[Cite as Disciplinary Counsel v. Nittskoff, 130 Ohio St.3d 433, 2011-Ohio-5758.]

D ISCIPLINARY C OUNSEL v. N ITTSKOFF . [Cite as Disciplinary Counsel v. Nittskoff,

130 Ohio St.3d 433, 2011-Ohio-5758.] Attorneys—Misconduct—Failure to file tax returns for es tate—Failure to return files upon client’s request —Mismanagement of c lient trust account— Failure to cooperate with disciplinar y authority—Failure to inform clients of lack of professional-liability insurance—Indefinite suspension. (No. 2010-2245—Submitted April 6, 2011— Decided November 10, 2011.)
O N C ERTIFIED R EPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 09-089.

__________________ Per Curiam. {¶ 1} Respondent, David Nittskoff, of South Euclid, Ohio, Attorney Registration No. 0025471, was admitted to th e practice of law in Ohio in 1970. {¶ 2} In early 2009, relator, Disciplinary Counsel, received a grievance alleging that Nittskoff had failed to inform his clients that he did not carry malpractice insurance and had neglected a client matter, causing the client to incur significant tax penalties. {¶ 3} In December 2009, relator filed a formal complaint alleging that
Nittskoff had committed several violations of the Ohio Code of Professional Responsibility and the Rules of Professi onal Conduct. 1 Nittskoff did not answer.

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. Although both the former and current rules are cited for the same acts, the allegations comprise a single continuing ethical violation. Disciplinary Counsel v. Freeman , 119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.S UPREME C OURT OF O HIO

2 {¶ 4} On April 30, 2010, relator filed an amended complaint; again,
Nittskoff did not answer. Relator f iled a motion for default judgment on September 21, 2010. {¶ 5} The matter was referred by the board to a master commissioner, who made findings of fact and conclusi ons of law and recommended a one-year suspension from the practice of law with six months stayed, but without naming any conditions. The Board of Commissioners on Grievances and Discipline adopted the findings of fact and conclusi ons of law of the master commissioner, but recommended that Nittskoff be suspended from the practice of law for six
months. {¶ 6} We issued an order to show cause why the recommendation of the board should not be adopted by the cour t. Relator responded, objecting to the board’s recommendation and requesting this court to enter an order disbarring Nittskoff. Nittskoff did not file a response. {¶ 7} We adopt the board’s findings of f act and conclusions of law, but suspend Nittskoff from the practice of law in Ohio indefinitely. We additionally order that as a condition of reinstatement Nittskoff shall satisfy the civil judgment obtained against him on behalf of the estate of Jack Gordon and shall submit quarterly progress reports to relato r on his payment of the judgment.
Misconduct {¶ 8} Nittskoff and the late Jack Gordon formed an attorney-client relationship beginning in the late 1970s and early 1980s. Nittskoff also represented other members of Gordon’s fa mily. Gordon operated a bicycle shop
near downtown Cleveland. {¶ 9} Gordon died on September 27, 2005, leaving an estate and the Jack Gordon Revocable Trust. Stanley P. Fra nkel, successor trustee of the revocable trust and administrator of the estate, c ontacted Nittskoff after Gordon’s death.
Nittskoff then contacted Gordon’s heirs and attempted to deter mine the extent ofJanuary Term, 2011

