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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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Ohio Legal Ethics Narrative

I. CLIENT-LAWYER RELATIONSHIP

1.3 RULE 1.3 DILIGENCE

1.3:100 Comparative Analysis of Ohio Rule

  • Primary Ohio References: Ohio Rule 1.3
  • Background References: ABA Model Rule 1.3
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 6.16-6.17, 7.36-7.37

1.3:101 Model Rule Comparison

Ohio Rule 1.3 is identical to the Model Rule.

1.3:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Task Force cross-reference table as related to Ohio Rule 1.3: DR 6-101(A)(3), DR 7-101(A)(1).

1.3:200 Diligence

  • Primary Ohio References: Ohio Rule 1.3
  • Background References: ABA Model Rule 1.3
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 6.13, 7.29-7.34
  • Commentary

    : ABA/BNA § 31:901, ALI-LGL § 16, Wolfram § 10.3

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 6.13, 7.29-7.34 (1996).

Ohio Rule 1.3 is short and to the point: in representing a client, a lawyer "shall act with reasonable diligence and promptness." The diligence aspect of the obligation will be addressed in this section; promptness is covered in section 1.3:300.

The language in the Ohio comments (which, it should be noted, vary significantly from the comments to MR 1.3) pertinent to the duty of diligence includes the following:

A lawyer should pursue a matter on behalf of client despite opposition, obstruction, or personal inconvenience to the lawyer. A lawyer also must act with commitment and dedication to the interests of the client.

Ohio Rule 1.3 cmt. [1] (but not with "zeal"; the Task Force has removed the reference to acting "'with zeal in advocacy' . . . because 'zeal' is often invoked as an excuse for unprofessional behavior." Ohio Code Comparison to Rule 1.3.)

Moreover,

[a] lawyer must control the lawyer's work load so that each matter can be handled competently.

Rule 1.3 cmt. [2]. (Authority under the former OHCPR likewise indicated that an excessive caseload was no excuse for neglect. See, e.g., Office of Disciplinary Counsel v. Rieser, 72 Ohio St.3d 130, 647 N.E.2d 1366 (1995); Columbus Bar Ass'n v. Connors, 50 Ohio St.3d 113, 552 N.E.2d 643 (1990)).

[N]eglect [is] inconsistent with a lawyer's duty of diligence, undermine[s] public confidence, and may prejudice a client's cause. Reasonable diligence . . . [is] expected of a lawyer in handling all client matters and will be evaluated in light of all relevant circumstances. The lawyer disciplinary process is particularly concerned with lawyers who consistently fail to carry out obligations to clients or consciously disregard a duty owed to a client.

Rule 1.3 cmt. [3].

A lawyer should carry through to conclusion all matters undertaken for a client, unless the client-lawyer relationship is terminated as provided in Rule 1.16.

Rule 1.3 cmt. [4]. This continues the obligation to carry out the contract of employment, subject to the right to withdraw, contained in former OH DR 7-101(A)(2). See treatise at Rule 1.16 and sections 1.7:300 and 3.7:200.

Comment [5] cautions that the duty of diligence "may require" a sole practitioner, in order to prevent neglect of client matters in the event of death or disability, to prepare a plan that designates another lawyer to review client files, notify clients of the death or disability, and determine whether immediate protective action is needed. Ohio Rule 1.3 cmt. [5].

It seems reasonable to expect that the case law under former OH DR 6-101(A)(3) (and to a lesser extent, perhaps, 7-101(A)(1)-(3)), will be regarded as pertinent to the interpretation of Ohio Rule 1.3, inasmuch as the former states the negative ("shall not neglect") and the new Rule states the affirmative ("shall be reasonably diligent") of the same basic ethics proposition. The pre-Rule cases are therefore set forth in some detail below. Before doing so, however, note should be made that the first invocation of Rule 1.3 in a disciplinary case occurred in Cincinnati Bar Ass’n v. Lawson, 119 Ohio St.3d 58, 2008 Ohio 3340, 891 N.E.2d 749, where respondent violated the rule “because he did little for his client for nearly six months,” in which time he “did nothing . . . except to file an appearance, move for continuances, and meet twice with a prosecutor.” Id. at paras. 55, 54. Lawson also violated Rule 1.3 (and 1.1) in another count by failing to obtain service over a four-month period and failing to account for and refund unearned fees. See id. at para. 48 (query why, as to the latter misconduct, Rule 1.15(d) was not invoked).

Former OH DR 6-101(A)(3)

Neglect - Typical violations: Neglect was, and is, a very serious offense, which the Ohio Supreme Court has characterized as '"tantamount to theft of [the] fee from the client."' Warren County Bar Ass'n v. Lieser, 79 Ohio St.3d 488, 683 N.E.2d 1148 (1997) (quoting Office of Disciplinary Counsel v. Sigall, 14 Ohio St.3d 15, 17, 470 N.E.2d 886, 888 (1984)). (One other "serious matter" quote is worth noting: the Iowa Supreme Court in Comm. on Prof'l Ethics v. Freed, 341 N.W.2d 757, 759 (Iowa 1983), equated respondent's neglect with "the conduct of a surgeon who, without transferring responsibility, drops his scalpel and abandons his patient in the course of an operation.") Such conduct reflects adversely, not only on the lawyer involved, but on the entire legal profession as well. Sigall supra at 18, 470 N.E.2d at 888.

Many cases can be cited for the proposition that accepting a retainer but failing to do any work on the matter for which the lawyer was retained constitutes sanctionable neglect.  See, e.g., Disciplinary Counsel v. Zigan, 118 Ohio St.3d 180, 2008 Ohio 1976, 887 N.E.2d 334 (no work performed on matter); Akron Bar Ass'n v. Markovich, 117 Ohio St.3d 313, 2008 Ohio 862, 883 N.E.2d 1046 ("abandoned" client's case after accepting retainer); Akron Bar Ass'n v. Goodlet, 115 Ohio St.3d 7, 2007 Ohio 4271, 873 N.E.2d 815 (same); Cuyahoga Bar Ass'n v. Scott-Chestang, 109 Ohio St.3d 405, 2005 Ohio 2711, 848 N.E.2d 507 (multiple instances of accepting retainer but failing to file bankruptcy petition as promised) (a further instance of neglect by the respondent resulted in a second indefinite suspension, to be served concurrently with that imposed in 109 Ohio St.3d 405, see Cuyahoga County Bar Ass'n v. Scott-Chestang, 113 Ohio St.3d 310, 2007 Ohio 1956, 865 N.E.2d 48)); Warren County Bar Ass'n v. Marshall, 105 Ohio St.3d 59, 2004 Ohio 7011, 822 N.E.2d 355 (respondent did "nothing" after being retained in personal injury matter and in zoning matter); Greene County Bar Ass'n v. Fodal, 100 Ohio St.3d 310, 2003 Ohio 5852, 798 N.E.2d 1082 (numerous retainers of respondent by clients to handle variety of civil, estate, divorce, and bankruptcy matters; actions never filed; disbarment ordered for these and other violations of OH DR 6-103(A)(3), among other provisions); Columbus Bar Ass'n v. Foster, 97 Ohio St.3d 292, 2002 Ohio 6415, 779 N.E.2d 755 (failure to initiate child-custody proceedings as promised); Columbus Bar Ass'n v. Korda, 94 Ohio St.3d 133, 760 N.E.2d 824 (2002) (failure to take any action (including failure to file appellate brief) on behalf of clients in appeal of federal trial-court decision); Office of Disciplinary Counsel v. Dahling, 90 Ohio St.3d 246, 737 N.E.2d 25 (2000) (over two-year period respondent was given retainers to file over 30 bankruptcy cases but did not do so; despite this failure, he did not return either fees or client's files; respondent was disbarred for violation of OH DR 6-101(A)(3) and a host of other disciplinary rules); Lorain County Bar Ass'n v. Fernandez, 89 Ohio St.3d 82, 728 N.E.2d 1056 (2000) (failing to file divorce action on behalf of client wife, with result that husband obtained divorce in Texas in action in which respondent failed to answer on behalf of wife); Cincinnati Bar Ass'n v. Harvey, 79 Ohio St.3d 389, 683 N.E.2d 1070 (1997) (respondent, hired to represent client in age-discrimination case, failed to file action, told client action filed, and even had client show up for nonexistent depositions, which respondent told client had been cancelled at last minute by other side. Indefinite suspension imposed for violation of former OH DR 6-101(A)(3) and numerous other rules).  Cleveland Bar Ass'n v. Nardi, 61 Ohio St.3d 538, 541, 575 N.E.2d 793, 795 (1991) (Board of Commissioners described as "outrageous" lawyer's "pattern of taking large sums of money from vulnerable clients and families in immigration and postconviction cases and doing little or nothing on their behalf"; Supreme Court adopted Board's recommendation of indefinite suspension).

A poster case for total neglect of a client (as well as numerous other ethical violations) under the former OHCPR is Office of Disciplinary Counsel v. Clifton, 79 Ohio St.3d 496, 684 N.E.2d 33 (1997). Clifton was both the guardian and the attorney for the guardianship of the person and estate of an incompetent, who, at the time of respondent's appointment in 1984 had assets in excess of a half-million dollars. By the time respondent resigned eight years later, in 1992, he had, among other misdeeds, managed to misappropriate almost $300,000 from the estate for use in his business and for personal expenses. Some of his transgressions are set forth here in detail:

Between April 1986 and September 1990, respondent not only retained for his own use dividends and interest belonging to the estate, but also borrowed $172,407 from Cawein's estate without authority. He retained proceeds of sales of the estate's stocks, proceeds from the sales of stock received in stock splits, and proceeds from distributions of the estates of Cawein's relatives and executed six personal five-year promissory notes for the borrowed amounts. He did not timely pay these notes because he determined at the time the notes were due that Cawein's estate did not need the money and that it was not convenient for him to make the payments. Respondent transferred the funds represented by the notes to Jamaica Trading Shares, Inc., a Delaware corporation that he formed and owned. The funds in Jamaica Trading were used to meet respondent's professional and personal obligations, such as the purchase of an automobile for himself. . . .

