Summary
The Supreme Court of Ohio disciplined attorney Donald Bryan Ferfolia for neglecting a clients’ long-term-care Medicaid application, failing to communicate and return client documents, misrepresenting that he had filed a professional-liability insurance claim, and failing to cooperate initially with the disciplinary investigation. The court imposed a one-year suspension stayed in its entirety, subject to conditions including restitution, an Ohio Lawyers Assistance Program evaluation, and no further misconduct. Justice Kennedy dissented, advocating a one-year suspension with six months stayed.
Topics
Practice areas
Questions Presented
- Whether Ferfolia committed the stipulated violations of the Ohio Rules of Professional Conduct.
- What sanction was appropriate for Ferfolia's neglect, failure to communicate and deliver client papers, failure to cooperate with the disciplinary investigation, and dishonest or misleading conduct.
- Whether the mitigating factors justified an exception to the general presumption that dishonesty, fraud, deceit, or misrepresentation warrants an actual suspension.
Holdings
- Ferfolia violated Prof.Cond.R. 1.3, 1.4(a)(4), 1.16(d), 8.1(b), and 8.4(c).
- A one-year suspension from the practice of law, stayed in its entirety subject to conditions, was the appropriate sanction.
Key quotations
“This court has held that generally, attorney misconduct “involving dishonesty, fraud, deceit, or misrepresentation warrants an actual suspension from the practice of law.”” (¶ 27)
“Accordingly, Donald Bryan Ferfolia Jr. is suspended from the practice of law in Ohio for one year with the suspension stayed in its entirety on the conditions that he commit no further misconduct and that within 30 days, he pay the balance of the judgment entered against him in Schnurr v. Ferfolia, Summit C.P. No. CV-2020-12-3358, and submit to an OLAP evaluation.” (¶ 29)
Factual background
Ferfolia represented Charles and Rita Schnurr in seeking long-term-care Medicaid benefits for Charles. He failed to timely provide requested information, failed to establish a necessary qualified-income trust, and failed to communicate adequately with the Schnurrs, causing more than $87,000 in nursing-home expenses that otherwise would have been covered by Medicaid. He later falsely implied that he had filed a professional-liability-insurance claim and failed to cooperate promptly with disciplinary investigators.
Procedural history
Disciplinary counsel filed an October 2021 complaint charging Ferfolia with five violations of the Ohio Rules of Professional Conduct. The parties stipulated to facts, misconduct, and aggravating and mitigating factors, and jointly recommended a conditionally stayed one-year suspension. After a hearing, the Board of Professional Conduct adopted the findings and recommendation with additional conditions, and no objections were filed. The Supreme Court independently reviewed and adopted the board's findings and sanction.