[Cite as Cleveland Metro. Bar Assn. v. Kelly, 132 Ohio St.3d 292, 2012-Ohio-2715.] 

CLEVELAND METROPOLITAN BAR ASSOCIATION v. KELLY. 

[Cite as Cleveland Metro. Bar Assn. v. Kelly, 

132 Ohio St.3d 292, 2012-Ohio-2715.] 

Attorneys at law—Misconduct—Neglect of entrusted legal matter—Failure to 

cooperate in disciplinary investigation—Indefinite suspension. 

(No. 2011-2038—Submitted January 18, 2012—Decided June 20, 2012.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 11-037. 

__________________ 

Per Curiam. 

{¶ 1} Respondent, Thomas R. Kelly of Lakewood, Ohio, Attorney 

Registration No. 0040319, was admitted to the practice of law in Ohio in 1988. 

On November 3, 2009, we suspended him for his failure to register as an attorney 

for the 2009-to-2011 biennium. In re Attorney Registration Suspension of Kelly, 

123 Ohio St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256. That suspension 

remains in effect. 

{¶ 2} On April 11, 2011, relator, Cleveland Metropolitan Bar 

Association, filed a three-count complaint alleging that Kelly had violated the 

Disciplinary Rules of the Code of Professional Responsibility and the Rules of 

Professional Conduct in his representation of two clients and that he had failed to 

cooperate in the ensuing disciplinary investigations.1

 

{¶ 3} Although the Board of Commissioners on Grievances and 

Discipline served the complaint by certified mail and Kelly signed for it, he did 

 

1. Relator charged respondent with misconduct under applicable rules for acts occurring before 

and after February 1, 2007, the effective date of the Rules of Professional Conduct, which 

supersede the Disciplinary Rules of the Code of Professional Responsibility. 
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not file an answer. Consequently, relator moved the board to find Kelly in 

default. 

{¶ 4} The board appointed a master commissioner, who found Kelly in 

default and found that relator had proved by clear and convincing evidence that 

Kelly had neglected one client’s legal matter and had failed to respond to the 

ensuing disciplinary investigation, but concluded that there was insufficient 

evidence to support relator’s allegations regarding a second client. Based upon 

her findings of misconduct, the master commissioner recommended that Kelly be 

indefinitely suspended from the practice of law. 

{¶ 5} The board adopted the master commissioner’s findings of fact and 

misconduct and recommends that count two of the complaint be dismissed. 

However, the board recommends that Kelly be suspended from the practice of law 

for two years, with one year stayed on the condition that he refund $1,200 to his 

client. We adopt the board’s findings of fact and misconduct, with some 

modification, as our own, and dismiss count two of relator’s complaint. However, 

based upon the sanctions imposed for comparable misconduct, we indefinitely 

suspend Kelly from the practice of law in Ohio. 

Misconduct 

{¶ 6} With respect to count one, the board found that in June 2009, 

Robert E. Jakubs retained Kelly to represent him in a divorce. He paid Kelly 

$1,000 in three installments. Kelly wrote three letters to Jakubs’s wife suggesting 

dissolution of the marriage and twice met with Jakubs to discuss the status of the 

case. After those meetings, Kelly failed to respond to Jakubs’s telephone calls for 

three weeks. He later spoke with Jakubs and requested an additional $200 for 

filing fees. Jakubs paid the money but never heard from Kelly again. Jakubs 

filed his action pro se and then hired another attorney. Kelly has not refunded his 

money. 
January Term, 2012 

3

{¶ 7} Although relator’s complaint charged Kelly with violations of 

Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in 

representing a client), 1.4(a)(4) (requiring a lawyer to comply as soon as 

practicable with reasonable requests for information from the client), 1.5(a) 

(prohibiting a lawyer from making an agreement for, charging, or collecting an 

illegal or clearly excessive fee), and 1.16(e) (requiring a lawyer to promptly 

refund any unearned fee upon the lawyer’s withdrawal from employment), the 

master commissioner and board found only that he had “neglected the 

representation of Jakubs.” 

{¶ 8} We agree that Kelly violated Prof.Cond.R. 1.3 but also find that he 

failed to keep Jakubs reasonably informed about the status of his matter and failed 

to comply with his reasonable requests for information in violation of 

Prof.Cond.R. 1.4(a)(4). Moreover, by collecting his fee from Jakubs and then 

failing either to perform the work or refund the money, Kelly violated 

Prof.Cond.R. 1.5(a) and 1.16(e). See, e.g., Columbus Bar Assn. v. Harris, 108 

Ohio St.3d 543, 2006-Ohio-1715, 844 N.E.2d 1202 (finding that an attorney who 

received a $2,000 retainer but did not file any pleadings or return the client’s calls 

and refunded only $860 after the representation was terminated charged an illegal 

or clearly excessive fee). 

{¶ 9} The second count of relator’s complaint alleges that Kelly 

voluntarily dismissed a malpractice action against a nursing home without his 

client’s consent and that his failure to attach a Civ.R. 10(d) affidavit of merit to 

the refiled complaint resulted in the subsequent dismissal of the action. Relator 

alleged that Kelly’s conduct with respect to this client prior to February 1, 2007, 

violated DR 6-101(A)(1) (prohibiting a lawyer from handling a matter that he is 

not competent to handle without obtaining assistance from a lawyer who is 

competent to handle it), 6-101(A)(3) (prohibiting neglect of an entrusted legal 

matter), 7-101(A)(1) (prohibiting a lawyer from intentionally failing to seek the 
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lawful objectives of his client), and 7-101(A)(2) (prohibiting a lawyer from 

intentionally failing to carry out a contract of employment for legal services) and 

that his conduct after that date violated Prof.Cond.R. 1.3 and 1.4(a)(3). 