* * * *

The panel also found that during his guardianship respondent visited Cawein infrequently. His testimony indicated that during the six [sic, eight] years of his guardianship, he purchased only $800-$1,200 in clothes for her, and the employees of the nursing home testified that Cawein was dressed with clothes left at the nursing home when other occupants departed or died. . . . Respondent would not authorize speech therapy for Cawein, nor would he authorize the purchase for Cawein of a recommended "lap board" and a "communications board" (an item with icons to which she could point to indicate her needs.) The estate, however, maintained a subscription to The Wall Street Journal.

Id. at 496-97, 497-98, 684 N.E.2d at 33, 34.

In response to this litany of horrors, the Supreme Court reacted in part as follows:

The respondent undertook the dual roles of guardian and attorney for the guardianship of both the person and the estate of an incompetent woman who it appears had no close relatives. As the record indicates, respondent failed miserably in the performance of his duties in both roles. Over a six-year period respondent wasted his ward's considerable estate through negligence and design. Just as important, over those same six years, respondent failed to provide adequately for the care and comfort of his ward.

* * * *

. . . [T]he guardian of an elderly woman has a duty to provide care and maintenance according to her means and position in life. The successor guardian found Cawein poorly dressed in a crowded, shabby room with no curtains, a broken television, and an inadequate wheelchair. Under those circumstances, respondent failed to maintain Cawein according to the means of a woman with an estate initially valued at over $500,000. The successor trustee in this case took the kind of responsible action that should have been taken by respondent.

. . . Frankly, we find respondent's action as the guardian of the person and estate of Cawein to be despicable and contemptuous.

Id. at 499-500, 684 N.E.2d at 35-36 (citation omitted). His performance as attorney for the guardianship -- commingling, misusing, and dissipating the estate -- was no better. Not surprisingly, Clifton was disbarred.

In addition to the wholesale abdication of duty, á la Clifton, lawyers were found under the former OHCPR to have committed neglect by such acts as:

  • failing to file required pleadings or other papers, see, e.g., Disciplinary Counsel v. Hoskins, 119 Ohio St.3d 17, 2008 Ohio 3194, 891 N.E.2d 324 (failing to file required estate accounts when representing two estates); Dayton Bar Ass'n v. Ellison, 118 Ohio St.3d 128, 2008 Ohio 1808, 886 N.E.2d 836 (failure to file summary judgment opposition papers with court, even though served on opposing counsel); Akron Bar Ass'n v. Markovich, 117 Ohio St.3d 313, 2008 Ohio 862, 883 N.E.2d 1046 (misfiling required probate court paperwork, resulting in show-cause order being issued against client); Cuyahoga County Bar Ass'n v. Church, 116 Ohio St.3d 563, 2008 Ohio 81, 880 N.E.2d 917 (failure to respond to summary judgment motion, resulting in monetary judgment against clients); Cincinnati Bar Ass'n v. Schwieterman, 115 Ohio St.3d 1, 2007 Ohio 4266, 873 N.E.2d 810 (failure to answer complaint, resulting in default judgment); Warren County Bar Ass'n v. Marshall, 113 Ohio St.3d 54, 2007 Ohio 980, 862 N.E.2d 519 (failure to file appellate brief in criminal matter, resulting in dismissal of appeal); Office of Disciplinary Counsel v. Gideon, 104 Ohio St.3d 418, 2004 Ohio 6587, 819 N.E.2d 1103 (failure to file appellate briefs, resulting in dismissal of appeals); Office of Disciplinary Counsel v. Travis, 101 Ohio St.3d 322, 2004 Ohio 785, 804 N.E.2d 969 (failing to file briefs or trial record in 28 criminal appeals, resulting in dismissal of 26 appeals and appointment of new counsel in the two other cases; Court noted that "neglect of even one client's affairs is untenable, and respondent abandoned matters entrusted by 28 clients." Id. at para. 11); Richland County Bar Ass'n v. Brickley, 97 Ohio St.3d 285, 2002 Ohio 6416, 779 N.E.2d 750 (failure to answer complaint, resulting in default judgment; in another case for same client respondent failed to respond to summary-judgment motion and then failed to move for relief from the resulting adverse judgment); Toledo Bar Ass'n v. Pommeranz, 93 Ohio St.3d 139, 753 N.E.2d 175 (2001) (failure to file entry journalizing consent agreement, resulting in dismissal of client's action to recoup past-due child support); Cincinnati Bar Ass'n v. Harwood, 87 Ohio St.3d 123, 717 N.E.2d 705 (1999) (failure to file answer or motion to complaint and failure to file OH Civ R 60(B) motion after default judgment entered).

  • failure to appear at scheduled court proceedings, e.g., Columbus Bar Ass’n v. Hayes, 118 Ohio St.3d 336, 2008 Ohio 2466, 889 N.E.2d 109 (failure to appear at oral argument in client’s criminal appeal; failure to appear at client’s arraignment; arriving late for client’s felony trial); Toledo Bar Ass'n v. Lowden, 117 Ohio St.3d 396, 2008 Ohio 1199, 884 N.E.2d 52 (failure to appear at client's continued criminal trial); Cleveland Bar Ass'n v. Kraus, 116 Ohio St.3d 302, 2007 Ohio 6458, 878 N.E.2d 1028 (numerous instances of missing appearances on behalf of clients at arraignments, pretrials, and sentencing proceedings; "respondent unconscionably abandoned clients at a most dangerous time – during criminal prosecutions," id. at para. 24).

  • failing to prosecute a matter diligently, e.g., Dayton Bar Ass’n v. Randall, 118 Ohio St.3d 408, 2008 Ohio 2709, 889 N.E.2d 535 (failure to prosecute numerous social security appeals in U.S. district court resulting in dismissal of the cases for want of prosecution); Cuyahoga Bar Ass'n v. Jurczenko, 114 Ohio St.3d 229, 2007 Ohio 3675, 871 N.E.2d 564 (dismissal of client's bankruptcy case for want of prosecution); Lorain County Bar Ass'n v. Noll, 105 Ohio St.3d 6, 2004 Ohio 7013, 821 N.E.2d 988 (lawsuit filed, but later dismissed for want of prosecution).

  • filing case in wrong court, Columbus Bar Ass'n v. Winkfield, 107 Ohio St.3d 360, 2006 Ohio 6, 839 N.E.2d 924 (monetary claim filed on behalf of client exceeded court's jurisdiction; despite this and numerous other violations, coupled with prior disciplinary record, Court imposed indefinite suspension rather than disbarment, given significant mitigating factors of mental illness and traumatic childhood).

  • failing to respond to discovery requests, e.g., Columbus Bar Ass'n v. Bowen, 87 Ohio St.3d 126, 717 N.E.2d 708 (1999) (failure to respond to discovery and subsequent order to show cause; case dismissed with prejudice for want of prosecution); Cincinnati Bar Ass'n v. Harwood, 87 Ohio St.3d 123, 717 N.E.2d 705 (1999) (failure to respond to discovery requests and to subsequent motion for sanctions; default judgment entered).

  • failing to make a proper accounting or to pay out funds in a timely fashion as the client directs (see section 1.15:220), e.g., Toledo Bar Ass'n v. Peters, 87 Ohio St.3d 348, 721 N.E.2d 26 (1999) (delay of nearly one year in paying client's medical bills from settlement funds violated former OH DR 6-101(A)(3)).

  • failing to protect client interests, e.g., Dayton Bar Ass'n v. Ellison, 118 Ohio St.3d 128, 2008 Ohio 1808, 886 N.E.2d 836 (giving up on obtaining Qualified Domestic Relations Order for client); Disciplinary Counsel v. Simonelli, 113 Ohio St.3d 215, 2007 Ohio 1535, 863 N.E.2d 1039 (in failing to meet with client, failing to explain bankruptcy documents to client before she signed them, and sending unprepared attorney to bankruptcy court, "respondent failed to show proper care for his client's legal needs," id. at para. 23); Dayton Bar Ass'n v. Gerren, 110 Ohio St.3d 297, 2006 Ohio 4482, 853 N.E.2d 302 (respondent, retained to pursue wrongful-termination claim, concluded it had no merit but failed to so advise client; as a result, "the client had no opportunity to consult other counsel before the statute-of-limittions period elapsed."  Id. at para. 8.); Cuyahoga County Bar Ass'n v. Kelley, 105 Ohio St.3d 55, 2004 Ohio 7009, 822 N.E.2d 351 (mishandling clients' bankruptcy schedules to their detriment; Court quotes panel's conclusion that "Respondent's clients would have been better served by other counsel, or even no counsel, than by the services rendered by Respondent." Id. at para. 18.); Cleveland Bar Ass'n v. Young, 92 Ohio St.3d 417, 750 N.E.2d 1117 (2001) (respondent's "continued and pervasive neglect of his clients' interests," by accepting retainers and then doing nothing for his clients, among other violations, revealed his "callous indifference to his clients' interests and to the standards of professional ethics required of a member by the bar,"  id. at 417, 418, 750 N.E.2d at 1117, 1118, and justified permanent disbarment); Office of Disciplinary Counsel v. Paplardo, 71 Ohio St.3d 377, 643 N.E.2d 1134 (1994) (lawyer's misconduct in handling guardianship included failure to file inventory in probate court for ward, failure to pay ward's nursing home bills, and failure to apply for Medicaid benefits for ward).

    Two DR 6-101(A)(3) cases in which a respondent's conduct could fairly be characterized as failure to protect his client's interests arguably raised competence or lack of preparation concerns, rather than (or in addition to) neglect.  In Toledo Bar Ass'n v. Hickman, 113 Ohio St.3d 164, 2007 Ohio 1256, 863 N.E.2d 169, respondent undertook to represent a client who sought to reopen his divorce case, which had terminated fifteen years earlier.  The client wanted to show by genetic testing that, contrary to the finding in the divorce proceedings, he was not the father of a son born during the marriage, in the hope of preventing the Social Security Administration from garnishing his wages to collect arreages for child support.  "Respondent accepted these payments, agreeing to pursue the termination of [the client's] parentage status even though the claim was not legally viable at the time.  Respondent admitted that he should have realized this and told his client."  Id. at para. 6.  Respondent also represented a Mexican maid who spoke little English in a criminal-theft matter.  He had a friend of the client act as an interpreter to prepare for trial.  Despite a court-ordered separation of witnesses, respondent listed the interpreter as a witness; as a result, respondent had to try the case without an interpreter and his client was found guilty on felony charges.  (New counsel had the verdict set aside on ineffective-assistance-of-counsel grounds and the client ultimately pleaded guilty to one misdemeanor charge.)  Similarly, in Mahoning County Bar Ass'n v. DiMartino, 114 Ohio St.3d 174, 2007 Ohio 3605, 870 N.E.2d 1166, respondent was found to have violated DR 6-101(A)(3) even though the relief sought by his client was impossible under the term's of the client's plea agreements, which were entered into prior to respondent's representation.  In the words of the Court, "[a]t some point, respondent realized that he could neither successfully appeal nor obtain judicial release for [his client] because of the terms of his plea agreements."  Id. at para. 8.  It would seem that that belated realization ought to have occurred much earlier if respondent had adequately prepared in undertaking the representation or, alternatively, had the necessary competence to do so.

