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Friday, June 27, 2014

These are the exact arguments made before the Ohio Supreme Court by my highly regarded retained defense counsel in 2006 in defense of my handling of the Accola clients' bankruptcy case that would be eventually held against me by the lopsided and heavily weighted nearly all-Republican Ohio High Court, which they used in suspending my legal career as an active lawyer at that time. [Note: There are errors in the way this official record was herein transcribed by the referened reporting service noted on these pages. The various mistakes are found in the original here on google and are not resulting from my own reproduction of this otherwise, alleged official record. (For instance, "aired" is often inccorrectly used in this transcript for what was obviously meant by the lawyers as "error" "ESPN is used in the transcript, for the word "suspension". Etc., etc.. This is itself odd and demonstrates a level of clear incompetence by the transciption service. However, while i'm not sure what professional agency reproduced this doc, otherwise, I have found it in the main, contains for the first time since that hearing, in 06, a decent representation for the sake of the literal real argument, and the only ever published recorded and reproduced record of such arguments to be found anywhere that contains my counsels official arguments in total, made by these two highly regarded, serious and very careful and highly experienced lawyers from the Kravitz law firm, including the late, Max Kravitz himself and his noted, close, top law partner, Ms. Paula Brown who wrote and gave the oral argument on my behalf.}

Mr. Chief Justice, may it please the Court, I'm Paula Brown. Along with co-counsel Max Kravitz, we represent Richard Olivito.  I'd like to reserve three minutes for rebuttal.

Court: Watch your time there.

Brown Paula:   As realtors stated in the hearing brief this is an unfortunate case that began with a simple neglect of a legal matter. The neglect may or may not have been acable  {actionable }under the supreme court's rules for the government of the bar and the code of professional responsibility. But for the manner to which Olivito responded to his neglect this matter might not be before this board. He should not be punished for trying to defend himself against these allegations. If the alleged neglect was not actionable based on the Accolas' complaint it should not rise to the level of a license saw ESPN shun. {suspension} From the beginning Mr. Olivito admitted that he had signed the Accola's name to the bankruptcy petition.

He did this to further the Accola's interests, not his own.

Richard Olivito has been licensed to practice law in the state of Ohio since 1989. He was retained by the Accolas' after he had successfully completed a matter for their son. When they first came to see Mr. Olivito they had two issues that they wanted him to work on. One of those was a license suspension. Mr. ACOLA's driver's license had been suspended and he worked for himself.
So it was a top priority for them to get that taken care of. And the other was the bankruptcy issue.

Mr. Olivito tried to help the Accola's. He asked for $100 for the license saw ESPN shun issue and $350 for the bankruptcy.  For a total, he received $450. It appeared that their {Accola's} first priority again was the license suspension. As Mrs. Accola said in her depo that's what we came to you for.

When Mr. Olivito was unable to be successful on the driver's license issue he was honest with the client and he even volunteered to return or to put some of the $100 he had received for the license issue toward the bankruptcy issue.  So $450 to work on two issues, one of which was the license suspension.

Mr. Olivito made no money in this matter. He {Mr. Olivito -sic- own insert} put $250 -- $200 to $250 toward the filing fee of the bankruptcy. 

    So essentially he received very little if anything for handling this matter. The bankruptcy was discharged on the original petition filed by Mr. Olivito and no additional schedules or items were required.

The Accolas' may have been inconvenienced by this process or during this process but they were not harmed.   Mr. Olivito did his best to represent the ACOLAs.

He was ill at the first hearing on December 15th.  Although there have been -- there were some comments as to whether he called in before or when he called in, who he spoke to, it's clear from the December 29th 2003 transcript of the hearing before Elaine grieves that she was notified Mr. Olivito was ill December 15th.  It is also clear that Mr. Olivito was at the December 29th hearing to ensure the interests of his clients were met.   The earring panel aired when it did not accept the fact that Mr. Olivito believed this bankruptcy was complex.  He said I'm not a bankruptcy expert. He had some difficulty at the beginning trying to decide if he was to file one bankruptcy or two bankruptcies because Mr. Accola had represented he had his own business and Mr. Olivito wasn't sure which way to go with that and which way would be best for the clients.  He testified -- what I want to say is it did take him some time because he was trying to figure out which way to go.

