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

Nicks, Disciplinary Counsel v.
124 Ohio St.3d 460, 2010-Ohio-600. Decided 2/25/2010.
Case Summaries- 232
Respondent failed to request approval of fees from a probate court, failed to forward a client‘s estate tax
payment, and failed to respond to numerous court requests in multiple actions. In Count 1, in November
2006, respondent was retained to help client, Seibel, in the administration of an estate. The fee agreement was
that respondent would receive 3% of the estate value and that probate court was required prior to payment. In
February 2007, respondent requested a check for one half of his attorney‘s fees without the required prior
approval of the probate court. Client gave respondent a check for $7428.32, which respondent immediately
cashed. Respondent then retroactively asked for probate court approval of the fee, but the probate court
approved only a $5000 fee. The respondent did not inform his client of this, nor did he return any of the
money to him. In June 2007, respondent failed to file the estate tax return and failed to forward an estate tax
payment, which cost Seibel approximately $2834.75 in late fees and $657.04 in interest. Also in June,
respondent again requested an advance on his attorney‘s fees without probate court approval. Respondent was
given a $3714.16 check, which he immediately deposited. During the representation of Seibel, respondent
several times failed to respond to numerous client phone calls, received two reminders from the probate
court to provide an accounting, and at one point, respondent failed to inform his client that his license to
practice law was suspended for failing to comply with the attorney-registration requirements of the 2007-
2009 biennium, instead he advised the client on how to obtain an extension to file his overdue account. At the
time of the disciplinary hearing, respondent admitted he had not repaid the estate fees taken without court
approval or the interest and the late fee penalties. As to Count I, the Board adopted the panel‘s findings
that respondent violated Prof.Cond.R. 1.3, 3.4(c), 8.4(c), 8.4(d), and 8.4(h). Although respondent stipulated
to violating Prof.Cond.R. 1.1, the Board found no such violation. The Board, quoting Lawson (2008) stated
that ―‗[c]ompetent representation‘ under the rule requires ‗the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation.‘‖ The board also noted that the court stated in Lentes
(2008) that ―‗competent representation‘ means that ―the lawyer must apply the knowledge, skill, thoroughness,
and preparation reasonably necessary for the representation.‖ In Count II, in July 2006, respondent was
hired by client, Graham, to represent him in the administration of his wife‘s estate. The probate court issued a
citation requesting the respondent file a report of distribution and evidence of the recording of a certificate of
transfer, and also scheduled a status conference. Respondent failed to respond to the citation and also failed
to appear at the status conference. Respondent was found in contempt by the probate court. The court found
the contempt cured after respondent in January 2009 filed a motion to reopen the estate and the court‘s
approved the filing of the report of distribution. As to Count II, the board adopted the panel‘s findings that
respondent violated Prof.Cond.R. 1.3, 8.4(d), and 8.4(h). Again, respondent stipulated to violating
Prof.Cond.R. 1.1, but the board found no such violation for the same reasons as above. In aggravation, the
board found that the respondent committed multiple offenses and failed to make restitution. BCGD Proc.Reg.
10(B)(1)(d) and (i). In mitigation, the board found that respondent had no prior record, fully cooperated with
the disciplinary investigation, and had a documented chemical dependency. BCGD Proc.Reg. 10(B)(2)(a), (d)
and (g). Respondent was diagnosed as suffering from chemical dependence based on addiction to marijuana,
alcohol, and cocaine. The board also noted that respondent had acknowledged his wrongful conduct and
accepted responsibility for his actions. The board adopted a 24-month suspension, with 18 months stayed on
the condition that respondent: 1) remain in compliance with his OLAP contract, 2) make restitution to the
Seibel estate, 3) not engage in any further misconduct during the 24-month suspension, 4) pay the costs of the
prosecution of this action and 5) that respondent‘s practice be monitored in accordance with Gov.Bar R.
V(9). This recommended sanction was based on a similar case Greco (2005). The Supreme Court agreed
with the board‘s findings and recommended sanction and so ordered.
Rules Violated: Prof.Cond.R. 1.3, 3.4(c), 8.4(c), 8.4(d), 8.4(h)
Aggravation: (d), (i)
Mitigation: (a), (d), (g)
Prior Discipline: YES Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Two-year suspension, 18 months stayed