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Cleveland Bar Association v. Kirsh6/8/2005
Submitted January 19, 2005
{ } Respondent, S. Martin Kirsh, of Cleveland, Ohio, Attorney Registration No. 0007868, was admitted to the practice of law in Ohio in 1961. For nearly 40 years, he practiced without known incident. Then, in 2000, the first of five grievances was filed against respondent. Eventually, on April 14, 2003, relator, Cleveland Bar Association, filed a complaint charging respondent with violating the Code of Professional Responsibility while representing five different clients.
{ } On three occasions, involving child-support, bankruptcy , and paternity actions respectively, respondent accepted retainers and/or filing fees but never filed suit on behalf of his clients. Respondent similarly failed to file suit for a fourth client in a medical-malpractice action. Respondent was retained by a fifth client to resolve a personal-injury claim against the local transit authority. It is unclear what steps, if any, respondent took on his client's behalf. At one point, respondent told his client that he and the transit authority were discussing settlement, but his client heard nothing further.
{ } In each case, his clients were eventually unable to contact him, despite repeated attempts. Their attempts ultimately culminated in the discovery that respondent had closed his law office, unbeknownst to any of his clients. Respondent's whereabouts since that time remain unknown.
{ } Respondent did not answer the complaint, nor has he responded to or otherwise communicated with the relator or any other party relevant to this action since its inception. Extraordinary measures have been taken to locate respondent without success, and notice of this proceeding was ultimately served through the clerk of the Supreme Court of Ohio pursuant to Gov.Bar R. V(11)(B). On October 3, 2003, relator moved the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio for a default judgment. The board, in turn, referred the matter to a master commissioner. The master commissioner found that respondent had committed the misconduct alleged. As to all five clients, the master commissioner found violations of DR 6-101(A)(3) (a lawyer shall not neglect an entrusted legal matter), 7-101(A)(1) (a lawyer shall not intentionally fail to seek the lawful objectives of his clients), 7-101(A)(2) (a lawyer shall not intentionally fail to carry out a contract of employment), and 7-101(A)(3) (a lawyer shall not intentionally prejudice or damage a client).
{ } As to the medical-malpractice and personal-injury clients, the master commissioner also found violations of DR-102(A)(4) (a lawyer shall not engage in dishonesty, fraud, deceit, or misrepresentation). In the child-support matter, the master commissioner found a violation of 9-102(B)(4) (a lawyer shall promptly pay or deliver to client funds in the lawyer's possession that the client is entitled to receive). Finally, the master commissioner found violations of Gov.Bar R. VI(1)(D) (a lawyer shall register a current residence and office address with the Supreme Court of Ohio) and Gov.Bar R. V(4)(G) (a lawyer shall cooperate in disciplinary investigations).
{ } In his review, the master commissioner found no mitigating factors. Respondent's failure to reply or otherwise cooperate with the investigation was determined to be a serious aggravating factor. The master commissioner also noted that in each case, the client suffered a loss either through money paid to respondent and not refunded or through the loss of a cause of action that as a result of respondent's misconduct is now permanently barred.
{ } The master commissioner, upon thorough consideration, rejected as too stringent r
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