On October 2, 2018, the Supreme Court of Ohio suspended Cincinnati attorney Clyde Bennett, II’s license to practice law for one year. The Board of Professional Conduct, the trial arm of the disciplinary system, recommended a one-year suspension with six months stayed. The Ohio Supreme Court, however, enhanced the sanction, as is its prerogative under Ohio’s attorney disciplinary process.
Bennett missed the filing deadline for appealing his client’s conviction for attempted murder and felonious assault and 25-year prison sentence. According to Bennett, he had decided that a direct appeal to the Supreme Court of Ohio and a federal habeas petition was a better course of action than appealing to the 1st District Court of Appeals. However, he did not inform his client of that decision when the two men met after the Court of Appeals deadline had expired.
The Supreme Court stated that Bennett did not have a sufficient understanding that habeas proceedings first required the exhaustion of all state remedies. He also failed to inform his client’s mother that he required the entirety of the $5,000 flat fee before he would start work on the case. Nor did he reduce the fee agreement to writing. The client’s mother paid Bennett $2,500, which Bennett deemed earned upon receipt and deposited into his general business account. After receiving another $1,000, Bennett began work on the case by filing a Notice of Appearance and filing a one-page motion for delayed appeal with the Supreme Court of Ohio. Bennett represented to the Supreme Court that the reason for the delay was that he was not retained until several days after the expiration of the 45-day time period for filing the appeal.
The Supreme Court deemed Bennett’s Affidavit in Support of Jurisdiction misleading in that it omitted relevant information. It called the omissions significant. It said it was designed to mislead a subsequent court considering a habeas petition that a good faith effort had been made to avail the client of his state law remedies. The Supreme Court denied Bennett’s motion for delayed appeal.
Bennett’s client hired another attorney who filed a motion for delayed appeal with the Supreme Court of Ohio on the basis of Bennett’s ineffective assistance of legal counsel. The Supreme Court denied that motion. The U.S. District Court for the S.D. of Ohio, Western Division, later determined that Bennett’s ineffective assistance excused the client’s failure timely to file the first appeal but denied the habeas petition, nevertheless.
The Supreme Court of Ohio found that Bennett’s conduct failed to give competent representation to his client, failed reasonably to keep his client informed of the status of the matter, violated fees rules of ethics by receiving an “earned upon receipt” retainer without a provision for refunding fees if the representation was not completed and making misrepresentations to the Supreme Court of Ohio.
In issuing sanctions, the Supreme Court noted that the purpose of attorney disciplinary proceedings was to protect the public, not to punish the offender. However, it also noted its propensity to enhance a sanction where the attorney has previously committed violations of a similar nature. It noted that Bennett had previously been indefinitely suspended for engaging in dishonest conduct that also resulted in a felony conviction and a two-year prison sentence. Because the current misconduct also involved misrepresentation, the Supreme Court enhanced Bennett’s sanction and suspended his license to practice law for one year rather than the suggested one year with six months stayed.
Disciplinary Counsel v. Bennett, 2018-Ohio-3973.
Eye on Ethics 