Dayton Bar Assn. v. Parisi , 131 Ohio St. 3d 345 ( 2012 )

[Cite as Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879.]
DAYTON BAR ASSOCIATION v. PARISI.
[Cite as Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879.]
Attorneys at law—Misconduct—Six-month stayed license suspension.
(No. 2011-0340—Submitted June 7, 2011—Decided March 8, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-064.
__________________
Per Curiam.
{¶ 1} Respondent, Georgianna I. Parisi of Dayton, Ohio, Attorney
Registration No. 0022538, was admitted to the practice of law in Ohio in 1982. In
August 2009, relator, Dayton Bar Association, filed a complaint alleging that
Parisi had violated the Code of Professional Responsibility and Rules of
Professional Conduct by representing both the proposed guardian and ward in a
guardianship proceeding, collecting legal fees from her client’s account without
court approval while the application for guardianship was pending, and collecting
a clearly excessive fee from an elderly client with diminished mental capacity.1
{¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline conducted a hearing, at which it received the parties’ stipulations of
fact, witness testimony, and numerous exhibits. Having considered the evidence,
the panel found that Parisi had engaged in a conflict of interest and conduct
prejudicial to the administration of justice and had charged a clearly excessive
fee. The board adopted the panel’s findings of fact and misconduct and its
recommendation that Parisi be suspended from the practice of law for six months,
1. Relator charged Parisi with misconduct under applicable rules for acts occurring before and
after February 1, 2007, the effective date of the Rules of Professional Conduct, which supersede
the Code of Professional Responsibility. When both the former and current rules are cited for the
same act, the allegation constitutes a single ethical violation. Disciplinary Counsel v. Freeman,
119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.
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with the entire suspension stayed on the condition that she commit no further
misconduct.
{¶ 3} Both parties have objected to the board’s report. Parisi challenges
the sufficiency of the evidence, raises constitutional challenges to several of the
ethical rules that she has been found to have violated, and seeks dismissal of
relator’s complaint. Relator argues that the clearly excessive fee charged by
Parisi is tantamount to misappropriation and therefore warrants a period of actual
suspension.
{¶ 4} For the reasons that follow, we overrule the objections of both
parties and adopt the board’s findings of fact and misconduct, as well as its
recommended sanction.
Misconduct
The Demming Guardianship
{¶ 5} The board found that Parisi began to provide legal services for
Sylvia Demming, a 93-year-old woman who claimed that she was being held
against her will in a nursing home. Concerned about Demming’s financial
welfare and having observed her confusion and disorientation, on November 8,
2007, Parisi applied for guardianship in the Warren County Probate Court. In her
guardianship application, Parisi alleged that Demming was incompetent as a
result of Alzheimer’s-related memory loss, and Parisi submitted an evaluation
from a licensed physician diagnosing Demming with dementia. Seven weeks
later, Parisi had Demming sign a durable power of attorney designating Parisi as
her attorney-in-fact. The next month, Parisi withdrew her own application and
filed a separate application for guardianship on behalf of Demming’s niece.
{¶ 6} Believing that the court no longer had jurisdiction after Demming
informed the court that she had left the county and intended to move out of state,
Parisi sent her bill to Demming’s niece for review. The guardianship proceeding
was not dismissed as Parisi had anticipated; but acting as Demming’s attorney-in-
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fact, Parisi paid her own fees of more than $18,000 without first obtaining the
court’s approval. The probate court later removed Parisi as counsel for both
women, and Parisi returned the money to Demming’s account.
{¶ 7} The board found that by representing both Demming and her niece
in the guardianship proceeding, Parisi violated Prof.Cond.R. 1.7(a)(2) (providing
that a lawyer’s continued representation of a client creates a conflict of interest if
there is a substantial risk that the lawyer’s ability to represent the client will be
materially limited by the lawyer’s responsibilities to another client, a former
client, or a third person or by the lawyer’s own personal interests). The panel also
found that by obtaining a power of attorney over her client’s affairs while her
guardianship application was pending and using it to pay $18,820 of her own
legal fees, Parisi violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from
engaging in conduct that is prejudicial to the administration of justice). Citing the
duplication of other claimed violations and the insufficiency of the evidence, the
board recommended the dismissal of alleged violations of Prof.Cond.R. 8.4(a)
(prohibiting a lawyer from violating or attempting to violate the Ohio Rules of
Professional Conduct) and (b) (prohibiting a lawyer from committing an illegal
act that reflects adversely on the lawyer’s honesty or trustworthiness).