  • ignoring clients' efforts to communicate about their pending bankruptcy cases, Cleveland Bar Ass'n v. Kodish, 110 Ohio St.3d 162, 2006 Ohio 4090, 852 N.E.2d 160.

  • abandoning representation without advising affected clients, Cleveland Bar Ass'n v. Jimerson, 113 Ohio St.3d 452, 2007 Ohio 2339, 866 N.E.2d 495 (abandonment of client's personal-injury case, thereby "precluding her from ever recovering for her injuries," id. at para. 16); Cincinnati Bar Ass'n v. Smith, 67 Ohio St.3d 71, 616 N.E.2d 190 (1993) (lawyer, representing prisoners in concert with organization called National Legal Professional Associates ("NLPA"), became concerned that relationship might constitute aiding unauthorized practice of law and ceased working on cases in which NLPA was involved. By doing so, without contacting affected clients and refunding any unearned fees, lawyer was found to have committed neglect.). For an interesting discussion of the lawyer's continuing duty to the client when the client can no longer be located, see Cincinnati Ethics Op. 96-97-02 (Oct. 21, 1997). Ohio Rule 1.3 cmt. [4] affirmatively states that a lawyer should carry the representation through to conclusion, unless the relationship is terminated pursuant to Ohio Rule 1.16.

  • failing to obtain approval before settling or dismissing case (see sections 1.2:320, :340), e.g., Cuyahoga Bar Ass'n v. Meros, 89 Ohio St.3d 304, 731 N.E.2d 629 (2000) (dismissing two of client's cases without her knowledge or consent).

While failure to communicate important information to the client was policed under the Code primarily by DR 6-101(A)(3), this duty is now expressly stated in Ohio Rule 1.4(a)(3); the former Code cases are treated in section 1.4:200Rule 1.4(a)(4) also obligates the lawyer to comply with reasonable requests for information; this aspect of what was formerly treated as neglect is likewise treated in section 1.4:200.

A particularly egregious violation of the obligations of diligence and promptness was presented in Cincinnati Bar Ass'n v. Komarek, 84 Ohio St.3d 90, 702 N.E.2d 62 (1998). The respondent in Komarek had filed a Chapter 13 bankruptcy case on behalf of his client, Hill. The case was dismissed because respondent failed to file a timely reorganization plan. This dismissal vacated the bankruptcy stay provisions and

permitted Hill's home mortgage lender to recommence a foreclosure action on Hill's house. Respondent's July 1994 motion for reconsideration of the Chapter 13 dismissal was opposed by the home mortgage lender on the ground that Hill had filed a Chapter 7 bankruptcy in 1988 and was therefore precluded from filing another bankruptcy petition. Without consulting Hill, who would have informed respondent that he was not the "Melvin Hill" who had previously filed bankruptcy, respondent filed a reply memorandum conceding Hill's previous Chapter 7 filing. The motion for reconsideration was denied, the mortgagee completed its foreclosure, and Hill was evicted from his home.

Id. at 92-93, 702 N.E.2d at 64-65. For this and many other OHCPR violations, respondent was indefinitely suspended, based on mitigating factors relating to his mental condition.

Neglect - Harm to client not required: While neglect often results in substantial harm to the client, see, e.g., Komarek, above; Office of Disciplinary Counsel v. Kelley, 93 Ohio St.3d 409, 755 N.E.2d 338 (2001) (failure to prepare tax returns for estate resulted in significant expenses and damages to estate; likewise, failure to execute transfer of title placed another client at risk of losing her Medicaid benefits), violation of former OH DR 6-101(A)(3) was found even where the client suffered no prejudice. E.g., Mahoning County Bar Ass'n v. Bernard, 98 Ohio St.3d 414, 2003 Ohio 1483, 786 N.E.2d 450 (public reprimand where "misconduct did not harm the client other than causing her considerable delay in pursuing her personal injury case, id. at ¶ 17); Lorain County Bar Ass'n v. Haynes, 88 Ohio St.3d 164, 724 N.E.2d 410 (2000) (public reprimand where violation was solitary incident and there was lack of financial harm to client); Stark County Bar Ass'n v. Tscholl, 57 Ohio St.3d 211, 567 N.E.2d 265 (1991) (public reprimand is proper sanction for attorney whose failure to file timely judgment entry resulted in dismissal of divorce settlement, but who, on learning of situation, rectified it by filing successful motion to vacate dismissal and by reimbursing client for additional legal fees incurred). Compare Columbus Bar Ass'n v. Shay, 105 Ohio St.3d 437, 2005 Ohio 2590, 828 N.E.2d 105, where a public reprimand, pursuant to a consent-to-discipline agreement, was imposed even though respondent's neglect harmed his clients and violated DR 7-101(A)(3) as well as 6-101(A)(3). Chief Justice Moyer, dissenting as to the sanction and writing on behalf of two other justices, would have imposed a six-month suspension.

That harm is likewise not a requisite under new Rule 1.3 is implicit in the language of Comment [3], which notes that sanctionable "neglect . . . may prejudice a client's cause." Ohio Rule 1.3 cmt. [3] (emphasis added).

Neglect - Single versus multiple acts of neglect: It is unclear whether the pre-Rule precedent on single as opposed to multiple acts of neglect remains intact. There can be little doubt, however, that the focus under Ohio Rule 1.3 will be "particularly concerned with lawyers who consistently fail to carry out obligations to clients . . . ." Ohio Rule 1.3 cmt. [3] (emphasis added). In this respect, the Rule confirms pre-Rule authority that neglect "'usually requires a pattern of disregarding obligations or repeated omissions by an attorney.'" Toledo Bar Ass'n v. Dzienny, 72 Ohio St.3d 173, 176, 648 N.E.2d 499, 502 (1995) (quoting Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio 201 (1992)). But there were also cases under the former OHCPR where a single instance of neglect -- even if not coupled with other misconduct and even if causing no harm to the client -- was sanctioned. Lorain County Bar Ass'n v. Haynes, 88 Ohio St.3d 164, 166, 724 N.E.2d 410, 411 (2000) (respondent publicly reprimanded for "solitary act of neglect in an otherwise unblemished legal career"). Cuyahoga Bar Ass'n v. Lazzarro, 98 Ohio St.3d 509, 2003 Ohio 2150, 787 N.E.2d 1182, is another example of violation based on a single act of neglect, but the single act was a biggie. In the Court's words,

respondent accepted cocaine as a legal fee from a client, used the drug, and ended up missing the next day in court representing another client during the second day of trial.

Id. at ¶ 2 (one-year suspension, stayed on conditions). It seems safe to predict that any instance of neglect will continue to run the risk of sanction under Rule 1.3, with the potential range of punishment dependent upon the variables of the particular case.

Neglect - Sanctions: It must be remembered that the adoption of the Ohio Rules of Professional Conduct does not change the sanctions apparatus. The Rules for the Government of the Bar still provide the sanctions available (Gov Bar R V 6(B)), as well as the guidelines for imposition, including aggravating and mitigating factors. Gov Bar R, App. II (BCGD Proc Reg § 10(B)). See section 0.2:240 at "Hearing - Board determination and recommendation" and "Supreme Court order - Sanctions for misconduct."

As stated in BCGD Proc Reg § 10(A), "[e]ach disciplinary case involves unique facts and circumstances." As a result, and because so many variables can come into play (e.g., other violations, presence of mitigating and/or aggravating circumstances), it is difficult to state general rules with respect to sanctions for lack of reasonable diligence and/or promptness. An indication of the sanctions often imposed in the various categories follows:

  • Isolated instances of neglect typically have drawn a public reprimand, if no other violations are involved and there are no significant aggravating factors. E.g., Cuyahoga County Bar Ass'n v. Leneghan, 117 Ohio St.3d 103, 2008 Ohio 506, 881 N.E.2d 1241; Lorain County Bar Ass'n v. Haynes, 88 Ohio St.3d 164, 166, 724 N.E.2d 410, 411 (2000).  When the single act is combined with failure to cooperate in the investigation or with other violations or aggravating factors, it is likely that a more substantial sanction will be imposed. See Lorain County Bar Ass'n v. Lang, 109 Ohio St.3d 48, 2006 Ohio 1830, 845 N.E.2d 513 (single act of neglect plus failure to cooperate; one-year suspension with six months stayed on condition); Dayton Bar Ass'n v. Andrews, 105 Ohio St.3d 453, 2005 Ohio 2696, 828 N.E.2d 360 (one instance of professional neglect; prior disciplinary record; overwhelming mitigating factors; court imposed six-month stayed suspension, instead of public reprimand agreed to by respondent and relator and recommended by panel and Board); Cleveland Bar Ass'n v. Lehotsky, 105 Ohio St.3d 226, 2004 Ohio 1204, 824 N.E.2d 534 (single act of neglect; failure to cooperate; one-year suspension imposed); Cincinnati Bar Ass'n v. Forg, 97 Ohio St.3d 495, 2002 Ohio 6727, 780 N.E.2d 582 (multiple rule violations arising out of "single incident"; one-year suspension with six months stayed); Columbus Bar Ass'n v. Korda, 94 Ohio St.3d 133, 760 N.E.2d 824 (2002) ("one isolated incident" while in "alcoholic crises," retainer fully restored to clients but not timely so, resulting in former 9-102(B)(4) violation, cooperation in investigation; Board recommended indefinite suspension, which Court reduced to two years with one year stayed); Cleveland Bar Ass'n v. Witt, 85 Ohio St.3d 9, 706 N.E.2d 763 (1999) (failure to cooperate; one-year suspension with entire year stayed).

