Wednesday, November 17, 2021

To Youngstown And Back

A bar discipline decision issued today by the Ohio Supreme Court is summarized by Dan Trevas

The Ohio Supreme Court today suspended a Cleveland attorney for two years for committing several ethical violations, including billing a client’s mother twice for round trips to Youngstown to visit his client in prison when the man was in the local county jail.

The Supreme Court voted 5-2 to suspend Harvey Bruner and ordered him to pay a total of $2,750 in restitution to two clients. The Court overruled Bruner’s objections, in which he called for the Court to adopt a two-year suspension with one year stayed as was jointly recommended by him and the Ohio State Bar Association (OSBA) or remand the matter to the Board of Professional Conduct for a new hearing.

In a per curiam opinion, the Court majority stated Bruner committed serious violations that the board believed justified not staying any part of the suspension, and noted he had been given the opportunity to further explain his position in a posthearing brief. The board characterized Bruner as having “a rather cavalier attitude toward the truth.”

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, and Melody J. Stewart joined the majority opinion. Sixth District Court of Appeals Judge Christine E. Mayle, sitting for Justice Michael P. Donnelly who did not participate in the case, also joined the opinion.

In a dissenting opinion, Justice Jennifer Brunner stated the board three-member panel hearing the case changed its “established procedural parameters without notice” to Bruner, which led to him having to testify to charges that the bar association withdrew. She stated the hearing process was not fair, and the Court should have accepted the agreed-upon suspension with a stay or allow for a new panel hearing.

Justice R. Patrick DeWine joined Justice Brunner’s opinion.

Attorney Violated Rules for Several Years
The Court first sanctioned Bruner in 2012, imposing a two-year suspension, fully stayed with conditions for neglecting clients and charging excessive fees. In 2019, the OSBA filed a complaint with the board charging Bruner with professional misconduct in six client-matters and for failing to notify clients that he lacked malpractice insurance over a seven-year period.

A board panel was slated to hear up to six days of testimony in Bruner’s discipline case. But on the morning of the first day, the parties stipulated to misconduct that Bruner committed. In doing so, the OSBA requested to withdraw some of the charges it originally filed against Bruner and amend the complaint to add other charges.

The changes prompted the panel to request testimony from Bruner, which ultimately led to the panel concluding that Bruner committed two violations of the rule prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The Court concluded that the board only established that Bruner engaged in one of those two withdrawn violations.

Charges for Trips to State Penitentiary Do Not Match Records
Some of Bruner’s violations stem from his agreement in February 2016 to charge Mary Walton a $5,000 fee to represent her son, Devonte Walton. Mary Walton paid Bruner $3,000 of the fee for the attorney to find new evidence to seek a new trial for Devonte or perform other postconviction work.

Mary Walton filed a grievance against Bruner, alleging he did not complete any work on the matter. Bruner claimed he performed work on the case, but admitted he failed to inform Mary about the scope of the work he performed and that he did not adequately communicate with her about the basis for his fee. He also admitted he did not create or maintain any client trust account records related to the funds he received from Mary.

The board noted that Bruner claimed to have visited Devonte at the Ohio State Penitentiary in Youngstown in July and September of 2016. He charged Mary four hours for each visit, which included two hours of round-trip travel time from Cleveland to Youngstown. However, Devonte was incarcerated in the Cuyahoga County Jail on those dates, which the board noted was only five minutes from Bruner’s office.

Bruner claims he was not dishonest about his visits, but recalled he visited Devonte in Youngstown in April 2016 and another time, which he could not recall. The Court’s opinion noted that Bruner was not being charged for misconduct for not visiting Devonte, but because on several occasions during the disciplinary process he stated he visited Devonte and billed for those visits on those specific July and September dates.

At his disciplinary hearing, Bruner conceded the prison records indicate Devonte was transferred from the penitentiary in early July 2016, weeks before he said he visited, until October 2016. Bruner denied falsifying his invoices to Mary and said he made a mistake by providing the wrong dates.

The hearing panel did not find Bruner’s testimony credible, and the Court agreed he did violate the rule against acting with dishonesty, along with two other rules requiring he adequately communicate to the scope of employment to his client and maintain sufficient records when accepting an advanced fee.

Court Considered Sanction
When considering the sanction in a disciplinary case, the Court considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.

The board found Bruner committed prior disciplinary offenses, engaged in a pattern of misconduct, committed multiple offenses, and a failed to make restitution to Mary Walton, or another client, Carlos Ortega. The board also found one mitigating factor -- that Bruner submitted three letters from judges lauding his professionalism and competence.

In recommending a two-year suspension, the board cited several cases where attorneys who committed multiple offenses similar to Bruner’s received sanctions ranging from an indefinite suspension to partially stayed two-year suspensions.