{¶ 8} Parisi challenges the board’s findings of fact and misconduct with
respect to her representation of Demming. First, she argues that this court has
held as a matter of law that simultaneous representation of a proposed ward and
an applicant for guardianship does not present a conflict of interest that requires
disqualification. In support of this argument, Parisi cites In re Guardianship of
Love (1969), 19 Ohio St.2d 111, 48 O.O.2d 107, 249 N.E.2d 794; In re
Clendenning (1945), 145 Ohio St. 82, 30 O.O. 301, 60 N.E.2d 676; and In re
Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683.
{¶ 9} None of the cases, however, stands for the proposition that an
applicant for guardianship has no interest in the determination of the proposed
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ward’s competence or incompetence or that an applicant cannot have an interest
that is adverse to that of the proposed ward. Indeed, the far-reaching and life-
altering consequences of an incompetency determination—involving a judicial
determination that a mental or physical illness or disability has left a person so
mentally impaired that the person is incapable of taking proper care of the
person’s self or property—create an inherent conflict between the proposed ward
and the applicant for guardianship, even if guardianship is ultimately in the
proposed ward’s best interest. Nevertheless, Parisi contends that Prof.Cond.R.
1.14(b) and 1.7(b) and the comments thereto permit attorneys to simultaneously
represent both the proposed ward and the applicant for guardianship and that any
contrary interpretation of those rules cannot constitutionally be applied to her
because she had no notice that her conduct was unethical.
{¶ 10} Prof.Cond.R. 1.14(b) provides: “When the lawyer reasonably
believes that the client has diminished capacity, is at risk of substantial physical,
financial, or other harm unless action is taken, and cannot adequately act in the
client’s own interest, the lawyer may take reasonably necessary protective action,
including consulting with individuals or entities that have the ability to take action
to protect the client and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator, or guardian.”
{¶ 11} Prof.Cond.R. 1.14(a) directs that “the lawyer shall, as far as
reasonably possible, maintain a normal client-lawyer relationship with the client,”
and comment 92 to the rule emphasizes, “A lawyer who undertakes to represent a
2. Comment 9 to Prof.Cond.R. 1.14 provides, “In an emergency where the health, safety, or a
financial interest of a person with seriously diminished capacity is threatened with imminent and
irreparable harm, a lawyer may take legal action on behalf of such a person even though the
person is unable to establish a client-lawyer relationship or to make or express considered
judgments about the matter, when the person or another acting in good faith on that person’s
behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not
act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other
representative available. The lawyer should take legal action on behalf of the person only to the
extent reasonably necessary to maintain the status quo or otherwise avoid imminent and
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person in such an exigent situation has the same duties under these rules as the
lawyer would with respect to a client.” Thus, the emergency provisions of
Prof.Cond.R. 1.14 do not entirely abrogate a lawyer’s duties to the client under
the Rules of Professional Conduct. Therefore, when taking actions authorized by
Prof.Cond.R. 1.14, the lawyer must still determine whether the representation of
one client will be directly adverse to the other and whether there is a substantial
risk that the lawyer’s ability to consider, recommend, or carry out an appropriate
course of action for one client will be materially limited by the lawyer’s
responsibilities to another client. Prof.Cond.R. 1.7(a).3
{¶ 12} The American Bar Association (“ABA”) Standing Committee on
Ethics and Professional Responsibility has addressed this situation. ABA
Committee on Ethics & Professionalism, Formal Ops. No. 96-404 (1996)
(discussing clients under disability). The ABA recognizes that Model Rule of
Professional Conduct 1.14 (1983, as amended), which is identical to our
Prof.Cond.R. 1.14 in all material respects, permits a lawyer to file a petition for
irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has
the same duties under these rules as the lawyer would with respect to a client.”
