, “[T]his was a situation that I
sort of created but didn’t create.” He also blamed his secretary for putting letters
into the client’s file without bringing them to his attention. Respondent did,
however, admit that he had not assigned a high priority to the matter, stating,
“The way my practice works, I kind of work on crisis. * * * And so I didn’t,
basically, categorize this internally as—as a crisis * * *.”
       {¶ 11} The board found that respondent’s conduct with respect to this
client violated Prof.Cond.R. 1.3 (a lawyer shall act with reasonable diligence and
promptness in representing a client) and 8.4(d) (prohibiting a lawyer from
engaging in “conduct that is prejudicial to the administration of justice”). We
accept these findings and also find that by failing to respond to relator’s inquiries
with respect to Count I, respondent violated Prof.Cond.R. 8.1(b) (prohibiting a
lawyer from knowingly failing to respond to a demand for information from a
disciplinary authority during an investigation) and Gov.Bar R. V(4)(G) (requiring




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a lawyer to cooperate with a disciplinary investigation), as charged in the
complaint.
                                     Count II
       {¶ 12} Count II arises from respondent’s representation of a client who
had been in an automobile accident with a Central Ohio Transit Authority
(“COTA”) bus in 2002. Respondent met the client at the courthouse in 2004,
after she learned that her previous attorney had dismissed her case. After talking
with her at his office, and agreeing to take her case, respondent refiled the
complaint.
       {¶ 13} Respondent admitted that he had failed to provide the materials
that COTA sought in discovery but blamed his failure on the client’s refusal to
submit to an independent medical examination and her failure to submit complete
answers to COTA’s interrogatories. He acknowledged that the trial court had
granted COTA’s request for attorney fees as a sanction for discovery violations
but noted that the court had never fixed the amount of that sanction. Respondent
also acknowledged that he had not opposed, and the trial court had later granted,
COTA’s motion to dismiss his client’s action with prejudice for failure to
prosecute.
       {¶ 14} Addressing allegations that the client had had difficulty reaching
him, respondent admitted that he had sometimes ignored her telephone calls when
he had nothing to report, that he had sometimes missed scheduled appointments
due to his obligations in court, and that the voicemail on his cell phone had often
been full.
       {¶ 15} When the client sought to retrieve her file from respondent, he told
her that he did not think another attorney would take her case because three
attorneys had already represented her, which was “a big red flag” that something
was wrong with her case. Notably, he failed to explain that her case had been
dismissed with prejudice and, therefore, could not be refiled.



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         {¶ 16} Respondent denied relator’s allegations that he had missed an
appointment to return the client’s file. He explained that he had left the file out in
anticipation of the client’s arrival, but that the receptionist, who worked for
another attorney in his building, had not seen it. He did, however, admit that he
had made no other efforts to return the file to the client.
         {¶ 17} With regard to allegations that respondent had failed to cooperate
in the resulting disciplinary investigation, respondent acknowledged that he had
received a letter on October 21, 2008, from the Columbus Bar Association
notifying him of the client’s grievance.               But he explained that he had not
responded, because he believed that it was a duplicate notice of the grievance
underlying Count I.
         {¶ 18} The board concluded that respondent’s conduct violated DR 6-
101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal matter),
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.15(d) (requiring a lawyer to promptly deliver funds or
other property that the client is entitled to receive), 3.4(c) (prohibiting a lawyer
from knowingly disobeying an obligation under the rules of a tribunal), 8.1(a)
(prohibiting a lawyer from knowingly making a false statement of material fact in
connection with a disciplinary matter), 8.1(b), and 8.4(d), and Gov.Bar R.
V(4)(G). We accept the board’s conclusion that respondent’s conduct violated
DR 6-101(A)(3), Prof.Cond.R. 1.3, 1.15(d)1, 8.1(b), and 8.4(d), and Gov.Bar R.
V(4)(G). However, we dismiss the alleged violations of Prof.Cond.R. 3.4(c) and
8.1(a) because they are not supported by sufficient sworn or certified evidence.
                                            Sanction



1. Although we agree with the board’s finding that respondent violated Prof.Cond.R. 1.15(d), it
appears that Prof.Cond.R. 1.16(d) (requiring a lawyer upon termination of representation to
promptly deliver to the client papers and property belonging to the client) is the more fitting rule
for the charged conduct.




