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Columbus Bar Association v. Nyce

Supreme Court of Ohio

January 3, 2018

Columbus Bar Association

          Submitted October 17, 2017

         On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2016-007.

          Scott & Nolder Co., L.P.A., and Steven S. Nolder; Terry K. Sherman; and Lori J. Brown, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel, for relator.

          Kinsley Frampton Nyce, pro se.

          PER CURIAM.

         {¶ 1} Respondent, Kinsley Frampton Nyce, of Columbus, Ohio, Attorney Registration No. 0003547, was admitted to the practice of law in Ohio in 1982.

         {¶ 2} In a May 18, 2016 amended complaint, relator, Columbus Bar Association, alleged that Nyce had failed to notify his clients in writing that he does not maintain professional-liability insurance, had failed to maintain his clients' signed acknowledgements that they had received that notice, had not maintained required records documenting the funds held in his client trust account, had commingled personal and client funds, and had made false statements of material fact in connection with the ensuing disciplinary investigation.

         {¶ 3} Following a two-day hearing, a panel of the Board of Professional Conduct found that Nyce had committed all but one of the alleged violations and that he had actively sought to conceal evidence of his misconduct, repeatedly given false and evasive testimony, and actively sought to subvert the disciplinary process. Given the extent of Nyce's efforts to frustrate and degrade the disciplinary system, the panel and board recommended that he be permanently disbarred. Nyce objects and argues that there is insufficient evidence to support the board's findings of fact and misconduct and, therefore, that no sanction is warranted. For the reasons that follow, we overrule Nyce's objections, adopt the board's findings of fact and misconduct, and permanently disbar Nyce from the practice of law in Ohio.

         Board Findings of Fact and Misconduct

         Count One: Professional-Liability-Insurance Violations, Failure to Withdraw from Representation, Improper Communication with Person Represented by Counsel, and Engaging in Conduct Involving Dishonesty

         {¶ 4} Nyce represented NC Plaza, L.L.C., and Arthur Goldner & Associates, Inc. ("AGA"), in an action brought by a tenant of a commercial rental property owned by NC Plaza and managed by AGA. When Nyce's clients did not prevail, AGA retained attorney Stephen Jones to appeal the trial court's decision. Jones requested that Nyce withdraw from the case, but he did not formally do so as required by Local Rule 18.01 of the Franklin County Court of Common Pleas.

         {¶ 5} Jones soon discovered that AGA carried property-liability insurance that would have covered AGA's liability for several of the tenant's claims. Nyce had not advised AGA to submit a claim, and the insurer denied AGA's later-filed claim as untimely.

         {¶ 6} Jones sent Nyce a letter informing him that his failure to advise AGA to file an insurance claim could be a basis for a legal-malpractice claim and requesting information about Nyce's professional-liability insurance. When Nyce failed to respond, Jones sent two additional letters. Jones's second letter stated that he presumed Nyce had malpractice insurance because AGA reported to him that Nyce had never apprised them that he lacked insurance, as required by Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the lawyer does not maintain professional-liability insurance and obtain a signed acknowledgment of that notice from the client). Nyce responded to Jones's third letter by sending an e-mail to Jones and Arthur Goldner, AGA's president and chief executive officer, decrying Jones's "threats."

         {¶ 7} In subsequent communications, Jones repeated his earlier admonition that Nyce should not contact Goldner directly, and he asked Nyce to let him know "as soon as possible" whether he had insurance. Nyce again responded directly to Goldner, threatening that if AGA sued him, he would no longer "stay silent" about matters that his clients had allegedly communicated to him during the underlying litigation. Nyce never told Jones whether he carried professional-liability insurance.

         {¶ 8} The board found that at the time of the litigation, Goldner was AGA's principal representative and ultimate decision-maker. Goldner testified that he was the only person who had authority to hire an attorney on behalf of AGA and that Nyce never informed him that he did not carry professional-liability insurance. And Nyce's own hearing and deposition testimony confirmed that he has never personally carried malpractice insurance, he did not advise Goldner of that fact, and he did not ask Goldner to sign a notice acknowledging that Nyce lacked malpractice insurance.

         {¶ 9} The board rej ected Nyce's argument that he had provided the required notice to Rick Aronhalt, AGA's on-site property manager. The board noted that Nyce was required to "apprise Goldner of [his lack of malpractice insurance], rather than rely on the off-chance that Goldner's employee, Aronhalt, might remember that during a prior representation of Aronhalt personally, Respondent had no such coverage." The board was skeptical of Nyce's evidence of two forms purportedly signed by Aronhalt by which he had supposedly provided the required notice to Aronhalt. As the board noted, the forms were undated and referred to a rule that had been superseded by Prof.Cond.R. 1.4(c) in 2007. The board was also unconvinced that Aronhalt had actually signed either form.

         {¶ 10} The board found that Nyce had violated Prof.Cond.R. 1.4(c), 1.4(c)(1) (requiring a lawyer to maintain, for five years after the termination of the representation of the client, a copy of a client's signed acknowledgment that the attorney does not maintain professional-liability insurance), 1.16(c) (prohibiting a lawyer from withdrawing from representation in a proceeding without leave of court if the rules of the tribunal so require), and 4.2 (prohibiting a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law or a court order). In addition, the board found that Nyce had violated Prof.Cond R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) by deliberately ignoring and evading his successor counsel's repeated and legitimate requests that he provide information about his professional-liability insurance and cease direct contact with Goldner. It also found that Nyce's conduct was sufficiently egregious to find a violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law). See, e.g., Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21.

         Count Two: Professional-Liability-Insurance Violations and Failure to Cooperate in the Ensuing Disciplinary Investigation

         {¶ 11} In 2015, during the course of investigating Nyce's representation of AGA, relator requested and later subpoenaed Nyce's client list and copies of his client-signed acknowledgments under Prof.Cond.R. 1.4(c) dating back to January 2012. Relator also told Nyce to "direct[ly] answer" Jones's questions regarding ...

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