Disciplinary Counsel v. Sarver

170 N.E.3d 799 (2020)

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Nature of the Case

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Facts

D was retained for a wrongful-death suit in June 2018. Jessica Mustin was killed on June 23, 2018. Jessica had a four-year-old son and was in a relationship with Anthony Hodge. Hodge referred Jessica's mother, Juanita Mustin, to D to pursue a wrongful-death claim. Juanita signed a contingent-fee agreement in which she agreed to pay D 33 percent of any settlement obtained without filing a lawsuit. D later agreed to help Mustin pursue a claim with the Ohio Victims of Crime Compensation Program (OVCCP). D communicated with Mustin only by telephone or through Hodge. D notified the other driver's insurer, Allstate Insurance Company, that he was representing Jessica's estate, and on August 21, 2018, Allstate offered to settle the estate's claim for its policy limit of $50,000. D informed Mustin of the offer and told her that all proceeds of the settlement, less his attorney fees and costs, would be held in trust for Jessica's minor son. He advised Mustin that he would need to complete some paperwork for the probate court before any of the proceeds could be distributed. On September 6, 2018, D accepted Allstate's settlement offer on Mustin's behalf. He also prepared and obtained Mustin's signature on, various probate documents, including an application for authority to administer the estate and an application to approve the settlement and distribution of wrongful-death and survival claims. He took those documents to the Cuyahoga County Probate Court on October 15, 2018, but filed only the application for authority to administer the estate. D claimed that a magistrate either told him or led him to believe that he could streamline the probate-court proceedings by disbursing some of the settlement proceeds to family members at the direction of the fiduciary to reduce the distribution to Jessica's son to less than $25,000. The magistrate denied the conversation. On November 26, 2018, D posted a $10,000 bond on Mustin's behalf. That same day, the court-appointed Mustin as the fiduciary of Jessica's estate and issued her letters of authority. On November 28, 2018, this court suspended D from the practice of law for two years with 18 months conditionally stayed. D was suspended from the practice of law for two years, with 18 months conditionally stayed, for engaging in a sexual relationship with an indigent client, lying about that relationship to the judge who was presiding over the client's criminal case, and engaging in illegal activity by advising the client to turn off her phone's GPS while there was an outstanding warrant for her arrest. In December 2018, D filed in this court an affidavit of compliance stating that he had complied with our suspension order and that he had notified his clients and the courts in which he had pending cases of his suspension. These were all false statements. D continued to represent Mustin. D distributed the settlement proceeds without the probate court's approval. D paid personal financial obligations directly from his client trust account with what he had calculated to be his earned fee. On February 5, 2019, an OVCCP representative called Mustin to discuss her case and informed her that he could no longer work with D because D's law license had been suspended. That was the first time that Mustin heard of D's suspension In a June 3, 2019 complaint, P charged D with filing a false affidavit of compliance with the court, continuing to practice law while under suspension, and committing other professional misconduct during the course of his suspension and the ensuing disciplinary investigation. The board found that Sarver's conduct violated Prof.Cond.R. 1.16(d) (requiring a lawyer to promptly deliver client papers and property as part of the termination of representation), 5.5(a) (prohibiting a lawyer from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction), 8.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter), 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). D stipulated that he violated Prof.Cond.R. 3.4(c) (prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal) by failing to notify Mustin of his suspension and by paying himself attorney fees without first obtaining the probate court's approval, in violation of Loc.R. 71.1 of the Cuyahoga County Probate Court. The board found that D violated both Prof.Cond.R. 3.4(c) and 1.4(a)(1).