Opinion
No. 92-2532
Submitted February 2, 1993 —
Decided April 14, 1993.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 91-23.
On August 19, 1991, relator, Butler County Bar Association, filed a complaint against respondent, Mary G. Nash, Attorney Registration No. 0012559, of Hamilton, Ohio, charging her, inter alia, with a violation of DR 2-106(A) (charging a clearly excessive fee). Respondent filed an answer generally denying the material allegations of the complaint, and a hearing was held before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on August 26, 1992.
The facts adduced at hearing show that on March 22, 1988, Shirley Ballinger filed a pro se lawsuit against the Butler County Sheriff's Department, the St. Clair Township Police Department, and an individual police officer. The suit stemmed from Ballinger's arrest and incarceration for disorderly conduct approximately one year earlier, and alleged that Ballinger was physically injured when the arresting officer twisted her arm to place her in handcuffs. The complaint further alleged that Ballinger was placed in an unsanitary cell, denied water, harassed by jail staff, and coerced to sign a receipt for missing personal effects upon her release.
On September 6, 1988, Ballinger retained respondent to represent her in the pending suit and signed the following fee agreement:
"Due to the nature of this case, we have quoted you a minimum fee of $5,000, for our research, development and representation in this matter, short of trial. In the event this matter proceeds to trial, we will need an additional $5,000 for trial."
Ballinger paid respondent the initial $5,000 on the date of their first consultation, after which respondent conducted legal research and a preliminary investigation. Respondent filed an amended complaint on January 27, 1989, which essentially recited the same allegations made in the initial pro se complaint and demanded $500,000 in damages for physical and emotional injuries.
In July 1989, the parties agreed to submit the case to binding arbitration, and respondent was informed in mid-August of an October 23, 1989 hearing date. At that point, respondent considered the case as "proceeding to trial" under the terms of the fee agreement, and requested the remainder of the sum due on Ballinger's account by letters of September 13 and October 4, 1989. Ballinger paid the additional $5,000 on October 6, 1989. While respondent had conducted no formal discovery to that time, her informal investigation pointed to various weaknesses in the case: Ballinger's chiropractor could not substantiate her injuries; Ballinger's friend, a witness to the arrest, could not corroborate her claims; an investigation of the jail where Ballinger was held proved unremarkable; and the arresting officer denied twisting Ballinger's arm.
Moreover, respondent had not received records from or spoken to the physician who Ballinger claimed had treated her injuries. Those records were first provided to respondent by defense counsel at Ballinger's deposition on October 19, 1989. The records did not substantiate injuries resulting from the arrest and, in detailing Ballinger's extensive medical history, actually worked to her disadvantage.
Upon observing the deposition and reviewing the medical records, respondent realized the case had no merit and approached the defendants about the possibility of settlement. The defendants made an offer of $1,000 in December 1989, which Ballinger refused, demanding the trial she had paid for. In a conference held March 1, 1990, respondent explained to Ballinger that her case lacked merit and again advised her to accept the offer. Respondent further testified that she had offered to refund $5,000 of her fee if Ballinger would agree to the settlement. Ballinger remained adamant about proceeding to trial until the morning of hearing (June 18, 1990), when she agreed to defendants' offer. Respondent forwarded the full $1,000 to Ballinger, but did not refund $5,000 of her fee, because she had performed additional work preparing for the hearing.
Respondent presented two witnesses at the hearing before the panel and submitted correspondence to vouch for her good character and professionalism. In addition, the record reflects that she has received no other discipline from this court.
Upon considering the guidelines set forth in DR 2-106(B) and the record in this proceeding, the panel concluded that respondent charged a clearly excessive fee in violation of DR 2-106(A). Specifically, the panel found that the litigation was not complicated, that the legal issues presented were not complex, and that even a cursory investigation would have revealed the weaknesses in Ballinger's case. The panel recommended that respondent be suspended from the practice of law for a period of one year, and that six months of the sanction be suspended upon respondent's making restitution of $5,000 to Ballinger. The board adopted the panel's findings and conclusions; however, considering the original fee agreement and that the amount of legal work performed justified the first fee payment, the board recommended that the entire one-year sanction be suspended upon the condition that respondent repay $5,000 to Ballinger.
Michael T. Gmoser and Stephen J. Brewer, for relator.
Charles W. Kettlewell, for respondent.
We agree with the findings, conclusions, and recommendation of the board. Respondent is hereby suspended from the practice of law in the state of Ohio for a period of one year. Execution of the sanction is suspended upon the condition that respondent repay Ballinger $5,000 within thirty days of the issuance of this order. Costs taxed to respondent.
On January 20, 1993, attorneys for the parties filed with the court a copy of respondent's cashier's check in the amount of $5,000 pyable to Ballinger.
Judgment accordingly.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.