Motive At Issue
From the web page of the Ohio Supreme Court
The Board of Professional Conduct recommends that Lorain lawyer Mark R. Provenza be suspended from practicing law for one year, with six months stayed, for mishandling cases for two clients, not carrying professional liability insurance, and neglecting to deposit funds into his trust account as required by professional conduct rules.
Two Clients File Grievances
Robin Maxwell-Smith hired Provenza in December 2013 to handle her divorce. According to the board’s report, Maxwell-Smith paid the lawyer $300 for court costs to initiate the divorce and $500 to retain his services. Provenza didn’t deposit the money into his trust account.
The board found that Provenza never filed the divorce complaint, told Maxwell-Smith to appear in court when he hadn’t submitted any paperwork, and refused to respond to multiple calls and texts from her. He also didn’t put their fee agreement in writing and failed to inform his client that he wasn’t covered by professional liability insurance.
In March 2014, Provenza was appointed by a juvenile court to represent Susan Hughes, who had been accused of contributing to truancy. Provenza didn’t respond to Hughes’ attempts to reach him, didn’t meet with her about her case except for one five-minute discussion before a court hearing, and didn’t research her case or review her materials. The board found that Provenza failed to properly and adequately communicate with his client and neglected to diligently represent her. He also failed to tell Hughes he had no professional liability insurance.
Board Proposes Actual Suspension
The Lorain County Bar Association, which filed the charges, and Provenza agreed to certain aggravating and mitigating factors in this disciplinary case. The board, however, added another aggravating factor – a dishonest and selfish motive – for his failure to refund Maxwell-Smith’s fees. The board stated that the lawyer’s “cavalier attitude” necessitates a sanction that protects the public. It concluded a one-year suspension with six months stayed with conditions, including that he pay back $800 to Maxwell-Smith within a specific timeframe, was appropriate.
Lawyer Objects to Additional Finding, Increased Sanction
Attorneys for Provenza have filed objections to the board’s report. While they emphasize their agreement with the factual findings and recommendations made by the bar association, they contest the board’s addition of the dishonest and selfish motive aggravating factor and the elevated sanction.
They note Provenza was experiencing some personal problems, centering on his fiancée’s medical issues, at the time he took on these two cases. The situation drained him both financially and emotionally, they assert. They argue that the financial burden explains Provenza’s inability at the time to repay Maxwell-Smith’s fees and to renew his professional liability insurance. The facts don’t support an intent to defraud or a dishonest motive, they maintain, adding that the bar association recommended only a six-month fully stayed suspension without this finding. They ask the Court to accept the agreement made with the bar association for a lesser sanction.
Bar Association Agrees with Attorney
Lawyers for the bar association first point out that the professional conduct rules require attorneys to place fees not yet earned into trust accounts so the money can be returned to the client if unearned. In that regard, the bar association’s counsel finds Provenza’s personal reasons for why he couldn’t refund Maxwell-Smith unconvincing.
However, they don’t believe Provenza’s actions stemmed from a dishonest or selfish motive. If the Court agrees that the addition of this aggravating factor isn’t supported by the evidence, then the bar association maintains the original, stipulated six-month stayed suspension should be imposed.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
(Mike Frisch)