  • A pattern of neglect, particularly if accompanied by failure to cooperate, has typically resulted in an indefinite suspension. E.g., Disciplinary Counsel v. Broschak, 118 Ohio St.3d 236, 2008 Ohio 2224, 887 N.E.2d 1176; Disciplinary Counsel v. Mathewson, 113 Ohio St.3d 365, 2007 Ohio 2076, 865 N.E.2d 891; Toledo Bar Ass'n v. Van Horn, 113 Ohio St.3d 45, 2007 Ohio 978, 862 N.E.2d 511; Disciplinary Counsel v. Lord, 111 Ohio St.3d 131, 2006 Ohio 5341, 855 N.E.2d 456 (Board's recommendation of two-year suspension with one year stayed rejected by Court; indefinite suspension imposed, given '[h]is many ethical mistakes, coupled with the misleading half-truths that he has offered to clients, courts, and fellow lawyers," id. at para. 28); Cleveland Bar Ass'n v. Kodish, 110 Ohio St.3d 162, 2006 Ohio 4090, 852 N.E.2d 160; Cleveland Bar Ass'n v. Helfgott, 109 Ohio St.3d 360, 2006 Ohio 2579, 847 N.E.2d 1212; Columbus Bar Ass'n v. Harris, 108 Ohio St.3d 543, 2006 Ohio 1715, 844 N.E.2d 1202; Northwestern Bar Ass'n v. Lauber, 108 Ohio St.3d 143, 2005 Ohio 419, 841 N.E.2d 770; Dayton Bar Ass'n v. Parker, 104 Ohio St.3d 117, 2004 Ohio 6236, 818 N.E.2d 684. Indefinite suspension also has been held appropriate where the neglect, even if not labeled a "pattern," was coupled with dishonesty and failure to refund unearned fees, as well as failure to cooperate.  Columbus Bar Ass'n v. Port, 102 Ohio St.3d 395, 2004 Ohio 3204, 811 N.E.2d 535 (repeated instances of neglect). A case in which indefinite suspension was imposed for a single instance of neglect, coupled with failure to cooperate, is Cuyahoga County Bar Ass'n v. King, 106 Ohio St.3d 102, 2005 Ohio 3955, 832 N.E.2d 45. When a pattern of neglect (multiple offenses) is counterbalanced by full cooperation in the investigation (and other mitigating factors), a lesser penalty may be imposed.  E.g., Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076 (two-year suspension with final six months stayed).

    Apparently, two instances of neglect could constitute a "pattern" that, when coupled with failure to cooperate, justified an indefinite suspension. See Cleveland Bar Ass'n v. Church, 114 Ohio St.3d 41, 2007 Ohio 2744, 867 N.E.2d 834 (following Cleveland Bar Ass'n v. Judge infra); Helfgott supra; Office of Disciplinary Counsel v. Washington, 97 Ohio St.3d 483, 2002 Ohio 6723, 780 N.E.2d 571, at paras. 9-10; Cuyahoga County Bar Ass'n v. Judge, 96 Ohio St.3d 467, 2002 Ohio 4741, 776 N.E.2d 21, at para. 5 ("[r]espondent's misconduct in this case is part of the pattern of neglect that was discussed in his prior disciplinary case"). The prior case was Cleveland Bar Ass'n v. Judge, 94 Ohio St.3d 331, 763 N.E.2d 114 (2002), which involved neglect with respect to two clients and failure to cooperate in the disciplinary investigation. It also has been held that a pattern of misconduct also can occur even though it "affected only two clients [husband and wife] in a single matter."  Mahoning County Bar Ass'n v. Olivito, 110 Ohio St.3d 64, 2006 Ohio 3564, 850 N.E.2d 702, at para. 12. In another case, the Supreme Court noted without disapproval the panel's explicit conclusion that neglect with respect to as few as two matters is sufficient to create a "pattern," Office of Disciplinary Counsel v. Grdina, 101 Ohio St.3d 150, 2004 Ohio 299, 803 N.E.2d 392:

    In addition, the panel found that respondent had engaged in a pattern of misconduct and multiple offenses by committing similar misconduct with respect to two separate clients.

    Id. at ¶ 10. Accord Stark County Bar Ass'n v. Arkow, 104 Ohio St.3d 265, 2004 Ohio 6512, 819 N.E.2d 284 (neglect of two clients and ex parte contact displayed pattern of misconduct). The two Judge cases raise another interesting aspect of the indefinite-suspension sanction. Even though respondent had been indefinitely suspended in the first case, decided in February 2002, the sanction imposed in the second case, decided in October 2002, was another indefinite suspension. Since respondent could not apply for reinstatement until two years after the order suspending him, the net effect of the second suspension was to defer the first available date for seeking reinstatement by seven months. Justice Cook, dissenting, thought the second indefinite suspension redundant ("[w]e have already imposed an indefinite suspension upon the respondent for conduct similar to that involved in this case") and would have disbarred respondent the second time around.  96 Ohio St.3d 467, 2002 Ohio 4741, 776 N.E.2d 21, at para. 7. And in Cuyahoga County Bar Ass'n v. Paulson, 111 Ohio St.3d 415, 2006 Ohio 5859, 856 N.E.2d 970, the Court found that where the pattern of misconduct coupled with failure to cooperate occurred regarding one client, not multiple cients, a two-year, rather than indefinite, suspension was the appropriate sanction.  Chief Justice Moyer in dissent argued that indefinite suspension was called for, even though the misconduct involved only one client. Id. at ¶ 14-15. For a case in which neglect of one client (no pattern found), coupled with failure to cooperate and failure to return the client's file, resulted in an indefinite suspension, even though the respondent had no prior disciplinary record, see Cincinnati Bar Ass'n v. Leahr, 114 Ohio St.3d 481, 2007 Ohio 4263, 873 N.E.2d 288. In a case decided the same day, similar misconduct, coupled with a prior disciplinary record, also resulted in an indefinite suspension. Disciplinary Counsel v. Gosling, 114 Ohio St.3d 474, 2007 Ohio 4267, 873 N.E.2d 282.

    Where the pattern of neglect "permeates his practice," coupled with failure to cooperate and/or other serious violations, disbarment may be warranted.  Columbus Bar Ass'n v. Foster, 97 Ohio St.3d 292, 2002 Ohio 6415, 779 N.E.2d 755; see Warren County Bar Ass'n v. Lieser, 82 Ohio St.3d 8, 693 N.E.2d 766 (1998) (continued pattern of neglect, after prior indefinite suspension, together with failure to cooperate, resulted in disbarment). The likelihood of disbarment in such circumstances becomes greater "[i]n the absence of any compelling mitigating evidence." Greene County Bar Ass'n v. Fodal, 100 Ohio St.3d 310, 2003 Ohio 5852, 798 N.E.2d 1082, at para. 32 (pattern of neglect and failure to cooperate coupled with numerous other violations: "Respondent routinely took his clients' money and provided nothing in return"; disbarment ordered). Accord Disciplinary Counsel v. Griffith, 112 Ohio St.3d 134, 2006 Ohio 6518, 858 N.E.2d 397 (pattern of misconduct, prior violations, failure to cooperate, other violations, no mitigating factors; respondent disbarred); Disciplinary Counsel v. Johnson, 104 Ohio St.3d 313, 2004 Ohio 6555, 819 N.E.2d 674 ("respondent's conduct reflected a total disregard for the authority of courts, the administration of justice and the interests of her clients," id. at para. 17 (quoting Board); disbarment ordered); Disciplinary Counsel v. Lantz, 102 Ohio St.3d 93, 2004 Ohio 1806, 807 N.E.2d 298 ("respondent engaged in a continuous course of neglect and misappropriation without restitution and then failed to cooperate in the investigation of grievances. Disbarment is in order." Id. at para. 16.). While the Court did not invoke the "permeate the practice" mantra expressly in Disciplinary Counsel v. Lord, 114 Ohio St.3d 466, 2007 Ohio 4260, 873 N.E.2d 273, it was clearly present (mishandling six more cases for eight clients after having been sanctioned for failing to file documents for eight clients in six prior cases); this, together with failure to cooperate, resulted in disbarment. Accord Toledo Bar Ass’n v. Mason, 118 Ohio St.3d 412, 2008 Ohio 2704, 889 N.E.2d 539 (“continuous course of conduct” involving, inter alia, neglect and failure to cooperate; Lord cited in support of imposition of disbarment for this “repeated misconduct,” id. at para. 32.

    If significant mitigating circumstances were present, however, such misconduct often resulted in an indefinite suspension. E.g., Cincinnati Bar Ass’n v. Lawson, 119 Ohio St.3d 58, 2008 Ohio 3340, 891 N.E.2d 749 (despite pervasive misconduct, including neglect, permeating his practice, respondent was indefinitely suspended rather than disbarred, given presence of significant mitigating evidence); Office of Disciplinary Counsel v. Golden, 97 Ohio St.3d 230, 2002 Ohio 5934, 778 N.E.2d 564 (recognizing disbarment as appropriate sanction where neglect permeates the practice, but imposing indefinite suspension in face of mitigating factor of severe depression). Accord Richland County Bar Ass'n v. Brickley, 97 Ohio St.3d 285, 2002 Ohio 6416, 779 N.E.2d 750 (misconduct "permeate[d]" practice, but mitigating factors present). The Court reached the same result (indefinite suspension) in Erie-Huron Counties Joint Certified Grievance Comm. v. Meyerhofer, 99 Ohio St.3d 62, 2003 Ohio 2467, 788 N.E.2d 1078, where misappropriation of client funds and neglect (which normally result in disbarment) were not coupled with lack of cooperation, and a significant mitigating factor (mental illness) was present. Accord Office of Disciplinary Counsel v. Brumbaugh, 99 Ohio St.3d 65, 2003 Ohio 2470, 788 N.E.2d 1076, ("egregious" misconduct, coupled with mitigating factor of alcoholism, resulted in indefinite suspension). The court gave even greater weight to the mitigating factor of alcoholism in Office of Disciplinary Counsel v. Grdina, 101 Ohio St.3d 150, 2004 Ohio 299, 803 N.E.2d 392, where, in a case also involving multiple offenses and failure to cooperate, the appropriate sanction (jointly suggested by relator and respondent) was found to be a two-year suspension with one year stayed on condition that respondent comply with his Ohio Lawyers Assistance Program contract.  When the pattern of neglect is counterbalanced by full cooperation in the investigation (and other mitigating factors), a lesser penalty may be imposed. E.g., Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076 (two-year suspension with final six months stayed).

