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Dayton Bar Association v. Strahorn

Supreme Court of Ohio

December 28, 2017

Dayton Bar Association
v.
Strahorn

          Submitted August 29, 2017

         On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2016-029.

          Daniel J. Brandt and John M. Ruffolo, for relator.

          Derrick A. Strahorn, pro se.

          PER CURIAM.

         {¶ 1} Respondent, Derrick Anthony Strahorn, of Dayton, Ohio, Attorney Registration No. 0034483, was admitted to the practice of law in Ohio in 1986.

         {¶ 2} In a July 2016 complaint, relator, Dayton Bar Association, alleged that Strahorn violated multiple Rules of Professional Conduct by accepting a nonrefundable retainer without advising his client in writing that he might be entitled to a refund if Strahorn failed to complete the representation, by failing to adequately notify the client that he did not carry malpractice insurance, and by failing to act with reasonable diligence in representing the client.

         {¶ 3} A panel of the Board of Professional Conduct held a hearing and adopted the parties' stipulations of fact and misconduct. And after considering Strahorn's testimony, the applicable aggravating and mitigating factors, and the sanctions imposed for comparable misconduct, the panel recommended that Strahorn be suspended from the practice of law for six months, all stayed on conditions. The board adopted the panel's report, and no objections have been filed.

         {¶ 4} We adopt the board's findings of fact and misconduct and suspend Strahorn from the practice of law for six months, stayed in its entirety on the conditions recommended by the board.

         Misconduct

         {¶ 5} In July 2013, Harry Drake retained Strahorn to represent him in a negligence action. He paid a $3, 000 retainer and signed a written fee agreement that described that fee as "nonrefundable." But Strahorn did not simultaneously advise Drake in writing that he might be entitled to a refund of all or part of the retainer if Strahorn failed to complete the representation. Strahorn admits that this failure violated Prof.Cond.R. 1.5(d)(3) (prohibiting a lawyer from charging a fee denominated as "earned upon receipt, " "nonrefundable, " or a similar term without simultaneously advising the client in writing that the client may be entitled to a refund of all or part of the fee if the lawyer does not complete the representation). He also admits that while his fee agreement with Drake expressly stated, "ATTORNEY DOES NOT PRESENTLY CARRY MALPRACTICE INSURANCE" (capitalization sic), that notice did not comply with Prof.Cond.R. 1.4(c), which requires an attorney to provide that information on a separate form that is signed by the client.

         {¶ 6} Drake sought to recover damages from a contractor who was allegedly negligent in making repairs to Drake's home. Drake's insurance company had paid Drake approximately $104, 000 and filed a subrogation lawsuit against the contractor. But Drake retained Strahorn to pursue claims for additional damages. In September 2013, Strahorn filed a third-party complaint in the subrogation lawsuit. Even though Drake was not a party to the lawsuit and Strahorn had not filed a motion to intervene, the clerk of courts accepted the filing as an intervening complaint.

         {¶ 7} Strahorn received discovery requests from the opposing party in October 2013, but he failed to timely forward those requests to Drake and did not respond to the opposing party's motion to compel discovery. On April 21, 2014, almost two weeks after the court granted the motion to compel, Strahorn finally served Drake's discovery responses on opposing counsel.

         {¶ 8} Strahorn moved the court for permission to withdraw as Drake's counsel in June 2014, but he later withdrew that request. He renewed that request in January 2015-after Drake filed a grievance ...


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