A Dayton attorney was suspended for two years, with one year stayed, by the Ohio Supreme Court today for failing to act on his clients’ cases and repeatedly refusing to cooperate in disciplinary investigations.

The Supreme Court unanimously agreed to suspend Anthony W. Sullivan for two years, with one year stayed on several conditions, including paying $1,125 in restitution to two former clients. The Court was divided on how Sullivan should serve a period of monitored probation should he be reinstated to the practice of law in Ohio.

Chief Justice Maureen O’Connor and Justices Judith L. French, Patrick F. Fischer, Michael P. Donnelly, and Melody J. Stewart joined the Court’s per curiam opinion.

Justice Sharon L. Kennedy concurred in part and dissented in part, stating if the Court orders monitored probation as a sanction, it must provide specific conditions that Sullivan must follow during the probationary period. Justice R. Patrick DeWine joined her opinion.

Justice Fischer wrote a separate concurring opinion, stating he disagreed with Justice Kennedy’s position and believed there is no requirement under the Supreme Court’s rules or precedent that requires the state’s high court to impose specific conditions. Justice Donnelly joined his opinion.

Clients Complain about Inactivity
The Dayton Bar Association filed a complaint in 2018 with the Board of Professional Conduct regarding Sullivan’s handling of four cases between 2013 and 2016. The bar association charged that Sullivan violated several of the rules governing the conduct of Ohio attorneys, including failing to act diligently in representing clients; not informing his clients that he did not carry professional-liability insurance; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The bar association also alleged that Sullivan refused to cooperate with investigations into the grievances filed with it by Sullivan’s clients.

Those matters included Sullivan’s representation of landlord Tamala Horwath. Sullivan helped Horwath successfully evict a tenant and obtain a $5,269 judgment for past due rent and late fees in 2013. Horwath then hired Sullivan to collect the judgment. In November 2014, she provided Sullivan with the former tenant’s place of employment so that Sullivan could garnish the tenant’s wages, and she paid Sullivan the $125 filing fee to start the process.

Horwath attempted to contact Sullivan over the next year regarding her case, but only was provided scant information about the status. Horwath spoke to Sullivan almost a year after providing the fee, and Sullivan falsely told her he filed the collection paperwork. After learning that Sullivan had not initiated the garnishment, Horwath filed a grievance with the bar association.

Lawyer Stonewalls Investigators
The bar association sent two letters to Sullivan requesting he produce documents related to his representation of Horwath, prove he carried malpractice insurance, and schedule an interview. Sullivan never responded.

During a 2018 hearing by a three-member panel of the Board of Professional Conduct, Sullivan stated that his liability insurance expired in June 2014 and that he failed to obtain the required signed written agreement from Horwath that she was aware of the lack of insurance. Despite not filing the collection work, at the time of the hearing, Sullivan had not refunded Horwath the $125 filing fee.

In each of the four matters brought to the board, Sullivan was accused of only partially responding to information requests from the bar association or not responding at all.

Client Sees No Attempt to Resolve Case
Andrew Nason paid Sullivan a $2,000 retainer in 2016 to defend him against three felony charges. Nason had been in jail for about four months when he hired Sullivan to take over the case from another lawyer. Nason sought to have Sullivan reduce his $250,000 bail.

Nason filed a grievance against Sullivan in July 2016, arguing the lawyer was doing nothing to resolve his case, refused to respond to requests for information from Nason and his family members, and only visited Nason twice in jail during the eight-month period of representing him Nason stated that Sullivan told him he requested a reduction in Nason’s bail, but never filed a motion with the court. Sullivan and the bar association agreed that the lawyer owes Nason a $1,000 refund of his $2,000 payment based on the amount of work performed on the case.

Court Adopts Recommended Sanction
The board found Sullivan acted with a dishonest and selfish motive; engaged in a pattern of misconduct; committed multiple offenses; failed to cooperate in the disciplinary process; and did not make restitution to his former clients. The board also noted that Sullivan had no prior disciplinary record and cooperated with the bar association after it filed its complaint with the board.

The board proposed that the second year of the suspension be stayed with the conditions that Sullivan not engage in further misconduct; provide proof within 30 days that he paid Horwath $125 and Nason $1,000 in restitution; schedule an evaluation with the Ohio Lawyers Assistance Program  and comply with any recommendations that result from the assessment; complete 12 hours of continuing legal education in law-office management and solo practice law; pay the costs of the disciplinary hearings; and serve one year of monitored probation.

“Sullivan engaged in significant misconduct yet was unable to explain his actions to the panel. Therefore, we agree with the board that an actual suspension is warranted here to protect the public,” the opinion stated.

Opinion Urges Specific Probation Conditions
In her concurring and dissenting opinion, Justice Kennedy cited two rules of the Supreme Court Rules for the Government of the Bar — Gov.Bar R. V(12)(A)(4) and V(21)(B)(1). She wrote that those rules require the Court to impose specific conditions on any term of probation imposed.

Citing her opinion in the 2019 Disciplinary Counsel v. Halligan decision, Justice Kennedy wrote that when specific conditions are not imposed, it “undermines the effectiveness of the monitored-probation scheme” and leaves Sullivan and the probation monitor with no direction regarding their respective duties during the probationary period.

Concurrence Maintains Specific Conditions Are Optional
In his concurring opinion, Justice Fischer maintains that the Rules for the Government of the Bar allow the Court to impose probation without specific conditions. To support his position, Justice Fischer cites his opinion in Halligan and relies on the language in Gov.Bar R. V(12)(A)(4), V(12)(I), and V(21). Justice Fischer also noted dozens of cases in which the Court did not impose specific conditions with probation and indicated three in which it had.

“These cases illustrate that the longstanding practice of this court is to analyze each attorney-discipline case on its own basis and impose sanctions tailored to the particular facts of the case,” he wrote.

A decision that would require specific conditions in all cases “would require us to overturn decades of precedent and scores of decisions by this court,” he concluded.

2018-1765. Dayton Bar Assn. v. Sullivan, Slip Opinion No. 2020-Ohio-124.

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