Busy Attorney Receives Stayed Suspension

The Ohio Supreme Court imposed a stayed suspension of a sole practitioner for "grossly inaccurate" applications f or payment in court-appointed cases

In an August 2022 complaint, relator, disciplinary counsel, alleged that McCloskey engaged in dishonest conduct by submitting grossly inaccurate fee applications for legal services as court-appointed counsel in the Hamilton County Court of Common Pleas and Hamilton County Municipal Court. McCloskey waived a probable-cause determination. The parties submitted stipulations of fact and misconduct, including 47 exhibits, and the matter proceeded to a hearing before a three-member panel of the Board of Professional Conduct. Based on the parties’ stipulations and McCloskey’s testimony, the panel found that McCloskey committed the charged misconduct and recommended that he be suspended from the practice of law for one year, stayed in its entirety. The board adopted the panel’s report and recommendation, and the parties have jointly waived objections. After a thorough review of the record, we adopt the board’s findings of misconduct and the recommended sanction.

He was busy

The parties stipulated that McCloskey had routinely worked between 10 and 12 hours per weekday and an additional six hours per weekend. Prior to 2022, he had not taken a vacation in at least six years.

But an audit revealed

When McCloskey prepared his fee applications, he would attempt to “re-create” the time he had spent on each case by reviewing the case docket and the rough notes that he had made in the file. He would also estimate the date each task was performed. For example, if a body-camera video was at issue in a case, he would determine the hearing date based on the docket and would estimate the time that he believed he would have spent reviewing the video sometime in the week before the client’s hearing. During his testimony before the panel, he acknowledged that his notes were often incomplete and that he had done “a terrible job” of contemporaneously recording time as he performed work. As a result, the dates and hours he had recorded on his fee applications and had certified as “accurate” were often grossly inaccurate.

The audit exposed other billing discrepancies. For example, although the Hamilton County courts are open to the public for eight hours a day, in 20 fee applications containing entries for August 7, 2019, McCloskey certified that he had worked an aggregate of 27 hours and had spent 14.1 hours in court in Hamilton County on that date. Similarly, in McCloskey’s fee applications containing entries for September 23 and 26, 2019, he certified that he had spent more than 12 hours in court in Hamilton County on behalf of his clients each day.

On multiple occasions, McCloskey certified that he had spent the same amount of time in court for each of several clients, regardless of the nature of the charges against the clients, any overlap in court appearances, or the amount of time that he was actually in court. He typically did this by billing a standard halfhour of in-court time for each case. For example, McCloskey submitted fee January Term, 2023 5 applications for work he had performed on behalf of 21 different clients on June 24, 2019. He certified that he had spent a total of 11.4 hours in court that day, including a half-hour for each of 17 clients. In a similar manner, he certified that he had performed an aggregate of 22.2 hours of work on May 28, 2019, on behalf of 13 different clients, including 6.8 hours in court. The latter figure was derived from McCloskey’s billing a standard half-hour of in-court time for 12 of the 13 clients.

Sanction

We do not condone McCloskey’s conduct, and we remind all attorneys of the importance of maintaining accurate and contemporaneous records of the time spent and the work performed on behalf of their clients to ensure that their bills are fair and honest. Nevertheless, we agree that the facts of this case are most comparable to those of Agopian and that given the weight of more recent authority specifically disapproving the billing practices at issue in this case, a conditionally stayed one-year suspension is the appropriate sanction in this case.

(Mike Frisch)