BEFORE THE BOARD OF COMMISSIONERSON

GRIEVANCES AND DISCIPLINEOF

TIIE SUPREME COURT OF 01110

In Re:

Complaint against

Samuel Jay Mamich,,,--,--Attorney Reg. No. 0006097

Respo#dent

Disciplinary Counse0^1..r+,,CL

Case No. 09-1136

4indings of Fact,onclusions of Law and

^ ecoinmendation of theoard of Commissioners on

i rievances and Discipline ofe Supreme Court of Ohio

;a

INTRODUCTION

This matter was heard on the 18th day of September 2009 at the Ohio Judicial Center in

Colunibus, Ohio. The hearing panel consisted of Judge John Street of Chillicothe, John

Siegenthaler of Mansfield and McKenzie Davis of Columbus, the Panel Chair. None ol'the

panel members resides in the district from which the Complaint originated or served on the

probable cause panel that certified the grievance.

David Smith represented Respondent, Samuel Mamich. Karen Osmond and Jonathan

Coughlan represented Relator, Disciplinary Counsel.

BACKGROUND

On Apri16, 2009, a Complaint was filed against the Respondent alleging the following

violations of the Rules of Professional Conduct:

Prof. Cond.R. 1.2(a) - a]awyer shall abide by a client's decision whether to settle a

matter;

• Prof. Cond. R. 1.4(a)(1) - a lawyer shall promptly inform the client of any decision or

circumstance with respect to which the client's informed consent is required;

• Prof. Cond. R. 1.4(a)(3) - a lawyer shall keep the client reasonably informed abolt the

status of the matter;

• Prof. Cond. R. 1.7(a)(2) - a lawyer shall not continue to represent a client where there is

substantial risk that the lawyer's ability to consider, recommend, or carry out an

appropriate course of action for that client will be materially limited by the lawyer's

responsibilities to a third person;

• Prof. Cond. R. 1.16(a)(1) - a lawyer shall not represent a client, or where representation

has commenced, shall withdraw from the representation of the client if the representation

will result in a violation of the Ohio Rules of Professional Conduct or other law;

• Prof. Cond. R. 5.4(c) -- a lawyer shall not permit a person who recommends, employs, or

pays the lawyer to render legal services for another to direct or regulate the lawyer's

professional judgment in rendering such legal services;

• Prof. Cond. R. 8.4(c) - a lawycr shall not engage in conduct involving dishonesty, fraud,

deceit, or misrepresentation; and

• Prof. Cond. R. 8.4(d) - a lawyer shall not engage in conduct that is prejudicial to the

administration of justice.

On April 11, 2009, the Respondent filed an answer to the complaint.

On September 10, 2009, the parties filed Stipulations of facts, mitigation, and exhibits.

On September 16, 2009, the parties filed an Amended Stipulations of fact, violations,

mitigation, sanction and exhibits.

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FINDINGS OF FACT

Respondent, Samuel Jay Manlich, was admitted to the practice of law in the state of Ohio

on November 3, 1973. Respondent is subject to the Ohio Rules of Professional Conduct and the

Supreme Court Rules for the Government of the Bar of Ohio.

In November 2003, David A. Samson, Sr., applied for a credit card in his daughter's

name, Judy M. Samson, without her knowledge or consent. The credit card was applied for

online.

On or about November 8, 2003, a Househould Bank credit card, account number XXXX-

XXXX-XXXX-093 1, was issued solely in Judy M. Samson's name. David Samson never gave

the credit card to Judy Samson, and Judy Samsoii never used the account for credit. Judy

Sainson did not even know that the credit card account existed.

On or about November 21, 2006, Household Bank sold the debt that had accumulated on

account number XXXX-XXXX-XXXX-0931 to John Soliday Financial Group (John Soliday),

On February 27, 2007, John Soliday filed a complaint against Judy Samson in the

Cuyalloga County Court of Common Pleas seeking $1,040.80 in principle, $380.96 in accrued

interest, and additional interest at the rate of 16.00% per annum from February 12, 2007. The

case was captioned John Soliday I%inancial Group, LLC v. Judy Samson and assigned case no.

