Counsel v. Mamich
| Decision Date | 25 March 2010 |
| Docket Number | No. 2009-2010.,2009-2010. |
| Citation | 928 N.E.2d 691,2010 Ohio 1044,125 Ohio St.3d 369 |
| Parties | DISCIPLINARY COUNSELv.MAMICH. |
| Court | Ohio Supreme Court |
Jonathan E. Coughlan, Disciplinary Counsel, and Karen H. Osmond, Staff Attorney, for relator.
Zipkin Whiting Co., L.P.A., and David M. Smith, for respondent.
{¶ 1} Respondent, Samuel Jay Mamich of Beachwood, Ohio, Attorney Registration No. 0006097, was admitted to the practice of law in Ohio in 1973. The Board of Commissioners on Grievances and Discipline recommends that we suspend respondent's license to practice for six months, with the entire six months stayed, based on findings that he represented a client's daughter in a legal matter without the daughter's knowledge or consent. We accept the board's findings of professional misconduct and the recommendation of a six-month stayed suspension.
{¶ 2} Relator, Disciplinary Counsel, charged respondent with violations of the Rules of Professional Conduct. The parties stipulated to the facts, misconduct, and mitigating factors and jointly recommended that the board impose the sanction of a 12-month suspension, with the suspension stayed on the condition that respondent commit no further misconduct during his suspension. A panel of three board members heard the case and made findings of fact and conclusions of law. The panel dismissed several charges for lack of the requisite clear and convincing evidence and recommended the six-month stayed suspension. The board adopted the panel's findings of misconduct and recommended sanction.
{¶ 3} The parties have not objected to the board's report.
{¶ 4} The parties stipulated that in November 2003, a client of respondent applied online for and was issued a bank credit card in his daughter's name without her knowledge or consent. Three years later, the bank sold the debt that had accumulated on the credit card account to John Soliday Financial Group, L.L.C. In February 2007, the new creditor filed a complaint in the Cuyahoga County Court of Common Pleas against the daughter seeking $1,040.80 in principal, $380.96 in accrued interest, and additional interest at the rate of 16 percent per year. The father was not named as a defendant in the case, and when an answer was not filed on behalf of the daughter, the creditor moved for default judgment.
{¶ 5} The father contacted respondent to enter an appearance on behalf of his daughter at a hearing on the motion for default and to defend her in the case. The father advised respondent that he had applied for the credit card in his name and that he had added his daughter's name to the account as an authorized user. Respondent did not learn that the card had been issued solely in the daughter's name until after disciplinary proceedings had begun against him. The father also informed respondent that the debt on the credit card was his and that his daughter knew nothing about the credit card, the default-judgment hearing, or the case.
{¶ 6} Respondent advised the father to contact his daughter so that she could defend herself against the lawsuit, but the father told respondent that his daughter was traveling and that he preferred not to alarm her because it was his debt. Unbeknownst to respondent, the daughter was living in the central Ohio area during the entire time that the case was pending. Despite knowing that the daughter was not aware of the credit card or the case and that the father did not want to notify her, respondent agreed to appear at the hearing on the daughter's behalf and to defend her in the case. The father also authorized respondent to offer $300 to settle the case.
{¶ 7} As the case progressed, respondent offered the settlement, appeared at the default-judgment hearing and a case-management hearing, and on behalf of the daughter, filed an answer to the complaint and a response to a motion for summary judgment. Respondent did not notify or receive authorization from her for any of these actions.
{¶ 8} In submitting a response to the creditor's motion for summary judgment, respondent attached an affidavit of the father stating that the credit-card debt was his and that his daughter knew nothing about the account or the debt. The father agreed to personally file the response, but his affidavit was not attached to the filed response. Respondent was not aware that the affidavit was not filed with the response until after disciplinary proceedings had commenced.
{¶ 9} In December 2007, the court entered summary judgment in favor of the creditor against the daughter. Respondent notified the father of the court's decision, but he did not notify the daughter. Respondent did not receive any compensation from the father for his services in the case.
{¶ 10} Thereafter, the daughter received notice from her employer that it was withholding wages from her paycheck to satisfy the judgment against her. This was the first time that the daughter learned about the case. She retained an attorney, who filed a motion to vacate the judgment, stay the garnishment, and return the garnished funds. The court temporarily stayed the garnishment after more than $1,000 had been garnished from the daughter's wages.
{¶ 11} Once respondent learned of the daughter's motion to vacate the judgment, he contacted her attorney and told her the entire story and agreed to testify as a witness on her behalf. In his testimony, respondent admitted that he had appeared in court and filed documents on the daughter's behalf without her knowledge or consent and that he had not contacted her in any way while the case was pending. The court vacated the judgment and ordered that the previously garnished wages be returned to the daughter.
{¶ 12} Respondent admitted that during his representation of his client's daughter in the common pleas court case, he violated Prof.Cond.R. 1.7(a)(2) (), 1.16(a)(1) (), 5.4(c) (), and 8.4(d) (). We agree with the board that there is clear and convincing evidence that respondent committed these violations.
{¶ 13} Respondent also admitted violations of Prof.Cond.R. 1.2(a) (), 1.4(a)(1) (), and 1.4(a)(3) (). We agree with the board, however, that these latter charges have not been established, because they required an attorney-client...
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...that he was representing them. The Ohio Supreme Court reached a similar conclusion on analogous facts in Disciplinary Counsel v. Mamich , 125 Ohio St.3d 369, 2010-Ohio-1044, 928 N.E.2d 691.{¶ 11} In Mamich , an attorney appeared in court and filed documents on behalf of a client's daughter,......
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...9} In a case in which some of the alleged violations arose in a factual context similar to the facts of this case, Disciplinary Counsel v. Mamich , 125 Ohio St.3d 369, 2010-Ohio-1044, 928 N.E.2d 691, ¶ 13, we dismissed stipulated violations of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.4(a)(3) (......