3 the trust’s assets. He then prepared partially completed handwritten drafts of probate court filings and conferred with Frankel. {¶ 10} In 2006 and early 2007, Frankel continued to ask Nittskoff for the
status of Gordon’s estate. Nittskoff info rmed Frankel that everything was being
taken care of and that he would take care of any tax penalty that might be
assessed. Frankel terminated Nittskoff on April 2, 2007, due to poorly prepared probate forms, errors in draft estate-tax returns, and his failure to file estate-tax returns, which Frankel feared would lead to interest and penalties. {¶ 11} On November 5, 2007, the Internal Revenue Service informed
Frankel that an estate-tax return had not been filed and that the Jack Gordon estate owed a penalty of $317,146.20 and intere st in the amount of $134,358.26, totaling $451,504.46. Frankel then repeatedly requested that Nittskoff pay both the penalty and interest or reimburse the es tate for the entire amount. Nittskoff never paid either the penalty or in terest, nor did he ever res pond to Frankel. The estate paid the taxes, pena lty, and interest. {¶ 12} In October 2008, Frankel filed a le gal-malpractice claim against Nittskoff and Nittskoff’s law firm in the Cuyahoga County Court of Common
Pleas. See Frankel v. Nittskoff , Cuyahoga C.P. No. CV-08-673876. In April 2009, the court entered a default judgment against Nittskoff and the firm in the amount of $451,504.46, and Frankel filed a j udgment lien. In March 2010, acting pro se, Nittskoff filed a motion for relief from judgment pursuant to Civ.R. 60(B),
but the motion was denied. {¶ 13} Frankel, through his attorney, also requested that Nittskoff return all file materials relating to the trust and the estate, but Nittskoff did not comply.
Frankel stated in an affidavit dated Se ptember 8, 2010, that Nittskoff still had not returned any of the requested materials.S UPREME C OURT OF O HIO

4 {¶ 14} On March 25, 2009, relator sent Nittskoff a letter of inquiry regarding the grievance. However, N ittskoff did not respond, nor did he respond to relator’s second inquiry. {¶ 15} On July 21, 2009, in response to a notice of deposition and subpoena duces tecum, Nittskoff appeared at relator’s office with the requested materials. During the deposition, Nittskoff te stified that he had failed to maintain professional-liability insurance for himself and his firm and that he had not informed any of his clients of this fact. {¶ 16} In 2009, Nittskoff maintained an interest-bearing account at Charter One Bank. On October 27, 2009, relator received a notice from the bank that the IOLTA account was overdrawn. During its investigation, relator discovered that the certificate of authority for the Nittskoff firm had been canceled by the Ohio secretary of state in 2007 for failure to pay franchise taxes. {¶ 17} On November 30, 2009, relator sent a letter of inquiry regarding
the IOLTA-account overdraft via certifie d mail; Nittskoff did not respond. Nor did Nittskoff send a response to relato r’s second letter of inquiry, sent on December 31, 2009. {¶ 18} On December 4, 2009, a probable-cau se panel certified the matter to the board. The first formal compla int was filed on December 7, 2009, asserting two counts: (1) that Nittskoff failed to file the requisite tax returns for the Jack Gordon estate, did not reimburse the esta te for the tax pena lties assessed against it, and failed to pay the judgment obtained against him by the successor trustee and the estate administrator and (2) that he failed to inform any of his clients,including Frankel, that neither he nor the Nittskoff firm maintained professionalliability insurance. {¶ 19} Nittskoff never filed an answer. On April 30, 2010, relator filed an amended complaint to add a thir d count, alleging that Nittskoff failed to maintainJanuary Term, 2011

5 sufficient funds in his IOLTA account and failed to respond to re lator’s letters of inquiry. Again, Nittskoff did not file an answer. {¶ 20} On September 21, 2010, relator f iled a motion for default. The
master commissioner recomme nded a sanction of a one-year suspension from the practice of law with six months suspe nded. The board adopted the findings of
fact and conclusions of law of the ma ster commissioner and granted the motion for default. However, the board rejected relator’s recommendation that Nittskoff
be disbarred and recommended that he be suspended from the practice of law for
six months.
Count One {¶ 21} With respect to count one, whic h pertains to Nittskoff’s conduct regarding the Gordon estate and trust matters, the board found by clear and convincing evidence that he had vi olated DR 1-102(A)(5) and Prof.Cond.R. 8.4(d) (engaging in conduct prejudicial to the administration of justice), DR 1- 102(A)(6) and Prof.Cond.R. 8.4(h) (engaging in conduct that adversely reflects on the lawyer’s fitness to practice law), DR 6-101(A)(1) (handling a legal matter that he is not competent to handle), 6-101(A)(3 ) (neglecting a legal matter entrusted to him) and Prof.Cond.R. 1.1 (failing to provide competent legal representation to a client), 1.3 (failing to act with reasona ble diligence and promptness), 1.4(a)(2) (failing to reasonably consult with a client about the means for achieving the client’s objectives), 1.4(a)(3) (failing to keep the client reasonably informed), 1.4(a)(4) (failing to respond to requests fo r information from the client), and 1.4(b) (failing to explain a matter so as to permit the client to make informed decisions).
Count Two {¶ 22} On count two, the board furthe r found by clear and convincing
evidence that Nittskoff’s failure to inform his clients that he did not maintain professional-liability insura nce constituted a violation of DR 1-102(A)(6) and 1-S UPREME C OURT OF O HIO

