Disciplinary Counsel v. Avery

Summary

The Supreme Court of Ohio overruled Darin Lynn Avery’s objections to a disciplinary board’s findings that he violated professional-conduct rules concerning client communication and conduct prejudicial to the administration of justice. The violations arose from Avery’s representation of a criminal defendant in a complex direct appeal, including delayed filing of the appellate brief and asserting his own ineffective assistance as appellate counsel. The court publicly reprimanded Avery and ordered him to pay the costs of the disciplinary proceedings.

Holdings

1. The board's finding that three attorneys took an entire year to try Mack's case was supported by the record, and any difference between that finding and Avery's proposed time period had no bearing on the outcome.
2. An attorney's filing of an appellate brief late, combined with prematurely asserting the attorney's own ineffective assistance in that direct appeal, may constitute conduct prejudicial to the administration of justice even when the late filing is accepted and the client suffers no lasting harm.
3. A lawyer violates Prof.Cond.R. 1.4(a)(2) and 1.4(a)(3) by failing to reasonably consult with the client about the means of accomplishing the client's objectives and failing to keep the client reasonably informed about the status of the matter.
4. A public reprimand and assessment of the necessary costs of the disciplinary proceedings were appropriate.

Questions Presented

1. Whether the board's challenged factual finding concerning the time required to try Mack's case was material and supported by the record.
2. Whether Avery's late filing of Mack's appellate brief and assertion of his own ineffective assistance constituted conduct prejudicial to the administration of justice under Prof.Cond.R. 8.4(d).
3. Whether a public reprimand was the appropriate sanction for Avery's misconduct.
4. Whether Avery should be relieved from or receive a reduction in the costs of the disciplinary proceedings.

Disposition

other