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Disciplinary Counsel v. Delay

Supreme Court of Ohio

July 23, 2019

Disciplinary Counsel
v.
Delay.

          Submitted January 30, 2019

          On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2017-046.

          Scott J. Drexel, Disciplinary Counsel, and Audrey E. Varwig, Assistant Disciplinary Counsel, for relator.

          Brendan Edward Delay, pro se.

          PER CURIAM.

         {¶ 1} Respondent, Brendan Edward Delay, of Westlake, Ohio, Attorney Registration No. 0036929, was admitted to the practice of law in Ohio in 1986.

         {¶ 2} In an amended complaint filed with the Board of Professional Conduct on March 30, 2018, relator, disciplinary counsel, charged Delay with multiple violations of the Rules of Professional Conduct arising from his representation in four separate client matters. At a hearing before a panel of the board, the parties presented testimony from 14 witnesses, including Delay, and submitted more than 120 exhibits.

         {¶ 3} The panel issued a report containing findings of fact and misconduct and recommended that Delay be indefinitely suspended from the practice of law and ordered to make restitution to his clients in three of the cases. In addition, the panel recommended that as conditions on his reinstatement, Delay be required to submit to an Ohio Lawyers Assistance Program ("OLAP") evaluation and comply with any treatment or counseling recommendations arising from that evaluation in addition to the requirements of Gov.Bar R. V(25). The board adopted the panel's report in its entirety, and no objections have been filed.

         {¶ 4} After reviewing the record, we accept the board's findings of fact and misconduct and indefinitely suspend Delay from the practice of law in Ohio.

         Misconduct

         Count One The Karoub Matter

         {¶ 5} In September 2015, Adam Karoub paid Delay a flat fee of $2, 500 to represent him in a breach-of-contract action filed against him in the Toledo Municipal Court.

         {¶ 6} Delay attended a court-ordered mediation in mid-October 2016 and sought two extensions of time to respond to the plaintiffs October 28 motion for summary judgment. But Delay never responded to the motion, purportedly because Karoub had no legitimate defense. Delay testified that he sent a copy of the motion to Karoub, but Karoub and his business partner denied receiving it and the panel found their testimony to be more credible.

         {¶ 7} On December 30, the court granted summary judgment to the plaintiff and entered a $13, 000 judgment against Karoub. Delay did not inform Karoub of the judgment. Instead, on January 3, 2017, he sent an e-mail to Karoub's business partner stating that the plaintiffs settlement demand was $10, 000. Karoub discovered the judgment in February 2017 after his credit-monitoring program notified him of a drop in his credit score. After Delay failed to respond to Karoub's e-mail inquiry about the judgment, Karoub retained new counsel.

         {¶ 8} In the course of relator's investigation, Delay produced an acknowledgment that he did not carry malpractice insurance and said that he had sent it to Karoub and that Karoub had returned a signed copy. The signed copy that Delay produced, however, bears a signature date of September 2, 2014, nearly a year before Karoub first contacted Delay. And Karoub testified that the signature was not his and that Delay did not tell him that he did not carry malpractice insurance or ask him to sign an acknowledgment to that effect. The board found that Delay presented a fraudulent document to relator in an attempt to substantiate his false statement to relator. The board also found that Delay did not refund his unearned flat fee.

         {¶ 9} The board found that this conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the status of a matter), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with reasonable requests for information from the client), 1.16(e) (requiring a lawyer to promptly refund any unearned fee upon the lawyer's withdrawal from employment), 8.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter), and 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Based on documentary evidence demonstrating that Delay did not respond to relator's initial letters of inquiry and subsequently presented a fraudulent document to relator, the board found that he violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) (both requiring a lawyer to cooperate with a disciplinary investigation). The panel unanimously dismissed one additional alleged violation based on the insufficiency of the evidence.

         Count ...


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