Tuesday, Sept. 21, 2021
State of Ohio v. Eddie Burns, Case no. 2020-1126
Eighth District Court of Appeals (Cuyahoga County)
Ohio Public Works Commission v. Village of Barnesville, et al., Case no. 2020-1129
Seventh District Court of Appeals (Belmont County)
State of Ohio v. Ladasia Brooks, Case nos. 2020-1189 and 2020-1250
Fifth District Court of Appeals (Richland County)
Disciplinary Counsel v. Samuel Ray Smith II, Case no. 2021-0448
Can Charges Unproven in Juvenile Court Be Transferred to Adult Court?
State of Ohio v. Eddie Burns, Case No. 2020-1126
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- May a prosecutor criminally indict a minor in adult court for charges in which the prosecution failed to establish probable cause in juvenile court?
- Can a court establish probable cause for a greater charge based on probable cause of a lesser, non-included charge?
BACKGROUND:
From August 2017 to February 2018, Eddie Burns was involved in several violent robberies and assaults, mostly near his Cleveland home. He attacked four elderly citizens, robbing and beating them. He also targeted commercial vehicles and robbed the occupants at gunpoint, including a cable service installer, an Amazon driver, and a television reporter and her cameraman.
Burns was 15 years old when he was alleged to be a delinquent child and a 58-count complaint was filed in Cuyahoga County Juvenile Court. At a probable cause hearing, Burns’ attorney argued that Burns wasn’t the principal offender in many of the charges, and in others, the victims never identified him as the assailant. The attorney warned the juvenile judge that the prosecution was attempting to obtain probable cause rulings on some of the charges they could prove while asking the court to include other charges that the Cuyahoga County Prosecutor’s Office couldn’t prove. The attorney claimed the true intent of the prosecutors was to bind over Burns to adult court and charge him as an adult on all charges, including the ones they were unable to prove in juvenile court.
The juvenile court found probable cause to believe Burns committed 32 of the charges and no probable cause for 15 others. For 11 charges related to the kidnapping and armed robbery of the cable installer and the TV crew, the juvenile court found probable cause that Burns was complicit in the crimes.
The judge relied on the Twelfth District Court of Appeals’ 2010 State v. Phillips decision. That decision reasoned that if the accused was in possession of the property after the alleged offense, and there was sufficient evidence to find probable cause for receiving stolen property, there was also sufficient evidence of to find probable cause of a theft offense as well. Because Burns was found to have attempted to sell the property stolen from the victims, there was probable cause to find him complicit of kidnapping and aggravated burglary, the juvenile court ruled.
Youth Accepts Plea Deal in Adult Court
Based on the probable cause findings, the juvenile court conducted an amenability hearing and determined Burns wasn’t amenable to treatment in the juvenile system and transferred the case to adult court. After the case was bound over, the county prosecutors obtained a 56-count criminal indictment of Burns from a grand jury. The charges largely mirrored the counts charged in juvenile court, including the 15 counts for which probable cause wasn’t established. The office added two charges in adult court, including attempted murder.
Faced with more than 100 years of prison time, Burns accepted a plea agreement, pleading guilty to one charge for each of the seven incidents from the crime spree. He was sentenced to 27 years in prison.
Burns appealed his conviction to the Eighth District Court of Appeals, claiming the prosecution was improperly allowed to charge him with offenses in adult court for which the juvenile court found no probable charge. Those 15 counts carried a potential 86 years in prison and factored into his decision to accept a plea agreement, he states.
The Eighth District affirmed Burn’s conviction, and he appealed to the Ohio Supreme Court, which agreed to hear the case.
Only Charged Acts Can Be Bound Over, Youth Argues
At the center of the parties’ dispute is the interpretation of two provisions of the juvenile bindover law, R.C. 2152.12, and within those provisions the uses of the words “act” and “case.” Burns argues the Eighth District has continually relied on a flawed interpretation by examining R.C. 2152.12(I), without first considering R.C. 2152.12(B).