The Court’s opinion concluded the board’s sanction was appropriate, noting that in one matter Bruner threatened a client for filing a grievance against him. The Court also found Bruner admittedly failed to disclose important information during the disciplinary investigation, failed to competently represent two clients, failed to explain the scope of his representation to multiple clients, engaged in dishonest conduct, and did not notify clients over a seven-year period that he did not have malpractice insurance.

“The misconduct – combined with a profusion of aggravating factors, including previous discipline, compared to a single mitigating factor – warrants an actual two-year suspension,” the opinion stated.

In addition to the suspension and the restitution order, the Court also charged Bruner for the costs of the disciplinary proceedings.

Process Unfair to Attorney, Dissent Maintained
In her dissent, Justice Brunner noted that it was clear the OSBA and Bruner intended to use a stipulated agreement to resolve the matter and to waive any further hearings. She wrote that the record indicated both sides were unprepared to present testimony to the panel and were confused about the panel’s request for testimony. The dissent pointed out that the panel chair indicated several times that the testimony requested by the panel was to be in support of their agreement.

Since the panel scheduled six days to consider the matter, the dissenting justices argued that, if the panel intended to reject the parties’ agreement, it should have explained that and allowed the parties to have a day to prepare for a full hearing.

“The totality of the proceedings, and the majority’s approval of it, creates a disincentive for parties to cooperate to resolve a disciplinary case or even to narrow issues for a disciplinary panel, as these efforts may ultimately be used against them,” Justice Brunner wrote.

Given these procedural problems, the dissenting justices would have remanded the matter for a full evidentiary hearing and allowed the parties additional time to file a proper consent-to-discipline agreement, or in the alternative, dismissed the violations that were outside of the parties’ stipulation agreement and imposed the sanction that the parties had jointly recommended.

Given these procedural problems, the dissenting justices would have remanded the matter for a full evidentiary hearing and allowed the parties additional time to file a proper consent-to-discipline agreement, or in the alternative, dismissed the violations that were outside of the parties’ stipulation agreement and imposed the sanction that the parties had jointly recommended.

2020-1533. Ohio State Bar Assn. v. Bruner, Slip Opinion No. 2021-Ohio-4048.

Video camera icon View oral argument video of this case.

Justice Brunner dissented on behalf of Respondent Bruner

I respectfully dissent from the majority opinion in this case. While this court is the ultimate arbiter of attorney-discipline matters, see Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 708 N.E.2d 193 (1999), paragraph one of the syllabus, I cannot support the board’s recommendation in this case, because the disciplinary panel did not render procedural fairness—with its “surprise,” late-hour rejection of the parties’ efforts to resolve the matter without the necessity of a hearing. See In re Ruffalo, 390 U.S. 544, 551-552, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968) (admonishing against turning the attorney-disciplinary proceeding into a trap). The actions of the panel in this case give the appearance of inducing respondent, Harvey Bruce Bruner, to testify in order for the panel to accept the parties’ stipulation agreement, but really, the panel’s actions served to elicit testimony from Bruner, over the objections of his counsel, about matters he was unprepared to testify about. The panel then used that testimony to find that Bruner
violated rules of professional conduct that relator, the Ohio State Bar Association, had requested to withdraw and then impose a sanction that was partially based on those additional violations. Our role is not only to promote public confidence in the state’s judiciary but also to secure the confidence of the members of the bar. We require them to respect the judiciary. Prof.Cond.R., Preamble [5] (“A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.”).

The procedures employed resulted in unfairness

Because the panel at first appeared to agree to the parties’ stipulation-agreement approach but then elicited testimony that went beyond the agreement, I cannot join the majority opinion—I do not believe the hearing was a fair process. The majority finds support for the Prof.Cond.R. 8.4(c) violation in the Walton matter (a violation that relator had sought to withdraw before the panel) in testimony from Bruner elicited by panel member Caruso that was outside the scope of the stipulation agreement and over Bruner’s counsel’s objection, which was overruled by the panel chair. The ruling on the objection, absent other circumstances, could be found to be legally correct. But by changing the earlier established procedural parameters without notice, the panel denied Bruner a fair hearing.

The institutional concern

The totality of the proceeding, and the majority’s approval of it, creates a disincentive for parties to cooperate to resolve a disciplinary case or even to narrow issues for a disciplinary panel, as these efforts may ultimately be used against them. I therefore dissent from the majority opinion and would remand this matter to the board for a full evidentiary hearing or to allow the parties additional time to file a consent-to-discipline agreement in conformance with our rules, or I would simply dismiss the violations found by the panel that were outside of the parties’ stipulation agreement and impose a two-year suspension with one year stayed and order Bruner to pay restitution, as the parties had jointly recommended.

DEWINE, J., concurs in the foregoing opinion.   (Mike Frisch)

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