disciplinary handbook: volume v - Supreme Court - State of Ohio

Johnson, Toledo Bar Assn. v.
121 Ohio St.3d 226, 2009-Ohio-777. Decided 3/3/2009.
Case Summaries- 143
Respondent impermissibly shared fees with another lawyer, charged clearly excessive fees, and failed to
deposit unearned fees into a client trust account. Relator and respondent entered into a consent-todiscipline
agreement, stipulating to the following facts, misconduct, and recommended sanction. As to the
Mayer matter, in 2006, Attorney Mary Lou Sawers assisted respondent in preparing revocable and
irrevocable trust documents for John G. and Nancy Mayer, a couple seeking estate-planning advice. The
Mayers paid respondent $9,800 for this work. Respondent agreed to pay 35 percent of this fee to Sawers,
whom he was not formally associated, without notice to the Mayers. Respondent received generic forms
from Sawers and made no effort to adapt the forms to the clients‘ needs. He did not even consider
joint and survivorship accounts, which, given the size and nature of the Mayers‘ estates, would have
avoided significant tax consequences and would have significantly reduced the Mayers‘ legal fees. Other
documents were also produced for the Mayers, including durable general powers of attorney, health-care
powers of attorney, living wills, and pour-over wills. Respondent failed to make sure that the
documents were ready for the Mayers‘ review at the time of the signing. He improperly had the clients
sign the signature pages only, without allowing them to see the completed papers. The Mayers, who
ultimately lost confidence in respondent, had him terminate the still-unfunded trusts. He failed to
deposit the $9,800 unearned fee into his client trust account, instead depositing it directly into his
operating account. As to the Hopping-Werner matter, respondent accepted a $5,500 fee from Marian
Hopping-Werner, another client for whom he had recommended an irrevocable trust, will, powers of
attorney, and a living will, and directly deposited her fee into his office operating account. A few days
later, Hopping-Werner reconsidered and asked respondent to refund her fees, but he refused even though
he had done little or nothing for his client and their fee contract had specified that fees remained the
property of the client until respondent completed the work. He told his client, in effect, that the fee
was earned upon deposit. The panel and board accepted the consent-to-discipline agreement to a sixmonth
suspension stayed upon conditions of restitution and no further for violations in the Mayers‘ matter
of DR 1-102(A)(6) and 2-106(A) for charging a clearly excessive fee of $9,800 to prepare the trusts and
related documents, 2-107(A) for improperly sharing 35 percent of his legal fee with Sawers, and 9-102(A)
for depositing the unearned fees into his operating account; and in the Hopping-Werner matter violations
of DR 2-106(A) because client‘s assets and estate-planning situation did not warrant a fee of $5,500
since the documentation necessary to satisfy her needs was neither unusual nor complex, and DR 9-
102(A) for depositing the fee directly into his operating account instead of an IOLTA. The Supreme
Court accepted the consent-to- discipline agreement and so ordered, however, in view of the restitution
already provided stayed the suspension on only the condition of no further misconduct. See related
case, Toledo Bar Assn v. Sawers, 121 Ohio St. 3d 229, 2009-Ohio-778.
Rules Violated: DR 1-102(A)(6), 2-106(A), 2-107(A), 9-102(A)
Aggravation: (c), (d), (e)
Mitigation: (a), (b), (d), (e), (g)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed