Wednesday, October 28, 2020
The Ohio Supreme Court has accepted an attorney's resignation.
Justice Fischer dissented and expressed concerns about restitution
According to statistics compiled after a review was conducted of cases over the past ten years in which this court has accepted resignations with disciplinary action pending, the total amount of restitution awarded by the Fund to former clients of resigning attorneys was calculated to have been more than $3.7 million. During that same time period, the Fund has recovered less than $50,000 from those attorneys; this amount includes the money recovered with the assistance of the Ohio Attorney General. That is about 1.3 cents recovered per every dollar awarded. That is a very low recovery percentage and is one of the reasons why “it pays” for a lawyer charged with unethical conduct to resign with discipline pending.
The resigning attorney’s former clients may or may not, depending on the amount owed, be reimbursed in full for their losses. Plus, these harmed members of the public are forced to apply and wait for recompense. So, in the end, the public, the former clients, and Ohio’s attorneys all lose under this system.
The dissent would require financial disclosure
I must respectfully dissent because, based on these reports submitted by disciplinary counsel, I cannot tell if there is any “blood” in the “turnip” available to pay any restitution in these cases
Chief Justice O'Connor joined the dissent.
Dan Trevas reported on his May 2020 suspension
The Ohio Supreme Court today suspended a Toledo attorney for two years for engaging in a pattern of neglecting client matters, soliciting sex from a client, and failing to return fees for work he did not do.
In a unanimous per curiam opinion, the Supreme Court suspended Mark D. Berling and gave him 90 days to pay about $30,000 in restitution to seven former clients, including $16,500 to one client. The opinion noted that while Berling “technically acknowledged” most of his conduct was inappropriate, he attempted to minimize some of his behavior and shift blame to his clients and others.
Berling has been under an interim remedial suspension since March 24 based on a separate complaint brought against him by the Toledo Bar Association to the Board of Professional Conduct. Today’s sanctions are based on violations for the mishandling of cases from 2013 to 2019.
Attorney Crosses Line in Cross-Border Representation
In 2017, a woman paid Berling a $5,000 retainer to represent her in a divorce action that was pending in Monroe County, Michigan, just across the state border from Toledo. Berling was not licensed to practice in Michigan, but advised his client that he would seek temporary admission and affiliate with a Michigan-licensed attorney. He also assured his client she would not have to pay for two attorneys.
He asked Salvatore Molaro Jr., an attorney licensed in both Ohio and Michigan, to assist.
In February 2017, Berling texted his client to indicate his admission request was “[a]ll done.” However, he never filed for admission. In May and June, Molaro sent Berling two letters identifying several tasks to complete for a June 29 trial , and requesting that the client visit Molaro’s office to discuss his fee. Berling never told the client about the letters.
Berling appeared with Molaro at a mid-June mediation and a final pretrial hearing on the matter. After the hearing, Molaro advised the client he could not represent her because of a failure to reach an agreement on his fee. Because Berling never secured admission to practice in Michigan, the client was forced to obtain a new lawyer one week before her scheduled trial.
During the representation, Berling sent the client multiple text messages that were sexual in nature, including messages in which he solicited sexual activity from her.
Based on this conduct, the board found Berling violated several professional conduct rules, including soliciting sexual activity from a client when no prior sexual relationship existed; practicing law in a jurisdiction in violation of that jurisdiction’s rules; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
The Court adopted the board’s recommendation that Berling pay his client $16,500 in restitution, which includes returning her $5,000 retainer and compensating her for the $11,500 she had to pay to her new attorney.
Board Considers Sanction
When considering a sanction to recommend for Berling, the board considered aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.
Based on a report from a three-member board hearing panel, the board found six aggravating factors, including that Berling acted with a dishonest and selfish motive; committed multiple offenses; refused to acknowledge the wrongful nature of his conduct; and caused harm to vulnerable clients. The board noted he had failed to properly notify his clients that he did not carry malpractice insurance.
“He also had tried to justify his actions by offering certain medical and social conditions as excuses, which the panel concluded showed a lack of sincerity and remorse,” the board reported.
Berling submitted some evidence that he suffered from mental and physical disorders, but the board found the conditions did not qualify as a mitigating factor. However, the board did note that, in mitigation, Berling had no prior disciplinary record, cooperated with disciplinary proceedings, and submitted evidence of his good reputation and competency as an attorney.
Based on sanctions imposed in other cases involving lawyers engaging in patterns of neglecting client matters, the board recommended a two-year suspension with conditions for reinstatement.
The Court agreed and suspended Berling with the condition that he pay restitution in the next 90 days to seven clients, ranging from $1,000 to $16,500. He also must submit to an evaluation by the Ohio Lawyers Assistance Program and comply with any counseling or treatment recommendations from the evaluation, and he must provide an opinion from a qualified healthcare professional that finds he can return to the competent, ethical, and professional practice of law. He also must pay the costs of the disciplinary proceedings.