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Transcription

1 ..._.71: 11VAL THE SUPREME COURT OF OHIO Akron Bar Association, V. Daniel Kenneth Dismuke, Respondent. Case No ATTORNEY DISCIPLINE RESPONDENT'S MOTION TO VACATE Dreama Anderson, Attorney for, Anderson & Miller Co. L.P.A., 1650 Home Ave., Akron, OH William G. Chris, Bar Counsel, Akron Bar Association, 57 S. Broadway St., Akron, OH Daniel K. Dismuke, Respondent Bar Registration Number Stow, OH (330) hlic^^i "^ OCTZ78011 CLERK F COURT SUPREMECOURTOFOHio OCT 21201t CLERKUF +AUR"N SUPREME COURT OF OHIO

2 THE SUPREME COURT OF OHIO r - Akron Bar Association, I Daniel Kenneth Dismulce, MOTION TO VACATE ORDER OF Respondent. SEPTEMBER 28, 2011 Now comes Respondent who does hereby move this honorable court to vacate the Order dated September 28, 2011, to find Respondent in contempt. Respondent has tried several times to file the required Affidavit and those attempts are attached hereto and incorporated herein. The required Affidavit is attached hereto as Exhibit B, therefore Respondent respectfully requests that the Order be vacated. Respectfully submitted, Daniel K. Dismuke, Respondent Bar Registration Number Stow, OH (330) A copy of the foregoing was served upon Dreama Anderson, Attorney for, Anderson & Miller Co. L.P.A., 1650 Home Ave., Akron, OH and William G. Chris, Bar Counsel, Akron Bar Association, 57 S. Broadw St >, kron, on October 26, ^/ ^'" ^ d anie1kk. Dismu

3 THE SUPREME COURT OF OHIO Akron Bar Association, Case No V. Daniel Kenneth Dismuke, Respondent. ATTORNEY DISCIPLINE RESPONDENT'S MOTION TO RECONSIDER Dreama Anderson, Attorney for, Anderson & Miller Co. L.P.A Home Ave., Akron, OH William G. Chris, Bar Counsel, Akron Bar Association, 57 S. Broadway St.. Akron, OH Daniel K. Dismuke, Respondent Bar Registration Number Stow, OH (330) R E CFr, ^ v E D OCT CLERK OF COURT SUPREME COURT OF OHIO

4 THE SUPREME COURT OF OHIO Akron Bar Association, V. I Daniel Kenneth Dismuke, Respondent. Case No MOTION TO RECONSIDER PURSUANT TO RULE OF PRACTICE 11.2(B)(4) Now comes Respondent who does hereby move this honorable court to reconsider its decision contained in the Order dated September 28, 2011, to find Respondent in contempt. Respondent was unclear from the September 28, 2011 order the purpose and result of the finding of contempt. As Respondent understands contempt, after reviewing Ohio Jurisprudence 3`d Edition on Contempt, there are two types: civil and criminal. The purpose of civil contempt is to compel compliance. The purpose of criminal is to punish non-compliance. There are also two types of criminal contempt: direct and indirect. Direct criminal contempt is conducted in the presence of the court or its officials, usually by physically or verbally disrupting the proceedings. As Respondent has never appeared before the court direct criminal contempt would not be possible. Indirect criminal contempt is conducted outside the presence of the court. Indirect contempt can include failure to appear or to do some act, however, a finding of indirect criminal contempt requires intent to not comply and procedurally requires a hearing with a right to call and cross-examine witnesses. As there was no hearing with an opportunity to call and cross-