{¶ 10} The master commissioner and board, however, found that the only 

evidence submitted in support of these allegations was a certified copy of the 

malpractice complaint filed on behalf of the affected client and concluded that it 

did not clearly and convincingly demonstrate that Kelly committed the alleged 

misconduct. Like the complaint in the disciplinary action, the malpractice 

complaint contains statements of the respondent’s alleged misconduct—not 

findings by a court that the alleged misconduct occurred. Gov.Bar R. 

V(6)(F)(1)(b) specifies that a motion for default shall contain “[s]worn or certified 

documentary prima facie evidence in support of the allegations made.” We have 

previously instructed relators to submit evidence that directly establishes the 

charges of misconduct, preferably in the form of affidavits executed by the 

grievants themselves. Dayton Bar Assn. v. Sebree, 104 Ohio St.3d 448, 2004-

Ohio-6560, 820 N.E.2d 318, ¶ 9. And when the grievant is unavailable, an 

affidavit executed by an investigator may suffice, provided the affidavit explains 

why the grievant’s sworn statement is unobtainable in addition to reciting the 

investigator’s own knowledge of the alleged misconduct. Id. Therefore, we 

adopt the board’s implicit finding that a certified copy of an unsworn malpractice 

complaint is not an adequate substitute for a grievant’s affidavit, and we dismiss 

the allegations contained in count two of relator’s complaint. 

{¶ 11} With regard to count three of relator’s complaint, the master 

commissioner and board found that relator had engaged in extensive efforts to 

inform Kelly of the grievance and the malpractice suit filed against him and to 

obtain his cooperation in the resulting disciplinary investigation. Numerous 

letters mailed to the address Kelly had provided to the Office of Attorney Services 

were returned unclaimed. Relator also attempted to hand-deliver a letter, but it 
January Term, 2012 

5

appeared that Kelly no longer resided at his registered address. A private 

investigator retained by relator was unable to locate Kelly. 

{¶ 12} On September 16, 2010, Kelly called relator’s office and spoke 

with Heather Zirke, assistant counsel. He advised her that he had received a letter 

from relator regarding the Jakubs grievance and that he was aware of the 

malpractice suit against him. He provided relator with an updated address and 

stated that he did not intend to practice law any longer. He later spoke with 

relator’s investigator and stated that he would retain legal counsel. Relator sent 

several letters to Kelly’s new address by regular and certified mail, notifying him 

that the board had found probable cause that he had violated disciplinary rules and 

stating relator’s intent to file a complaint with the board, but the certified letters 

were returned unclaimed, and Kelly did not respond. 

{¶ 13} Based upon these facts, the master commissioner and board found 

that Kelly had failed to cooperate with relator’s investigation, in violation of 

Prof.Cond.R. 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a 

demand for information by a disciplinary authority during an investigation) and 

Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a disciplinary 

investigation). We adopt the board’s finding of fact and misconduct. 

Sanction 

{¶ 14} When imposing sanctions for attorney misconduct, we consider 

relevant factors, including the ethical duties that the lawyer violated and the 

sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio 

St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final 

determination, we also weigh evidence of the aggravating and mitigating factors 

listed in BCGD Proc.Reg. 10. Disciplinary Counsel v. Broeren, 115 Ohio St.3d 

473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. 

{¶ 15} As aggravating factors in this case, we find that Kelly has refused 

to acknowledge the wrongful nature of his conduct, caused harm to a vulnerable 
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client, and failed to make restitution. See BCGD Proc.Reg. 10(B)(1)(g), (h), and 

(i). The only mitigating factor is that, except for his current attorney-registration 

suspension, Kelly does not have a prior disciplinary record. See BCGD Proc.Reg. 

10(B)(2)(a). 

{¶ 16} The master commissioner found that an indefinite suspension was 

the appropriate sanction for Kelly’s misconduct. The board, however, 

recommends that Kelly be suspended from the practice of law in Ohio for two 

years, with one year stayed on the condition that he refund the $1,200 he received 

from Jakubs. 

{¶ 17} An attorney’s neglect of an entrusted legal matter and failure to 

cooperate in the ensuing disciplinary investigation generally warrant an indefinite 

suspension. Disciplinary Counsel v. Hoff, 124 Ohio St.3d 269, 2010-Ohio-136, 

921 N.E.2d 636, ¶ 10; Disciplinary Counsel v. Mathewson, 113 Ohio St.3d 365, 

2007-Ohio-2076, 865 N.E.2d 891, ¶ 19. Kelly not only neglected a client’s legal 

matter and failed to cooperate in the resulting disciplinary investigation; he also 

failed to keep his client reasonably informed about the status of his matter, failed 

to comply with his reasonable requests for information, and in effect 

misappropriated that client’s funds by collecting and retaining a fee without 

performing the work. Thus, we agree that an indefinite suspension, as 

recommended by the master commissioner, is the appropriate sanction for this 

misconduct. 

{¶ 18} Accordingly, Thomas R. Kelly is indefinitely suspended from the 

practice of law in Ohio. Costs are taxed to Kelly. 

Judgment accordingly. 

O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, CUPP, and 

MCGEE BROWN, JJ., concur. 

PFEIFER and O’DONNELL, JJ., dissent and would impose a two-year 

suspension, with one year stayed on condition, as recommended by the board. 
January Term, 2012 

7

__________________ 

Frantz Ward, L.L.P., Patrick F. Haggerty, and Andrew M. Szilagyi, for 

relator. 

______________________