CV 07-616918. David Samson was not a named defendant in the case. The complaint was not

answered and on June 15, 2007, John Soliday filed a Motion for Default Judgment. 1'he default

hearing was scheduled for July 16, 2007.

ln early-to-mid July 2007, David Samson contacted Respondent about the default hearing

that was scheduled in ease no. CV 07-616918. David Samson advised him that he had applied

for the credit card in his name and that he had added Judy's name to the account as an authorized

3

user. David Samson also advised Respondent that the debt on the credit card was his and that

Judy knew nothing about the credit card, the default hearing, or the case. Respondent did not

learn that the Household Bank credit card had been applied for online or that the card had been

issued solely in Judy's name until after the commencement of these disciplinary proceedings.

Respondent advised David Samson to contact his daughter so that she could defend

herself against the lawsuit. David Sarnson replied that his daughter was "traveling" and the he

preferred not to alarm her because it was his debt and not Judy's. Unbeknownst to Respondent,

Judy was living in the central Ohio area during the entire time that case no. CV 07-616918 was

pending. David Samson asked Respondent to enter an appearance on belialf of Judy Samson at

the default hearing and to defend her against the complaint filed by John Soliday. Despite

knowing that Judy Samson did not know about the credit card or the case and that David Samson

did not want to tell her about the credit card or the case, Respondent agreed to appear on behalf

of Judy Samson at the default hearing and defend her against the complaint. During the same

meeting, Respondent also discussed possible settlement of the case with David Samson. David

Samson authorized Respondent to offer $300 in settlement.

On July 16, 2007, David Samson advised Cheek Law Offices, counsel for John Soliday,

that the Respondent was the "fatnily" attorney. On the same day, after receiving notificat'ron that

Respondent was representing Judy Samson, Cheek Law Offices Attotney Krishna Veleyudhan

called Respondent. Respondent offered Attorney Velayudhan a $300 settlement, Respondent did

not contact Judy Samson, nor did he receive her authorization to settle the case for $300. The

case was not settled.

On July 16, 2007, Respondent entered an appearance on behalf of Judy Samson at the

default hearing. Attorney Robert Olender appeared on behalf of Cheek Law Offices/John

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Soliday Pinancial Group. Prior to enteritig an appearance on behalf of Judy Samson, Respondent

did not contact Judy Samson, nor did he receive her authorization to appear at the default hearing

on her behalf, 1'he court did not go forward with the default hearing. Instead, the court grantsd

Respondent's request for leave to file an answer to the complaint on behalf of Judy Samson.

Respondent signed the answer as "Attorney for Defendant." Respondent's answer fails to allege

that David Samson was solely responsible for the debt on the credit card. Prior to filing this

answer, Respondent did not contact Judy Samson, nor did he receive her autliorization to file an

answer on her behalf.

On August 28, 2007, Respondent participated in a case managecnent conference as Judy

Sanlson's attorney. Prior to participating in this case management conference, Respondent did

not speak with Judy Sainson, nor did he inform her that a case managemeut conference was

taking place.

At some point while case no. CV 07-616918 was pending, Respondent requested that

Cheek Law Office provide him with a copy of the signed credit card application andlor signed

transaction slips for the Household Bank credit card. Cheek Law Offices did not have a signed

credit card application because the card had been applied for online, and they did not have any

transaction slips.

On November 27, 2007, John Soliday filed a Motion for Summary Judgment. On

December 18, 2007, Respondent filed a Response to the Motion for Summary Judgment on

behalf of Judy Samson. Respondent signed an affidavit attached with the Response to the

Motion for Summary Judgment. David Samson also signed an affidavit attached with Response

to the Motion for Summary Judgment. This affidavit indicated that Judy Samson knew nothing

about the credit card. David Samson offered to go to the Clerk of Courts and file the pleading

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for Respondent. Samson did file the Respondent's pleading. The affidavit, however, was not

filed with the Response, and the Court was not aware of its existence in ruling on the motion for

summary judgment. Respondent did not learn of its absence from the eourt file until after

summary judgment had been granted against Judy Samson. Respondent signed this response as

"Attorney for Defendant." Prior to filing this response, Respondent did not contact Judy

Samson, nor did he receive her authorization to file a response on her behalf.

