Columbus Bar Assn. v. Farmer

• Citation: 111 Ohio St.3d 137,855 N.E.2d 462,2006 Ohio 5342
• Decision Date: 01 November 2006
• Docket Number: No. 2006-0491.,2006-0491.
• Parties: COLUMBUS BAR ASSOCIATION v. FARMER.
• Court: Ohio Supreme Court

855 N.E.2d 462

111 Ohio St.3d 137

2006-Ohio-5342

COLUMBUS BAR ASSOCIATION v. FARMER.

No. 2006-0491.

Supreme Court of Ohio.

Submitted June 7, 2006.

Decided November 1, 2006.

COPYRIGHT MATERIAL OMITTED

Bruce A. Campbell, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel, Terry K. Sherman, Columbus, and Don Rueben, for relator.

Bieser, Greer & Landis, L.L.P., David C. Greer, and Carla J. Morman, Dayton, for respondent.

PER CURIAM.

{¶ 1} Respondent, Derek A. Farmer of Gahanna, Ohio, Attorney Registration No. 0071654, was admitted to the practice of law in Ohio in 1999. On December 9, 2004, relator, Columbus Bar Association, charged respondent in an amended complaint with violations of the Code of Professional Responsibility. Respondent answered, and a panel of the Board of Commissioners on Grievances and Discipline heard the cause and made findings of misconduct and a recommendation, which the board adopted.

{¶ 2} The panel found misconduct in connection with two of the three counts charged in the complaint but unanimously dismissed the allegations in Count One. Relator concedes that under Gov.Bar R. V(6)(H), the panel's unanimous dismissal and decision not to refer Count One to the board for further review disposed of those charges. We do not review such dismissals. Cuyahoga Cty. Bar Assn. v. Marosan, 109 Ohio St.3d 439, 2006-Ohio-2816, 848 N.E.2d 837, ¶ 13.

{¶ 3} Thus, pursuant to Gov.Bar R. V(8)(D), we review the board's findings of misconduct as to Counts Two and Three, to which respondent objects; the board's recommended sanction, to which relator objects; and respondent's further objection to the board's recommendation to award costs.

Count Two — Martin

{¶ 4} On April 23, 2001, members of Charles Martin's family consulted respondent about his possibly taking over in the appeal of Martin's criminal conviction. Martin's mother, brother, and particularly his sister, Teresa Smith, believed in Martin's innocence.

{¶ 5} Martin had been indicted in May 2000 by the Montgomery County Grand Jury on felony charges, including aggravated murder, attempted aggravated murder, aggravated robbery, and rape, in the shooting death of a woman and the shooting of her sister, who lived to testify against Martin. Then represented by two experienced Dayton criminal defense attorneys, Martin was convicted in December 2000 and was sentenced to life in prison plus 55 years.

{¶ 6} The court appointed new counsel to appeal Martin's conviction to the Montgomery County Court of Appeals. That attorney had timely filed Martin's appellate brief on April 19, 2001, asserting two assignments of error. He argued (1) that the verdict was against the manifest weight of the evidence and not substantiated beyond a reasonable doubt and (2) that the trial court unjustifiably sentenced Martin to maximum and consecutive prison terms due to ineffective assistance of counsel.

{¶ 7} Smith testified that during their initial meeting, respondent told the Martin family that if hired, he would need to write and file a new brief. During a second or third meeting, Smith recalled respondent's saying that he had reviewed the April 19 brief and that the brief "wasn't worth the paper it was written on." Respondent also promised that his new brief would be "in-depth and it would cover the things that were necessary."

{¶ 8} Respondent led the Martin family to believe during their meetings that he would definitely be able to obtain Martin's early release from prison. This claim was an implausible boast, given the case against Martin, which included not only a victim's but also another witness's testimony identifying him as the perpetrator. The Martin family retained respondent based on his claims, and although no one ever signed a fee agreement, the mother eventually promised to pay a later quoted $41,000 "flat fee." Between May 3, 2001, and July 23, 2002, the Martin family paid respondent in installments a total of $8,915.

{¶ 9} Respondent promptly filed an appearance on Martin's behalf in the court of appeals and was granted leave to withdraw the April 19 brief. Respondent admitted that he had not at that time read his predecessor's brief.