R.C. 2152.12(I) states that when the juvenile court transfers a “case” under divisions (A) or (B) of the law, the jurisdiction of the juvenile court ends “with respect to the delinquent acts alleged in the complaint.” Upon transfer, “the case shall be within the jurisdiction of the court to which it is transferred.” The Eighth District and prosecutors maintain the provision they used to transfer Burns’ case to the adult court allows prosecutors to seek any charges against Burns that they sought in juvenile court.
Burns argues R.C. 2152.12(I) is expressly limited by the requirements of R.C. 2152.12(B). Under R.C. 2152.12(B), after a complaint has been filed alleging a juvenile is delinquent “for committing an act that would be a felony” if committed by an adult, the court can transfer the case to adult court if “there is probable cause to believe the child committed the act charged.” Burns maintains that subsection (I) is only triggered after the juvenile court issues its decision under division (B) regarding the “acts” charged. Only those acts for which there is probable cause remain as part of the “case” for the purpose of binding over the proceeding to adult court, he asserts.
Because the courts improperly allowed him to be faced with 15 counts for which no probable cause was found as a juvenile, he was exposed to a potentially lengthier sentence should he stand trial in adult court. The risk of a longer sentence was enhanced by adding the 15 charges, which unfairly weighed on his decision to plead guilty, Burns asserts.
Complicity Charges Improperly Added, Accused Maintains
Burns additionally argues the juvenile court used the wrong standard to find probable cause that Burns was complicit in 11 charges that he was ultimately recharged with when the case reached adult court. He maintains the Eighth District wrongly mistook the “fact-based decision in Phillips” for a general legal rule. In the Phillips case, the facts indicated that proof of the possession of stolen items provided probable cause of the theft, Burns notes. While in that case a lesser non-included possession charge could be used to establish a greater charge, that isn’t the situation in Burns’ case, where possession of stolen items for attempted sale doesn’t prove he aided and abetted in the commission of kidnapping and burglary, he asserts.
Burns argues that to prove he was complicit, it isn’t enough for the prosecution to establish probable cause for the more serious crimes by proving he committed a related, non-included lesser offense. Burns argues none of the victims identified Burns as a gunman or assailant in the holdups. To prove complicity, the state must show Burns “supported, assisted, encouraged,” or in other ways acted with the principal offenders in committing the crime and also shared the “criminal intent of the principal.” Because none of those elements were proven, probable cause for complicity shouldn’t have been found, he concludes.
Cases, Not Counts, Transfer, Prosecutors Contend
The prosecutors argue that under R.C. 2152.12(I), the case, not the individual charges, is transferred to the adult court, which obtains jurisdiction of the matter and can address any charges brought against Burns.
The office notes the probable cause hearings in juvenile court are of a limited nature and aren’t designed for the purpose of testing the prosecution’s case and the defense’s challenges to those claims. If a juvenile judge found probable cause to proceed with the case in juvenile court, another proceeding would address the charges fully, the prosecutor explains. Because of the limited nature of probable cause determinations in juvenile court, the adult court system isn’t bound to the juvenile court’s view of the charges, the office maintains. Because the law transfers the “case” to the adult system, the prosecution can seek any charge it believes is valid, and it is up to a grand jury to determine whether to go forward, the office states.
Prosecutors cite the Ohio Supreme Court’s 1982 State v. Adams decision, which found a grand jury doesn’t exceed its authority for indicting a juvenile on charges not originally filed in juvenile court. Following the decision, five district appeals court, including the Eighth District, have found that when a juvenile case transfers to adult court, the grand jury can indict for charges based on the same conduct that was before the juvenile court, the prosecutors note.
The prosecutor also maintains probable cause was correctly established for the 11 complicity charges. The office argues the juvenile court didn’t solely rely on the logic of the Phillips decision, but also analyzed the facts in Burns’ case and determined he was complicit in the more serious crimes.
