A Great Grandmother’s Complaint

An argument preview from the web page of the Ohio Supreme Court

Disciplinary Counsel v. Quentin M. Derryberry II, Case no. 2017-1088
Auglaize County

The Ohio Board of Professional Conduct recommends that Wapakoneta attorney Quentin M. Derryberry II be suspended for one year with six months stayed for neglecting a child custody case he was hired to handle and for making false statements during the disciplinary process.

Great-Grandmother Seeks Legal Help
On Oct. 29, 2013, Linda Moore paid a $1,000 retainer to hire Derryberry as her attorney to secure legal custody of her great-grandson Deacon. For the prior two years, Deacon had been living with Moore in her Lima home. Deacon’s mother, Megan Ingle, supported giving Moore temporary legal custody of the child.

Moore said she told Derryberry that time was critical because Deacon’s grandmother, Melissa Sharp, had filed documents a week earlier to obtain legal custody of the child. Sharp had filed a motion to intervene in a custody case between Deacon’s parents. Two of Ingle’s other children were living with Sharp in Wapakoneta.

Two days after she first met with Derryberry, Moore provided the information he requested. In this second meeting, they spoke with Deacon’s mother by phone, and Moore understood that Derryberry would file court documents on her behalf in the custody proceeding within a few days.

Attorney Unresponsive to Client’s Calls
After more than a week passed, Moore called Derryberry’s office for an update on the case. In the subsequent days, she left eight voicemail messages. The two times that someone answered the phone, Moore spoke with the attorney’s secretary, who said she would have Derryberry return the call. The attorney responded to none of Moore’s calls.

The court granted Sharp’s request to intervene on Nov. 14, and she filed paperwork asking the court to make her Deacon’s temporary residential parent and legal custodian. On Dec. 2, Moore went with Deacon’s mother to a court conference about Sharp’s request for custody of the two children who lived with her. Afterward, Sharp’s attorney told Moore that he had never spoken with Derryberry or received any documents from him. Moore went to the juvenile court and discovered that her attorney had filed no documents in the case involving Deacon. Moore went to Derryberry’s law office to speak with him, and his secretary said he wasn’t there. Moore fired him immediately.

Great-Grandmother Asks for Refund, Files Complaint
Later that month, the court gave Sharp legal custody of Deacon, and he moved after Christmas from his great-grandmother’s house to his grandmother’s home.

Moore contacted Derryberry for a refund and her file, and a month later Derryberry sent her a $300 partial refund with an invoice that noted research and a call to Sharp’s attorney, and subtracted an amount for time he said he worked on the case. Moore filed a grievance against Derryberry with the Allen County Bar Association, which was later transferred to the Office of Disciplinary Counsel in Columbus. The disciplinary counsel began an investigation.

In May 2015, 14 months after Moore made her ethics complaint, Derryberry sent her a letter apologizing for “any misunderstanding or inconvenience” and included a refund of the remaining $700 she paid.

Board Describes Attorney’s False Statements
In its report to the Supreme Court, the professional conduct board highlighted several false statements Derryberry made during the disciplinary process. In a letter to the disciplinary counsel, Derryberry stated that he told Moore it wasn’t necessary or appropriate to intervene right away in the custody case because Sharp hadn’t intervened yet. Though the board noted that such a delay “might be a plausible strategy,” it found Moore’s testimony “very credible” and Derryberry’s “not credible.”

Derryberry also maintained during the investigation that he had a conversation with Sharp’s attorney about the complex custody situation, but his notes didn’t reflect an exact date. At the hearing, though, Derryberry said he tried to call the attorney, but was unable to leave a message and never actually talked with him. The other attorney testified that they never spoke, and he knew of no problems with his office voicemail system.

The board stated that Derryberry lied “to justify his failure to promptly and diligently represent Moore’s interest.” Derryberry violated attorney conduct rules that require him to act with diligence, to keep his client reasonably informed, and to respond as soon as practical to client requests for information, the board concluded, adding that his false statements were also a violation of the rules.

The board noted that Derryberry has a record of earlier discipline (after a federal perjury conviction in 1988), he committed multiple offenses, and he hasn’t acknowledged his wrongdoing. The board found no mitigating factors. Pointing out that the Court’s recent precedent supports an actual suspension when an attorney makes false statements with other underlying violations, the board recommends a one-year suspension with six months stayed if Derryberry commits no additional misconduct.

Attorney Disputes Lack of Diligence Claim 
Derryberry has objected to some of the board’s report, so the Ohio Supreme Court will hear oral arguments in the case. Derryberry, who is representing himself in the case, primarily takes issue with the board’s conclusion that he didn’t act diligently on Moore’s behalf. He contends that his strategy was to enter an appearance in the custody case after Sharp’s motions were served on Ingle, which he indicates was in early December – the day he was fired – at the conference about two of the other children.

“Irrespective of Moore not having actual knowledge of the referenced strategy, she was not prejudiced by it and upon prompt filing after service on [Ingle], her motion to intervene would have been granted and the conflicting motions for temporary custody would have been set for hearing,” he wrote in his brief to the Court.

He conceded that he provided no written communication to his client, and stated that perhaps he should have taken a more formal approach with her rather than the family approach he used because he knew Moore’s late husband. He asks the Court for either a suspended sanction or a public reprimand.

Disciplinary Counsel Details Standards in These Cases
In its response, the disciplinary counsel explains that the three-person panel of the board that reviewed the case was responsible for assessing witness credibility. Besides the panel’s conclusion that Moore was more credible than the attorney, the disciplinary counsel notes that the panel found the great-grandmother’s actions after her first meeting with the attorney reflected her belief that he would be taking prompt action to file custody papers for her. The record does not weigh heavily in Derryberry’s favor, the disciplinary counsel maintains.

Nor does Derryberry offer any case law to support a lesser sanction of a suspended sentence or public reprimand in a similar situation, the disciplinary counsel argues, adding that the panel indicated if Derryberry had not lied during the disciplinary process an actual suspension may not have been warranted. The disciplinary counsel supports the recommended penalty.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Quentin M. Derryberry II, pro se: 419.738.3217

Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256

(Mike Frisch)