The Meaning Of Good Faith Restitution
A fully-stayed six month suspension has been imposed by the Ohio Supreme Court
The board found that Haynes had violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client) by failing to take any action to further Olic’s interests from March 2015 to October 2017 and failing to complete the QDRO filing in a timely manner. The board also found that Haynes had violated Prof.Cond.R. 1.4(a)(3) (requiring a lawyer to keep a client reasonably informed about the status of a matter) and 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with reasonable requests for information from a client) based on his admission that he had not provided Olic a written report regarding the status of his many attempts to obtain Ford’s approval of the QDRO and his failure to respond to Olic’s numerous telephone calls. We adopt these findings of misconduct.
On sanction
As for mitigating factors, the parties stipulated that Haynes had not acted with a dishonest or selfish motive, had made full and free disclosure to the board and exhibited a cooperative attitude toward the disciplinary proceedings, made full restitution to Olic, submitted evidence of his good character and reputation, and offered evidence and testimony regarding several medical disorders that contributed to his neglect of Olic’s case. See Gov.Bar R. V(13)(C)(2), (3), (4), and (5). The board accepted those stipulated mitigating factors but emphasized that Haynes had made restitution to Olic only after she retained counsel and filed a malpractice action against him. Even then, the board noted that Haynes had paid only Olic’s attorney fees of $11,013.14, while his professional-liability insurer had paid her $33,039.44 relating to the 82-month delay in the commencement of her benefits.
Justice Fischer dissented
Because I do not think that the restitution paid by respondent, John Stanley Haynes, constituted a good-faith effort to rectify the consequences of his misconduct, I do not think that it should be considered as a mitigating factor, and thus, I respectfully dissent.
The economic harm to the client
But additional facts identified by the board to support its observation that the harm had been “ameliorated * * * but not eliminated” contradict its conclusion that Olic’s economic loss was fully recognized. The board and the majority opinion both note that Haynes made restitution to Olic only after she retained counsel and filed a malpractice action against him. Even then, Haynes personally paid only Olic’s attorney fees, while his professional-liability insurer paid the $33,039.44 settlement amount representing 82 months of delayed benefits payments. Moreover, the majority opinion does not acknowledge that Olic was entitled to an additional eight months’ worth of benefits—totaling $3,223.36—that were never paid to her nor that as a result of Haynes’s misconduct, she struggled to make ends meet by “rolling change and selling [her] jewelry to pay [her] bills.” When all these facts are considered together, it is difficult to see how Haynes’s payment to Olic constituted a full or good-faith effort to make restitution.
…I would impose a six-month suspension stayed on the conditions that Haynes commit no further misconduct and that he make additional restitution to Olic in the amount of $3,223.36. I would also require that Haynes serve a six-month period of monitored probation.
Justices O’Connor and French joined the dissent. (Mike Frisch)