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

Mishler, Cleveland Bar Assn. v.
118 Ohio St.3d 109, 2008-Ohio-1810. Decided 4/10/2008.
Case Summaries- 216
As to Count I, respondent settled and dismissed a client‘s state and federal claims without the client‘s
authority. The client made payments to respondent in installments totaling $17,600. The settlement was
$7,500. Respondent oversaw the process by which the client‘s signature was affixed without the client‘s
permission in executing the settlement agreement. He allowed the unauthorized endorsement of the
client‘s signature on the settlement check and paid none of the proceeds to the client. He did not refund
any unexpended funds. The Court adopted the Board‘s findings of violations of DR 1-102(A)(4), 1-
102(A)(5), 1-102(A)(6), 7-101(A)(1), 7-101(A)(3), 9-102(B)(1) and 9-102(B)(4). As to Count II, the
client requested fees and expenses charged in pursuing the client‘s federal and state discrimination suits
but respondent did not account until asked for the information during relator‘s investigation. He did not
keep tract of the time spent and tried to reconstruct the charges. He reconstructed for the client a
―Breakdown of Expenses and Fees.‖ For the panel hearing, he listed his receipts and disbursements in a
document, ―Final Account [for] Franco J. Dellipoala‖ which he presented in evidence that he fully
reimbursed the client. This after-the-fact summary contained inaccuracies—in particular the receipts did
not minus disbursements do not produce a zero balance. Inconsistencies also existed between the final
account and other documents. The court shared the board‘s skepticism toward the amount fees and
expenses generally first, because he kept no contemporaneous financial records to substantiate them and
second, by his own account he spent only $6,972.75 of the $17,600 he ostensibly collected to pay
expenses. He did not attempt to refund any of the costs owed the client until the week before the panel
hearing and he gave up on paying the client‘s share of the settlement proceeds. His statements as to the
cost of his services and expenses differed dramatically. Respondent was unable to reliably account for
the fees and expenses charged to the client. The court adopted the Board‘s findings of violations of DR
2-106(A) and 9-102(B)(3). As to Count III, respondent was hired to represent a client in an employment
discrimination claim. The client testified he paid $5,000 for depositions with the understanding that
respondent would refund this money upon obtaining one-third of any recovery. Respondent testified that
after the client agreed to be a witness for another client, he lowered his fee to $1,000 and retained the
$4,000 to pay expenses for filing in federal court. Respondent filed the complaint in federal court, but
without the client‘s consent he had an attorney who was not a member of his firm appear for him during
the client‘s deposition and had him appear at a mediation conference. Respondent paid him $20 per
hour. The federal court granted summary judgment for the employer on the federal-law claims and
dismissed the remaining state-law claims without prejudice. Respondent appealed, but stipulated to a
voluntary dismissal of the appeal in exchange for the employer‘s agreement not to pursue costs. The
client resignedly consented to the dismissal. There were no written fee agreement and no records of
time spend. He was not able to reliably account for how he earned or spent the $5,000. He wrote a
refund check to the client in the amount of $653.75 a week before the panel hearing. The court adopted
the Board‘s findings of a violation of DR 1-102(A)(5), 1-102(A)(6), 2-106(A), and 9-102(B)(3) but did
not adopt the Board‘s finding of a violation of DR 2-107(A)(1). The court noted that neither the CPR or
the RPC define ―division of fees‖ but the court is guided by Rule 1.5, Comment [7] describing a ―division
of fees‖ as ―a single billing to a client covering the fee of two or more lawyers who are not in the same
firm.‖ The court distinguished the instant case from two other cases in which attorneys were found to
violate DR 2-107(A), King v. Housel (1990), 52 Ohio St.3d 228 and Disciplinary Counsel v. Zingarelli
(2000), 89 Ohio St.3d 210. In neither of those cases did the lawyers deny charging the client in a
single billing for another unaffiliated lawyer‘s work. Respondent did not charge the client for the work
of the ―per diem‖ attorney. The court had no clear and convincing evidence upon which to rely on a
―single billing‖ covering the ―fee of two or more lawyers who are not in the same firm‖ in accordance
with Rule 1.5 Comment [7]. But, the court admonished that his enlistment of, reliance on, and payment to
a second lawyer to represent the lawyer are not without ethical difficulty. Lawyers are cautioned against
engaging unaffiliated counsel without client‘s consent because it implicates a violation of an attorney‘s
duty to preserve client secrets and confidences and may impinge on standards demanding an attorney‘s
undivided loyalty. The court found that respondent flagrantly breached duties to his clients and failed to