Thursday, March 22, 2012

Non-Refundable Fee And Failure To Return It Draws Six-Month Suspension

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today suspended the law license of [a] Cleveland attorney...for six months for professional misconduct in his dealings with a criminal defendant from whom [he] demanded a “non-refundable” $15,000 fee advance, which [he] later refused to return despite withdrawing from the case without interviewing any witnesses, reviewing any discovery materials or negotiating a plea on behalf of the client.

In its 6-1 per curiam opinion, the court also ordered [the attorney] to refund all of the client’s $15,000 fee.

The court adopted findings by the Board of Commissioners on Grievances and Discipline that [his] conduct violated the state disciplinary rules that require attorneys to promptly refund unearned fees after withdrawing from representation, and prohibit an attorney from charging an illegal or clearly excessive fee; charging a “flat fee” without simultaneously advising the client he or she may be entitled to a refund if the a lawyer does not complete representation; and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.

The court overruled [his] objections to the disciplinary board’s recommendation of an actual suspension from practice. It cited the aggravating factors that “[the attorney] acted with a dishonest and selfish motive, cooperated only grudgingly in the disciplinary process with an air of righteous indignation, was evasive and lied during his testimony at the panel hearing, refused to acknowledge the wrongful nature of his conduct, harmed vulnerable clients, and failed to make restitution.”

The court’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.

Justice Terrence O’Donnell dissented, noting that [the attorney] had no prior disciplinary violations and submitted letters from more than 50 judges and attorneys attesting to his contributions to the legal profession, pro bono service, and reputation for honesty, good character and hard work on behalf of clients.

Justice O’Donnell wrote: “I offer no excuses for [the attorney's] conduct, which arose out of a fee dispute, but in sanctioning that conduct, I would accord greater weight to [his] long and distinguished career. ... Based upon these attestations and the facts in this case, I conclude that [his] conduct is an isolated incident in an otherwise unblemished 42-year legal career. In my view, an actual suspension from the practice of law is unnecessary to protect the public from future harm, but rather is excessive and punitive in light of the mitigating factors in this case. Therefore, I would impose a six-month suspension, all stayed, on the conditions that [he] commit no further misconduct and submit to fee arbitration to determine the amount of refund, if any, owed to the Bell family.”

The client was charged with several felonies artising from an assault on a police officer that allegedly took place during a "brawl in the stands" at a Cleveland Indians - New York Yankees game.

The client was a 19 year old from upstate New York (likely a Yankees fan) who had no ties to Cleveland other than the criminal charges, which he continues to deny. He found the attorney through a referral from a bail bondsman.

The court's opinion is linked here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/03/from-the-web-page-of-the-ohio-supreme-court-the-supreme-court-of-ohio-today-suspended-the-law-license-of-cleveland-attorney.html

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