On December 27, 2007, the court granted John Soliday's Motion for Summary Judgment.

Respondent notified David Samson of the court's decision and of the procedure and tiine limits

for appeal, but he did not notify Judy Sanison. After December 27, 2007, Respondent took no

further action on Judy Samson's case. At no time while case no. CV 07-616918 was pending did

Respondent inform opposing counsel that he had not spoken with Judy Samson or that Judy

Samson did not know about the case.

In early June 2008, Judy Samson received notice from her employer, National City Bank,

that it was going to begin withholding wages from her paycheck to satisfy the judgment against

her in case no. CV 07-616918. The notice of withholding was the first time that Judy Samson

learned ofthis civil case and of the underlying Household Bank credit card and debt. On June 9,

2008, Judy Samson called Check Law Offices to inquire about the case and the notice of

withholding. On June 10, 2008, a representative from Cheek Law Office advised Judy Samson

that the garnislunent of her wages would continue unless and until she could prove that the

IIousehold Bank credit card was not hers. Shortly after her conversation with Cheek Law

Offices, Judy Samson retained Attorney Katica Markulin to stop the garnishment of her wages.

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On September 11, 2008, Attomey Markulin filed a "Motion to Vacate Judgment, Stay the

Garnishment, and Return Garnished Funds" on behalf of aud with the permission of Judy

Samson.

On October 1, 2008, the Cuyahoga County Court of Common Pleas temporarily stayed

any further garnishment of Judy's wages pending a hearing on the Motion to Vacate, which was

scheduled for December 11, 2008, At the hearing on the Motion to Vacate, Respondent testified

on behalf of Judy Samson. Respondent adtnitted to appearing in court and/or filing documents

on behalf of Judy Samson without her knowledge or consent, and he testified that he did not have

any contact with Judy Samson while the case was pending.

On December 17, 2008, the Cuyahoga County Court of Common Pleas vacated the

judgment against Judy Samson in case no. CV 07-616918 and ordered that any previously

garnished wages be returned to Judy Samson. After the judgment was vacated, John Soliday

filed an amended complaint against Judy and David Samson. This complaint was voluntarily

dismissed by John Soliday on March 16, 2009.

Respondent testified that he requested to speak with Judy Samson numerous times.

David Samson lied about his daughter's whereabouts each time Respondent asked him about that

issue.

Finally, Respondent did not receive any compensation from David Samson for his

services nor was there ever an expectation of compensation.

CONCLUSIONS OF LAW

At the hearing and through the agreed upon stipulations, Relator voluntarily dismissed

alleged violation of Prof. Cond. R. 8.4(c) - a lawyer shall not engage in conduct involving

dishonesty, fraud, deceit, or misrepresentation.

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The panel is unable to find violations by clear and convincing evidence of the following

rules related to the Respondent's attempted representation of Judy Samson:

o Prof. Cond. R. 1.2(a) - a lawyer shall abide by a client's decision whether to settle a

matter;

® Prof. Cond. R. 1.4(a)(1) - a lawyer shall inform the client of any decision or

circumstance with respect to which the client's informed consent is required;

• Prof. Cond. R. 1.4(a)(3) - a lawyer shall keep the client reasonably informed about the

status of the matter.

The panel concludes that in order for a violation of the above-mentioned rules, an

attorney/client relationship must be established. In order for an attorney/client relationship to be

established, both the attorney and client must have a meeting of the minds. 1'he attorney must

allow the client to become his client and client must allow the attorney to become her attorney.

