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Toledo Bar Association v. DiLabbio2/11/2004
Attorneys at law - Misconduct - Six-month suspension with sanction stayed on conditions - Neglect of an entrusted legal matter - Failing to promptly return funds client is entitled to receive - Failing to cooperate in disciplinary investigation.
Submitted August 26, 2003
. Respondent, Larry DiLabbio of Toledo, Ohio, Attorney Registration No. 0021890, was admitted to the practice of law in Ohio in 1984. On December 9, 2002, relator, Toledo Bar Association, charged respondent with various violations of the Code of Professional Responsibility. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and made findings of fact, conclusions of law, and a recommendation.
. As to the first count of misconduct, a client retained respondent in 1998 to seek modification of a child-support agreement. Respondent advised the client that he would charge $100 per hour for his services, that he expected to spend "a minimum of three and a half to four plus hours" on the case, and that the filing fee would be $150. Respondent and the client did not commit their agreement to writing; however, the client advanced $500 toward respondent's attorney fees and paid the anticipated $150 filing fee. Respondent deposited these payments in his office operating account instead of a client trust account.
. Respondent spent one hour in conference with the client, one hour reviewing the documented events that had already occurred in the case, and one-half hour preparing the motion to modify child support . Respondent completed the motion but did not file it because the client's ex-husband was incarcerated at the time and his client agreed to delay the filing until the ex-husband's release. Respondent nevertheless continued during 1999 to work on the case by communicating on numerous occasions with the client and her ex-husband.
. In 2000, the client's husband was released from prison. The client telephoned repeatedly to ask respondent to file the motion to modify, but she had little success. In the meantime, the client's ex-husband left the state, and the client decided that respondent's services were no longer needed. Although respondent never filed the motion to modify, he did not refund any of the client's money upon request, believing that he had earned all $650.
. The panel found that respondent had violated DR 6-101(A)(3) (neglecting an entrusted legal matter) because he did not return his client's telephone calls or file the motion to modify expeditiously in accordance with her wishes. In addition, the panel found that although respondent earned all but the $150 unused filing fee, he had violated 9-102(B)(4) (failing to promptly return funds client is entitled to receive) by not repaying the $150 to the client. The panel also noted that it had no authority to consider respondent's apparent violation of DR 9-102(A) (failing to deposit client's funds in an identifiable bank account) because relator did not charge this in the complaint.
. As to the second count of misconduct, the panel found that although respondent participated fully in the hearing, he had violated Gov.Bar R. V(4)(G) because, as stipulated by the parties, he did not initially respond to relator's efforts to investigate the grievance submitted by his client.
. As to a third count of misconduct, a client retained respondent to represent her in a personal-injury claim stemming from a 1996 auto accident. Respondent did not file a complaint in the action, and the cause was lost to the statute of limitations. Respondent, whose malpractice insurance had lapsed, settled the client's claim for malpractice for $10,000 and
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