Monday, January 7, 2019

Deep Dive

An argument this week before the Ohio Supreme Court is previewed by Kathleen Maloney

Disciplinary Counsel v. Phillip L. Harmon, Case no. 2018-0817
Franklin County

The Ohio Board of Professional Conduct recommends a two-year suspension with 18 months stayed for Worthington attorney Phillip L. Harmon. Harmon stipulated, and the board found, that he violated several attorney conduct rules, including charging legal fees for non-legal services, having a conflict of interest when representing a client in a divorce, and misleading a probate court.

Attorney Does Estate Planning for Couple
Harmon was hired in 2011 by Donald and Sandra Harper to draft an estate plan, including wills, powers of attorney, and a family trust.

Donald Harper, a 1956 Olympic silver medalist and Harmon’s high school diving coach, was diagnosed with dementia by August 2014. The following summer, Sandra Harper contacted Harmon about divorce options. At different times, Harmon indicated to various people that he couldn’t represent either of the Harpers because of his conflicts of interest, but also that he could represent Donald Harper if the divorce was non-adversarial. Sandra Harper hired a lawyer to represent her in the divorce.

In November 2015, the couple had a physical altercation, and Donald Harper was arrested and charged with domestic violence and assault. Harmon represented Donald Harper in the criminal case. In January 2016, Donald Harper pled to an amended charge of disorderly conduct/intoxication. Part of his sentence was two years of community control and an order not to leave Franklin County for more than 72 hours without his probation officer’s permission.

Client’s Daughter and Attorney Discuss Client’s Possible Move to Colorado
From mid-December 2015 into January 2016, Harmon communicated with the Harpers’ daughter, Anne Halliday, suggesting that she take over care for her father and find a permanent living arrangement, possibly in Colorado, where she lived. Harmon continued to represent Donald Harper in the divorce.

Unknown to Harmon, Halliday coordinated with a friend in Ohio to put her dad on a plane to Colorado in late January. Harmon reported him missing to police. Later that night, though, Halliday informed Harmon that her father was with her in Colorado and that he planned to live there. In subsequent communications, Harmon stated that he believed Donald Harper wasn’t safe, he had been removed from Ohio against his will, and he was in violation of his probation. On Jan. 23, 2016, Halliday emailed Harmon a letter from Donald Harper and her, stating that he left Ohio voluntarily and terminating Harmon’s legal representation.

Harmon continued to correspond with Sandra Harper’s attorney about the divorce, and he filed a petition in probate court in February 2016. In the petition, Harmon asked to withdraw as Donald Harper’s attorney; requested appointment of a guardian ad litem and legal counsel for Harper; made claims of tortious interference, undue influence, and spousal support; and asked for payment for the services he had provided. He also filed a claim in probate court that Halliday had engaged in the unauthorized practice of law.

Disciplinary Proceedings Initiated
Sandra Harper submitted a grievance against Harmon with the Office of Disciplinary Counsel, which investigated the matter.

At a hearing before the professional conduct board’s panel, Harmon stipulated to facts and admitted to violating seven rules governing attorney conduct in the state. In reporting its findings and recommended discipline to the Ohio Supreme Court, the board described the probate court filing as frivolous. Noting that Halliday, Sandra Harper, and the person who put Harmon on the plane incurred more than $52,000 in legal fees as a result of the court filing, the board recommended that Harmon pay restitution to the individuals.

Attorney Makes Numerous Objections
In Harmon’s objections, he disputes the violation regarding charging the same $200 per hour fee for both legal and non-legal services he provided to Donald Harper, totaling $30,304. He points to the $38,675 that the board concluded he must pay to Sandra Harper for her legal fees. That amount is based on her lawyer’s $315 per hour rate for legal services and $145 per hour in non-legal services, he states. His $200 per hour fee, he contends, is a “blended billing rate … applied to all services.” However, he adjusted this rate during the disciplinary process and indicates he still is owed at least $14,000.

He maintains that all parties agreed to a joint, collaborative, non-adversarial dissolution for the Harpers. Once it became adversarial, Harmon asserts that he reported the conflict of interest to the probate court in February 2016 and asked to withdraw as counsel.

Before February 2016, Harmon notes that he rejected the validity of the letter terminating his legal representation and fiduciary role because he had a legitimate question whether Anne Halliday was pressuring her father to take the step and whether her father was competent. He states that he thought the issue was best resolved by the court.

He challenges several statements that he previously agreed to in his stipulations, such as misleading the probate court magistrate by stating that Donald Harper had been kidnapped to prevent the divorce filing and that he had received no word about his client’s safety or well-being. He argues that the disciplinary counsel didn’t provide sufficient evidence to support the stipulations, and that he was sincere in his concern for his client.

Investigating Agency States Facts Support Misconduct
The disciplinary counsel disputes that the Harpers could have had a non-adversarial divorce, pointing to events, such as the criminal charges and accusations between the couple in November 2015, that counter that claim.

The office maintains that Harmon can’t credibly argue that Donald Harper was competent in some statements but incompetent in others. Also, Harmon waited weeks before raising concerns with the probate court or any authority about his client’s well-being, has minimized his false statements to the probate court, and repeatedly threatened Anne Halliday, the disciplinary counsel states.

The disciplinary counsel notes that Harmon stipulated to the facts presented in the board’s report and to the misconduct. The disciplinary counsel maintains that, given the stipulations, the board has no need “to state with specificity the evidence that it believed supported the violations.” Nor, as Harmon argues, do the rules governing disciplinary proceedings require the board to identify specific facts and legal elements on each violation, the disciplinary counsel maintains. Regardless, the disciplinary counsel’s view is that the board report provided a sufficient basis for its findings.

Harmon isn’t now permitted to submit evidence to contradict the stipulations to which he had agreed, the disciplinary counsel adds. The office winnowed down its presentation for Harmon’s disciplinary hearing because of the stipulations. The disciplinary counsel also points to several parts of Harmon’s own testimonythat support the rule violations.

  • Kathleen Maloney

(Mike Frisch)

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