CLEVELAND BAR ASSOCIATION v. STERLING.

      [Cite as Cleveland Bar Assn. v. Sterling (1998), ___ Ohio St.3d ___.]

Attorneys at law — Misconduct — Indefinite suspension — Forging client’s

      signature on an affidavit and notarizing it — Handling a legal matter that

      attorney knows or should have known he is not competent to handle —

      Neglect of an entrusted legal matter — Failing to carry out contract of

      employment — Prejudicing or damaging client during course of

      professional relationship — Handling a legal matter without adequate

      preparation — Practicing law in a jurisdiction where to do so would violate

      the regulations of the profession in that jurisdiction — Practicing law while

      under suspension.

(No. 98-1709 — Submitted September 29, 1998 — Decided December 30, 1998.)

    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

                  Discipline of the Supreme Court, No. 97-59.

      In November 1975, respondent, Howard Thomas Sterling of University

Heights, Ohio, Attorney 

 was admitted to the practice of

law in Ohio. In March 1994, we suspended respondent from the practice of law

for two years because he had violated several provisions of the Code of

Professional Responsibility. Cleveland Bar Assn. v. Sterling (1994), 

, 

.       We stayed the final eighteen months of the

suspension, with respondent to be placed on monitored probation under certain

conditions. We also suspended respondent from the practice of law and imposed

sanctions upon him in May 1994 for his noncompliance with the continuing legal

education requirements of Gov.Bar R. X. 

, 

.

      In June 1997, relator, Cleveland Bar Association, filed a three-count

complaint charging respondent with violating various Disciplinary Rules and one
of the Rules for the Government of the Bar. After respondent filed an answer

admitting most of the complaint’s factual allegations, a panel of the Board of

Commissioners on Grievances and Discipline of the Supreme Court (“board”)

heard the matter.

       The panel found that respondent represented Olga Bryant, the plaintiff in an

employment discrimination case in a federal district court in Pennsylvania. In

opposing a dismissal motion, respondent filed a brief and an affidavit, which

purported to be signed by Bryant.       At the hearing on the dismissal motion,

respondent admitted that, although certain of the statements in the affidavit were

not true, he forged his client’s signature on the affidavit and then notarized it.

According to respondent, because he had to file the brief and affidavit in a short

period of time, he drafted the affidavit based on his notes from conversations with

Bryant, and he did not intend to defraud either the court or his client by filing the

affidavit.

       The panel concluded that respondent’s conduct in the employment

discrimination case violated DR 1-102(A)(4) (engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct

prejudicial to the administration of justice), and 1-102(A)(6) (engaging in any

other conduct adversely reflecting on his fitness to practice law).

       The panel further found that in December 1987, Charlotte Whiting hired

respondent under a contingent-fee agreement to prosecute a wrongful death action

on behalf of the estate of her mother and paid him $450 to cover deposition costs.

After several months passed without being advised of the status of her case,

Whiting repeatedly telephoned respondent’s office, but she received no reply.

Whiting eventually was able to speak with respondent only when she posed as a

new client. During that conversation, respondent assured her that he had filed a



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complaint in her case in both Erie and Crawford Counties in Pennsylvania.

Whiting then contacted the clerk’s offices in those counties and was advised that

no such complaint had been filed. After several more unsuccessful attempts by

Whiting to contact respondent, respondent then advised her that he would file the

complaint.

      In June 1989, respondent filed the complaint for Whiting in Erie and

Crawford Counties in Pennsylvania, but never perfected service of the complaint,

as required under Pennsylvania procedural rules. Respondent claimed that he had

forgotten the Pennsylvania requirements concerning perfection of service. A

Pennsylvania attorney subsequently informed Whiting that the complaint had not

been served and that she had no genuine likelihood of prevailing in the suit.

      The panel concluded that respondent’s conduct in the Pennsylvania case

violated DR 1-102(A)(4), 1-102(A)(5), 6-101(A)(1) (handling a legal matter that

he knows or should know that he is not competent to handle, without associating

with him a lawyer who is competent to handle it), 6-101(A)(3) (neglecting a legal

matter entrusted to him), 7-101(A)(2) (failing to carry out a contract of

employment entered into with a client for professional services), and 7-101(A)(3)

(prejudicing or damaging his client during the course of the professional

relationship).

      The panel additionally found that in September 1991, Linda Williams

retained respondent to represent her in the purchase of property located in

Cleveland. Lester Collins, the owner of the property, resided in a nursing home,

and respondent was to prepare a deed and check with the probate court to

determine whether Collins was under a guardianship. After respondent assured

Williams that Collins was not under a guardianship, Williams paid off the existing




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mortgage and obtained possession of the property. She then made substantial

improvements to the premises and used it as a rental property.

      After Collins died, his estate brought a legal action against Williams for

concealment of assets. Collins had actually been under a guardianship at the time

of the sale and did not have the capacity to sell the property. Respondent claimed

that he had relied on erroneous information from the probate court clerk’s office to

conclude that Collins was not under a guardianship when he advised Williams.

Although he realized that he was under suspension, respondent represented

Williams in the ensuing probate court litigation. Williams discharged him in

September 1995.

      The panel concluded that respondent’s conduct in the probate matter

violated DR 6-101(A)(2) (handling a legal matter without adequate preparation),

3-101(B) (practicing law in a jurisdiction where to do so would violate the

regulations of the profession in that jurisdiction), and Gov.Bar R. V(8) (practicing

law while under suspension).

      In mitigation, relator’s counsel noted that respondent is a Vietnam War

veteran suffering from post-traumatic stress syndrome, that he had battled

alcoholism, and that he had gone through a divorce. As part of the court’s

previous suspension, respondent entered into the Ohio Lawyers Assistance

Program, Inc. (“OLAP”) in May 1994 to treat his alcohol dependence and

emotional problems. Relator found that Sterling had fully complied with the

court’s previous conditions of the 1994 Gov.Bar R. V suspension.           He also

obtained over ninety hours of CLE credit in the year before the panel hearing.

Relator’s counsel advised the panel that respondent had been a respected

adversary for over twenty years and that respondent had fully cooperated with

relator in the disciplinary proceeding.      Relator informed the panel that an



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indefinite suspension would be an appropriate sanction. The panel agreed with

relator, noted that respondent “could be a credit to the profession,” and

recommended an indefinite suspension from the practice of law.

       The board adopted the panel’s findings, and recommended that respondent

be indefinitely suspended from the practice of law and that he comply with OLAP

requirements as a condition for his reinstatement.

                              __________________

       Hennenberg & Brown and Michael C. Hennenberg; and James Flaherty, for

relator.

       Howard T. Sterling, pro se.

                              __________________

       Per Curiam.      Upon review of the record, we adopt the findings,

conclusions, and recommendation of the board. We hereby indefinitely suspend

respondent from the practice of law in Ohio and order that he comply with OLAP

requirements as a condition of his reinstatement. Costs taxed to respondent.

                                                           Judgment accordingly.

       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.




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