Tuesday, November 21, 2017

Existence Of Attorney-Client Relationship At Issue In Ohio Bar Discipline Case

The web page of the Ohio Supreme Court has an excellent analysis of a disciplinary case scheduled for argument this week

Disciplinary Counsel v. Paul A. Mancino Jr., Case no. 2017-1079
Cuyahoga County

The Board of Professional Conduct, which considers complaints against lawyers and judges in Ohio, recommends that Cleveland attorney Paul A. Mancino Jr. receive a public reprimand based on his representation of a criminal defendant in an appeal.

Family Friend Says Defendant Wants to Appeal
In March 2014, Mancino filed a notice of appeal on behalf of Raymond F. Miller, who had pled guilty in a Geauga County criminal case late in 2013. Robert Jirousek, the father of one of the attorney’s clients, knew Miller’s parents and told Mancino that Miller wanted to appeal his conviction. Jirousek agreed to pay the costs.

Mancino filed a brief in the Miller appeal with the Eleventh District Court of Appeals, but he didn’t send a copy of his brief to Miller. Oral argument was held, and the Eleventh District upheld Miller’s conviction and sentence in December 2014. Mancino said he sent the ruling to Miller, who later testified that he received this material.

Mancino formally asked the Eleventh District to reconsider the decision, and the state filed a response with an affidavit from Miller that stated he never requested or authorized anyone to file an appeal in his case and he hadn’t spoken with or received correspondence from Mancino. The trial judge in the criminal case filed the grievance with the Office of Disciplinary Counsel, which investigated the matter.

Mancino acknowledged during the disciplinary process that he never met, spoke with, or received communication from Miller. The attorney also admitted he never contacted Miller or Miller’s parents to find out if the defendant wanted to appeal the case or hire Mancino as his lawyer. Jirousek stated that he hadn’t communicated directly with Miller, either.

Consultation with Client Is Required
The professional conduct board concluded that Mancino violated rules requiring lawyers to consult with clients to decide legal strategy, such as whether to sue or to settle; to promptly inform clients about the case status; and to obtain client consent on case issues and abide by those decisions. The board also found that Mancino violated a rule barring attorneys from taking compensation for representation from someone other than the client unless the client authorizes that payment.

Among the mitigating factors identified, the board’s report to the Supreme Court notes that Mancino had no dishonest or selfish motive, caused no harm to the client, and has practiced for 54 years without any disciplinary action. The board found no aggravating circumstances and recommended that the Court publicly reprimand Mancino.

No Attorney-Client Relationship Was Formed, Lawyer Argues
Mancino objects to the board’s findings and recommended sanction. He contends that there can be no violations of the Rules of Professional Conduct if he had no attorney-client relationship with Miller. Mancino argues that the Supreme Court dismissed disciplinary charges against an attorney in Disciplinary Counsel v. Mamich (2010) because the Court found there was no attorney-client relationship. In that case, the attorney was hired by a father who had opened a credit card in his daughter’s name without her knowledge and received notice about a lawsuit against his daughter for nonpayment of the debt. Mancino states that the Court decided the daughter wasn’t the lawyer’s client because she was never told about the lawsuit and had no reason to think the lawyer was representing her.

In Mancino’s view, his case is identical to Mamich. He points out that the board’s report states that Miller signed an affidavit that Mancino wasn’t his attorney and that he didn’t ask anyone to appeal his case. If Miller wasn’t a client, then Mancino argues he had no duty to communicate with Miller or update him about the case. The violations of attorney conduct rules found by the board in this case should be dismissed and no sanction should be imposed, Mancino concludes.

Attorney Represented Man in Appeal, Disciplinary Counsel Maintains
The disciplinary counsel counters that throughout the disciplinary process Mancino argued that Miller knew and authorized the attorney’s representation, yet now he states he had no attorney-client relationship with Miller. The disciplinary counsel points out that Mancino filed a brief on Miller’s behalf in the appeal, and he identified himself as Miller’s attorney during oral argument before the Eleventh District.

The disciplinary counsel also argues that the attorney in Mamich was aware that the father hadn’t told his daughter he had opened the credit card in her name or informed her about the civil lawsuit. Mancino, however, believed that Miller wanted to appeal his conviction based on information from Jirousek, so Mancino thought he was representing Miller, the disciplinary counsel maintains. As Miller’s attorney, Mancino was obligated to contact and inform his client about the case and to obtain Miller’s consent to allow Jirousek to pay the legal fees, the disciplinary counsel states.

 Kathleen Maloney

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/11/existence-of-attorney-client-relationship-at-issue-in-ohio-bar-discipline-case.html

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