While the previously cited cases reflect the usual sanctioning pattern, there have been occasions when the Court imposed sanctions seemingly out of step with normal practice.  Lake County Bar Ass'n v. Ryan, 109 Ohio St.3d 301, 2006 Ohio 2422, 847 N.E.2d 430, provides one example. Since the Supreme Court has meted out an indefinite suspension (or worse) for conduct that pales in comparison to that in Ryan, the case is difficult to fathom.  Respondent's transgressions were as follows:

  • Regarding the first count, respondent represented a client against whom a seven million dollar consent judgment had been entered. The creditor's committee agreed to allow the debtor to attempt to foreclose mortgages held by the debtor and, pursuant to respondent's offer to do so, hired respondent to pursue the foreclosure actions on the debtor's behalf. Negotiations were held and a fee agreed to.

  • The unearned retainer paid by the creditor's committee was not deposited in a client trust account, but was instead used for personal expenses by the respondent.

  • Respondent committed to file the necessary foreclosure papers in accordance with his representation but did not do so. In fact, he falsely represented to the committee that he had prepared the necessary documents and would soon file them.

  • Numerous inquiries by various people on behalf of the creditor's committee as to the status of the foreclosure proceedings were ignored by respondent, as were requests for return of the retainer. (The committee had to sue respondent for the amount owing, of which it received only a part.).

  • After the creditor's committee filed a grievance against respondent for his dereliction, respondent failed to cooperate in the relator's investigation.

  • The second count, if anything, is even worse. Here, respondent agreed to represent an elderly, vulnerable couple who had been denied unsupervised visitation rights with their grandchild.

  • Again, respondent took the retainer, but instead of placing it in a client trust as required, used the funds for his own personal expenses.

  • Again, inquiries from the clients over the course of more than a year as to the status of matter were either ignored or met with "he was working on the case and would call the couple when he had some information." Id. at ¶ 17.

  • The couple had to sue for return of unearned fees. The judgment in their favor was unpaid at the time of the panel hearing.

The bar association's suggested sanction of a six-month suspension in the face of this misconduct seems incomprehensible. Even the sanction ultimately imposed by the Court – a two-year suspension with one year stayed – seems uncharacteristically light, given the "dishonest and selfish motive by retaining unearned funds from his clients and repaying none of it until forced through litigation," and "a pattern of misconduct and multiple offenses," id. at ¶ 21.

Another case that is difficult to square with the Court's usual response in such circumstances is Cuyahoga County Bar Ass'n v. Marosan, 109 Ohio St.3d 439, 2006 Ohio 2816, 848 N.E.2d 837.  Marosan had previously been suspended for two years, with 18 months stayed on conditions.  He then violated the conditions and was ordered to serve the full two-year term.  In the present case, he was retained to open a probate estate for the client's deceased husband but did not do so.  He failed to deposit the retainer in his trust account and only after two years did he return the unearned retainer and the husband's will.  He carried no malpractice insurance during this time.  He failed to cooperate in the disciplinary investigation.  As aggravating factors, the Board found prior violations, multiple offenses, a pattern of misconduct, and failure to cooperate.  The only mitigating factor found by the Board was that Marosan did not act from a dishonest or selfish motive, but the Court expressly found to the contrary.  The Board's sanction recommendation was a six-month suspension, to be served concurrently with the existing one.  Even though quoting its prior precedent to the effect that accepting retainers and doing nothing was tantamount to theft and that neglect and a failure to cooperate warrant an indefinite suspension, the Court concluded that a six-month suspension to be served consecutively was appropriate.

A similar case, although not as extreme, is Stark County Bar Ass'n v. Russell, 111 Ohio St.3d 421, 2006 Ohio 5861, 856 N.E.2d 976 (pattern of misconduct, multiple violations, initial failure to cooperate, harm to vulnerable clients, witholding information from clients material to the client's interests, such as initiation of contempt proceedings against the client and settlement offer made by the other side, neglect, including letting statute of limitations run on client's claim). Despite all this, respondent received only a twelve-month suspension, all stayed on conditions; the Court was obviously impressed by respondent's remorse, his subsequent cooperation in the investigation, and his willingness to compensate his victims for the harm they suffered.  "As we have said, the purpose of the disciplinary process is not to punish the offender, but rather to protect the public. . . . With the supervision recommended by the board [monitoring], we trust that respondent's conduct will not be repeated."  Id. at para. 16.

Outside the disciplinary context, neglect is often asserted as a ground for a malpractice action. E.g., Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989) (failure to disclose settlement offer in civil action and to communicate prosecutor's offer to dismiss charges in return for testimony in criminal action supported claim for malpractice); Williams v. Hyatt Legal Servs., No. 14235, 1990 Ohio App. LEXIS 934 (Summit Mar. 14, 1990) (lawyer's failure to contact mortgage company or to file for bankruptcy, which failure resulted in client losing her house to foreclosure, constituted malpractice); Caine v. Steele, No. 39656, 1979 Ohio App. Lexis 10477, at *4 (Cuyahoga Nov. 1, 1979) ("An attorney who acts outside the scope of his express or implied authority in connection with the settlement or compromise of a client's case is liable to his client for malpractice based upon a failure to perform his fiduciary duty."). See also Columbus Bar Ass'n v. McCorkle, 105 Ohio St.3d 430, 2005 Ohio 2588, 828 N.E.2d 99 (in disciplinary action for, inter alia, neglect, Court noted that client for whom respondent had failed to file suit before statute ran had sued for malpractice and obtained default judgment). See section 1.1:330.

Neglect - Coupled with other disciplinary violations: Under the former OHCPR, cases of neglect often involved violations of other disciplinary provisions as well, such as mishandling or failing to account for client property or funds in violation of OH DR 9-102(B) duties. E.g., Cuyahoga County Bar Ass'n v. Peto, 115 Ohio St.3d 421, 2007 Ohio 5250, 875 N.E.2d 593 (abandoning client and failure to comply with client request to return file and account for fees); Disciplinary Counsel v. Tyack, 107 Ohio St.3d 35, 2005 Ohio 5833, 836 N.E.2d 568 (numerous instances of neglect coupled with violation of former DR 9-102(B)(4) by failing to return unearned retainer, which is "tantamount to theft," id. at para. 30); accord Disciplinary Counsel v. Griffith, 112 Ohio St.3d 134, 2006 Ohio 6518, 858 N.E.2d 397; Cuyahoga County Bar Ass'n v. Griffin, 90 Ohio St.3d 307, 737 N.E.2d 1282 (2000) (in addition to neglect, respondent's mishandling of client's funds violated OH DR 9-102(B)(3) and (4)). See section 1.15:220.

Similarly, by neglecting the representation, a lawyer's conduct often also violated OH DR 7-101(A)(1) (failing to seek the lawful objectives of the client) OH DR 7-101(A)(2) (failing to carry out the contract of employment), and/or OH DR 7-101(A)(3) (intentionally prejudicing or damaging a client's interests). See, e.g., Disciplinary Counsel v. Broschak, 118 Ohio St.3d 236, 2008 Ohio 2224, 887 N.E.2d 1176 (serial instances of failure to file transcripts and briefs in criminal appeals, resulting in numerous violations of DR 6-101(A)(3) and 7-101(A)(1)-(3)); Disciplinary Counsel v. Higgins, 117 Ohio St.3d 473, 2008 Ohio 1509, 884 N.E.2d 1070 (multiple failures to appear on behalf of client at pretrial and trial settings; violations of 6-101(A)(3) and 7-101(A)(1) & (2)); Cuyahoga County Bar Ass'n v. Church, 116 Ohio St.3d 563, 2008 Ohio 81, 880 N.E.2d 917 (failure to respond to adversary's summary judgment motion violated 6-101(A)(3) and 7-101(A)(1)-(3)); Cleveland Bar Ass'n v. Douglas, 113 Ohio St.3d 221, 2007 Ohio 1536, 863 N.E.2d 1044 (respondent hired to file bankruptcy on behalf of two different clients; bankruptcy petition filed in neither; conduct violated DR 6-101(A)(3), 7-101(A)(2) & (3); indefinite suspension imposed for these and other violations); Columbus Bar Ass'n v. Smith, 108 Ohio St.3d 146, 2006 Ohio 413, 841 N.E.2d 773 (myriad violations of 6-101(A)(3) and 7-101(A)(1)-(3), among others; disbarment imposed); Cleveland Bas Ass'n v. Kirsh, 105 Ohio St.3d 435, 2005 Ohio 2598, 828 N.E.2d 103 (nothing done for five clients; each client damaged by loss of retainer and/or cause of action barred as result of respondent's misconduct); Columbus Bar Ass'n v. Ginther, 98 Ohio St.3d 345, 2003 Ohio 1010, 785 N.E.2d 432 (persistent failure to protect client's interests in attempt, flawed at every turn, to obtain for client professional counselor's license also violated, inter alia, OH DR 7-101(A)(1), (2) & (3)) (Ginther was subsequently suspended indefinitely for a similar pattern of misconduct, involving multiple clients, violative of, inter alia, DR 6-101(A)(3), 7-101 (A)(1), (2) & (3), Columbus Bas Ass'n v. Ginther, 108 Ohio St.3d 48, 2005 Ohio 79, 840 N.E.2d 628); Columbus Bar Ass'n v. Wolfrom, 91 Ohio St.3d 52, 741 N.E.2d 510 (2001) (inaction in various matters, including failing to purchase trial transcript as agreed for appeal and then dismissing appeal without client's knowledge, violated, inter alia, all three subsections of OH DR 7-101(A)). Even where such conduct results in a pattern and involves multiple offenses, if offset by significant mitigating factors (such as extensive pro bono service), the Court has seen fit to order a one-year stayed suspension. Columbus Bar Ass'n v. Micciulla, 106 Ohio St.3d19, 2005 Ohio 3470, 830 N.E.2d 332. Accord Columbus Bar Ass'n v. Albrecht, 106 Ohio St.3d 301, 2005 Ohio 4984, 834 N.E.2d 812 (alcohol dependency mitigation).

