The Ohio Supreme Court today suspended a Cincinnati attorney who misrepresented to the Court why he failed to meet the deadline to appeal his client’s 25-year prison sentence.

The Supreme Court voted 4-3 for a one-year suspension of Clyde Bennett II based on four violations of the rules governing the conduct of Ohio lawyers. The Board of Professional Conduct recommended a six-month suspension for the violations, all of which stem from the representation of a single client.

The per curiam majority opinion stated the harsher sentence was justified because this was the second time Bennett has been suspended by the Court for actions involving dishonesty, fraud, deceit, or misrepresentation. Bennett was indefinitely suspended in 2010 based on a 2007 federal conviction for which he received a two-year prison sentence.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Patrick F. Fischer, and Mary DeGenaro joined the opinion. Justices Sharon L. Kennedy, Judith L. French, and R. Patrick DeWine dissented without a written opinion. The three justices indicated they would have suspended Bennett for six months.

Attorney, Client Unclear About Representation Terms
John Kelley was convicted of attempted murder and felonious assault in January 2014 and sentenced to 25 years in prison. The First District Court of Appeals affirmed the decision in December 2014. Kelley had 45 days — until Feb. 2, 2015 — to appeal the decision to the Ohio Supreme Court.

In January 2015, Kelley’s mother asked Bennett to represent her son, and Bennett agreed to do it for a $5,000 flat fee. He did not put the agreement in writing or inform the clients that he did not intend to begin work on the case until he was paid the full fee. Kelly’s mother paid $2,500 in mid-January.

Bennett filed a notice of appearance in the case and began some preliminary work after receiving half the fee, but he did not consider that work to have “commenced representation.”

Bennett’s legal strategy was to first pursue appeals in state court, then in federal court. Believing that Kelley’s direct appeal of his sentence would be unsuccessful, Bennett determined that Kelley would be better served by seeking postconviction relief in state court. If that was unsuccessful, he could then pursue a habeas corpus petition in federal court.

Bennett did not file the direct appeal with the Supreme Court by the Feb. 2 deadline, and did not discuss his strategy with Kelley when he met with him shortly after that deadline. Bennett eventually received another $1,000 from the clients and determined he had been paid enough to begin representing Kelley.

A month after the deadline for Kelley’s direct appeal, Bennett filed a one-page motion with the Supreme Court seeking to file a delayed appeal. In his affidavit to support his request, he stated that was not retained by Kelley until “several days after the expiration of the 45-day deadline.” He also stated the family could not pay the funds to hire him until after the appeal deadline had passed.

Appeal Strategy Concealed from Client
Bennett has acknowledged his affidavit intentionally omitted relevant information and was misleading. He indicated he made the omissions to mislead a federal court considering the habeas petition to believe that he made an unsuccessful good faith attempt to appeal Kelley’s sentence in state court.

Bennett did not send a copy of the motion to Kelley or his family, nor did he disclose his purported legal strategy. Kelley’s mother made two more $500 payments to Bennett in April and May 2015. Within days of the final payment, the Supreme Court declined to accept a delayed appeal, and Bennett sent a note to Kelly informing him that the case was denied.

“This concludes my representation of you,” Bennett’s note stated.

Bennett indicated the next legal step was to pursue the federal habeas petition and that he would represent Kelley and his family if they continued to make payments.

Client Files Complaint
Kelley did not respond to repeated communications from Bennett and filed a grievance with the Office of Disciplinary Counsel.

The disciplinary counsel filed a complaint with the professional conduct board in December 2016 charging Bennett with multiple rule violations during his representation of Kelley. Based on stipulations of the parties and evidence presented at a board panel hearing, the board found Bennett violated four rules, and dismissed the other three charges. The violations included Bennett’s failure to keep a client reasonably informed about a matter; charging and accepting a flat fee without informing the client of the potential for a refund if the representation was not completed; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Court Reviews Circumstances
When considering a proposed sanction, the Court examines aggravating circumstances that could increase the punishment for a lawyer and mitigating factors, which could lead to a reduced penalty.

The board found the misconduct caused harm to Kelley, depriving him of a direct appeal and “creating additional procedural hurdles in his quest for federal habeas relief.” The board also indicated it could not reconcile Bennett’s testimony regarding his legal strategy with his actions. After receiving $4,500, he filed a single one-page motion and told Kelley the representation was complete without even telling him about the possibility of a further challenge to the conviction in state court.

The Court did consider that Bennett displayed a cooperative attitude during disciplinary proceedings and presented “strong evidence of his character and reputation from a significant number of lawyers and judges.” However, the opinion noted that few of the letters of support suggested the authors had specific knowledge of the misconduct alleged in Bennett’s handling of Kelley’s case.

Bennett also paid $4,500 in restitution to Kelley’s family, and accepted responsibility for his misconduct.

Court Evaluates Proposed Sanction
In recommending a six-month suspension, the board cited six cases in which the Court imposed one-year suspensions with six month stayed for attorneys, like Bennett, who made false or misleading statements to a court. The opinion noted that only one of the attorneys disciplined in those cases had a prior disciplinary record and that none had a prior violation involving misrepresentation.

The opinion stated that when a prior attempt at discipline proves ineffective, then further safeguards should be imposed on a lawyer or the lawyer should be removed from practice. The Court stated Bennett had a prior indefinite suspension for engaging in dishonest conduct that resulted in a two-year prison term, and then he engaged in additional dishonesty and misrepresentation four years after being reinstated.

“Therefore we conclude that his misconduct warrants a greater sanction than the six-month suspension recommended by the board or the one-year with six months stayed on conditions that we imposed in the cases relied upon by the board,” the Court stated.

2018-0252. Disciplinary Counsel v. Bennett, Slip Opinion No. 2018-Ohio-3973.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.