Tuesday, April 21, 2020

Expensive Lawn Care

Dan Trevas reports on a decision of the Ohio Supreme Court

The Ohio Supreme Court today indefinitely suspended a central Ohio lawyer for overcharging or stealing more than $128,000 from a mentally ill client, including charging his $250 hourly legal rate for mowing her lawn.

In a unanimous per curiam opinion, the Supreme Court suspended Austin R. Buttars of Dublin. Buttars has been under an interim suspension since June 2019, after he was convicted of fourth-degree  felony theft. The Court conditioned his return to the practice of law on proof that he paid the remaining $66,174 of the $128,674 he took from his former client or that he reimbursed the Lawyers’ Fund for Client Protection for any amount awarded to her.

Pro Bono Representation Proves Costly to Client
The Office of Disciplinary Counsel’s investigation of Buttars began from a referral from Franklin County Adult Protective Services regarding a woman identified in court records as E.H.

E.H suffers from mental illness, alcoholism, and depression. In May 2015, she hired Buttars for assistance with  a landlord dispute. Butters worked as an independent contractor to a law firm. The law firm entered into a written fee agreement with E.H. to represent her in the landlord-tenant dispute on a pro bono basis, provided she pay $20 per month during her representation.

However, Buttars signed a separate written agreement with E.H. in which he agreed to represent her “in any capacity.” E.H. advised Buttars she did not have any money to pay him, but she expected to receive a substantial amount from her inheritance when her mother died.

Buttars worked on the eviction. Two months later, in July 2015, E.H.’s landlord agreed to dismiss his eviction complaint when E.H. voluntarily agreed to vacate the premises. Buttars charged E.H. for more than 30 hours of legal services for handling the eviction at his $250 per hour rate despite the law firm’s agreement to handle the matter pro bono.

Lawyer Administers Estate
E.H.’s mother died in September 2015, and E.H. requested that Buttars administer the estate. Buttars formed a law firm with another attorney, and the firm performed various actions for the estate until August 2016.

From the time E.H. hired Buttars through 2016, he charged her $69,785 for services, including $9,000 for the eviction matter. The rest of the charges were listed for administering the estate and handing personal matters. Additionally, Buttars’ law firm charged another $20,841 for probate and personal services, bringing the total fees to $90,626.

Buttars paid himself and the firm by making online transfers from E.H.’s bank account.

Franklin County Adult Protective Services became aware of the arrangement and notified the disciplinary counsel. The agency later filed a grievance against Buttars.

County Indicts Lawyer
During the disciplinary proceedings, Buttars admitted that in addition to charging E.H. over $90,000 in legal fees, he transferred another $57,000 from E.H.’s accounts, although none of that money had been earned by him.

In October 2018, Buttars was indicted for theft of a person from a protected class, a second-degree felony, and agreed to plead guilty in May 2019 to the fourth-degree felony charge. He was sentenced to two years of community control, ordered to complete 100 hours of community service, and pay $29,450 in restitution to E.H. within two years. At the time of the conviction, Buttars had paid E.H. $62,500.

Prior to the filing of criminal charges, the disciplinary counsel charged Buttars with violating several rules governing the conduct of Ohio attorneys. The Board of Professional Conduct stayed the disciplinary proceedings until the completion of the criminal case.

Buttars indicated he performed various non-legal services for E.H., including: helping her with tasks around her home; looking for a new apartment; paying her bills, shopping; mowing her lawn; unclogging her toilet and sink; scheduling an appointment with her cable company; researching television evangelists at her request; and car shopping with her. For some of the services he charged a $250 hourly legal rate, and occasionally charged a $125 paralegal rate, although the services were neither legal nor paralegal in nature. On some days, he billed E.H. twice, at the legal rate and the paralegal rate for what appeared to be the same services.

Clearly Excessive Fees Charged
The disciplinary counsel and Buttars stipulated, and the board agreed, that Buttars violated several professional conduct rules while representing E.H., including charging a clearly excessive fee. He also was found to have committed an illegal act; engaged in conducti involving dishonesty, fraud, deceit, or misrepresentation; engaged in conduct that adversely reflects on his fitness to practice law; and made a misrepresentation to a court

The board determined that Buttars transferred a total of $147,710 from E.H.’s accounts, and that he and his law firm earned only $19,036 for services provided. The board concluded Buttars stole or overcharged E.H. $128,674.

Buttars repaid E.H. $12,500 in January 2017, and another $50,000 before his 2019 conviction. Buttars still owes E.H. $66,174, which includes the $29,450 in restitution, which was part of his criminal sentence.

Behavior Warrants Indefinite Suspension
The Court’s opinion stated that the presumed sanction for misappropriating client funds is disbarment, but that in some cases the Court has chosen to indefinitely suspend lawyers. The board noted that Buttars had made a good-faith effort toward repaying E.H., has cooperated with the disciplinary proceedings, and entered into a two-year contract in 2017 with the Ohio Lawyers Assistance Program to address a mental disorder and has complied with that contract.

The board recommended, and the Court agreed, to indefinitely suspend Buttars, finding he has accepted responsibility for his actions, expressed sincere remorse, and committed to making things right with E.H.

2019-1722Disciplinary Counsel v. ButtarsSlip Opinion No. 2020-Ohio-1511.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/04/dan-trevas-reports-on-a-decision-of-the-ohio-supreme-court-the-ohio-supreme-court-today-indefinitely-suspended-a-central-ohi.html

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