Conduct violative of OH DR 6-101(A)(3) has also been found to contravene former OH DR 1-102(A)(6), which prohibits engaging in conduct "that adversely reflects on the lawyer's fitness to practice law." See, e.g., Columbus Bar Ass'n v. Flanagan, 77 Ohio St.3d 381, 674 N.E.2d 681 (1997) (unprofessional conduct and neglect relating to bankruptcy matter). See also section 8.4:1000. It was not uncommon for the 6-101(A)(3)/1-102(A)(6) combination to be coupled with violation of DR 1-102(A)(5) as well. E.g., Disciplinary Counsel v. Maley, 119 Ohio St.3d 217, 2008 Ohio 3923, 893 N.E.2d 180; Disciplinary Counsel v. Greco, 107 Ohio St.3d 155, 2005 Ohio 6045, 837 N.E.2d 369.

If the lawyer attempted to cover up the neglect, this could implicate former OH DR 1-102(A)(4), as conduct constituting behavior involving dishonesty, fraud, deceit, or misrepresentation. Thus, in Cuyahoga County Bar Ass'n v. Vala, 92 Ohio St.3d 107, 748 N.E.2d 1103 (2001), respondent, among acts of neglect and other misconduct, filed a personal-injury action for the client but voluntarily dismissed it without the client's consent. Respondent refiled the case but failed to respond to a motion to dismiss based on the expiration of the statute of limitations. Although the case was then dismissed with prejudice, Vala did not tell the client that; instead, respondent told her that the case was set for a status hearing. "In view of [his] past disciplinary violations and his constant and repeated neglect of his professional duties," Vala was disbarred.  Id. at 108, 748 N.E.2d at 1105. Accord Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007 Ohio 5251, 875 N.E.2d 935 (respondent neglected to advise client about developments in litigation against client and then fabricated one or more letters in attempt to conceal his neglect); Cuyahoga County Bar Ass'n v. Smith, 115 Ohio St.3d 95, 2007 Ohio 4270, 873 N.E.2d 1224 (panoply of neglect and subsequent misrepresentations to clients; permanent disbarment ordered); Disciplinary Counsel v. Rooney, 110 Ohio St.3d 349, 2006 Ohio 4576, 853 N.E.2d 663 (failure to file papers necessary to administer estate, for which respondent had been hired, but falsely telling client that all probate matters were being taken care of; because of misrepresentation, Court rejected stayed six-month suspension and imposed six-month suspension with no stay, despite significant mitigating factors; dishonest conduct calls for actual suspension, "particularly when that conduct is designed to 'mislead a court or client.'" Id. at para. 13); Dayton Bar Ass'n v. Fox, 108 Ohio St.3d 444, 2006 Ohio 1328, 844 N.E.2d 346 (failing to take any action in child-custody matter and then telling client that he had drafted and filed petition for custody violated both DR 6-101(A)(3) and 1-102(A)(4)); Cincinnati Bar Ass'n v. Deaton, 102 Ohio St.3d 19, 2004 Ohio 1587, 806 N.E. 2d 503 (neglect of legal matters for eleven different clients, to whom he "routinely lied . . . about the progress in their cases," id. at para. 2 (one of the clients whose matter he neglected when acting as lead counsel and to whom he lied about the status of the matter was his own law firm!); deliberate concealment of his neglect to protect his own interests and failure to cooperate in investigation required disbarment); Cleveland Bar Ass'n v. Glatki, 88 Ohio St.3d 381, 726 N.E.2d 993 (2000) (repeated commitments to clients to take action that was never taken; in addition to former OH DR 6-101(A)(3) and 7-101(A)(1) and (2), "[w]e further find that although the board did not so conclude, relator charged and proved by the requisite clear and convincing evidence that respondent's conduct [in three of the matters] violated DR 1-102(A)(4) . . . . Relator [sic respondent] misrepresented the status of each of these cases to her clients."  Id. at 383, 726 N.E.2d at 995). See also section 8.4:400.

Where such neglectful and dishonest or deceitful misconduct "permeates" the attorney's practice, disbarment is ordinarily the sanction imposed. E.g., Columbus Bar Ass'n v. Foster, 97 Ohio St.3d 292, 2002 Ohio 6415, 779 N.E.2d 755, at para. 13. Particularly is this so when coupled with the attorney's ignoring of investigative inquiries by the disciplinary body. Id.

Former OH DR 7-101(A)(1)-(3).

In addition to former OH DR 6-101(A)(3), Ohio Rule 1.3 subsumes the three interrelated (and often overlapping) duties imposed on lawyers by OH DR 7-101(A). Pursuant thereto, a lawyer could not intentionally: (1) fail to seek the lawful objectives of the client through the permissible means established by the law and the OHCPR; (2) fail to carry out a contract of employment for professional services with a client; or (3) prejudice or damage his client during the course of their professional relationship. OH DR 7-101(A)(1)-(3).

Two points worthy of note, in comparing Ohio Rule 1.3 with former OH DR 7-101(A)(1)-(3): First, there is no "intent" requirement in Rule 1.3; second, the references to "zealousness" in former Canon 7, in the title to OH DR 7-101, and in former OH EC 7-1 have been deleted, even to the point of striking Model Rule language referring to a lawyer's duty to act "with zeal in advocacy" on a client's behalf in the second sentence of Comment [1]. The Task Force Ohio Code Comparison to Rule 1.3 addresses this issue expressly:

Neither Model Rule 1.3 nor any of the Model Rules on advocacy states [sic] a duty of "zealous representation." The reference to acting "with zeal in advocacy" is deleted from Comment [1] because "zeal" is often invoked as an excuse for unprofessional behavior. Despite the title of Canon 7 of the Ohio Code of Professional Responsibility and the content of EC 7-1, no disciplinary rule requires "zealous" advocacy.

Many of the nuances of and distinctions between subdivisions (1), (2) and (3) of former OH DR 7-101(A) are no longer relevant under Ohio Rule 1.3 and need not be discussed here. Suffice it to say that most, if not all, violations of 7-101(A) will now fall within the scope of Rule 1.3. A representative sampling of those decisions follows.

Litigation misconduct: Violations of OH DR 7-101(A) typically (but not exclusively) involved failings in the litigation context and often overlapped with violations of former OH DR 6-101(A)(3). (In the list that follows, Mullaney, Mishler, Wagner, Lukey, Williams, and Katalinas were not 6-101(A)(3) cases.) E.g., Cincinnati Bar Ass’n v. Mullaney, 119 Ohio St.3d 412, 2008 Ohio 4541, 894 N.E.2d 1210 (failure to develop strategy to fit clients’ individualized needs violated DR 7-101(A)(1) obligation to seek clients’ lawful objectives); Disciplinary Counsel v. Zigan, 118 Ohio St.3d 180, 2008 Ohio 1976, 887 N.E.2d 334 (failing to file any pleadings after undertaking representation); Cleveland Bar Ass'n v. Mishler, 118 Ohio St.3d 109, 2008 Ohio 1810, 886 N.E.2d 818 (settling cases for amount expressly rejected by client and paying none of proceeds to client violated DR 7-101(A)(1) & (3)); Cuyahoga County Bar Ass'n v. Wagner, 117 Ohio St.3d 456, 2008 Ohio 1200, 884 N.E.2d 1053 (knowingly violating duty to protect clients' interests by abandoning their bankruptcy cases); Warren County Bar Ass'n v. Marshall, 113 Ohio St.3d 54, 2007 Ohio 980, 862 N.E.2d 519 (failure to file any motions for post-conviction relief as hired to do); Toledo Bar Ass'n v. Van Horn, 113 Ohio St.3d 45, 2007 Ohio 978, 862 N.E.2d 511 (failure to respond to request for admissions and motion for summary judgment; failure to file brief on appeal); Cincinnati Bar Ass'n v. Lukey, 110 Ohio St.3d 128, 2006 Ohio 3822, 851 N.E.2d 493 (respondent violated 7-101(A)(3) "because his failure to provide available mitigation evidence resulted in the grandson's extended detention," id. at para. 13); Disciplinary Counsel v. Lantz, 102 Ohio St.3d 93, 2004 Ohio 1806, 807 N.E.2d 298 (doing nothing after filing for continuance in custody case, resulting in client's loss of custody of son); Office of Disciplinary Counsel v. Golden, 97 Ohio St.3d 230, 2002 Ohio 5934, 778 N.E.2d 564 (failure to file Qualified Domestic Relations Order, which would have enabled client to receive portion of former husband's pension); Allen County Bar Ass'n v. Williams, 92 Ohio St.3d 104, 748 N.E.2d 1101 (2001) (filing notice of appeal in criminal matter but then, on day appellants' brief was due, dismissing appeal without advising clients that appeal would be dismissed); Office of Disciplinary Counsel v. Harp, 91 Ohio St.3d 385, 745 N.E.2d 1032 (2001) (failure to respond to motion to dismiss appeal for want of prosecution in worker's compensation case, resulting in dismissal of appeal); Stark County Bar Ass'n v. Mark, 90 Ohio St.3d 397, 739 N.E.2d 296 (2000) (respondent contracted to file divorce action but failed to do so); Cleveland Bar Ass'n v. Katalinas, 90 Ohio St.3d 140, 735 N.E.2d 432 (2000) (failing to respond to discovery requests in civil action, resulting in dismissal of action); Cincinnati Bar Ass'n v. Komarek, 84 Ohio St.3d 90, 702 N.E.2d 62 (1998) (butchered Chapter 13 bankruptcy representation by respondent, as a result of which client lost his home); Cleveland Bar Ass'n v. Cox, 83 Ohio St.3d 218, 699 N.E.2d 455 (1998) (one client's case dismissed for want of prosecution; another not filed at all and statute of limitations ran; because of these and numerous other violations "that demonstrate contempt for his client and the bar," id. at 22, 699 N.E.2d at 458, respondent was disbarred); Columbus Bar Ass'n v. Beckett, 37 Ohio St.3d 160, 524 N.E.2d 513 (1988) (failing to seek continuance, resulting in arrest of client for nonappearance at criminal proceeding).