Attorney General Participates in Case
The Ohio Attorney General’s Office submitted an amicus curiae brief supporting the county prosecutor’s position. The Court has permitted the prosecutor’s office and the attorney general to split oral argument time.
In its brief, the attorney general’s office notes that the Court is already considering the case of Nicholas Smith, which it heard in March. Smith also asks whether a grand jury can indict a juvenile whose case has been transferred to adult court on charges that the juvenile court concluded weren’t supported by probable cause.
The attorney general rejects the claims made by Smith and Burns, and argues the Court has already established that adult charges can be brought regardless of the actions taken by the juvenile court. The attorney general warns that Burns’ view of the juvenile court proceedings would “expand the scope and significance of a probable cause hearing” beyond its intended purpose.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Eddie Burns from the Ohio Public Defender’s Office: Timothy Hackett, 614.466.5394
Representing the State of Ohio from the Cuyahoga County Prosecutor’ Office: Gregory Ochocki, 216.443.7800
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980Did Village Violate State Conservation Program by Selling Property’s Oil and Gas Rights?
Ohio Public Works Commission v. Village of Barnesville et al., Case No. 2020-1129
Seventh District Court of Appeals (Belmont County)
ISSUES:
- Is a prohibition on the transfer of interests in a Clean Ohio grant-funded property, subject only to the Ohio Public Works Commission’s discretion, void because it is contrary to Ohio public policy?
- Does a transfer of deep mineral interests beneath real property violate a deed restriction that permits the property to be used only as an “open space”?
- Are the deed restrictions in the commission’s Clean Ohio contracts enforceable only by a liquidated damages award, not by an injunction?
BACKGROUND:
The Clean Ohio initiative, approved by voters in 2000 as an amendment to the Ohio Constitution, allows the sale of bonds for projects to, among other purposes, protect water and other natural resources; conserve and preserve natural areas and open spaces; and enhance the availability, public use, and enjoyment of natural areas and resources. The General Assembly enacted laws in R.C. Chapter 164 to govern the program’s operation and placed the Ohio Public Works Commission (OPWC) in charge of administering the program.
In 2003, the OPWC issued grants from the Clean Ohio Conservation Fund to the village of Barnesville, in Belmont County, to offset the purchase price of parcels in Somerset and Warren townships. Each grant – $150,000 and $38,850 – was awarded to protect the watersheds bordering two local reservoirs.
Clean Ohio Deed Places Restrictions on Barnesville Properties
Barnesville agreed to certain OPWC restrictions in the deeds connected to the grants.
One restriction, referred to as the “use restriction,” states: “The Property shall only be used for open space with trails, and for passive recreation appurtenances.”
Another restriction, called either the “transfer” or “alienation” restriction, requires Barnesville to retain ownership and control of the property and bans the transfer of any interest in the property without OPWC’s prior approval. It states, in part: “Accordingly, Declarant shall not voluntarily or involuntarily sell, assign, transfer, lease, exchange, convey or otherwise encumber the Property without the prior written consent of OPWC, which consent may be withheld in its sole and absolute discretion.”
If the agreement is breached, the OPWC is entitled to “liquidated damages” and repayment of the grant, according to R.C. 164.26(A). When parties agree in a contract that one who breaches a contract will pay the other party, that compensation is called “liquidated damages.”
Village Leases Mineral Rights Below Properties for Potential Fracking
In September 2012, Barnesville leased the oil and gas rights under 1,000 acres, including the Clean Ohio-funded properties, for the potential horizontal extraction of oil and gas by hydraulic fracturing, or “fracking.” The leases assigned the mineral interests for one grant-funded parcel to Antero Resources Corporation and the other to Eclipse Resources. The village asked the OPWC for permission to lease the rights before signing, but the commission said no. In 2014, Antero partially assigned its rights to Gulfport Energy Corporation.
The village also leased water rights to Antero in January 2014 but didn’t obtain OPWC’s permission.