5 examine witnesses, Respondent can only conclude that the September 28, 2011 Order was a finding of civil contempt. The purpose of a finding of civil contempt would be to impose a conditional sanction until compliance with the Court's earlier Order was secured, namely providing an affidavit that the Respondent has retutned all files and funds and notified all parties in pending matters that he has been suspended from the practice of law. Respondent has been attempting to provide this affidavit. Respondent attempted to file a response to the Court's Order to show cause of June 16, 2011, which was received by the Clerk's office on July 11, 2011 and returned to Respondent. A copy of which is attached hereto as Exhibit A. In that response Respondent indicated that he had read the Court's Opinion publicly available and believed it to contain all of the instructions for Respondent. However, upon receipt of the June 16 i Order Respondent reviewed the Opinion and not understanding to what the June 16"' Order was referring, Respondent reviewed the Court's earlier Order and realized that there was an Affidavit which needed to be filed. Furthermore, Respondent indicated that all files and funds had been returned nearly a year prior to the Court's Order and that Respondent had not been practicing law for over a year prior to the Court's Order and therefore did not have any pending matters at the time of the order or since. Respondent attempted to review the requirements of, prepare and have notarized an affidavit to include with the Response but when the affidavit was unready, Respondent mailed the Response for filing on July 7, 2011 to give it sufficient time to arrive for filing prior to July 11 the date upon which Respondent believed the Response to be due. Respondent then complete and had the affidavit notarized, which he mailed for filing on July 13, Respondent prepared a.nd had notarized an affidavit of compliance to comply with Court's Order. This was

6 received by the Clerk's Office on July 14, 2011 and was returned to Respondent. A copy of which is attached hereto as Exhibit B. Respondent then attempted to file a Motion for Leave to File, which was received by the Clerk's Office on July 27, 2011 and was returned to Respondent. A copy of which is attached hereto as Exhibit C. At a loss as how to proceed, Respondent sent a letter to the Chief Justice's Office on September 11 detailing these attempts and requesting guidance as how to proceed. A copy of which is attached hereto as Exhibit D. A finding of civil contempt is unnecessary as Respondent has provided the necessary affidavit. As Respondent believes the Justices may have been unaware of these efforts at the time of the Court's decision, therefore Respondent respectfully requests a reconsideration of that decision. Respectfully submitted, Daniel K. Dismuke, Respondent Bar Registration Number Stow, OH (330) A copy of the foregoing was served upon Dreama Anderson, Attorney for, Anderson & Miller Co. L.P.A., 1650 Home Ave., Akron, OH and William G. Chris, Bar Counsel, Akron Bar Association, 57 S. BroadwayAt., Akron, OH on October 3, %

7 THE SUPREMF, COURT OF OHIO Akron Bar Association. V. Daniel Kenneth Dismuke, Respondent. Case No RESPONDENT'S RESPONSETO ORDER TO Sl-IOW CAUSL- Respondent received the Court's Order of March 3 L aiter public notice of the court's Opinion in this matter. Respondent upon hearing of the puhlic notice retrieved the OpinionAkrorr BarAssn. v Dismuke. 128 Ohio St.3d Ohio-1444, from the Ohio Supreme Court Website and reviewed the opinion. Upon receiving the Order Respondent believed the Order to be the same as the Opinion. However, upon receiving the Court' Order of June 16, 2011, Respondent more closely reviewed both the Opinion and Order and discovered that they two documents were in fact different. The Order contained instructions and a deadline not contained in the Opinion. Respondent sincerely apologizes for his tardiness. Further, as of the date of the Court's order Respondent did not have any pending matters, and had not been practicing law for over a year. In addition, Respondent's files were returned to, to all clients by the Akron Bar Association approximately a year before «tip rnllrr'c orrier. Resoondent will contact the Disciplinary Counsel and the Akron Bar R LFE, Cl^FV E B flf COURT

8 Association to ensure that there are no files still in their possession. Respectfully submitted, 6' Daniel K. Dismuke, Respondent Bar Registration Number Stow, OH (330) A copy of the foregoing was served upon Dreama Anderson, Attorney for, Anderson & Miller Co. L.P.A Home Ave., Akron, OH and William G. Chris, Bar Counsel, Akron Bar Association, 57 S. Broadway St.. Akron. OH on July 7, 2011.