Nonlitigation misconduct: Examples of violations of 7-101(A) in a nonlitigation setting are: Columbus Bar Ass'n v. DeVillers, 116 Ohio St.3d 33, 2007 Ohio 5552, 876 N.E.2d 530 (among other violations for neglect, respondent, in his representation of nursing home client, failed to pay for client's medical and pharmaceutical services; as is often the case, the 7-101(A)(1)-(3) violations were coupled with violations of 6-101(A)(3)); Disciplinary Counsel v. Young, 113 Ohio St.3d 36, 2007 Ohio 975, 862 N.E.2d 504 (abandonment of guardianship duties for incompetent veteran violated DR 7-102(A)(2) as well as 6-101(A)(3); "'[r]espondent knew he had an employment contract to act as Gordon's guardian and he intentionally failed to carry it out.'" Id. at para. 15 (quoting Board); Cincinnati Bar Ass'n v. Diehl, 105 Ohio St.3d 469, 2005 Ohio 2817, 828 N.E.2d 1004 (conversion of estate funds to own use; violation of DR 7-101(A)(3); Cuyahoga County Bar Ass'n v. Newman, 102 Ohio St.3d 186, 2004 Ohio 2068, 808 N.E.2d 375 (abandoning disabled client after client defaulted on lease with shopping center, which respondent also represented; shopping center obtained judgment lien on client's house, forcing him into bankruptcy; "we conclude the respondent specifically disregarded his disabled client's interests and exposed the client to avoidable financial ruin," id. at para. 18, thereby violating OH DR 7-101(A)(3)); Office of Disciplinary Counsel v. Lutchin, 93 Ohio St.3d 147, 753 N.E.2d 181 (2001) (failure to prepare and file federal income tax returns); Cleveland Bar Ass'n v. Young, 92 Ohio St.3d 417, 750 N.E.2d 1117 (2001) (failure to incorporate client's business); Cleveland Bar Ass'n v. Lavallo, 67 Ohio St.3d 308, 617 N.E.2d 1100 (1993) (failure to take any action to obtain tax release on checking account of client's deceased mother and failure to respond to client's inquiries); Office of Disciplinary Counsel v. Nasrallah, 67 Ohio St.3d 238, 617 N.E.2d 677 (1993) (failure to arrange for clients to be represented in lawyer's absence); Toledo Bar Ass'n v. Auwaeter, 69 Ohio St.2d 85, 430 N.E.2d 947 (1982) (failing to register shares of stock for client).

Another common area of lawyer misconduct in former OH DR 7-101(A) cases involved the mishandling of client funds, such as failure to pay off a client's existing mortgage with funds that had been placed in escrow by the new mortgagee for that purpose, Office of Disciplinary Counsel v. Zumstein, 93 Ohio St.3d 544, 757 N.E.2d 327 (2001); and failure to take steps necessary to preserve client property and funds, Warren County Bar Ass'n v. Lieser, 82 Ohio St.3d 8, 693 N.E.2d 766 (1998).

While all three of the 7-101(A) categories ostensibly required "intentional" conduct by the offending lawyer, this point is seldom addressed in the cases. Indeed on the facts of some of the decisions, one would be hard-pressed to read the conduct as intentional, as opposed to merely negligent. See, e.g., Cuyahoga County Bar Ass'n v. Frenden, 114 Ohio St.3d 236, 2007 Ohio 3676, 871 N.E.2d 570, where violations of DR 7-101(A)(1)-(3) were premised on the lawyer's failure to "arrange for payment of [an out-of-state traffic] ticket, which carried a $100 fine, on time." Id. at para. 4, and Mahoning County Bar Ass'n v. Di Martino, 114 Ohio St.3d 174, 2007 Ohio 3605, 870 N.E.2d 1166, where the most important reason underlying respondent's 7-101(A)(2) violation for failing to carry out the contract of employment to appeal and seek judicial release was that the terms of his client's plea agreements under which he received "mandatory sentences that were not appealable and that made him ineligible for early judicial release," id. at para. 4, made the end sought impossible. Respondent's failure to understand this until well into the representation does not fit comfortably with a charge of intentional conduct. Compare Cuyahoga County Bar Ass'n v. Jurczenko, 114 Ohio St.3d 229, 2007 Ohio 3675, 871 N.E.2d 564, where there was no doubt that respondent's infractions were intentional, see paras. 8-12.  Likewise, in Cuyahoga County Bar Ass'n v. Mazanec, 114 Ohio St.3d 427, 2007 Ohio 4268, 872 N.E.2d 1207, respondent's violation of, inter alia, 7-101(A)(3) (intentionally damaging a client) was premised upon stealing large sums from his client's trust account while purportedly acting as trustee. A unanimous Court concluded that, because of the egregiousness of this misconduct and respondent's failure to cooperate, even though it involved only one client and was respondent's first disciplinary violation in 30 years of practice, "he is not fit to practice law." Id. at para. 11. Respondent was disbarred. Accord Columbus Bar Ass’n v. Gueli, 119 Ohio St.3d 434, 2008 Ohio 4786, 894 N.E.2d 1231 (multiple instances of theft of unearned fees from clients and abandonment of their cases; 7-101(A)(3) violated). A decision which does touch, however briefly, on the “intentional” aspect of 7-101(A) is Disciplinary Counsel v. Maley, 119 Ohio St.3d 217, 2008 Ohio 3923, 893 N.E.2d 180, where, in sanctioning the respondent for his failure to supervise his secretary in violation of, inter alia, DR 7-101(A)(3), the Court stated that ‘[h]e either knew or should have known that she was taking money from clients and performing legal work for them. Further, once he had actual knowledge of her actions, he failed to promptly act to protect the clients’ interests.” Id. at para. 14.

Professionalism considerations: Particularly in a highly contentious matter, the client may want the lawyer to take a grudging and hostile stance in dealing with adversaries in the proceeding. Although the lawyer must be sensitive to the client's wishes, under the former OHCPR she did not need to accede to them in every instance, especially where to do so would have violated the basic tenets of professionalism. See former OH EC 7-37 ("[I]ll feeling [between clients] should not influence a lawyer in his conduct, attitude, and demeanor towards opposing lawyers."). Former OH DR 7-101(A)(1) explicitly identified several areas in which a lawyer could temper the adversarial relationship without violating the duty to seek the client's lawful objectives through reasonably available means. Thus, a lawyer could properly (1) comply with reasonable requests from opposing counsel that do not prejudice the rights of the client, (2) be punctual in fulfilling all professional commitments, (3) avoid offensive tactics, and (4) treat with courtesy all persons involved in the legal process. Former OH DR 7-101(B) similarly provided latitude to the attorney, "where permissible," to forgo asserting a right or position of the client ((B)(1)) and to refuse to participate or aid in conduct the lawyer believed unlawful, even though there was support for the argument that the conduct was legal. ((B)(2)). See sections 1.2:300, :300, 400, and 1.16:320.

Rule 1.3 muddies the waters just a bit as to the status of such permissive conduct by an Ohio lawyer. Thus, Model Rule comment language referring to the treatment of all persons involved in the legal process with courtesy and respect, and a reference to not being obligated to "press for every advantage," have been deleted from Ohio Rule 1.3 cmt. [1]. The Task Force states that these references have been deleted because the "choice of means to accomplish the objectives of the representation are governed by the lawyer's professional discretion . . ., as specified in Rule[] 1.2(a) . . . ." ABA Model Rules Comparison to Rule 1.3. Indeed, Rule 1.2(a) expressly refers to a lawyer's treatment of "all persons in the legal process" "with courtesy and consideration" as not being inconsistent with the lawyer's obligations to further the client's interests by legally permissible means. Accord Rule 1.2 cmt. [4A]. See section 1.2:330. It should be further noted that the Statement on Professionalism, contained in Gov Bar R App. V, contains a number of admonitions urging lawyers to be courteous and civil in their dealings with opposing parties and counsel and with the courts and their staffs. See section 4.4:200.

In this connection, in one pre-Rule disciplinary case, Toledo Bar Ass'n v. Batt, 78 Ohio St.3d 189, 677 N.E.2d 349 (1997), the Court, in describing the panel's findings with respect to respondent's unseemly tactics at an administrative hearing (for which, along with other misconduct, he was disbarred), reiterated that one of the violations found was of "[OH DR] 7-101(A)(1) (failing to avoid offensive tactics and failing to treat with courtesy and consideration all persons involved in the legal process)," id. at 190, 677 N.E.2d at 351. In this regard, the Court further stated:

We recognize that an attorney must zealously represent his client, but we also recognize that an attorney has a duty to be civil to opposing counsel and the court.

Id. at 192, 677 N.E.2d at 352 (emphasis added). Thus, actions of courtesy and professional conduct toward others, which the former disciplinary rule protected as safe harbors not violative of the former duty to represent the client zealously, appear to have been read in Batt as obligations that, if not followed, constituted an affirmative violation of former OH DR 7-101(A)(1). The Ohio Supreme Court quoted this duty language with approval in two subsequent cases in which 7-101(A)(1) was not mentioned. See Office of Disciplinary Counsel v. Jackson, 84 Ohio St.3d 386, 387, 704 N.E.2d 246, 247 (1999); Office of Disciplinary Counsel v. Nicholson, 80 Ohio St.3d 275, 277, 685 N.E.2d 1234, 1236 (1997). Query whether the "duty" espoused in Batt survives under Rule 1.3.

In Bd. of Comm'rs on Grievances & Discipline Op. 93-11, 1993 Ohio Griev. Discip. LEXIS 1 (Dec. 3, 1993), the Board also described this permissive OH DR 7-101(A)(1) right in more mandatory terms -- "there is a responsibility under [OH] DR 7-101(A)(1) to act courteously toward opposing counsel." Id. at *2. In this opinion, the Board found that a lawyer who had inadvertently obtained a confidential memorandum of an opposing party through a public-records search should at least disclose that fact to opposing counsel and provide counsel with a copy of the memorandum if requested. To do so would not undercut the duty of zealousness owed the client. The failure to notify, the Board opined, would violate former OH DR 1-102(A)(4), whereas providing a copy on request would comply with the spirit of former OH DR 7-101(A)(1).

The inadvertently-sent-document issue is now covered explicitly by Ohio Rule 4.4(b) and cmt. [2] thereto. See section 4.4:300.

1.3:300 Promptness

  • Primary Ohio References: Ohio Rule 1.3
  • Background References: ABA Model Rule 1.3
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 6.13
  • Commentary: ABA/BNA § 31:401, ALI-LGL § 16, Wolfram § 10.3

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 6.13 (1996).

