Submitted January 30, 2019
Certified Report by the Board of Professional Conduct of the
Supreme Court, No. 2017-046.
J. Drexel, Disciplinary Counsel, and Audrey E. Varwig,
Assistant Disciplinary Counsel, for relator.
Brendan Edward Delay, pro se.
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.
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