9 THE SUPREME COURT OF OHIO Akron Bar Association. V. Case No NOTICE OF FIIING ^1FFID!^VIT Daniel Kenneth Dismuke, Respondent. Respondent does hereby provide notice of filing of an affidavit, attached hereto, as required by the Court's order dated March Respondent sincerely apologizes for his tardiness. Daniel K. Dismuke. R^spondent Bar Registration Number Stow, OH (330) A copy of the foregoing was served upon Dreania Anderson. Attorney for, Anderson & Mitler Co. L.P.A., 1650 Home Ave.. Akron. OH and William G. Chris, Bar Counsel, Akron Bar Association, 57 S. Broadway St., AkrgFq OH on July 13,

10 AFFIDAVIT STATE OF OHIO COLJNTY OF^^; Affiant, Daniel K. Dismuke, states as follows: 1. Respondent is not representing any clients and has not pending matters now or at the time of the Court's Order March Respondent has no files of pending matters now or at the time of the Court's Order ^.Tarch 31, Respondent does not now or at the time of the Court's Order possess or control any fees or expenses unearned or not paid. 4. Respondent does not now or at the time of the Court's Order March 31, 2011 have any pending litigation. 5. Respondent may receive communications at Stow. OH Further Affiant saith naught. Sworn before me and signed in my presence this ['.^ 4day of )^ i_t7lsmah3e JdJir'r Notary Public n and for the State of Ohio My Gommission F_xplrss July 91, 2011

11 THE StIPREME CO[RT OF OHIO Akron Bar Association. CascNo'() In-I8 r1 Daniel Kenneth Disniuke. MOTION TO I,f:A^F lo 1'IIE Respondent. RESPONDENT'S RESPONSETO ORDER TO SHOW C.A1^SE AND RF:SPOND}-:NT'S vot1( P. OF FILING :\FFII)AVIT IN'STAN"TER Now comes Respondent who does hereby move this honorable court for leave to file Respondent's Response to Ordcr to Shovv Cause and Re^pondent', Notice of Filing Affidavit of Compliance instanter. Rcspondent enroneouslv helieved that lie had until luly in which to respond to the Court's Order to Show Cause. Rcspondent attempted to revievv the requircments of, prepare and have notorized in aflidacit to include with the Response but when the atlidavit was unreadv. Respondent mailed the Response for filing on July 7, 2011 to give it sutficient time to arrive for filing prior to,luly t I the date upon which Respondent believed the Response to be due. Respondent then complete and had the affidavit notorized. which he mailed lior tiling on Iulv I 2011.

12 Respondent sincerely apologizes for his tardiness. Respectfully submitted. I Daniel K. DismukC. 12I:spO?ndent Bar Registration ','umher n Stow. OFl (3 10) A copy of the foregoing was servecl upon Drean a Anderson, Attorney for. Anderson & Miller Co. L.RA., 1650 l-lonie Ave.. Akron. OH 443) 10 and William G. Chris, Bar C ounsel. Akron Bar Association. 57 S. Broadway' St., Akron. OH on 1LdV /J /'^ ;1 O Daniel K. Dismu

13 DANIEL K. DISMUKE 4267 OSAGE ST. STOW, OH ^September 11, 2011 Chief Justice Maureen O'Connor Supreme Court of Ohio 65 S. Front St. Columbus, OH Re: Akron Bar Association v. Daniel Kenneth Dismuke, Case No The Honorable Chief Justice O'Connor: I have been attempting to file a response to the Court's Order of June 16, 2011, in addition to an affidavit of compliance to comply with Court's Order. Both were returned to me by the Clerk's Office. I again attempted to file a Motion for Leave to File, however that was returned to me as well. I am writing because I did not want the Court to believe that I have ignored the Order. Also, I wanted to seek guidance on how the Court would like me to proceed to comply with the Court's Orders. Respectfully yours, cc: William G. Chris, Bar Counsel Daniel K. Dismuke