Columbus Bar Assn. v. Midian (Slip Opinion) , 154 Ohio St. 3d 135 ( 2018 )


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  • [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
    Columbus Bar Assn. v. Midian, Slip Opinion No. 2018-Ohio-3908.]
    NOTICE
    This slip opinion is subject to formal revision before it is published in an
    advance sheet of the Ohio Official Reports. Readers are requested to
    promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
    South Front Street, Columbus, Ohio 43215, of any typographical or other
    formal errors in the opinion, in order that corrections may be made before
    the opinion is published.
    SLIP OPINION NO. 2018-OHIO-3908
    COLUMBUS BAR ASSOCIATION v. MIDIAN.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Columbus Bar Assn. v. Midian, Slip Opinion No.
    2018-Ohio-3908.]
    Attorneys—Misconduct—Violations of the Rules of Professional conduct, including
    charging excessive fee—Public reprimand.
    (No. 2018-0541—Submitted May 8, 2018—Decided September 27, 2018.)
    ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
    Court, No. 2017-044.
    __________________
    Per Curiam.
    {¶ 1} Respondent, William Martin Midian, of Columbus, Ohio, Attorney
    Registration No. 0080941, was admitted to the practice of law in Ohio in 2006.
    {¶ 2} In a formal complaint certified to the Board of Professional Conduct
    on October 5, 2017, relator, Columbus Bar Association, charged Midian with four
    violations of the Rules of Professional Conduct arising from his representation of a
    SUPREME COURT OF OHIO
    single client. A panel of the board considered the cause on the parties’ consent-to-
    discipline agreement. See Gov.Bar R. V(16).
    {¶ 3} In September 2013, after pleading guilty to a misdemeanor count of
    workers’ compensation fraud, a doctor retained Midian to take legal action to
    change the effect of the doctor’s conviction and stay the pending misconduct
    charges of the state medical board. Midian discussed his fees with the client, but
    he never established a specific fee amount or provided the client with a written fee
    agreement. Midian did, however, accept a check for $25,000 from the doctor and
    deposit it into his client trust account. In October 2013, Midian sent $12,500 of
    that fee to Eric A. Jones, an attorney retained by the client to defend against related
    professional misconduct charges that were pending before the medical board. The
    following month, Jones paid Midian $5,000 from the funds that Jones had received
    from the client. Although Midian and Jones are not members of the same firm, they
    did not enter into a fee-sharing arrangement.
    {¶ 4} Unbeknownst to the client, Midian asked another attorney with little
    criminal law experience to draft a motion in the doctor’s case. Although Midian
    reviewed and approved the motion, he did not sign it—though he accepted a
    $17,500 fee for the work. The motion as drafted was fundamentally flawed because
    it did not invoke Crim.R. 32.1 or address manifest injustice—the only basis for a
    court to permit a defendant to withdraw a guilty plea after sentencing.
    Consequently, the court overruled the motion.
    {¶ 5} The parties agree that Midian’s conduct violated Prof.Cond.R. 1.5(a)
    (prohibiting a lawyer from making an agreement for, charging, or collecting an
    illegal or clearly excessive fee), 1.5(b) (requiring an attorney to communicate the
    nature and scope of the representation, and the basis or rate of the fee and expenses
    within a reasonable time after commencing the representation unless the lawyer
    regularly represented the client and will charge the client on the same basis as
    previously charged), and 1.5(e) (permitting attorneys who are not in the same firm
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    January Term, 2018
    to divide fees only if the fees division is reasonable and proportional to the work
    performed, the client consents to the arrangement in writing after full disclosure,
    and a written closing statement is prepared and signed by the client and each
    lawyer). They also agree that one additional alleged violation should be dismissed.
    {¶ 6} The parties stipulated that no aggravating factors are present and that
    mitigating factors include the absence of prior discipline, the absence of a selfish
    or dishonest motive, a cooperative attitude toward the disciplinary proceedings,
    evidence of Midian’s good character and reputation, his refund of the entire
    $17,500 fee to his client on June 1, 2016, and his current use of written fee
    agreements for all client matters. See Gov.Bar R. V(13)(B) and (C)(1), (2), (3), (4),
    and (5).
    {¶ 7} The board recommends that we adopt the parties’ consent-to-
    discipline agreement and publicly reprimand Midian for his misconduct. In support
    of that recommendation, the board notes that we have imposed public reprimands
    for similar misconduct involving clearly excessive fees in Columbus Bar Assn. v.
    Adusei, 
    136 Ohio St. 3d 155
    , 2013-Ohio-3125, 
    991 N.E.2d 1142
    , and Geauga Cty.
    Bar Assn. v. Martorana, 
    137 Ohio St. 3d 19
    , 2013-Ohio-1686, 
    997 N.E.2d 486
    .
    {¶ 8} Based on the foregoing, we agree that Midian’s conduct violated
    Prof.Cond.R. 1.5(a), 1.5(b), and 1.5(e) and that a public reprimand is the
    appropriate sanction for that misconduct. We therefore adopt the parties’ consent-
    to-discipline agreement.
    {¶ 9} Accordingly, William Martin Midian is publicly reprimanded. Costs
    are taxed to Midian.
    Judgment accordingly.
    O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
    DEGENARO, JJ., concur.
    DEWINE, J., not participating.
    _________________
    3
    SUPREME COURT OF OHIO
    George M. Romanello; Lori J. Brown, Bar Counsel, and A. Alysha Clous,
    Assistant Bar Counsel, for relator.
    Isaac, Wiles, Burkholder, & Teetor, L.L.C., and Michael L. Close, for
    respondent.
    _________________
    4
    

Document Info

Docket Number: 2018-0541

Citation Numbers: 2018 Ohio 3908, 111 N.E.3d 1183, 154 Ohio St. 3d 135

Judges: Per Curiam

Filed Date: 9/27/2018

Precedential Status: Precedential

Modified Date: 1/12/2023