The Ohio Supreme Court permanently disbarred a Cleveland attorney after finding “a significant deficiency” in his “core ethical obligations of honesty, trustworthiness, diligence and reliability.”
A 5-2 majority held in a per curiam opinion that numerous aggravating factors outweighed the few mitigating circumstances in the case of John Barry Frenden, who was admitted to the practice of law in Ohio in 2003 and who was charged with many instances of professional misconduct by the Cleveland Metropolitan Bar Association in 2015.
Two days of a disciplinary hearing before a panel of the Board of Professional Conduct resulted in a report and findings that Frenden’s misconduct began in 2008 with his representation of Diane Sigler.
A summary of Frenden’s disciplinary case states that Sigler retained him to represent her in a personal injury matter but he failed to put a fee agreement in writing and then failed to file any of the required documents before a scheduled trial.
Frenden also erroneously listed Sigler’s husband, instead of her son, as a plaintiff.
The attorney then voluntarily dismissed the case days before trial without Sigler’s knowledge or consent.
When he refiled the action, Frenden again incorrectly named Sigler’s husband as a plaintiff then failed to appear for a conference and a hearing.
He then settled the case without Sigler’s knowledge or consent for less than half of his client’s damages.
In 2012, Frenden deposited the settlement check into his client trust account without an endorsement from Sigler, who filed a malpractice action in 2015.
In a similar case that began in 2011, Frenden represented Diane Dubois in a personal injury matter. The panel found that he failed to provide competent representation in that case too.
According to the disciplinary report, Frenden failed to understand the difference between Medicaid and Medicare claims, failed to obtain medical records, failed to evaluate the seriousness of his client’s claims before negotiating a settlement and failed to obtain an adequate settlement on behalf of his client.
The board also found that Frenden did not respond to his client’s request for information, forged her signature on a medical release, had her endorse a check without disclosing the amount and mishandled settlement proceeds.
Court documents also identify a third client, A.S., whom Frenden met at a club where A.S. worked as an exotic dancer. In October 2013, Frenden began to represent A.S. in a divorce and child support matter.
Case summary states that Frenden did not have professional liability insurance at the time and failed to inform his client of that fact.
A.S. testified that she paid Frenden $3,000 but that he “was always asking for more money.”
At one point, Frenden asked A.S. to use her government food card to buy him groceries and then had her clean his house in exchange for a $20 per hour credit applied to her legal fees. Frenden did not maintain records of the payments.
Frenden also sent A.S. a text threatening to take her children to Children and Family Services if she did not pay him more money.
The high court’s opinion states that Frenden took risqué photos of A.S. and planned to publish them in a calendar and apply half of the proceeds to her legal fees.
A.S. testified that she engaged in sexual relations with Frenden because she felt that it was the only way to get him to leave her alone and stop the extortion.
In early 2014, Frenden’s secretary and former girlfriend, Amber Bell, took custody of A.S.’s kids though court documents do not state a reason for the arrangement.
A.S. expressed her desire to regain custody by March but Bell retained an attorney and sought permanent custody of the children.
The board’s findings indicate that Frenden continued to represent A.S. despite the obvious conflict of interest and it determined that he had engaged in conduct that was “prejudicial to the administration of justice.”
“At the time of Frenden’s disciplinary hearing, he could not properly account for approximately $18,000 that remained in his client trust account,” the court’s per curiam opinion states. “He admitted that his client-trust-account records were inaccurate and in disarray and that he did not even know what the term ‘reconciliation’ meant.
“The evidence also shows that in two separate cases, he disbursed more money than he had received.”
Considering the board’s findings after the disciplinary proceedings, the Supreme Court’s majority noted that Frenden did not have a prior disciplinary record and that “a stressful period in his life after discovering that he was not the father of a child he had believed to be his” may have contributed to some of his poor decisions.
“Aggravating factors found by the panel include Frenden’s dishonest and selfish motive; his pattern of misconduct involving multiple offenses; his failure to cooperate in the disciplinary process — as demonstrated by his repeated requests for extensions of time as deadlines approached and his failure to provide complete responses to relator’s investigator; his false statements to relator’s investigator about his application to obtain professional liability insurance; the harm he caused to vulnerable clients; and his failure to distribute Sigler’s settlement proceeds,” the high court wrote.
In its report to the board, the disciplinary panel recommended an indefinite suspension, but the board noted Frenden’s egregious conduct and issued a recommendation to the high court that he be permanently disbarred. Neither party to the case objected.
“Because we find that the numerous aggravating factors present in this case far outweigh the two mitigating factors identified and relied upon by the panel, we agree that permanent disbarment is the proper sanction for Frenden’s misconduct,” the Supreme Court concluded. “Accordingly, John Barry Frenden is permanently disbarred from the practice of law in Ohio.”
Chief Justice Maureen O’Connor was joined by Justices Paul Pfeifer, Judith Lanzinger, Judith French and William O’Neill to form the majority.
Justices Terrence O’Donnell and Sharon Kennedy dissented in favor of indefinite suspension.
The case is cited Cleveland Metro. Bar Assn. v. Frenden, Slip Opinion No. 2016-Ohio-7198.