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       {¶ 19} 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
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.
       {¶ 20} The master commissioner and the board determined that the
following BCGD Proc.Reg. 10(B)(1) aggravating factors are present: (d) multiple
offenses, (e) lack of cooperation in the disciplinary process, (g) refusal to
acknowledge the wrongful nature of the conduct, and (h) vulnerability of and
resulting harm to the victims of the misconduct.        In mitigation, the master
commissioner and board noted that respondent has no prior disciplinary record.
See BCGD Proc.Reg. 10(B)(2)(a).
       {¶ 21} Having weighed these factors, the master commissioner and the
board have recommended that we suspend respondent from the practice of law for
two years.      The board, however, rejected the master commissioner’s
recommendation to stay only the last six months of that suspension and
recommends that we stay the last 18 months of the suspension on the conditions
that respondent (1) engage in no further misconduct and (2) complete at least six
hours of continuing legal education in law-office management.
       {¶ 22} In Cleveland Metro. Bar Assn. v. Kaplan, 124 Ohio St.3d 278,
2010-Ohio-167, 921 N.E.2d 645, we recognized that “ ‘[a] lawyer’s neglect of
legal matters and failure to cooperate in the ensuing disciplinary investigation
generally warrant an indefinite suspension from the practice of law in Ohio.’ ” Id.




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at ¶ 15, quoting Akron Bar Assn. v. Goodlet, 115 Ohio St.3d 7, 2007-Ohio-4271,
873 N.E.2d 815, ¶ 20.
        {¶ 23} In Kaplan, the attorney had failed to maintain a record
documenting his receipt of a client’s fee, failed to promptly comply with
reasonable client requests for information, and failed to cooperate in the resulting
disciplinary proceeding. Id. at ¶ 16. As aggravating factors in that case, the board
found that the attorney engaged in a pattern of misconduct involving multiple
offenses, failed to cooperate in the disciplinary process, refused to acknowledge
the wrongful nature of his conduct, was deceptive during the disciplinary process
regarding when he would mail a check to one of his former clients, and failed to
make restitution to another former client. Id. at ¶ 7, 12. In mitigation, the board
found that respondent had practiced for more than 30 years without disciplinary
action. Id. at ¶ 13. Based upon those findings, we concluded that Kaplan’s
conduct warranted an indefinite suspension.
        {¶ 24} However, in Cuyahoga Cty. Bar Assn. v. Muhlbach (1999), 86
Ohio St.3d 547, 715 N.E.2d 1134, we concluded that a lesser sanction than an
indefinite suspension was appropriate for an attorney who had neglected an
entrusted legal matter, failed to carry out an employment contract, and failed to
cooperate in the ensuing disciplinary investigation. Noting the lack of evidence
of substantial damage to the client and the attorney’s eventual cooperation in the
disciplinary investigation, we imposed a one-year suspension. Id. at 549.
        {¶ 25} Similarly, in Stark Cty. Bar Assn. v. Marosan, 106 Ohio St.3d 430,
2005-Ohio-5412, 835 N.E.2d 718, we suspended an attorney for two years, with
18 months stayed on conditions, based upon his neglect of the entrusted legal
matters of multiple clients, his failure to promptly return unearned fees to those
clients, his failure to maintain a client trust account, and his failure to cooperate in
the ensuing disciplinary investigation. Aggravating factors in Marosan included a
pattern of misconduct involving multiple offenses, lack of cooperation in the




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disciplinary process, and failure to pay restitution. Id. at ¶ 20. Mitigating factors
included the absence of prior discipline and the absence of a dishonest or selfish
motive. Id. at ¶ 21. We accepted the board’s recommendation of a more lenient
sanction than indefinite suspension, stating that “the respondent’s misconduct,
while serious, did not involve dishonesty and did not result in irreparable harm to
his clients.” Id. at ¶ 24.
        {¶ 26} In this case, the record demonstrates by clear and convincing
evidence that respondent neglected the legal matters of two clients, resulting in
the dismissal of a criminal appeal and the dismissal with prejudice of a civil case.
He also failed to timely deliver a client’s file and failed to cooperate in the
disciplinary investigation.
        {¶ 27} Based on our review of respondent’s conduct, as well as the
aggravating and mitigating factors, we conclude that his conduct was not as
egregious as that of Kaplan. But the resulting harm to his clients renders his
conduct more serious than that of Muhlbach and Marosan. Accordingly, Gerald
Thomas Noel Jr. is suspended from the practice of law in the state of Ohio for two
years, with six months stayed on the conditions that respondent (1) engage in no
further misconduct and (2) complete at least six hours of continuing legal
education in law-office management. If he fails to comply with the terms of the
stay, the stay will be lifted, and he will serve the full two-year suspension.
        {¶ 28} Costs are taxed to respondent.
                                                              Judgment accordingly.
        LUNDBERG STRATTON, O’CONNOR, LANZINGER, and CUPP, JJ., concur.
        PFEIFER and O’DONNELL, JJ., would suspend respondent from the practice
of law in Ohio for two years but would stay 18 months of the suspension.
        BROWN, C.J., not participating.
                               __________________




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       Jonathan E. Coughlan, Disciplinary Counsel, and Karen H. Osmond, Staff
Attorney, for relator.
                         ______________________




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