The Court in Cuyahoga County Bar Assn. v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596,

held mi attorney-client relationship may be created by implication based upon the conduct of the

parties and the reasonable expectations of the person seeking representation. In this matter, there

was never a meeting of the minds between Judy Samson and Respondent. Respondent only met

Judy Samson after he become aware that she filed a Motion to Vacate Judgment. Although

Respondent believed all along he was her attorney in the credit card matter, Judy Samson was

completely unaware of the matter and had no reasonable expectation of the representation.

Therefore, the standard set forth in Hardiman cannot be met. David Samson is the party that was

subject to the attorney/client relationship. Respondent met each of the obligations required in the

above-mentioned rule with respect to David Samson,

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For these reasons, the panel concludes Respondent did not have those additional duties to

Judy Samson and, therefore, the charged violations on a count concerning his non-client

relationship with Judy Samson should be dismissed.

I-Iowever, the panel does find the evidence, admissions and stipulations demonstrate clear

and convincing evidence that Respondent violated the following disciplinary rules related to his

relationship with David Samson:

. Prof. Cond. R. 1.7(a)(2) - a lawyer shall not continue to represent a client where there is

substantial risk that the lawyer's ability to consider, recoinmend, or carry out an

appropriate course of action for that client will be materially limited by the lawyer's

responsibilities to a third person;

• Prof. Cond. R. 1.16(a)(I) - a lawyer shall not represent a client, or where represcntation

has commenced, shall withdraw from the representation of the client if the representation

will result in a violation of the Ohio Rules of Professional Conduct or other law;

a Prof. Cond. R. 5.4(c) - a lawyer shall not permit a person who recommends, employs, or

pays the lawyer to render legal services for another to direct or regulate the lawyer's

professional judgment in rendering such legal services;

o Prof. Cond. R. 8.4(d) - a lawyer sliall not engage in conduct that is prejudicial to the

administration ofjustice.

AGGRAVATION AND MITIGATION

The guidelines govetning Aggravation and Mitigation in attorney disciplinary cases are

found in BCGD Proc. Reg. 10(B)(1) and (2), which list those factors, which may be considered

in recommending either a more or less severe sanction is warranted than that recommended by

either party.

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AGGRAVATION

'1'he panel found no aggravating factors that should be considered in recommending a

more severe sanotion.

MITIGATION

Respondent and Relator submitted the following factors in mitigation in the Amended

Joint Stipulation:

1. Respondent has no prior disciplinary record;

2. Respondent had no selfish or dishonest inotive;

3. Respondent has cooperated fully in the disciplinary investigation.

It also should be noted, the panel was particularly impressed with Respondent's degree of

candor. The panel questioned Respondent on the issue of Judy Samson's signed Power of

Attorney to David Samson (the Power of Attornoy and other evidence was specifically not

offered as evidence at the hearing because Respondent was concerned David Satnson may have

falsified documents). "I'he existence of David Samson's Power of Attorney from Judy Samson

could have acted to automatically exonerate Respondent in his misgaided representation of Judy

Samson. However, Respondent conceded that the power of attorney was not the basis for which

he believed lie was representing her. Respondent indicated it was based solely on discussions

with David Samson.

In addition, once Respondent learned David Samson had lied to hinl about his daughter's

knowledge of the matter, Respondent testified on behalf of Judy Samson in her Motion to

Vacate. Respondent did this to limit or ensure Judy Samson was not harmed by his misguided

representation.

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RECOMMENDED SANCTION

The Amended Joint Stipulation recommended a 12-month suspension, all stayed, on

condition that Respondent commi't no further misconduct during the period of his suspension.

Relator offered Disciplinary Counsel v, Ita, 117 Ohio St.3d 477, 2008-Ohio-1508, Cincinnati

Bar Association v. Lukey, 110 Ohio St.3d 128, 2006-Ohio-3822, and a Florida Suprenie Court

case as case law justifying their recommended sanction. The panel did not consider the Florida

niatter in deterinining an appropriate sanction.

In Ita, respondent filed an unauthorized claim for damages on behalf of his client's wife

and then disinissed the claim witli prejudice and without the wife's consent. Respondent in Ita

was unaware the couple divorced prior to the proceeding, and therefore never represented the

wife. The Court held a public reprimand was appropriate.

