A Westlake attorney was indefinitely suspended today by the Ohio Supreme Court for taking payments from clients and not working on their cases, then lying to investigators about his interactions with the former clients.

In a unanimous per curiam opinion, the Supreme Court suspended Brendan E. Delay for violating multiple rules governing the professional conduct of Ohio lawyers. In addition to his suspension, Delay must pay nearly $9,200 in restitution in the next 90 days to three of his past clients, and submit to an evaluation by the Ohio Lawyers Assistance Program (OLAP). The Office of the Disciplinary Counsel brought charges against Delay based on his representation of four clients, with some of the infractions taking place more than five years ago.

Family Fights Lawyer on Two Matters
Two of the four matters involved Delay’s longstanding client Brenda Riggs. Riggs and her husband, William, met with Delay around 2010 to discuss a modification or rescission of an oil-and-gas lease on their Harrison County property. About mid-2011, Delay told them they had a case and the couple signed a written fee agreement for Delay to negotiate a replacement lease.

Delay filed the lawsuit and, a few months later, the trial court stayed the action, noting that it was subject to arbitration. Delay did not inform Riggs of the decision or that he appealed the ruling to the Seventh District Court of Appeals. In February 2014, the appellate court determined the validity of the lease had to be resolved in arbitration. Rather than tell the Riggses about the decision, Delay told them the court agreed with his argument and that he received a $5,000 settlement offer from the opposing attorney.

In November 2014, the trial court notified the Riggses that the case was being dismissed because they didn’t move forward with it. Riggs called Delay several times, and when she finally reached him, he said the case was not over. Riggs never heard from Delay again, and the couple paid $401 in court costs following the dismissal of the suit.

In his defense, Delay said he sent three letters to the Riggses informing them of the arbitration and associated fees. Riggs testified that she never received the letters.

A few months before Delay’s last communication with Brenda Riggs, she suggested her daughter, Ashley Baker, hire Delay to represent her in an auto accident lawsuit. Baker said she never received a written fee agreement, although Delay testified he sent her one and she signed it. At his disciplinary hearing, he admitted he did not have the signed agreement.

Baker authorized her mother to communicate with Delay regarding the claim, and Riggs left several messages with Delay’s secretary expressing Baker’s desire to settle the matter. After not hearing from Delay, Baker in April 2015 sent Delay a letter terminating his representation, and she sent a copy to the insurance company of the at-fault driver for the accident.

The insurance company reached Delay to confirm his termination and he denied it, informing the company that he was still entitled to a share of the settlement. The insurance company sought proof of his representation, which Delay never provided.

In May 2016, the insurance company notified Baker the statute of limitations on her personal injury case was would soon expire and she agreed to settle. Delay then asked the insurance company for 30 percent of the amount, which the company declined to provide. Delay then sued the other two drivers involved in the accident without Baker’s consent and told Baker she had to appear at a court hearing regarding his lawsuits.

The Board of Professional Conduct found that Delay violated several rules while representing the Riggses and their daughter, including failure to provide competent representation, engaging in conduct that is prejudicial to the administration of justice, and engaging in conduct that adversely reflects on Delay’s fitness to practice law.

The board also noted that Delay did not cooperate with the disciplinary counsel’s investigation of the complaints filed by the family, including failing to respond to a subpoena and to attend a deposition.

Lost Debt Case Concealed
In 2015, Adam Karoub paid Delay a $2,500 flat fee to represent him in a breach-of-contract case against him filed in Toledo Municipal Court. The plaintiff sought summary judgment against Karoub, and Delay said he sent a copy of the motion to Karoub and his business partner. The two said they never received a copy. Unknown to Karoub, the municipal court granted the plaintiff a $13,000 judgment against him.

Instead of telling his client about the loss, Delay emailed Karoub’s business partner telling him the plaintiff wanted to settle for $10,000. Karoub discovered the judgment against him about two months later.

During his disciplinary proceeding, Delay said he informed Karoub in writing that he did not carry malpractice insurance and that Karoub, who denied receiving the notice, sent back a signed copy. The signed copy Delay produced indicated the document was signed in September 2014, a year before Karoub first contacted Delay, and Karoub stated it did not appear to be his signature.

The board found Delay presented a fraudulent document to substantiate a false statement he made to the disciplinary counsel. The board concluded Delay did not act with reasonable diligence in representing a client, failed to return an unearned fee, made a false statement in connection with a disciplinary matter, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Lawyer Disobeys Court Order
Delay was also sanctioned for accepting $4,500 from Mato and Bosiljka Gracic, natives of Bosnia, who live in Harrison County. They hired Delay to file a lawsuit regarding a gas company lease on their property.

The couple met with Delay in August 2012 and after he agreed to take their case, the Gracics had trouble contacting Delay. In 2013, they received a request for written responses on a form from Delay that indicated it was for a case filed in neighboring Columbiana County. The forms did not include a case number or any explanations about how to fill them out.

When they couldn’t reach Delay, Bosiljka Gracic drove to the Columbiana County courthouse, where the clerk’s office informed her that no case had been filed on her matter. She drove to Delay’s office, waited four hours for him, and left because he never arrived.

After finally reaching him, Delay drafted a complaint for the couple to file in Harrison County Common Pleas Court, and he learned of a February 2014 hearing for the matter. At the hearing, the judge directed Delay to file a pretrial statement within seven days, which he did not do. Delay also failed to respond to the family’s request for information about the case, and they learned in April 2014 the case was dismissed.

The board found Delay violated several rules, including failure to return the unearned $4,500 in fees and repeatedly failing to keep his clients informed about their matters.

Court Consider Sanction
The disciplinary counsel recommended the Court permanently disbar Delay, while Delay suggested that he pay restitution to some of his clients and be publicly reprimanded.

When considering recommending a sanction to the Court, the professional conduct board considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment

The board found several aggravating factors, including Delay’s dishonest and selfish motive, his lack of cooperation with the disciplinary process, his failure to make restitution, and his refusal to acknowledge the wrongful nature of his conduct. The only mitigating factor the board noted was that Delay had no prior disciplinary record.

The board panel hearing Delay’s matter recommended that he pay restitution to the Gracics, Karoub, and the Riggses totaling about $9,200 and that because of his impaired judgment displayed at his hearing, that he submit to an OLAP evaluation.

The Court adopted the recommendation requiring Delay to pay the restitution and follow all recommendations made by OLAP should he seek to be reinstated.

2018-1743. Disciplinary Counsel v. Delay, Slip Opinion No. 2019-Ohio-2955.

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