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

Dearfield, Cincinnati Bar Assn. v.
130 Ohio St.3d 363, 2011-Ohio-5295. Decided 10/19/2011.
Case Summaries- 62
Respondent charged a nonrefundable fee and misused his IOLTA account. Respondent was paid
to initiate a bankruptcy matter, and signed an agreement that respondent‘s fee was nonrefundable
except in unusual circumstances. Client later decided not to pursue a bankruptcy and requested a
refund of the filing fees he had given to respondent; respondent initially wanted to keep them to
offset the fees owed. After speaking to relator, respondent refunded the fee with a letter that said
the fee was refunded in satisfaction of all claims, including ethical claims. This conduct violated
Prof.Cond.R. 1.15(c) (legal fees must deposited in a trust account), 1.5(d)(3) (a lawyer may not
charge a non-refundable fee), 8.4(d) (conduct that is prejudicial to the administration of justice.
The board did not find a charged violation of Gov.Bar R. V(4)(G). The Court agreed with the
above findings. In mitigation, respondent lacked a prior disciplinary record. BCGD Proc.Reg.
10(B)(2)(a). In aggravation, respondent failed to cooperate in the disciplinary process and used
deceptive practices during the disciplinary process (by having the client release his ethical
claims- See Holder (2004)). BCGD Proc.Reg. 10(b)(1)(e), (f). Although the board also found
respondent had a dishonest or selfish motive and that he failed to acknowledge the wrongful
nature of his conduct, the Court disagreed, finding that respondent legitimately thought he could
use the filing fee to offset costs and that respondent had changed his fee agreements to comply
with the ethical rules. The board recommended a one-year suspension with six months stayed.
The Court, in light of the above discussion, disagreed. The Court admitted there was no
precedent on point with these facts, but highlighted the purpose of the disciplinary system is to
protect the public. The Court thus ordered a one-year stayed suspension.
Rules Violated: Prof.Cond.R. 1.5(d)(3), 1.15(c), 8.4(d)
Aggravation: (e), (f)
Mitigation: (a)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: One-year suspension, stayed