In Lukey, respondent had simultaneously represented a juvenile, in a juvenile court

proceeding in which the juvenile was charged with aggravated arson and represented the

juvenile's maternal grandparents in child custody/dependency proceedings involving the

juvenile, whom the grandparents had adopted years before. "I'he Court, in ordering a two year

suspension, 18 months stayed, cited the grandson's vulnerability, and subsequent harm (two-

week detention due to respondent's inadequate representation) as well as respondent's admission

that he did not zealously represent the grandson in the juvenile matter as justification for the

sanction. In addition, the Court cited the panel and board's skepticism that respondent

appreciated the extent of his wrongdoing.

The panel finds the facts and circumstances in this matter are clearly distinguishable from

Lukey. Respondent, unlike Lukey, did not weigh the representation of a client in two separate

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matters against each other. Respondent truly believed he was trying to help David and Judy

Samson resolve a matter the father had created for the two. Respondent attempted to limit any

hai-m to Judy Samson once he learned David Samson had lied to hiin. Tn addition, the panel was

impressed with Respondent's testimony and his recognition of the extent of his wrongdoing.

T'he panel finds Respondent's behavior similar to the misconduct in Ita. Thus, in an

effort to balance the stipulated violations of Cond. Prof. R. 1.7(a)(2), 1.16(a)(1), 5.4(c) and

8.4(d) with the recommended dismissal of Prof. Cond. R. 1.2, 1.4(a)(1) and 1.4(a)(3), the

stipulated mitigation and Respondent's testimony, the panel concludes that a 6-month

suspension, all stayed, would be a more appropriate sanction.

BOARD RECOMMENDATION

Pursuant to Gov. Bar Rule V(6)(L), the Board of Commissioners on Grievances and

Discipline of the Supreme Court of Ohio considered this matter on October 9, 2009. The Board

adopted the Findings of Fact, Conclusions of Law and Recommendation of the Panel and

recommends that the Respondent, Samuel Jay Mamich, be suspended from the practice of law

for a period of six months with the entire six months stayed. The Board further recommends that

the cost of these proceedings be taxed to the Respondent in any disciplinary order entered, so

that execution may issue.

Pursuant to the order of the Board of Commissioners onGrievances and Discipline of the Supreme Court of Ohio,I hereby certify the foregoing Findings of Fact, Conclusionsof Law, and Recommendation as those of twqoard.

NATHAN W. MARSIIALL,Board of Commissioners onGrievances and Discipline ofthe Supreme Court of Ohio

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BEFORE THE BOARD OF COMMISSIONERSON GRIEVANCES AND DISCIPLINEOF THE SUPREME COURT OF OtiiO

SAMUEL JAY MAMICHAttorney Registration No. 00060973637 South Green RoadBeachwood, OH 44122

AMENDEDSTIPULATIONS

BOARD NO. 09-036

DISCIPLINARY COUNSEL FILED250 Civic Center Drive, Suite 325Columbus, Ohio 43215-7411 SEP 1 S 2009

AMENDED STIPULATIONS

BOARD OF COMMISSIONERSON GRIEVANCES & DISCIPLINE

Relator, Disciplinary Counsel, and respondent, Samuel Jay Mamich, do hereby

stipulate to the following facts, violations, mitigating factors, sanction, and exhibits.

STIPULATED FACTS

1. Respondent, Samuel Jay Mamich, was admitted to the practice of law in the state of

Ohio on November 3, 1973.

2. Respondent is subject to the Ohio Rules of Professional Conduct and the Supreme

Court Rules for the Government of the Bar of Ohio.

3. In November 2003, David A. Sarnson, Sr. applied for a credit card in his daughter's

name without her knowledge or consent.

4. The credit card was applied for online.

1

5. On or about November 8, 2003, a Household Bank credit card, account number

XXXX-XXXX-XXXX-0931, was issued solely in Judy M. Samson's name.