6 104(A) (failing to inform a client that the lawyer does not ma intain professionalliability insurance).
Count Three {¶ 23} On the third and final count of the amended complaint, the board
found that Nittskoff’s misconduct in allowi ng an overdraft of his IOLTA account and his failure to respond to relator’s tw o letters of inquiry violated Prof.Cond.R. 8.1(b) (failing to respond to a request for information from a disciplinary authority in connection with a disciplinary matter) and 8.4(h).
Sanction {¶ 24} 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 on sanc tions, we also weigh evidence of the aggravating and mitigating factors listed in Section 10(B) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. {¶ 25} The board found that Nittskoff’s lack of cooperation in the disciplinary process, including his failure to answer the complaint and the amended complaint, was an aggravating factor. See BCGD Proc.Reg. 10(B)(1)(e). The board also found an aggravating factor in the vulnerability of and resulting harm to the victims of Nittskoff’s misconduct. See BCGD Proc.Reg. 10(B)(1)(h). {¶ 26} As mitigating factors, the board found that Nittskoff had no prior disciplinary record and no dishonest or selfish motive. See BCGD Proc.Reg. 10(B)(2)(a) and (b). The board also found that Nittskoff’s compliance with the subpoena duces tecum demonstrated a full and free disclosure to the board and aJanuary Term, 2011

7 cooperative attitude toward the proceedings . See BCGD Proc.Reg. 10(B)(2)(d). However, we believe that any mitiga ting effect of Nittskoff’s compelled appearance at the deposition is outweighe d by his failure to respond to relator’s correspondence and his failure to file an answ er or otherwise appear in this action. The board found the imposition of other pena lties or sanctions, namely the civil judgment against Nittskoff, to be mitigating under BCGD Proc.Reg. 10(B)(2)(f). {¶ 27} Relator filed objections to the board’s report, arguing that
Nittskoff’s conduct warrants disbarment ra ther than a six-month suspension as recommended by the board. Relator argues that the board erroneously relied on Nittskoff’s “entirely unverified” deposition testimony. Had Nittskoff participated in the formal disciplinary process as re quired, relator argues, relator would have been able to test Nittskoff’s statements through regular discovery. {¶ 28} Relator further argues that the board relied on claims by Nittskoff that are entirely irrelevant to the disciplinary case and the determination of the appropriate sanction. For example, the bo ard cited Nittskoff’s testimony that he
did not ask the IRS for an extension to file tax returns because he did not believe that the estate was large enough to pay taxes. Relator argues that while that statement may be an accurate reflection of Nittskoff’s reasoning, it is not relevant or mitigating. As another example, relator cites the board’s reliance on Nittskoff’s “irrelevant and hearsay” depos ition testimony to conclude that the value of Gordon’s bicycle shop was zero. {¶ 29} Relator argues that the only relevant information the board needed
in order to determine the appropriate sanction in the Gordon matter is that (1) Nittskoff agreed to provide legal representation to the Jack Gordon estate and to Frankel and (2) Nittskoff did not file certain estate-tax returns and failed to ask for
an extension of time to file . Relator argues that “[t] his Court should reject the
board’s recommendation and enter a sanction that is consistent with the facts of this case and prior decisions.”S UPREME C OURT OF O HIO

