Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cuyahoga County Bar Association v. Drain

December 3, 2008

CUYAHOGA COUNTY BAR ASSOCIATION
v.
DRAIN.



ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 07-052.

SYLLABUS BY THE COURT

Attorneys at law-Misconduct-Neglect of an entrusted legal matter-Handling a legal matter without adequate preparation-Intentionally prejudicing a client-Failure to inform client of lack of malpractice insurance-Six-month stayed suspension.

Per curiam.

Submitted June 24, 2008

{¶1} Respondent, John Michael Drain Jr. of Euclid, Ohio, Attorney Registration No. 0003656, was admitted to the practice of law in Ohio in 1970.

{¶2} The Board of Commissioners on Grievances and Discipline recommends that we publicly reprimand respondent, based on the finding that he failed to advise his client that he had no professional liability insurance. We, however, find that respondent also lost a client's malpractice claim through neglect and inadequate preparation by missing the statute of limitations. Moreover, he intentionally prejudiced his client's interests by repeatedly missing established deadlines and, in the meantime, canceling his legal-malpractice insurance without warning to her. For these violations of the Code of Professional Responsibility, we suspend respondent's license to practice for six months, but stay the suspension on remedial conditions.

{¶3} Relator, Cuyahoga County Bar Association, charged respondent in a two-count complaint with professional misconduct, including violations of DR 1-104(A) (requiring a lawyer to inform the client "at any time subsequent to the engagement if the lawyer does not maintain professional liability insurance"), 6-101(A)(2) (prohibiting a lawyer from handling a legal matter without adequate preparation under the circumstances), 6-101(A)(3) (prohibiting a lawyer from neglecting a legal matter), and 7-101(A)(3) (prohibiting a lawyer from intentionally damaging or prejudicing a client during the professional relationship). A panel of the board heard the case, including the parties' extensive stipulations, found violations of those Disciplinary Rules except for DR 7-101(A)(3), and recommended a public reprimand. The board found a violation only of DR 1-104(A) and adopted the panel's recommendation.

{¶4} Neither party has filed objections to the board's report.

I. Misconduct

{¶5} From mid-January 2002 until mid-February 2006, respondent represented Robin Kiefer on a contingent-fee basis in a dental-malpractice case against Mark Domo, D.D.S. Keifer claimed that she had sustained a neurological injury to her tongue from Dr. Domo's professional negligence during dental treatment on November 2, 2001. Early on in the representation, respondent advised Keifer that she was required to file her malpractice claim against Dr. Domo within a one-year statute of limitation.

A.The First Complaint Filed on Keifer's Behalf

{¶6} On November 1, 2002, one day before the filing deadline, respondent directed a "180-day letter" to Dr. Domo, pursuant to former R.C. 2305.11(B)(1), Sub.S.B. No. 108, 149 Ohio Laws, Part I, 382, 413, thereby extending the time for filing Keifer's complaint by six months. Because of the close timing, respondent's associate hand-delivered the letter to the doctor.

{¶7} Respondent did not file Keifer's complaint, however, until June 23, 2003, more than one month after the 180-day extension had expired. During the weeks before this late filing, respondent had consulted Keifer about the missed deadline, telling her that he would try to salvage the claim, and for the rest of 2003, Keifer's case remained active on the trial court docket. Then on January 12, 2004, respondent missed another deadline -- the court-ordered date for filing the report of the plaintiff's expert.

{ΒΆ8} Respondent moved on Kiefer's behalf for an extension to file her expert's report; Dr. Domo's counsel moved for summary judgment. In March 2004, the trial court denied the motion for the extension as untimely and denied the motion for summary judgment because a factual dispute existed as to whether Keifer knew or should have known about her injury as of her November 2, 2001 dental appointment. Respondent, doubting that his client could ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.