6. David Samson never gave the credit card to Judy Samson, and Judy Samson never

used the account for credit.

7. Judy Samson did not even know that the credit card or credit card account existed.

8. On or about November 21, 2006, Household Bank sold the debt that had accumulated

on account number XXXX-XXXX-XXXX-0931 to John Soliday Financial Group (John

Soliday).

9. John Soliday attempted to collect on the debt, but was unsuccessful.

10. On February 27, 2007, John Soliday filed a complaint against Judy Samson in the

Cuyahoga County Court of Common Pleas seeking $1,040.80 in principle, $380.96 in

accrued interest, and additional interest at the rate of 16.00% per annum from

February 12, 2007.

11. The case was captioned John Soliday Financial Group, LLC v. Judy M. Samson and

was assigned case no. CV 07-616918.

12. David Samson was not a named defendant in the case.

13.The complaint was not answered; therefore, on June 15, 2007, John Soliday filed a

Motion for Default Judgment.

14.The default hearing was scheduled for July 16, 2007.

15.In early-to-mid July 2007, David Samson contacted respondent about the default

hearing that was scheduled in case no. CV 07-616918.

2

16. Respondent asserts that David Samson advised him that he had applied for the credit

card in his name and that he had added Judy's name to the account as an authorized

user.

17. Respondent asserts that David Samson also advised respondent that the debt on the

credit card was his and that Judy knew nothing about the credit card, the default

hearing, or the case.

18. Respondent did not learn that the Household Bank credit card had been applied for

online or that the card had been issued solely in Judy's name until after the

commencement of these disciplinary proceedings.

19. Respondent advised David Samson to contact his daughter so that she could defend

herself against the lawsuit.

20. David Samson replied that his daughter was "traveling" and that he preferred not to

alarm her because it was his debt and not Judy's.

21. Unbeknownst to respondent, Judy was living in the central Ohio area during the entire

time that case no. CV 07-616918 was pending.

22. David Samson asked respondent to enter an appearance on behalf of Judy Samson

at the default hearing and to defend her against the complaint filed by John Soliday.

23. Despite knowing that Judy Samson did not know about the credit card or the case and

that David Samson did not want to tell her about the credit card or the case,

respondent agreed to appear on behalf of Judy Samson at the default hearing and

defend her against the complaint.

24. During this same meeting, respondent also discussed possible settlement of the case

with David Samson.

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25. David Samson authorized respondent to offer $300 in settlement.

26. Respondent did not receive any compensation from David Samson for his services.

27. On July 16, 2007, David Samson advised Cheek Law Offices, counsel for John

Soliday, that respondent was the "family" attorney. .

28. On the same day, after receiving notification that respondent was representing Judy

Samson, Cheek Law Offices Attorney Krishna Velayudhan called respondent.

29. Respondent offered Attorney Velayudhan $300 to settle case no. CV 07-616918.

30. Prior to offering Attorney Velayudhan a $300 settlement, respondent did not contact

Judy Samson, nor did he receive her authorization to settle the case for $300.

31.The case was not settied.

32. On July 16, 2007, respondent entered an appearance on behalf of Judy Samson at

the default hearing. Attorney Robert Olender appeared on behalf of Cheek Law

OfficeslJohn Soliday Financial Group.

33. Prior to entering an appearance on behalf of Judy Samson, respondent did not

contact Judy Samson, nor did he receive her authorization to appear at the default

hearing on her behalf.

34. The court did not go forward with the default hearing. Instead, the court granted

respondent's request for leave to file an answer on behalf of Judy Samson.

35. On July 17, 2007, respondent filed an answer to the complaint on behalf of Judy

Samson.

36. Respondent signed the answer as "Attorney for Defendant."

37. Respondent's answer fails to allege that David Samson was solely responsible for the

debt on the credit card.

4

38. Prior to filing this answer, respondent did not contact Judy Samson, nor did he receive

her authorization to file an answer on her behalf.

39. On August 28, 2007, respondent participated in a case management conference as

Judy Samson's attorney.

