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07/03/91 DAVID J. ONTELL RESPONDENT. A MEMBER BAR

July 3, 1991

IN RE: DAVID J. ONTELL, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


Rogers, Chief Judge, and Ferren and Farrell, Associate Judges.

The opinion of the court was delivered by: Ferren

On Report and Recommendation of the Board on Professional Responsibility

The Board on Professional Responsibility agrees with two separate Hearing Committees that respondent, in two unrelated cases, had neglected legal matters, DR 6-101 (A)(3), and made misrepresentations to his clients, DR 1-102 (A)(4). The Board recommends that we suspend respondent from practicing law for thirty days. Respondent raises three issues on appeal: (1) one Hearing Committee erred in ignoring his motion to dismiss; (2) the other Hearing Committee's Report and Recommendation is void because only two of the three members signed it; and (3) the recommended sanction is too extreme -- respondent should be publicly censured or, at worst, allowed to serve his thirty-day suspension at a time of his own choosing during the year after our suspension order. We reject these contentions, order respondent suspended from the practice of law for thirty days, and allow respondent up to ninety days from the date of our suspension order within which to begin his thirty-day suspension.

I.

A.

In July 1985, respondent took over Lottie Bigelow's automobile accident case from another attorney, who was leaving civil practice. Respondent filed suit on her behalf and agreed to allow the insurance company a two and one-half year continuance, for purposes of settlement negotiations, before the company had to file an answer. After Bigelow turned down a settlement offer, the defendant filed its answer along with requests for discovery. Respondent never responded to these requests. Opposing counsel filed a motion to compel answers, which the court granted on April 14, 1988, and respondent ignored. Defendant then filed a motion for default judgment, which was unanswered. The court entered a default judgment and dismissed the case on June 7, 1988. Respondent took no steps to reinstate the case. Nor did he inform Bigelow that her case had been dismissed and that the statute of limitations had run.

Respondent and Bigelow had several telephone conversations about the case after dismissal. At no time during these Discussions did he tell her what had happened. In March 1989, Bigelow filed a complaint against respondent with the Board on Professional Responsibility. In May 1989, respondent and Bigelow reached an agreement under which respondent would pay Bigelow $5,530 to settle her claim. Respondent paid this settlement entirely from his own funds.

Bar Counsel charged respondent with neglect, misrepresentation of material facts, and intentional failure to seek client objectives. After Bar Counsel had presented his case before the Hearing Committee, respondent made a motion to dismiss. The Committee declined to rule on the motion, citing lack of authority to do so. The Committee concluded, and the Board agreed, that respondent had neglected a legal matter and had engaged in misrepresentation; the Committee agreed with Bar Counsel's post-hearing concession that he had not proved by clear and convincing evidence that respondent had intentionally failed to pursue his client's objectives. The Committee recommended a thirty-day suspension from the practice of law, to be served at any time of respondent's choosing within a year of this court's suspension order.

B.

Kenneth L. Neimann retained respondent in April 1986 to collect on a commercial invoice. After Neimann rejected a settlement offer, respondent filed suit in June 1986 but was unable to obtain service of process. Respondent took no further action. In February 1987, the Superior Court notified respondent that the lawsuit would be dismissed within a month if no action were taken. He did nothing. On June 3, 1987, the case was dismissed without prejudice.

Neimann called every three weeks or so about his case while respondent was representing him. On one occasion, feeling harassed by Neimann and embarrassed by his own inactivity, respondent told Neimann that he had obtained a judgment in the District, knowing this was untrue. Respondent added that he told Neimann of the need to enforce the District of Columbia judgment in Maryland, and respondent acknowledged at the hearing that this comment could have misled his client. Neimann discovered the truth, retained other counsel, and eventually obtained judgment. As it turned out, therefore, delay was the only prejudice that respondent caused Neimann. Respondent stipulated and, the Committee concluded, that respondent's behavior constituted neglect and misrepresentation. *fn1 The Hearing Committee recommended a public censure for respondent's misconduct.

C.

The Board agrees with both Hearing Committees that respondent's conduct in each case amounted to neglect and misrepresentation. Considering the cases together, the Board recommends that we suspend respondent from the practice of law for thirty days. (The Board rejected the Bigelow Hearing Committee's recommendation that respondent be allowed to ...


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