Public Works Commission Alleges Leases Violate Deeds
In April 2018, the commission sued Barnesville, Antero, Gulfport, Eclipse, and others in Belmont County Common Pleas Court, alleging violations of the use and transfer deed restrictions. (Eclipse was dismissed from the case.) The court ruled in favor of Barnesville, Antero, and Gulfport. According to the court, the deed restrictions applied to only the surface of the properties, and the oil and gas leases didn’t violate the transfer restriction. The court also dismissed the claim related to the water lease, which had expired.
The Seventh District Court of Appeals reversed the trial court. The appellate court determined that the commission’s use and transfer restrictions for the properties were enforceable and the OPWC could request an injunction. The appeals court also noted that the use restrictions on these properties were more limiting than the use restriction in a similar case it decided in 2019 – Siltstone Resources v. Ohio Public Works Commission – which was heard on appeal at the Ohio Supreme Court in January 2021. (A decision in the case is pending.) The Seventh District concluded that the oil and gas leases in this case violated its more confining use restrictions, as well as the transfer restriction, for these parcels.
The village, Gulfport, and Antero appealed to the Supreme Court, which accepted the case. Antero dismissed its appeal after it reached a settlement with the commission.
Ohio Public Policy Voids Restrictions on Property Uses and Transfers, Village Maintains
Barnesville argues that the deed’s prohibition on transfers of property without OPWC approval is an illegal restraint on the village’s right to transfer property that it owns. Ohio public policy doesn’t permit restraints on another’s right to “alienate” its real property, the village states.
The transfer restriction also conflicts with the Ohio public policy favoring the responsible development of oil and gas resources on public and private land, the village maintains. It contends that a contract, such as the property deeds, prohibiting or preventing oil and gas production in Ohio is void and unenforceable because it violates public policy.
The village argues the commission crafted deed restrictions never imagined by the General Assembly in R.C. 164.26(A), which discusses leases or easements to preserve OPWC’s long-term ownership and control in Clean Ohio-funded initiatives. The commission’s language in the deed’s transfer restriction violates the statute, in the village’s view.
Barnesville maintains the commission’s claim that the deed’s terms have been breached is based only on the existence of an oil and gas lease, not on any development or drilling of minerals. No proof of such activity was presented, so no harm has occurred, the village states.
Drilling Below Ground Not Contrary to Preserving Open Spaces, Oil Company Argues
Gulfport reiterates the village’s arguments that the deed restrictions are contrary to state public policy. The company also agrees that the commission offered no evidence that Gulfport interfered with the property’s “open space.”
The company further contends in its brief that the responsible development of oil and gas resources thousands of feet below the properties “can proceed in harmony” with the preservation of the properties’ uses as “open spaces.”
Deed Supersedes Typical Right to Transfer Property, Commission Asserts
The OPWC, which is represented by the Ohio Attorney General’s Office, argues courts must uphold the plain language in a deed. Although the Ohio Supreme Court’s interpretation of deeds has promoted the free use and transfer of property, the Court hasn’t done so when a deed’s provision clearly provides otherwise, the OPWC maintains.
Barnesville transferred a property interest in the watershed properties when it transferred the property’s oil and gas rights to Antero – all without notifying or obtaining the OPWC’s consent, as the deed requires, the commission states. It notes this case doesn’t involve an individual with a private property interest. Instead, the deed restrictions are part of a program governed by state law and designed to protect the public’s interest, the OPWC explains. The commission argues that restraints on the right to transfer property usually will be upheld when the property is conveyed to a trustee for charitable or other public uses, according to the Court’s decision in Ohio Society for Crippled Children & Adults Inc. v. McElroy (1963).
The OPWC agrees that oil and gas development is the state’s public policy. But it counters: “It does not follow, however, that these policies trump all other policies – including conservation – to such a degree that they override the clear language in a deed adopted as part of a constitutionally established conservation program.”