40. Prior to participating in this case management conference, respondent did not speak

with Judy Samson, nor did he inform her that a case management conference was

taking place.

41. At some point while case no. CV 07-616918 was pending, respondent requested that

Cheek Law Offices provide him with a copy of the signed credit card application

and/or signed transaction slips for the Household Bank credit card. Cheek Law

Offices did not have a signed credit card application because the card had been

applied for online, and they did not have any transaction slips.

42. On November 27, 2007, John Soliday filed a Motion for Summary Judgment.

43. On December 18, 2007, respondent filed a response to the Motion for Summary

Judgment on behalf of Judy Samson.

44. Respondent signed this response as "Attorney for Defendant."

45. Prior to filing this response, respondent did not contact Judy Samson, nor did he

receive her authorization to file a response on her belialf.

46. On December 27, 2007, the court granted John Soliday's Motion for Summary

Judgment.

47. Respondent notified David Samson of the court's decision and of the procedure and

time limits for appeal, but he did not notify Judy Samson.

48. After December 27, 2007, respondent took no further action on Judy Samson's case.

5

49.At no time while case no. CV 07-616918 was pending did respondent inform opposing

counsel that he had not spoken with Judy Samson or that Judy Samson did not know

about the case.

50.In early June 2008, Judy Samson received notice from her employer, National City

Bank, that they were going to begin withholding wages from her paycheck to satisfy

the judgment against her in case no. CV 07-616918.

51. The notice of withholding was the first time that Judy Samson learned of case no. CV

07-616918 and of the underlying Household Bank credit card and debt.

52. On June 9, 2008, Judy Samson called Cheek Law Offices to inquire about case no.

CV 07-616918 and the notice of withholding.

53. On June 10, 2008, a representative from Cheek Law Offices advised Judy Samson

that the garnishment of her wages would continue unless and until she could prove

that the Household Bank credit card was not hers.

54. Shortly after her conversation with Cheek Law Offices, Judy Samson retained

Attorney Katica Markulin to stop the garnishment of her wages.

55. On September 11, 2008, Attorney Markulin filed a"Motion to Vacate Judgment (in

case no. CV 07-616918), Stay the Garnishment, and Return Garnished Funds" on

behalf of and with the permission of Judy Samson.

56. On October 1, 2008, the Cuyahoga County Court of Common Pleas temporarily

stayed any further garnishment of Judy's wages pending a hearing on the Motion to

Vacate, which was scheduled for December 11, 2008.

57.As of October 1, 2008, over $1,000 of Judy Samson's wages had been garnished.

6

58.At the hearing on the Motion to Vacate, Attomey Markulin called respondent to testify.

Respondent admitted to appearing in court and/or filing documents on behalf of Judy

Samson without her knowledge or consent, and he testified that he did not have any

contact with Judy Samson while the case was pending.

59. On December 17, 2008, the Cuyahoga County Court of Common Pleas vacated the

judgment against Judy Samson in case no. CV 07-616918 and ordered that any

previously garnished wages be returned to Judy Samson.

60.After the judgment in case no. CV 07-616918 was vacated, John Soliday filed an

amended complaint against Judy and David Samson.

61. This complaint was voluntarily dismissed by John Soliday on March 16, 2009.

STIPULATED VIOLATIONS

Relator and respondent agree that respondent's conduct as set forth above violates

the following Rules of Professional Conduct:

1. ORPC 1.2(a) (a lawyer shall abide by the client's decision whether to settle a matter);

2. ORPC 1.4(a)(1) (a lawyer shall inform the client of any decision or circumstance with

respect to which the client's informed consent is required);

3. ORPC 1.4(a)(3) (a lawyer shall keep the client reasonably informed about the status

of the matter);

4. ORPC 1.7(a)(2) (a lawyer shall not continue to represent a client where there is

substantial risk that the lawyer's ability to consider, recommend, or carry out an

appropriate course of action will be materially limited by the lawyer's responsibilities

to a third person);

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5. ORPC 1.16(a)(1) (a lawyer shall not represent a client, or where representation has

commenced, shall withdraw from the representation of the client if the representation

will result in a violation of the Ohio Rules of Professional Conduct or other law);

6. ORPC 5.4(c) (a lawyer shall not permit a person who recommends, employs, or pays

the lawyer to render legal services for another to direct or regulate the lawyer's

professional judgment in rendering such legal services); and

7. ORPC 8.4(d) (a lawyer shall not engage in conduct that is prejudicial to the

administration of justice).

