1 Toledo Bar Association v. Savage. 1 [Cite as Toledo Bar Assn. v. Sa vage (1995), ____ Ohio St.3d ____.] 2 Attorneys at law -- Misconduct -- Public reprimand -- Unauthorized 3 communication with a represented party concerning the subject of the 4 representation. 5 (No. 94-2664 -- Submitted Septembe r 13, 1995 -- Decided December 20, 6 1995.) 7 O N C ERTIFIED R EPORT by the Board of Commissioners on Grievances and 8 Discipline of the Supreme Court, No. 94-17. 9 In an amended complaint filed on April 4, 1994, relator, Toledo Bar 10 Association, charged respondent, Barry E. Savage of Mount Pleasant, South 11 Carolina, Attorney Registration No. 0025481, with two counts of professional 12 misconduct, each alleging a violation of DR 7-104(A)(1) (unauthorized 13 communication with a represented party concerning the subject of the 14 representation). A panel of the Boar d of Commissioners on Grievances and 15 Discipline of the Supreme Court (“board ”) heard the matter on October 17, 1994. 16 With respect to the first count, th e evidence established that respondent 17 communicated with Beverly Cooper on January 26, 1993 in an attempt to find her 18 husband, Kenneth M. Cooper, and obtai n Mr. Cooper’s signature on documention 192 to transfer a liquor license bought by responde nt’s client in a larger transaction for 1 the client’s purchase of a gas station. The Coopers were represented by their 2 general counsel in the negotiations to purchas e the gas station, as well as in certain 3 credit-related concerns involving a bank, wh ich respondent also represented. The 4 Coopers’ attorney had authorized respondentto discuss directly with Mr. Cooper 5 some matters in which the bank had an interest, but he had not authorized 6 respondent to contact Mr Cooper about th e liquor license transfer, and he never 7 authorized respondent to speak with Mrs. Cooper in his absence. 8 In fact, the Coopers’ attorney ha d specficially advised respondent on 9 January 26, 1993 that Mr. Cooper, who was actually in the hospital at the time, 10 would not be available to sign the liquor li cense transfer papers for seven to ten 11 days. Nevertheless, responde nt later drove with his client from Toledo, Ohio, to 12 the Coopers’ home in Birmingham, Michigan. At approximately 9:30 p.m., 13 respondent and his client visited Mrs. Cooper, who explained that her husband 14 was not at home. Mrs. Cooper knew res pondent and his client, but their visit 15 surprised her. She initially asked responde nt, referring to his capacity as counsel 16 for the bank, whether he had come to “take [her] house,” to which respondent 17 replied that he had not. Mrs. Cooper s poke with respondent and his client for 183 about forty-five minutes, during which re spondent apparently inquired repeatedly 1 about Mr. Cooper’s whereabouts, but mostlyengaged in small talk, and did not 2 discuss legal matters. Respondent defe nded his actions on the ground that Mrs. 3 Cooper’s signature was not required for the transfer of the liquor permit, and he 4 did not speak to Mr. Cooper. 5 With respect to the second count, th e evidence established that respondent 6 attempted to elicit information from the client of another attorney after the 7 attorney had advised respondent of his re presentative status. On August 20, 1993, 8 respondent sent a letter directly to the repr esented party seeking to aid his client in 9 establishing a claimed mechanic’s lien. Respondent defended his actions on the 10 ground that he had only spoken with hi s opposing counsel once on the telephone, 11 the other attorney had failed to send a purportedly promised letter confirming his 12 representation and address, and respondent had not kept the other attorney’s 13 telephone number. 14 The panel found a violation of DR 7- 104(A)(1) on both counts. It observed, 15 however, that neither of respondent ’s unauthorized communications had 16 prejudiced the clients represented by the ot her attorneys. After considering this 17 and the favorable character references offered by several of respondent’s 184 colleagues, the panel recommended that re spondent receive a public reprimand for 1 his misconduct. The board adopted the pa nel’s report, including its findings of 2 fact, conclusions of law and recommendation. 3 Thomas J. Szyperski , for relator. 4 Barry E. Savage, pro se. 5

Per Curiam . Upon review of the record, we agree with the board’s findings 6 of misconduct and its recommendation. We therefore also reject the arguments 7 raised in respondent’s objections -- (1) that his unauthorized communication with 8 Mrs. Cooper was ethical because her signa ture was not required to execute the 9 transfer of the liquor license, and (2) thathis unauthorized request for information 10 from a represented party was permissibl e because the opposing counsel had not 11 identified his address in writing. 12 Apparently, respondent contends thatMrs. Cooper was not represented in 13 the liquor license transfer by the Coope rs’s general counsel and, therefore, 14 respondent could not have communicated w ith her about “the subject of [her] 15 representation” in that matter. DR 7-104( A)(1). The subject of the representation 16 at issue, however, was the sale of the gas station, including the agreement to 175 transfer the liquor license, and the Coope rs’ general counsel plainly represented 1 Mrs. Cooper’s interests, as well as those of her husband, in the entire transaction. 2 Moreover, another “subject of the repres entation” about which respondent had no 3 authority to communicate with Mrs. Coope r was the Coopers’ credit with the bank 4 respondent represented. Respondent neve rtheless surprised Mrs. Cooper at her 5 home, which generated their discussi on about the possibility of the bank’s 6 foreclosure. Either way, respondent’s communications with Mrs. Cooper violated 7 DR 7-104(A)(1). 8 Furthermore, an attorney is not relieved of the duty to communicate only 9 with the attorney of a represented part y by the opposing counsel’s failure to 10 confirm the representation in writing. DR 7-104(A)(1) forbids such 11 communication upon the attorney’s knowledge of the party’s representative, and 12 respondent admits having had that knowledge here. 13 We, therefore, publicly reprimand respondent for having committed these 14 two violations of DR 7-104(A)(1 ). Costs taxed to respondent. 15

16 Judgment accordingly. 176 M OYER , C.J., D OUGLAS , W RIGHT , R ESNICK , F.E. S WEENEY , P FEIFER and 1 C OOK , JJ., concur. 2

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