8 {¶ 30} We repeatedly have recognized that neglect of an entrusted legal matter, coupled with a failure to c ooperate in the ensuing disciplinary investigation, warrants an indefi nite suspension. See, e.g., Disciplinary Counsel
v. Meade , 127 Ohio St.3d 393, 2010-Ohio-6209, 939 N.E.2d 1250, ¶ 20. Meade involved an attorney who failed to cooperate in multiple disciplinary investigations, failed to act with reasonable diligence and promptness in representing a client resulting in the dismissal of an appeal of a deportation order,
and failed to deliver th e client’s file to her new couns el. We ordered an indefinite suspension. See also Disciplinary Counsel v. Hoff , 124 Ohio St.3d 269, 2010- Ohio-136, 921 N.E.2d 636, ¶ 10 (indefinite suspension imposed on attorney who
failed to return unearned fees and fa iled to cooperate with disciplinary authorities); Cleveland Bar Assn. v. Davis , 121 Ohio St.3d 337, 2009-Ohio-764, 904 N.E.2d 517 (indefinite suspension appr opriate for attorney who neglected
several of his client s, failed to refund retainers fo r work he did not perform, and failed to cooperate in the disciplinary investigation); Disciplinary Counsel v.
Mathewson , 113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891 (attorney indefinitely suspended for neglecting clients’ cases, mismanaging his client trust account, and failing to cooperate thro ughout the disciplinary process); Columbus
Bar Assn. v. Harris , 108 Ohio St.3d 543, 2006-Ohio-1715, 844 N.E.2d 1202 (indefinite suspension imposed on attorney who neglected clients’ cases, failed to keep clients apprised of the status of their cases, allowed her malpractice insurance to lapse, and did not coope rate with the disciplinary process). {¶ 31} The facts of this case are closer to the facts in the foregoing
decisions than to those in which less se vere sanctions were imposed. Here, the evidence demonstrates clearly that Nittskoff neglected his client by failing to properly file estate-tax retu rns or request an extension, thereby causing the client to incur a significant tax penalty, totaling $451,504.46. Moreover, Nittskoff neglected to maintain professional-liability insurance and did not inform hisJanuary Term, 2011

9 clients of that fact. Nittskoff also neglected to maintain adequate records of his IOLTA account, which ultimately resulted in an overdraft. Finally, when relator attempted to investigate the IOLTA-account matter, Nittskoff failed to cooperate. {¶ 32} In accordance with our previous decisions involving neglect of entrusted legal matte rs combined with a failure to cooperate in the ensuing disciplinary investigation, we hereby indefinitely suspend Nittskoff from the practice of law in Ohio. We further or der as a condition of reinstatement that Nittskoff shall satisfy the civil judgment obtained against him on behalf of the
estate of Jack Gordon and shall also s ubmit quarterly progress reports to relator on his payment of the judgment. {¶ 33} Costs are taxed to Nittskoff. Judgment accordingly.
O’C ONNOR , C.J., and L UNDBERG S TRATTON , O’D ONNELL , L ANZINGER , C UPP , and M C G EE B ROWN , JJ., concur.
P FEIFER , J., dissents.

__________________ P FEIFER , J., dissenting. {¶ 34} I agree with the majority that attorney Nittskoff violated several provisions of the Ohio Code of Prof essional Responsibility and the Rules of
Professional Conduct and that he should be sanctioned. I dissent because I believe that an indefinite suspension is excessive given the misconduct that
Nittskoff committed. {¶ 35} At its core, this case is a garden-variety malpractice case. Based merely on the malpractice, it is unlikely that this court would have indefinitely suspended Nittskoff from the practice of law. But this case also includes repeated failures to respond and cooperate in the disciplinary pr ocess. In my opinion, that aggravating factor does not outweigh the underlying malpractice case and the mitigating factors.S UPREME C OURT OF O HIO

10 {¶ 36} The majority opinion cites five prior disciplinary cases to justify its imposition of an indefinite suspension. In four of those cases, the attorney who was indefinitely suspended committed violati ons involving multiple clients. This case does not involve multiple clients; only one client was neglected, though the neglect was substantial and the effect was extremely expensive for the client. The fifth case cited by the majority opinion involved more aggravating factors than this case, including a selfish motive, which is lacking in this case. {¶ 37} Viewing the case as a whole and after considering all the aggravating and mitigating factors, I conclude that the violations do not rise to the level necessary to impose an indefinite suspension. I would impose the sanction recommended by the Board of Commissioners on Grievances and Discipline and suspend Nittskoff from the practice of law for six months.

__________________ Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, Chief Assistant Disciplinary Counsel, for relator.

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