STIPULATED MITIGATION

Relator and respondent agree to the following mitigating factors:

1. Respondent has no prior disciplinary record.

2. Respondent had no selfish or dishonest motive.

3. Respondent has cooperated fully in the disciplinary investigation.

STIPULATED SANCTION

Relator and respondent agree that the recommended sanction in this matter shall

be a 12-month suspension, all stayed, on condition that respondent commit no further

misconduct during the period of his suspension.

STIPULATED EXHIBITS

Relator and respondent stipulate to the following exhibits:

1. Respondent's Attorney Registration Record

2. Docket for Cuyahoga County Court of Common Pleas case no. CV 07-616918

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3. Complaint filed against Judy Samson on February 27, 2007

4. John Soliday Financial Group's Motion for Default Judgment

5. Answer to Complaint in case no. CV 07-616918

6. Plaintiff's Motion for Summary Judgment

7. Defendant's Response to Motion for Summary Judgment

8. May 30, 2008 Notice of Withholding from National City Bank

9. Respondent's September 16, 2008 letter to relator

10. Respondent's October 21, 2008 letter to relator

11. Defendant's Motion to Vacate Judgment, Stay the Garnishment, and Return

Garnished Funds

12. Plaintiff's Memorandum Contra to Defendant's Motion for Relief from Judgment

13.Transcript of December 11, 2008 Motion to Vacate hearing

14.Affidavit from HSBC employee, Kelly R. Anderson (with Judy Samson's personalinformation redacted)

15.Transcript of respondent's January 12, 2009 deposition

16. Affidavit from Judy Samson

17. Affidavit from Parri Hockenberry, law clerk at Cheek Law Offices

18. Computer file notes from Cheek Law Offices concerning case no. CV 07-616918

9

CONCLUSION

The above facts, violations, mitigating factors, sanction, and exhibits are stipulated

to and entered into by agreement of the undersigned parties on this 161h day of September

2009.

Jdrfathan E. CoVlan (0026424) David M. Smith (0079400)Disciplinary Coyfikel Counsel for Respondent

Karen H. Osmond (0082202) Sam el J. Mamic (00 097)Staff Attorney Respondent

10

THE BOARD OF COMMISSIONERSON

GRIEVANCES AND DISCIPLINEOF

THF, SIIPREME COURT OF OHIO

in Re:

Complaint against

Samuel Jay Mamich

Respondents

Disciplinary Counsel

Relator

Case No. 09-036

CERTIFICATE

It is hereby certified that the filing of the original files, expenses, transcript, exhibits and

the Findings of Fact, Conclusions of Law and Recommendation of the Board constitute the

complete record in this cause, and that the same is true and accurate to the best of niy knowledge.

JONATHAN W. MARSHALLSecretary, Board of Commissionerson Grievances and lliscipline ofthe Supreme Court of Ohio

BOARl) OF COMMISSIONERSON

GRIEVANCES AND DISCIPLINEOF

THE SUPREME COURT OF OI-IIO

STATEMENT OF NECESSARY EXPENSES

Case No. 09-036Disciplinary Counsel, Relator v.

Samuel Jay Mainich, Respondent

Postage $ 23.15

Federal Express 17.59

Judge Harvey BresslerNecessary Expenses 454.69

Walter ReynoldsNecessary Expenses 563.34

Keith SommerNecessary Expenses 441.16

Cleveland Metro BarDepo of John Sayler 669.05

Fincun-ManciniAttendance and Transcript 799.00

$2,967.98

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