Regarding whether the properties actually were used for a purpose prohibited by the deeds, the commission first notes that the Court has issued injunctions when a prohibited use was proposed – such as with these oil and gas leases – but hadn’t yet occurred. The commission didn’t have to wait until an improper use of the property began to seek an injunction to prevent damage to the properties. In addition, the commission states, publicly available resources show that one parcel’s subsurface has been used in violation of the deed. Gulfport can’t argue that the evidence of its oil and gas development on the properties is outside the record in the case because it delayed providing the information during the legal proceedings until it was too late, the commission maintains.
–Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Village of Barnesville: Robert McClelland, 740.454.8585
Representing Gulfport Energy Corporation: Daniel Gibson, 614.227.2300
Representing the Ohio Public Works Commission from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Does Self-Defense Change Apply Only After New Law Took Effect?
State of Ohio v. Ladasia Brooks, Case No. 2020-1189 and 2020-1250
Fifth District Court of Appeals (Richland County)
ISSUE: Does a change in state law shifting the burden of proof of self-defense apply to all subsequent trials after the effective date of the bill regardless of the date of the offense?
BACKGROUND:
Prior to the enactment of House Bill 288, defendants arguing they acted in self-defense bore the burden of proving their self-defense claims. The 2018 law, which took effect March 27, 2019, shifted the burden, requiring that “at the trial,” the prosecution must prove beyond a reasonable doubt that the accused didn’t use force in self-defense.
Ladasia Brooks and Dan Meyers had a 5-year-old child together when Meyers ended the relationship with Brooks in May 2018. Their last conversation was about having a birthday party for their daughter.
On the day before the daughter’s birthday in June 2018, Brooks went to the Mansfield home of Meyers’ parents where Meyers was residing. Alicia Randolph, Meyers’ mother, claims she locked the house door when she went to work. Brooks said she walked into the home through an open door and discovered Meyers in bed with his new girlfriend.
Brooks began striking the girlfriend, and Meyers attempted to separate the two women. During that struggle, Brooks bit Meyers’ ear. She then left, taking $70 from Meyers’ wallet. After leaving the home, she returned to the front door, seeking to recover a flip-flop sandal she lost during the altercation. She punched the window out of the door, then left.
The girlfriend went to a nearby convenience store where her friend worked, and her friend called the police.
Claim of Self-Defense Denied
Brooks was indicted in September 2018 on three felony counts – aggravated burglary, burglary, and possession of criminal tools – and three misdemeanors, including assault and domestic violence. Her trial was conducted more than a year later, in October 2019. The criminal tools charge was dropped, and she was found guilty on the remaining five charges. She was sentenced to seven years in prison.
During her trial, her attorney requested that the jury be given a jury instruction regarding her claim of self-defense and asked that it be made in compliance with the recently enacted H.B. 288, which took effect after her June 2018 offense date but before her October 2019 trial. The judge denied the request.
Brooks appealed her conviction to the Fifth District Court of Appeals, arguing she was denied a fair trial because the judge failed to provide the jury instruction that switched the burden of proof to the prosecution.
The Fifth District affirmed the trial court’s decision. Brooks appealed the Fifth District’s decision to the Ohio Supreme Court. The appellate court also noted that its opinion conflicted with a recent ruling by the Twelfth District Court of Appeals. The Supreme Court agreed to hear Brooks’ appeal and address the conflict.
State Law in Effect at Time of Trial, Accused Argues
Brooks notes the dispute between her and the Richland County Prosecutor’s Office centers on the “touchstone” date used to determine which version of the self-defense law was in place. R.C. 2901.05 was revised to state: “If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person’s residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person’s residence, as the case may be.”
Brooks argues the clause “at the trial” means the law when her trial began was the version of the law that was in effect. The Fifth District used the “touchstone” date as the time of her offense, which was before the new law took effect. Using the offense date, the Fifth District reasoned that Brooks was seeking to have the new law applied to her retroactively. The appellate court ruled Ohio laws cannot be applied retroactively unless the General Assembly explicitly makes a law retroactive when it enacts legislation.