Probably that's the best thing for all of us to do rather than to rush in and maybe file something that would jeopardize our clients' interests. There is a learning curve sometimes. I think you have to take the time to figure out what is in the clients' best interest.  Also, Mrs. ACOLA admitted she didn't provide Mr. Olivito with a credit report. She testified that when she came in early on, she only brought him bills relating to the household and there were other things that Mr. Olivito had to get to complete this bankruptcy.  

Based on the letter written by Mr. Accola regarding his driving privileges, the Accola's met with Mr. Olivito in May.  There is documentation that Mr. Olivito obtained some additional bills in June of 2003.  A paralegal began to work on this matter the beginning of August and she testified it took a month.  There is not much of a documented delay in this matter.

Mr. Olivito never lied to or misrepresented anything to the Accolas.  From the depositions and hearings it appears that there was the attorney-client relationship broke down after the petition was filed.  There was no testimony that the Accolas' tried to get in touch with Mr. Olivito after the petition was filed.

The hearing panel also aired when it found that -- on the issue of withdrawal on the way that Mr. Olivito was drawn from his representation.  Mrs. Accola filed a grievance with the Bar Association on December 15th,   {2003}.  In her grievance she stated she had to hire another attorney. In another place on the form, she stated, "I want my money returned so I can hire another attorney."

By her own words, she discharged Mr. Olivito.  An attorney is required to withdraw when the client has discharged him.  Even though he had filed a motion to withdraw, Mr. Olivito still attended the December 29th, 2003 hearing because an entry had not been filed yet. 

He wanted to make sure that the interests of the Accolas' were taken care of.   At the December 29, 2003 hearing the Accolas' stated and reaffirmed what they put in the December 15th complaint that they did not want Mr. Olivito to represent them and that they wanted to go on alone at the December 29th hearing.

The practice of law is not an exact science. Not every delay, not every less than perfect or unfavorable outcome should rise to the level of a disciplinary violation.  The Accolas' may have been inconvenienced having to attend more than one hearing but their debts were discharged based on the petition filed by Mr. Olivito.

They were not harmed.

This was an isolated incident, not a course of conduct.

There was no injury to the Accolas'.

Court:  I assume you should say economic injury, because wasn't there a lack of communication? They kept calling him and the only person they could talk to was the paralegal or the secretary?  

Brown, Paul:  That's what Mrs. Accola stated, that she had testified that she had made calls to the office and that beginning -- well, in August she did speak with the paralegal numerous times, even in the evening.

Court: There was a delay. They were anxious to have their bankruptcy filed and be discharged and there was considerable delay was there not? When you say there is no harm, to many people the abuse of their time and causing them whatever anguish they have because the lawyer does not perform his or her services as expected, that's harm, is it not?

Brown, Paul:  I would respectfully disagree with the considerable delay.  Even in the panel hearing they recognized this could have been five months from the time that Mr. Olivito met with the Accolas to the time this was filed to the petition was filed.  There was documentation that he did acquire some bills, that the Accolas' had not given him in May.   He acquired those in June. There was testimony from the paralegal that she began working on this in the beginning of August and it wasn't finished until beginning of September.  It was filed in October.  

A member of the Court: What kind of practice does Mr. Olivito have?

Brown, Paula:   He has a general practice.  

A member of the Court: Have there been any complaints filed against him other than this?

Brown, Paula: no.

Court: throughout his whole career?

Brown, Paula: no.

Court:  This was the only thing?

Brown, Paula: This is only one that I am aware of, Your Honor.
Brown, Paula: 
The Realator {the Mahoning County Ethics prosecutor sic} stipulated at the hearing that Mr. Olivito did not act out of selfish or personal motives in filing the bankruptcy petition for the Accolas.

                            Mr. Olivito has a reputation for defending the poor and the downtrodden.
He works hard with the limited client funds he gets and he tries to do the best he can for his clients.  He may not have been an experienced bankruptcy attorney, but he got the job done. The petition was filed and the client's debts were discharged.

     If as an attorney you take too long to complete a task, someone with more experience may complete it in less time, that cannot count as a basis for a disciplinary violation and a license suspension. Mr. Olivito did the best he could for the Accolas.    And I have nothing further at this time. Thank you.

Court: Thank you Ms. Brown.

Mr. Slipski.  {Mahoning County  Bar Association's Prosecuting Attorney for ethics}