Columbus Bar Ass'n v. Davis
| Decision Date | 20 April 2022 |
| Docket Number | 2021-1516 |
| Parties | Columbus Bar Association v. Davis. |
| Court | Ohio Supreme Court |
Submitted January 25, 2022
On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2021-003.
Manley Deas Kochalski, L.L.C., and Holly Nicole Wolf; Nicole Makeda and Kent R. Markus, Bar Counsel, and Thomas E. Zani, Deputy Bar Counsel, for relator.
Wesley Robert Davis, pro se.
{¶ 1} Respondent, Wesley Robert Davis, of Brice, Ohio Attorney Registration No. 0076727, was admitted to the practice of law in Ohio in 2003.
{¶ 2} In a February 2021 complaint, relator, Columbus Bar Association, charged Davis with two counts of misconduct arising from his representation of a single client. Relator later amended its complaint to add a third count alleging that Davis had failed to cooperate in the investigation of a second grievance. The parties submitted stipulations of fact and misconduct regarding those three counts and a fourth count arising from Davis's representation of the second client. During a hearing before a three-member panel of the Board of Professional Conduct, Davis consented to the filing of a second amended complaint, which added a fourth count to conform to the stipulations.
{¶ 3} After the hearing, the panel issued a report finding that Davis had committed the stipulated misconduct with the exception of three alleged violations that it dismissed based on insufficient evidence. The panel recommended that we impose a one-year conditionally stayed suspension for Davis's misconduct. The board adopted the panel's findings of fact, conclusions of law, and recommended sanction. The parties have jointly waived objections.
{¶ 4} After a thorough review of the record and our precedent, we adopt the board's findings of misconduct and recommended sanction.
{¶ 5} In August 2018, Charmaign Fish retained Davis to represent her in the dissolution of her marriage and paid him a flat fee of $1, 500. Davis did not file the dissolution until July 10, 2019. The following month, Fish reviewed the online court docket and noticed that her case had not progressed. She contacted Davis, who told her that the court was waiting for him to file additional financial documents. In early September 2019, Fish unsuccessfully attempted to reach Davis by telephone and email regarding the status of her case. Her husband informed her-and Davis later confirmed-that the court was again waiting for Davis to file additional paperwork. However, Davis did not timely file that paperwork, and on October 9, 2019, the court dismissed Fish's case.
{¶ 6} Davis initially assured Fish that he would get the case reinstated, though he later informed her that she and her husband would need to sign some paperwork so that he could refile the case. However, Davis stopped taking Fish's telephone calls and did not send her the required documents until October 31. Fish returned the signed documents to Davis on November 4. On November 6, Fish asked Davis to confirm that he had received the documents. He confirmed that he had, and he told Fish that he would file them and update her on her case as soon as possible. Fish continued to monitor the matter online, and after several of her attempted communications with Davis went unanswered, Davis informed her that he had mailed the documents to the court on January 13, 2020.
{¶ 7} When Fish contacted the court on January 28, she was informed that no additional paperwork had been submitted. She continued to reach out to Davis, and on March 11, he responded with a promise that the paperwork would soon be submitted to the court. When nothing had been done by April 6, Fish filed a grievance with relator.
{¶ 8} The parties stipulated and the board found that Davis's conduct violated Prof.Cond.R. 1.1 (), 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(2) (), 1.4(a)(3) (), and 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with reasonable requests for information from the client).
(¶ 9} Davis has admitted that he forged the signatures of Fish and her husband on their financial-disclosure affidavits, falsely notarized those documents, and then filed those affidavits with the court. Based on that conduct, the parties stipulated and the board found that Davis violated Prof.Cond.R. 3.3(a)(1) (), 3.3(a)(3) (), 8.4(b) (), 8.4(c) (), and 8.4(d) ().
{¶ 10} In March 2021-during the pendency of this disciplinary case- relator received a grievance from attorney Thomas McCash on behalf of his client (and Davis's former client) George Mangeni. The following day, relator sent Davis a letter of inquiry requesting a response within ten days. Although Davis requested and received an extension of time to respond, he did not timely submit his response, and he failed to respond to several other communications from relator. Approximately one month after relator's first letter of inquiry, relator received a response from Davis.
{¶ 11} After Davis failed to comply with relator's request for additional information, relator caused the board's director to issue a subpoena duces tecum. Although Davis told relator he would provide the requested information, he never complied with the subpoena. Davis stipulated and the board found that his conduct violated Gov.Bar R. V(9)(G) and Prof.Cond.R. 8.1(b) ().
{¶ 12} Mangeni hired Davis to represent him in a child-custody matter. Davis filed a motion to modify Mangeni's parenting agreement. At some point, Davis reached an agreement with the guardian ad litem and counsel for Mangeni's ex-wife and agreed to prepare an entry memorializing that agreement for submission to the court. Mangeni was never informed of the details of that agreement. Davis never prepared an agreed entry for filing, and the court dismissed the case. Davis stopped communicating with Mangeni and did not keep him apprised of the status of his case. Consequently, Mangeni retained new counsel to pursue modification of his parenting agreement.
{¶ 13} The parties stipulated and the board found that Davis's conduct in the Mangeni matter violated Prof.Cond.R. 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), and 1.4(a)(4).
{¶ 14} When imposing sanctions for attorney misconduct we consider all relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.
{¶ 15} Here, Davis failed to diligently and competently represent two clients, falsely notarized and then filed two affidavits, and initially failed to cooperate in the investigation of one of the two grievances. As aggravating factors, the board found that Davis acted with a dishonest or selfish motive, engaged in a pattern of misconduct, committed multiple offenses, and exhibited a lack of cooperation in the disciplinary process. See Gov.Bar R. V(13)(B)(2), (3), (4), and (5). The board found that just one mitigating factor was present-the absence of prior discipline. See Gov.Bar R. V(13)(C)(1). The board also noted that Davis eventually cooperated in the disciplinary proceedings by stipulating to all the alleged misconduct and relator's exhibits, fully cooperating at the hearing, and joining the relator in a posthearing brief.
{¶ 16} The board recommends that we impose a one-year conditionally stayed suspension for Davis's misconduct. To support that recommendation, the board cites several cases in which we have imposed public reprimands or fully stayed suspensions for misconduct comparable to several discrete elements of Davis's misconduct.
{¶ 17} For example, the board cites three cases in which we adopted consent-to-discipline agreements and publicly reprimanded attorneys who failed to effectively communicate with and diligently represent single clients. See Warren Cty. Bar Assn. v. Alexander, 161 Ohio St.3d 1441, 2021-Ohio-375, 162 N.E.3d 827; Warren Cty. Bar Assn. v. Elter, 161 Ohio St.3d 1442, 2021-Ohio-375, 162 N.E.3d 830; Disciplinary Counsel v. Gibbons and Jenkins, 158 Ohio St.3d 1524, 2020-Ohio-3018, 145 N.E.3d 318. However, the board determined that a greater sanction is warranted in this case because Davis also falsely notarized the Fish affidavits and failed to cooperate in the Mangeni investigation.
{¶ 18} The board also found that Davis's conduct was comparable to the misconduct at issue in Columbus Bar Assn. v. Chodosh, 156 Ohio St.3d 288, 2019-Ohio-765, 125 N.E.3d 878. Chodosh failed to reasonably communicate with two clients, failed to properly disclose his fee-sharing arrangement, and disclosed confidential client information without consent. He also made a settlement demand without his client's knowledge or consent...
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