{¶ 10} Respondent visited Martin the first time at the Madison Correctional Institution on May 10, 2001. According to Martin, respondent repeated during that meeting the exaggerated claims he had previously made to Martin's family. Martin recalled respondent's saying that he could "beat this case" and get Martin out of prison. According to Martin, respondent also said that he had reviewed the appellate brief already filed by Martin's appointed counsel, that the brief "wasn't worth the paper it was written on," and that the author "should be ashamed" for writing it. Respondent told Martin that he was going to withdraw the April 19 brief and file a more effective brief.

{¶ 11} On August 3, 2001, respondent filed another brief in support of Martin's appeal. Respondent did not tell Martin or his family, but his August 3 brief was, in all substantive respects, a nearly verbatim recasting of his predecessor's April 19 brief. Respondent added no new assignments of error and tracked the analysis of the two assignments in the first brief almost word for word. With two exceptions, respondent's brief also cited exactly the same cases as had his predecessor, and his "Statutes and Other Authorities Cited" section was identical, including the same erroneously cited statute.

{¶ 12} On comparing the two briefs, Smith soon realized that respondent had not produced the new and improved brief that had been promised. Smith, a nurse, who had taken a second job to help pay respondent's fee, testified that she angrily confronted respondent, and he apologized. Respondent explained that he "had been up working late on another case and * * * the time to file [the brief] was * * * fast approaching. And he didn't get an opportunity to really * * * get in-depth like he said that he would."

{¶ 13} In his own formal defense, however, respondent reported that he had met with Martin's first appellate counsel and had studied the trial transcript and that his research had convinced him that Martin's release from prison would be better pursued in postconviction proceedings than on appeal. Respondent purportedly also decided that the April 19 brief adequately argued his client's case after all and that rewriting it was neither necessary nor economical. Smith denied that respondent ever offered her these explanations. She also testified that the Martin family had regrettably continued to send respondent money based on his promises, including that he would take Martin's case "through the different levels of the court system" or as respondent repeatedly described it, "all the way to the Supreme Court of the United States."

{¶ 14} The court of appeals affirmed Martin's convictions but remanded the case to the sentencing court for clarification of the rationale for imposing maximum and consecutive sentences. State v. Martin (Dec. 28, 2001), Montgomery App. No. 18652, 2001 WL 1658140. On February 11, 2002, before the trial court had ruled on remand, respondent appealed to this court, filing a memorandum in support of jurisdiction. The prosecutor moved to dismiss for lack of a final, appealable order, but the trial court reaffirmed Martin's sentence before any ruling on the motion. We did not accept Martin's appeal for review. State v. Martin, 95 Ohio St.3d 1458, 2002-Ohio-2230, 767 N.E.2d 1177.

{¶ 15} By late 2002, Martin and his family had become frustrated with respondent's lack of progress and false promises, including that respondent was going to hire an investigator to see whether the second witness to Martin's identity would recant her testimony and that he would then file for postconviction relief or a new trial. Martin wrote a letter discharging respondent on December 10, 2002. His mother called respondent and followed up with a letter on December 30, 2002, asking for the return of Martin's paperwork, an accounting of the family's fees, and a refund of all unearned sums.

{¶ 16} On January 2, 2003, respondent advised Martin by letter that discharging him would be a "mistake" because "someone" had been in contact with the second identifying witness, and respondent thought that that witness was "now willing to tell the truth." In another letter, respondent made the same representation to Martin's mother and sister. Responding to the mother's request for a refund, respondent also advised that because he had charged a flat fee, he did not have a list of his hours and would have to reconstruct an itemized bill. Respondent, who then did not keep track of his time in any of his cases, was unable to produce an account of his earnings in Martin's case. Respondent continues to claim, however, that he earned the entire $8,915 fee and more.

{¶ 17} About the time of respondent's dismissal, a third party filed a grievance with the Disciplinary Counsel about the duplicate brief that respondent had filed in Martin's appeal. In November 2003, Martin filed the grievance that led to the formal complaint in this case. Disciplinary Counsel did not pursue formal charges against respondent, in part because of representations in his October 13, 2003 reply to a letter of inquiry. There, respondent recounted work that he claimed to have performed for Martin and falsely represented that he had "obtained the assistance of" an investigator to find and question exculpatory witnesses. He added that the Martins were not entitled to a refund because they had agreed to pay a flat fee and had dismissed him prematurely. Respondent's reply also defended his decision to copy the April 19 brief as being the most efficient reaction to his research in the case.

{¶ 18} By these acts and omissions, the panel and board found that respondent had violated DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), 1-...