The Ohio Supreme Court today suspended a Dayton attorney who failed to file an appeal in a criminal case then lied to his clients about the matter.

In a unanimous per curiam opinion, the Supreme Court suspended Clinton Wilcoxson II for two years with 18 months stayed with conditions. The charges leading to Wilcoxson’s current suspension were based on conduct occurring nine months after the Court had previously suspended him for ethical violations.

In July 2018, the Court imposed a conditionally stayed six-month suspension after finding Wilcoxson neglected a client matter, failed to reasonably communicate with the client, failed to return the client’s file, and failed to cooperate in the resulting disciplinary investigation

Attorney Hired to Appeal Criminal Conviction
In January 2019, Scott and Lori O’Connor hired Wilcoxson to appeal the criminal conviction of their son, Daniel. The O’Connors agreed to pay a flat fee of $5,000 — $3,000 up front with the remaining $2,000 to be paid in monthly installments.

Wilcoxson filed Daniel’s notice of appeal with the Second District Court of Appeals. The deadline for filing a required brief was Feb. 19. Although Wilcoxson received the court’s notice, he did not file a brief or seek a deadline extension.

In March, the court of appeals ordered Wilcoxson to either file Daniel’s brief within 14 days or explain why the case should not be dismissed. Wilcoxson did not tell Daniel or his parents about the court’s order, and he took no action on it. The court dismissed the appeal.

Parents Seek Information from Lawyer
Lori O’Connor emailed Wilcoxson in early June inquiring about the status of the case and stating that her attempts to reach him had been unsuccessful. Later that month, she went to Wilcoxson’s office and spoke with him. He informed her that he had experienced some medical difficulties and had failed to file the brief.
Wilcoxson prepared a refund check for the portion of the fee that the O’Connors had paid, but after discussing the matter with Lori, he agreed to request that the appellate court reopen the appeal and promised to complete the representation for the amount the family had paid him.

Wilcoxson prepared a motion to reopen the appeal and a brief, but he never filed those documents with the court.

When Lori emailed Wilcoxson in July, he sent her an email falsely stating: “The motion was sent by runner on Monday afternoon. I have not received a return yet. Likely received by the court on Tuesday morning.” Ten days later, Lori again asked about the status of the case, and Wilcoxson again emailed her that he was awaiting acceptance of the case by the clerk of court, and told her he would have an answer in a few weeks.

Wilcoxson did not respond to additional inquiries from the O’Connors. The O’Connors hired a new lawyer to represent their son and learned that Wilcoxson had never attempted to reopen Daniel’s appeal or file a brief.

Daniel’s new attorney was able to reopen his appeal in October 2019. The Second District ultimately affirmed Daniel’s conviction. By that time Wilcoxson had refunded the O’Connors the $3,300 they had paid him.

Attorney Attempts to Deflect Blame
In August 2020, the Office of Disciplinary Counsel filed a complaint with the Board of Professional Conduct, charging Wilcoxson with several rule violations regarding the handling of the O’Connors’ case.

In response to a disciplinary counsel inquiry about the emails sent to Lori, Wilcoxson claimed he did not recall sending those emails. Later he acknowledged that he “must have at some point.” At his disciplinary hearing, he testified that his assistant may have sent the emails. The assistant denied she had. Wilcoxson also stated he would not dispute Lori’s claim that during a telephone call he told her he sent a courier to the court with a filing to have the appeal reinstated.

The board did not find Wilcoxson’s statements credible, and found he violated several rules, including failing to act with reasonable diligence on a client matter; failing to keep his client reasonably informed about the status of a matter; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The board noted Wilcoxson was disciplined for engaging in similar misconduct just nine months before he missed the first deadline in Daniel’s case. The board concluded that he acted with a dishonest or selfish motive by attempting to conceal his misconduct from the O’Connors.

The Court’s opinion noted that some attorneys who similarly failed to file appeals for their clients after accepting payment had received fully stayed suspensions.

“The sum of Wilcoxson’s misconduct — including his deliberately false statements to the O’Connors — warrants the imposition of an actual suspension from the practice of law,” the Court stated.

The Court stayed 18 months of his two-year suspension with the conditions that Wilcoxson not commit further misconduct and pay the costs of the disciplinary proceedings. To be reinstated, Wilcoxson must prove he has abided by the terms of the two-year contract that he entered with the Ohio Lawyers Assistance Program in December 2020. If reinstated, he must serve a one-year period of monitored probation focused on his law-office management and client communications.

2021-0764. Disciplinary Counsel v. Wilcoxson, Slip Opinion No. 2021-Ohio-3964.

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