As is forcefully stated in MR 1.3 cmt. [3] (language that for some reason was deleted from Ohio Rule 1.3 cmt. [3]): "Perhaps no professional shortcoming is more widely resented than procrastination." In Ohio, procrastination is covered by the Rule 1.3 obligation imposed on a lawyer to act on behalf of a client "with reasonable . . . promptness." The Ohio Rule version of the language pertinent to delay in the comments is as follows:

Delay . . . [is] inconsistent with a lawyer's duty of diligence, undermine[s] public confidence, and may prejudice a client's cause. Reasonable . . . promptness [is] expected of a lawyer in handling all client matters and will be evaluated in light of all relevant circumstances.

Ohio Rule 1.3 cmt. [3].

The variance of the Ohio Rule comment from the Model Rule comment is unfortunate. In addition to the deletion of the first sentence dealing with procrastination, the Ohio comment has taken out material helpful to a lawyer seeking guidance on this issue. Thus, after noting that the passage of time can indeed adversely affect a client's position (i.e., the statute of limitations), the Model Rule comment goes on to say that "[e]ven where the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness." This advice seems to us to be both important and instructive. In its stead, Ohio Rule 1.3 cmt. [3] includes a repetition of the language of the Rule ("[r]easonable diligence and promptness are expected") coupled with the singularly uninformative caution that a lawyer's diligence and promptness "will be evaluated in light of all relevant circumstances."

Much of the precedent under the former OHCPR will, as it is with respect to diligence, be of assistance in defining the parameters of unacceptable delay. The duty of promptness obligates a lawyer, needless to say, to meet deadlines for filings and scheduled appearances in legal proceedings. The prior case law amply confirmed this. Thus, numerous cases found a violation of OH DR 6-101(A)(3) for failure to file within the applicable statute of limitations. See, e.g., Toledo Bar Ass'n v. DiLabbio, 101 Ohio St.3d 147, 2004 Ohio 338, 803 N.E.2d 389; Office of Disciplinary Counsel v. Treneff, 98 Ohio St.3d 348, 2003 Ohio 1011, 785 N.E.2d 434; cf. Disciplinary Counsel v. Sobol, 118 Ohio St.3d 65, 2008 Ohio 118, 886 N.E.2d 191 (failure to refile case during one-year savings period following voluntary dismissal as result of having erroneously recorded filing deadline as February 2, 2006, rather than February 2, 2005).

Violations for failure to act with necessary promptness were also found where the lawyer

  • missed court-imposed or other deadlines, e.g., Disciplinary Counsel v. Hoskins, 119 Ohio St.3d 17, 2008 Ohio 3194, 891 N.E.2d 324 (taking “seven years” to respond to probate court request for time records concerning respondent’s representation of estate, id. at para. 64 (emphasis by the Court)); Cuyahoga County Bar Ass'n v. Leneghan, 117 Ohio St.3d 103, 2008 Ohio 506, 881 N.E.2d 1241 (appeal dismissed after respondent failed to file copy of journalized sentencing order regarding his client, as ordered by appellate court); Cincinnati Bar Ass'n v. Schwieterman, 115 Ohio St.3d 1, 2007 Ohio 4266, 873 N.E.2d 810 (missing deadlines for filing final decree in divorce matter, resulting in dismissal of action for failure to prosecute); Akron Bar Ass'n v. Paulson, 112 Ohio St.3d 334, 2006 Ohio 6678, 859 N.E.2d 932 (failure to file discrimination lawsuit within 90-day federal regulatory deadline after client received "right to sue" letter; conduct also violated DR 7-101(A)2); Disciplinary Counsel v. King, 103 Ohio St.3d 438, 2004 Ohio 5470, 816 N.E.2d 1040 (failure to "respond to the defendant's motion for summary judgment, interrogatories, or request for production of documents within the time required in the court's scheduling order," id. at para. 5); Columbus Bar Ass'n v. Foster, 97 Ohio St.3d 292, 2002 Ohio 6415, 779 N.E.2d 755 (bankruptcy petition dismissed, due to failure to meet court deadlines); Cuyahoga County Bar Ass'n v. Chandler, 81 Ohio St.3d 491, 692 N.E.2d 568 (1998) (failure to file timely estate tax return, resulting in interest and penalties assessed against estate; failure to file timely notice of appeal, resulting in dismissal of appeal); Office of Disciplinary Counsel v. Floyd, 74 Ohio St.3d 599, 660 N.E.2d 1150 (1996) (failure to file timely petition for certiorari with United States Supreme Court); Cincinnati Bar Ass'n v. Sullivan, 65 Ohio St.3d 293, 603 N.E.2d 983 (1992) (counsel's "dilatory handling" of defense of litigation consisted of missing both deadlines and scheduled hearings, as well as being habitually late); or

  • failed to appear at scheduled hearings, e.g., Lorain County Bar Ass'n v. Kaderbek, 100 Ohio St.3d 295, 2003 Ohio 5754, 798 N.E.2d 607 (status conference in client's divorce case; conference rescheduled; respondent again failed to appear); Cuyahoga County Bar Ass'n v. Vala, 92 Ohio St.3d 107, 748 N.E.2d 1103 (2001) (contested hearing in domestic-relations matter); Office of Disciplinary Counsel v. Brown, 90 Ohio St.3d 273, 737 N.E.2d 516 (2000) (client's sentencing hearing; failure to appear at another client's arraignment (and failure to appear at two show-cause hearings directed at respondent); Cincinnati Bar Ass'n v. Harwood, 87 Ohio St.3d 123, 717 N.E.2d 705 (1999) (trial); Cincinnati Bar v. Sullivan, discussed in prior paragraph. See also ORC 4705.06, which provides:

    If a suit is dismissed for the nonattendance of an attorney at law practicing in any court of record, it shall be at his costs, if he has not a just and reasonable excuse. He shall be liable for all damages his client sustains by such dismissal, or any other neglect of his duty, to be recovered in any court of record.

Conduct of this sort, of course, may also support a claim for malpractice. See, e.g., Bingamon v. Curren, No. 90-CA-122, 1991 Ohio App. LEXIS 5558 (Greene Nov. 21, 1991).

Even if missing a formal deadline or hearing date is not involved, unreasonable delay just as surely will violate the Rule, and pre-Rule cases are in accord. See Columbus Bar Ass’n v. Gueli, 119 Ohio St.3d 434, 2008 Ohio 4786, 894 N.E.2d 1231 (failure to conscientiously complete and file shared parenting agreement; failure to conscientiously pursue medical malpractice action); Disciplinary Counsel v. Bubna, 116 Ohio St.3d 294, 2007 Ohio 6436, 878 N.E.2d 632 (delay of more than 18 months in paying client's medical bills from settlement proceeds adversely affected client's credit and required him to repeatedly fend off collection efforts); Medina County Bar Ass'n v. Butts, 114 Ohio St.3d 472, 2007 Ohio 4265, 873 N.E.2d 279 (similar delay of 15 months in paying client's creditors after settlement of personal injury action in client's favor, resulting in lowering of client's credit rating and her inability to obtain credit for loans).

A prime example of extraordinary delay is found in Toledo Bar Ass'n v. McGill, 87 Ohio St.3d 128, 717 N.E.2d 709 (1999), where the respondent filed a personal-injury suit on behalf of his client and initially pursued settlement possibilities with the insurance companies, but failed to provide necessary information to one of the insurance companies and then did nothing for years, with the result that the client's suit was dismissed without prejudice and the client received no settlement monies from the insurance companies until she hired another lawyer. Respondent was sanctioned under former OH DR 6-101(A)(3) and 7-101(A)(2) for his "ten-year delay in processing his client's claim against insurance companies which were ready to pay with proper releases . . . ."  Id. at 130, 717 N.E.2d at 711. Other examples include: Columbus Bar Ass'n v. DeVillers, 116 Ohio St.3d 33, 2007 Ohio 5552, 876 N.E.2d 530 (master commissioner appointed by probate court found "delay, neglect, and missing paperwork," id. at para. 11, in respondent's handling of five estate matters; in another count, respondent "failed to pay [another client's] nursing home expenses on time and did not timely respond to the nursing home's attempt to contact him," id. at para. 8); Mahoning County Bar Ass'n v. Olivito, 110 Ohio St.3d 64, 2006 Ohio 3564, 850 N.E.2d 702 (three or five-month delay in filing simple bankruptcy matter; "respondent inexcusably neglected the Accola bankruptcy over a period of months," id. at para. 17); Green County Bar Ass'n v. Fodal, 92 Ohio St.3d 99, 748 N.E.2d 1097 (2001) (numerous instances of dilatory action, many prejudicial to clients, including six-week delay in filing formal decree in divorce action, as result of which client's child-support payments were delayed; failure to record deed of transfer six months after decree in divorce action; indefinite suspension imposed); Northwest Bar Ass'n v. Archer, 67 Ohio St.3d 97, 616 N.E.2d 210 (1993) (21-month delay in filing for bankruptcy and/or trusteeship); Toledo Bar Ass'n v. Bridgeforth, 40 Ohio St.3d 2, 531 N.E.2d 317 (1988) (although client suffered no prejudice, lawyer's nearly two-and-one-half year delay in incorporating client's business was neglect subject to sanction). See also Mahoning County Bar Ass'n v. Mogul, 79 Ohio St.3d 369, 681 N.E.2d 1331 (1997), where the Supreme Court, relying on findings by the Sixth Circuit Court of Appeals to the effect that respondent in a federal case had been "outrageously dilatory" with respect to discovery, adopted the conclusions of the panel and the board that his failure to respond to a motion for summary judgment in the federal action was not justified by allegedly having inadequate time for discovery and constituted a violation of former OH DR 6-101(A)(3).  Id. at 371, 681 N.E.2d at 1332.

And there is certainly no room for the attitude expressed by one Ohio attorney who stated:

"[I]f a client tells me that he's impatient about the time going on and he's highly disgruntled and he's going to do something about it if I don't get off my butt and get going, then it spurs me into action. Until I get such a call, I don't know that the time is that important to the client."

Mahoning County Bar Ass'n v. Kelly, 4 Ohio St.3d 188, 190 n.3, 447 N.E.2d 1304, 1305 n.3 (1983).