The Twelfth District in its June 2020 State v. Goff decision ruled the law applies to all trials held after the law’s effective date. Brooks maintains the plain language of the law is unambiguous and means the date of the trial determines whether the change in law was in effect.
Brooks criticizes the Fifth District for interpreting “at the trial” to mean the “time and place the affirmative defense evidence must be presented.” Because the presentation of evidence, regarding a claim of self-defense or in general, is presented at the trial, lawmakers wouldn’t need to state that in the law, she argues. The clause wad added to indicate when the law applies, she asserts. Her trial took place when the new law was in effect, she concludes.
Law Applies Only to Offenses After Effective Date, Prosecutor Maintains
The prosecutor’s office supports the Fifth District and maintains the “at the trial” clause doesn’t dictate when the law takes effect. The prosecutor maintains the law applies only to those charged with offenses on or after the March 2019 effective date. The office argues the Supreme Court has previously expressed that the law on the date of the offense applies to a crime unless the legislature expressly states otherwise.
The prosecutor also questions whether self-defense can even be claimed in relation to an aggravated burglary or burglary charge, which are the crimes Brooks was charged with and convicted of, and is seeking to challenge. To find a person guilty of aggravated burglary, a jury must find the accused had trespassed onto the property and did so with a purpose to commit a criminal offense. The elements of the crime are “inconsistent with the defense of self-defense,” the office asserts.
The office notes that not only has the Fifth District found the law applies only to offenses after the effective date, but so too have another six of Ohio’s 12 appellate courts. The prosecutor notes only two other appellate courts have followed the Twelfth District in ruling the law applies to trials after the effective date.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the prosecutor’s position was submitted by the Ohio Prosecuting Attorney’s Association.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket. (Also 2020-1250.)
Contacts
Representing Ladasia Brooks from the Ohio Public Defender’s Office: Patrick Clark, 614.466.5394
Representing the State of Ohio from the Richland County Prosecutor’s Office: Jodie Schumacher, 419.774.5676
Suspension Proposed for Lawyer Who Changed Client’s Plea Without Consent
Disciplinary Counsel v. Samuel R. Smith II, Case No. 2021-0448
Cuyahoga County
The Board of Professional Conduct suggests the Ohio Supreme Court suspend a Cuyahoga County lawyer for committing ethical violations, some that occurred while he was under suspension for previous misconduct.
The board recommends Samuel Smith II, a Cleveland solo practitioner, be suspended for two years with six months stayed with conditions, including that he reimburses a client $445 for court costs assessed against the client for Smith having filed a lawsuit then not pursuing it.
Smith is accused of several ethical violations related to a criminal case in which he signed his name to a client’s change-of-plea form without the client’s consent, and mishandling three other civil matters. Smith objects to the claim that he changed the plea without his client’s consent, and maintains that his actions warrant a fully stayed suspension.
Smith’s objections triggered an oral argument before the Supreme Court.
Lengthy Jail Sentence Issued After Lawyers Changes Client’s Plea
Smith represented Stacey Lattimore on several charges against her in Shaker Heights Municipal Court related to a department store theft. At the time her charges were pending, Lattimore was in the Cuyahoga County jail serving time for an unrelated theft conviction.
In June 2017, Smith presented Lattimore with a “in absentia” plea agreement form, which would change her pleas from not guilty to no contest. Lattimore stated that she refused to sign the forms because she was unhappy that the plea agreement didn’t contain any measures to address her mental health issues.
Smith signed Lattimore’s name to the form and executed the notary public attestation, swearing he witnessed her signing the form. He then filed it with the court. The in absentia form can be signed by an attorney rather than the client if the lawyer indicates that the client verbally granted authority. Smith didn’t indicate he had Lattimore’s authority when he submitted the form, and he didn’t appear in court when the judge considered the change of plea.
