Columbus Bar Ass'n v. Flanagan, 96-1992

• Decision Date: 05 February 1997
• Docket Number: No. 96-1992,96-1992
• Parties: COLUMBUS BAR ASSOCIATION v. FLANAGAN.
• Court: Ohio Supreme Court

Page 381

77 Ohio St.3d 381

674 N.E.2d 681

COLUMBUS BAR ASSOCIATION v. FLANAGAN.

No. 96-1992.

Supreme Court of Ohio.

Submitted Oct. 16, 1996.

Decided Feb. 5, 1997.

On December 4, 1995, the Columbus Bar Association ("relator") filed a complaint charging Mark M. Flanagan of Westerville, Ohio, Attorney Registration No. 0030607 ("respondent"), with violations of the Disciplinary Rules in connection with respondent's representation of Richard and Roline Smith in a Chapter 13 case filed in the United States Bankruptcy Court. Relator also charged that respondent regularly failed to deposit fees in an established IOLTA account (interest on lawyer's trust account) in violation of DR 9-102 (failure to deposit client funds in a bank account that contains no funds belonging to the lawyer). Respondent's answer denied any violation of the Disciplinary Rules.

According to the testimony and stipulation before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court ("board"), the Smiths, responding to a Yellow Pages advertisement, arrived at respondent's office on February 22, 1994 for the purpose of filing a bankruptcy. Anita Dorsey, an employee of respondent who had neither experience as a legal assistant nor education as a paralegal, met with the Smiths at the initial interview and explained the difference between Chapter 7 and Chapter 13 bankruptcies. The Smiths decided to file under Chapter 13. Dorsey prepared the petition, the Chapter 13 plan, and the other necessary forms. Respondent did not meet with the Smiths at the initial interview or at the later interview when the Smiths signed the forms and paid an initial $200 retainer and $160 filing fee. Respondent did not maintain an IOLTA account at the time, and the entire $360 was deposited in respondent's general account. Dorsey signed respondent's name to the pleadings and then filed them with the bankruptcy court. Respondent did not review the documents before they were filed.

Respondent failed to appear at the scheduled meeting of creditors, known as the "341 meeting," conducted by the bankruptcy trustee on April 6, 1994. At the trustee's request, respondent's office was called and attorney Tim Dearfield, a tenant in respondent's office condominium, appeared in order to represent the Smiths.

Although he was paid $650 in additional fees under the Chapter 13 plan, respondent did not timely file appropriate amendments to the plan during the course of the case. In addition, respondent filed an objection to a claim on August 26, but did not present an order to the court with respect to that objection until November 2. Respondent estimates that he received forty faxes and letters with questions about the case from the Smiths, who also telephoned and came to his office in person. The Smiths' questions were answered by Dorsey. When Dorsey told respondent that he would have "to start to deal personally with the Smiths," respondent replied that he was going to "get rid of them as clients." On September 30, 1994, the Smiths received a letter from respondent advising them that because one of his secretaries had resigned, respondent could "no longer service [their] case" and that they should acquire new counsel. On October 5, 1994, the Smiths received a second letter from respondent stating that because Dorsey had taken a leave of absence, respondent was short-handed and the Smiths should contact another attorney.

By letter dated October 7, 1994, the Smiths complained to the bankruptcy judge and to relator about respondent's representation of them. At a hearing before the bankruptcy judge on November 7, 1994, respondent met the Smiths for the first time. The judge found that respondent "failed to adequately represent the [Smiths] by not timely pursuing modification of the plan, submitting an order on a claims objection, failing to attend the creditors' meeting, and the withholding of legal services without seeking court authority to withdraw from representation." As a sanction, the bankruptcy judge ordered that respondent refund $850 in fees to the Smiths, and pay $1,000 to the Chapter 13 trustee to be distributed under the plan. Respondent paid both amounts as ordered.

The panel found that respondent had violated DR 1-102(A)(6) (engaging in conduct adversely reflecting on fitness to practice law), 6-101(A)(3)(neglecting a legal matter entrusted to him) and, based on the fact that the initial payment to respondent was for both court costs and legal fees, 9-102(A)(2)(funds belonging in part to a client and part presently and potentially to the lawyer must be deposited in a trust account). The panel recommended, as stipulated by the parties, that respondent be sanctioned with a public reprimand. The board adopted the panel's findings of fact and conclusions, and recommended that the respondent be publicly reprimanded.

Bruce A. Campbell and Robert W. Sauter, Columbus, for relator.

Charles W. Kettlewell, Worthington, for respondent.

PER CURIAM.

Count one of relator's complaint charges that respondent failed to provide adequate representation to the Smiths. The primary functions of a lawyer are counseling and advocacy. In this case the respondent failed to perform either task.

The counseling of a client in financial matters, particularly about his or her choice of remedies under the Bankruptcy Code or whether a bankruptcy proceeding can be avoided, is a serious matter that deserves...