To Stay Or Not To Stay

Oral argument scheduled today before the Ohio Supreme Court

A Lorain County attorney faces a one-year suspension with six months stayed after losing a client’s settlement check, which led to a more than two-year delay in the client receiving her funds.

The Lorain County Bar Association charged Jeffrey H. Weir II with violating multiple rules governing the conduct of Ohio attorneys for the delays in settling his client’s case and subsequently failing to cooperate with the bar association when the dissatisfied client filed a grievance. Separately, the Office of the Disciplinary Counsel charged Weir with rule violations regarding an unrelated matter where he failed to adequately file an attorney malpractice lawsuit against another lawyer.

The Board of Professional Conduct considered both complaints against Weir together and recommends that he be suspended for one year, with six months stayed on the conditions that he completes a continuing legal education course on law office management and not engage in any other misconduct. The board has recommended also conditioning the suspension on Weir’s payment of $4,983 in restitution to his former client, Jennifer Demyan. Through her new attorney, Demyan notified the board she received the $4,983 in settlement funds.

Land Dispute Languishes
Demyan hired Weir in December 2015 to represent her in a dispute regarding a land contract with Lonnie and Enid Copen. Weir negotiated a settlement with the Copens’ attorney for $4,983 in February 2016, and the Copens wrote a check payable to Demyan and gave it to their attorney. The parties exchanged counteroffers, which were rejected. In June, Demyan told Weir she would accept the offer and Weir replied that he would contact the Copens’ attorney to see if the check was still good. Weir learned the first check had expired, and the Copens’ attorney sent Weir a second check for Demyan in August 2016. Weir emailed Demyan asking her to pick up the check or receive it by mail, and Demyan replied that she would accept the check if there was a signed settlement.

Weir didn’t reply to Demyan’s email and didn’t respond to further emails until November 2016 after she suggested she might get another attorney. Weir told her he couldn’t locate the check, and would attempt to get a third check. Weir continued to ignore follow-up emails from Demyan, and she filed a grievance with the Lorain County Bar Association in July 2017.

A county bar investigator attempted to contact Weir by mail, which Weir didn’t respond to, and the bar association personally delivered a notice of a hearing to him about the grievance in October 2017. Weir appeared at the hearing, and said he was learning for the first time that Demyan hadn’t been paid, and said he was willing to make restitution. Two months later, he alerted the bar association that he found the August 2016 check and mailed it to Demyan. The check didn’t clear despite assurances from the Copens. Demyan, through her second attorney, received her settlement funds from the Copens in August 2018.

The professional conduct board found Weir violated multiple rules including not diligently representing Demyan, not keeping her reasonably informed about her case, and failing to promptly deliver funds belonging to the client. The board also found Weir failed to cooperate with the disciplinary proceedings and didn’t advise Demyan that he didn’t maintain malpractice insurance.

Attorney Misses Case Filing Deadlines
In a second matter, a contractor attempted to collect on a lien against Edward and Nancy Medley for failure to pay for construction work. The Medleys hired attorneys Daniel McGookey and Richard Hardy III to represent them. McGookey and Hardy identified one expert witness to support the Medleys’ claim that they refused to pay because the contractor’s work was deficient. It was later determined the expert wasn’t appropriate for the case.

The Medleys then hired Weir, who attempted to locate an appropriate expert. However, the trial court judge wouldn’t allow the Medleys to offer another expert witness. The trial court granted the contractor a $42,000 judgment against the Medleys. After the verdict, Weir discussed filing a malpractice case against McGookey, and the Medleys agreed. However, the court found Weir waited too long to file the case, and it was dismissed for failing to meet the statute of limitations.

A year after the loss, Weir suggested that the Medleys appeal the case. The appellate court dismissed the appeal because Weir had only 30 days after the trial court’s dismissal to file an appeal.

Based on the missed deadlines, the disciplinary counsel charged Weir with failing to competently represent the Medleys, and the board agreed.

Attorney Objects to Sanction
The board suggests the one-year suspension with conditions based on the misconduct in Demyan’s case. The board also found that the typical sanction for failing to meet filing deadlines in the Medleys’ case would be a public reprimand.

Weir argues that the he deserves a fully stayed suspension. He objects to the board’s finding that while he offered to make restitution to Demyan, that he “made no attempt to do so.” Weir maintains that he attempted to get a third check from the Copens for Demyan and mailed her the second check when he found it. He maintains the board’s proposed actual suspension of six months is too harsh and that it hinges on the allegation that he made no effort to compensate Demyan. Since Demyan indicated she received the payment, he argues, a fully stayed sanction is appropriate.

Bar Association, Disciplinary Counsel Supports Finding
The bar association and the disciplinary counsel state their support for the board’s proposed sanction. The bar association maintains that Weir mischaracterizes the term “restitution,” and that his attempts to locate the second check and Demyan’s eventual receipt of the settlement money from the Copens doesn’t constitute restitution. The bar association supports the board’s finding that Weir made no attempt to repay Demyan, which would constitute making restitution.

• Dan Trevas