The judge sentenced Lattimore to 18 months in jail and fined her $2,870. When Smith learned about Lattimore’s sentence, he didn’t contact her, seek to reduce or modify the sentence, or file an appeal.
Attorney, Client Provide Conflicting Accounts
Lattimore told a three-member hearing panel at the Board of Professional Conduct that she learned about her sentence when it was mailed to her at the jail, and she claimed she was shocked and confused because she didn’t agree to change her plea. Lattimore was able to obtain assistance from the county public defender’s office, which produced a copy of the plea form. Lattimore told the public defender that wasn’t her signature, and her name was misspelled on the form. The office sought to reinstate her not guilty plea, and more than three years later, the matter hadn’t yet been resolved.
Smith told the hearing panel he signed the form because he was unable to slide it under the glass to Lattimore during the jail visit, and was “adamant” that he obtained her authorization to sign her name. Lattimore insisted she didn’t want to plead guilty, and noted that she was able to sign other forms during jail visits that were slipped under the glass.
The panel found, and the full board agreed, that Smith knowingly made a false statement to the trial court when he signed the form without his client’s consent and lied about witnessing her signature. The board also found he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Prior Discipline Impacts Clients
In December 2017, the Court suspended Smith for 18 months, with 12 months stayed on the condition that he engage in no further misconduct. Part of the suspension required notifying clients by certified letter of the suspension and aiding the clients in efforts to find other representation if they need it.
Based on Smith’s handling of Lattimore’s case and three civil matters, which began before Smith was suspended, the Office of Disciplinary Counsel filed a complaint against Smith noting that he neglected three civil clients, leading to unnecessary delays in their cases or dismissals. Some of the issues relate to Smith’s attempt to transfer 25 of his pending cases to another lawyer he trusted and assumed the attorney had agreed to work on all the cases. The substitute attorney told the board he agreed to handle eight cases and understood that Smith told the clients whose cases he wasn’t taking that they had to make other arrangements.
The board found several violations, including Smith’s failure to place advanced fees clients paid him into his client trust account and for using the fees before proving he completed the work to earn the money. He also failed to give proper notice of his suspension to clients, to promptly refund any money to clients that he didn’t earn, and to competently represent a client.
Attorney Challenges Board Finding
Smith contends he may have made mistakes in his interactions with his clients, but his conduct doesn’t warrant a two-year suspension with six months stayed. Smith maintains he had Lattimore’s consent to change the plea and that he made a mistake by not indicating to the trial court that he had her consent. He notes that the public defender was able to vacate the plea agreement.
Regarding two of his civil case clients, he believed the substitute attorney had agreed to handle their cases and was pursuing them. Any failure to formally notify the clients of his suspension was mitigated by the ongoing communications he had with his client who were made aware by text messages or phone calls that he was suspended.
His fourth client paid advanced fees to file three lawsuits against government agencies, and the client proposed further litigation against family members and others. Smith states that he notified his client that she might not have viable cases, and in some, the statute of limitations had expired. Smith told the board he was researching theories that could extend the time to file the lawsuits against the government agencies based on the harm his client suffered. While he may have made an error while attempting to find a solution for his client, that isn’t an ethical violation, he argues.
He also maintains he has returned all client fees and expenses paid to him except the court costs for the lawsuit that he and the substitute attorney failed to pursue.
Disciplinary Counsel Supports Suspension
The disciplinary counsel supports the board’s recommendation because Smith violated the same ethical rules he was accused of in his first disciplinary case. Those violations occurred while his disciplinary case was pending and then while he was suspended.
Smith had a chance to “right his wrongs, serve his previous suspension, and demonstrate integrity and reliability,” the office notes. Instead, he engaged in more dishonest conduct, didn’t safeguard his clients’ funds, neglected client matters, and “shirked his responsibility” to notify his clients of his suspension.
Because Smith didn’t change his behaviors after an 18-month suspension, a longer suspension is warranted for his current misconduct, the office concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Samuel R. Smith II: Nelson Genshaft, 614.228.6345