Summary
In Columbus Bar Assn. v. Benis (1983), 5 Ohio St.3d 199, 5 OBR 415, 449 N.E.2d 1305, we indefinitely suspended an attorney who offered to influence a government official.
Summary of this case from Dayton Bar Assn. v. O'BrienOpinion
No. 83-6
Decided June 22, 1983.
Attorneys at law — Misconduct — Indefinite suspension — Charging and collecting clearly excessive fee — Dividing fee with another attorney without client's consent — Implying to client that attorney can achieve result through improper influence or other irrelevant grounds.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
On March 8, 1982, the Columbus Bar Association, relator herein, filed a complaint with the Board of Commissioners on Grievances and Discipline charging the respondent, Stuart A. Benis, with various violations of the Code of Professional Responsibility.
A hearing was held in Columbus, Ohio, on January 28, 1983. The respondent was present and represented by counsel. At his request, the proceedings were conducted in private.
The charges against the respondent arose from his dealings with Sharon Cummings, the wife of Thomas Cummings who had been convicted of burglary and incarcerated. The essence of the charges was that the respondent had told her he could obtain clemency for Thomas Cummings by influencing a friend in the Office of the Governor.
The evidence disclosed that the Cummingses first came in contact with the respondent prior to Thomas' conviction in February 1980. Upon the recommendation of a friend, Paul D. Warren, Thomas Cummings solicited the respondent's advice concerning the pending burglary charges. However, because Cummings was already represented by another attorney, the respondent did not take the case.
Following her husband's conviction, Sharon Cummings again contacted the respondent in the spring and summer of 1980 in an effort to overturn the conviction. For a fee of $360, the respondent reviewed the pertinent trial documents and suggested the possibility of filing a motion for a new trial or seeking some other post-conviction remedy.
Sharon Cummings testified that she later had contact with the respondent in November 1980. At that time, the respondent stated that he had a friend in the Governor's office and that for $10,000 he might be able to use the friend in successfully pursuing a clemency application. Based upon this conversation, Sharon Cummings gave the respondent $4,800 in cash. She later gave him the remaining $5,200, also in cash. Cummings testified that the respondent represented to her that the entire $10,000 would be turned over to his contact in the Governor's office. She disbelieved this, however, assuming that the respondent himself would keep all of the money.
Although Cummings did not obtain receipts for the cash payments, she secretly tape recorded certain of her conversations with the respondent in an effort to document the transactions. These tapes were reduced to transcript form and introduced at the hearing. In one of these conversations, the respondent acknowledged receipt of the first payment and alluded to a third party's involvement in the case. Specifically, the respondent promised to give the money to the third party that day but stated that the party would not begin work until he received at least half of the money due. In the early summer of 1981, Cummings recorded another conversation in which she questioned the respondent regarding the progress of the clemency application. In this conversation, the respondent referred to his unsuccessful attempts to locate the third party. Cummings responded by demanding that action be taken or that her money be returned.
In January 1981, the respondent obtained the assistance of another attorney, David Douglas, in preparing and filing a clemency application. Douglas was paid $500 for these services, which he testified was his usual minimum retainer for a clemency application. Sharon Cummings testified that she was never informed that another attorney had been brought into the case or that a fee had been split with him.
The clemency application was not successful. Rosina Maynard, state chairman of the Prison Crisis Network of Ohio and the Ohio Coalition Against the Death Penalty, testified concerning her extensive experience in assisting prisoners in pursuing clemency and other post-conviction proceedings. It was her opinion that Thomas Cummings' application was poorly prepared and contained obvious informational and legal errors.
Sharon Cummings continued to demand the return of her money from the respondent. She finally turned the matter over to the Columbus Bar Association for investigation.
In late April 1982, through the negotiations of Warren, Cummings received a check in the amount of $5,000 from the respondent. In turn, she executed a release acknowledging her receipt of $5,000 worth of legal services from respondent. Cummings testified that she also was given an additional $5,000 in cash from Warren who was acting as a conduit for the respondent.
The respondent did not deny the fact that the taped conversations may have occurred. However, he consistently denied offering to use improper influence to secure the release of Thomas Cummings. He further contended that a fee of $10,000 was established for his services for which he rendered approximately one hundred hours of service. He was not able to document his time, claiming that part of the file had been turned over to Sharon Cummings. In addition, he contended that he did inform her of his use of another attorney. Finally, respondent denied returning $5,000 in cash to Cummings. This denial was supported by the testimony of Warren.
Based upon the testimony and exhibits received, the board concluded as follows:
"* * * the Board does not find that respondent actively engaged in any illegal conduct or counseled or assisted his client in conduct that he knew to be illegal or fraudulent; however, his misrepresentations to Ms. Cummings, the charging and collecting a clearly excessive fee, dividing the fee with another lawyer without the consent of Ms. Cummings, and implying that he was able to influence improperly or upon irrelevant grounds a party in the Governor's office, all adversely reflects on his fitness to practice law and violates Disciplinary Rules DR 1-102(A)(4) and (6), DR 2-106, DR 2-107(A), and DR 9-101(C)."
It was the recommendation of the board of commissioners that respondent be indefinitely suspended from the practice of law.
Mr. Stanley D. Ross and Mr. John T. Sansbury, for relator.
Mr. Harold E. Wonnell, for respondent.
In his objections to the board's findings and recommendations, respondent asserts that the board's findings of the various violations were not supported by the evidence. He further asserts that the sanction sought to be imposed was not warranted by the facts of this case.
Upon examination of the record, it is our conclusion that the respondent's contentions must be rejected. First, although the testimony was conflicting, there was ample evidence to justify the board's findings that respondent violated DR 1-102(A)(4) and (6), DR 2-106, DR 2-107(A) and DR 9-101(C) of the Code of Professional Responsibility. Second, we do not agree that the sanction imposed is unduly harsh in light of the circumstances presented. See Ohio State Bar Assn. v. Consoldane (1977), 50 Ohio St.2d 337 [4 O.O.3d 477].
Accordingly, respondent is hereby indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.