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

Mishler, Cleveland Bar Assn. v.
127 Ohio St.3d 336, 2010-Ohio-5987. Decided 12/14/2010.
Case Summaries- 218
On October 21, 2010, respondent received an interim felony suspension in In re Mishler, 126 Ohio
St.3d1611, 2010-Ohio-5111. In 2008, he was suspended for two years, with one year conditionally
stayed, and in 2009, he was suspended for failing to resister. As to Count I, in 2003, a wife and husband
hired respondent to perform legal services for the estate of the wife‘s deceased father involving the
probate estate, an inter vivos trust, and two joint and survivorship bank accounts. There was no written
fee agreement. Respondent received over $60,000 is fees and other money not accounted for. He
received $17,000 in fees from the couple, then 2 months later $15,000, and then $7,100 to pay taxes but
there is no evidence that a tax return was prepared. He received a check for $4,135 bond but never
explained why it was needed. Despite requests, he never provided a complete accounting to the heirs.
Decedent had executed a will, but respondent filed an application to administer the estate that asserted
the decedent died intestate. The probate court approved an additional $3,000 in fees. The inter vivos
trust clearly instructed that the trust assets were to be distributed to the siblings upon notification to the
bank of the death, but there is no evidence of such notification to the bank by respondent. Respondent
decided to allow the bank ―to continue to perpetuate waste‖ on the trust so that the clients could force a
dissolution through a lawsuit. Three years after the death, respondent filed a complaint against the bank.
He did not advise the clients of his settlement negotiations with the bank until after he made an agreement
with bank for the release of the money. He received $160,687.74 in late 2006, but despite requests to do
so he did not distribute the settlement funds for over eight months until one of the heirs filed a grievance
against him in July 2007. He first took $15,000 out of the settlement proceeds for attorney fees, then he
sent checks for one third of the net to two of the heirs. One of checks bounced, but he later reimbursed
the heir. The third heir did not receive her distribution from the trust until October 2007. As to the
joint and survivorship bank accounts, containing approximately $114,000, respondent convinced the
daughter to give him the money to place in escrow to keep it separate from the estate and the trust,
advising her she would go to jail if she disbursed it to her siblings. Despite requests to do so, he failed to
return all the money until November 2008. After the filing of the grievances, he sent the daughter three
checks totaling $117,702.74 starting in September 2008. He added language above the endorsement line
on the last check stating that the check was a full and final settlement of all claims. The daughter had
died in early 2008, so he reissued the last check in the husband‘s name, but again added the full-andfinal-settlement
language. The court agreed with the board that the conduct violated DR 1-102(A)(4) and
Prof.Cond.R. 8.4(c); DR 1-102(A)(5) and Prof.Cond.R. 8.4(d); DR 1-102(A)(6) and Prof.Cond.R.
8.4(h); DR 2-106(A) and Prof.Cond.R. 1.5(a); DR 6-101(A)(3); 7-101(A)(1); 7-101(A)(3); 7-102(A)(3);
7-102(A)(5); 9-102(A)(1); 9-102(B)(3); 9-102(B)(4); Prof.Cond.R. 1.8(h)(1) and 1.8(h)(2). The court,
also agreed with the board‘s recommendation to dismissed the alleged violations of DR 5-101(A)(1), 7-
102(A)(4), and 7-102(A)(7) because not proven by clear and convincing evidence; to dismiss the
alleged violations of Prof.Cond.R. 1.1, 1.3, 1.4(a)(3), 1.7, 1.15(d) because, as in Freeman 2008, the
conduct for these violations was part of continuing misconduct already punished under the Code of
Professional Responsibility; and to dismiss the allegations of violations of DR 1-102(A)(1) and
Prof.Cond.R. 8.4(a) because redundant. As to Count Two, respondent was retained in April 2005 by a
client with an employment discrimination matter. Respondent was unable to produce a copy of a written
fee agreement at the hearing, although the client testified she had signed one and that respondent had
never given her a copy despite multiple requests. The client paid respondent $8,500 for fees and costs.
Respondent filed the case in July 2005, settled the case for $12,000 in June 2006, and received settlement
proceeds in May 2007. He claimed $5,000 in additional fees and did not send the rest to the client. After
the client repeatedly asked, he sent three checks totaling $10,200. The last check had the full-and-final
settlement language above the endorsement line. There is no evidence that he advised the client to retain
independent counsel review this proposed settlement. She tried several time to ask for an accounting but
never received one. The court agreed with the board that the conduct violated Prof.Cond.R. 1.8(h)(1)
and (2) and 1.15(d). The court also agreed with the board‘s recommendation to dismiss the alleged
violation of DR 6-102 because all of the misconduct occurred after the Rules of Professional Conduct