3. Prof.Cond.R. 1.7 provides:
“(a) A lawyer’s acceptance or continuation of representation of a client creates a
conflict of interest if either of the following applies:
“(1) the representation of that client will be directly adverse to another current client;
“(2) there is a substantial risk that the lawyer’s ability to consider, recommend, or carry
out an appropriate course of action for that client will be materially limited by the
lawyer’s responsibilities to another client, a former client, or a third person or by the
lawyer’s own personal interests.
“(b) “A lawyer shall not accept or continue the representation of a client if a conflict
of interest would be created pursuant to division (a) of this rule, unless all of the
following apply:
“(1) the lawyer will be able to provide competent and diligent representation to each
affected client;
“(2) each affected client gives informed consent, confirmed in writing;
“(3) the representation is not precluded by division (c) of this rule [protecting certain
representations regardless of client consent].”
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guardianship of a client when no less-restrictive alternatives are available, but
concludes that “a lawyer with a disabled client should not attempt to represent a
third party petitioning for a guardianship over the lawyer’s client.” The ABA
observes: “Rule 1.14(b) creates a narrow exception to the normal responsibilities
of a lawyer to his client, in permitting the lawyer to take action that by its very
nature must be regarded as ‘adverse’ to the client. However, Rule 1.14 does not
otherwise derogate from the lawyer’s responsibilities to his client, and certainly
does not abrogate the lawyer-client relationship. In particular, it does not
authorize a lawyer to represent a third party in seeking to have a court appoint a
guardian for his client. Such a representation would necessarily have to be
regarded as ‘adverse’ to the client and prohibited by Rule 1.7(a), even if the
lawyer sincerely and reasonably believes that such representation would be in the
client’s best interests, unless and until the court makes the necessary
determination of incompetence. Even if the court’s eventual determination of
incompetence would moot the argument that the representation was prohibited by
Rule 1.7(a), the lawyer cannot proceed on the assumption that the court will make
such a determination. In short, if the lawyer decides to file a guardianship
petition, it must be on his own authority under Rule. 1.14 and not on behalf of a
third party, however well-intentioned.” Id.{¶ 13} We concur in this analysis and conclude that the guardianship
proceeding that Parisi initiated on behalf of Demming’s niece, no matter how
well-intentioned, was necessarily adverse to Demming. Therefore, Parisi’s
actions in representing both women in the guardianship proceeding violated
Prof.Cond.R. 1.7, regardless of Demming’s assent or objection to the process.
And in light of Demming’s diminished capacity, as evidenced by Parisi’s own
petition for guardianship, we cannot countenance Parisi’s arguments that
Demming was either competent to execute the durable power of attorney or
capable of giving informed consent to the dual representation. See Disciplinary
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Counsel v. Heiland, 116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 4-6
(finding that an attorney had engaged in conduct adversely reflecting upon his
fitness to practice law by witnessing his mother-in-law execute a power of
attorney just 29 days after filing a complaint in which he had alleged that she was
incompetent).
{¶ 14} Parisi’s constitutional objections to the application of Prof.Cond.R.
1.7 and 1.14 to her conduct are also without merit. “ ‘It is a basic principle of due
process that an enactment is void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values. First, because we assume
man is free to steer between lawful and unlawful conduct, we insist that laws give
the person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.’ ” In re Complaint Against Harper
(1996), 77 Ohio St.3d 211, 221, 673 N.E.2d 1253, quoting Grayned v. Rockford
(1972), 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222. In this case,
Prof.Cond.R. 1.14 expressly permits the attorney to consult with persons who
may take action to protect the client, to seek the appointment of a guardian in
some circumstances, and to reveal client confidences otherwise protected by
Prof.Cond.R. 1.6 to the extent reasonably necessary to protect the client’s
interests. It does not, however, authorize the attorney to represent third parties in
guardianship proceedings against a client or otherwise permit any departure from
Prof.Cond.R. 1.7, which generally prohibits attorneys from representing multiple
clients who have conflicting interests. Because Prof.Cond.R. 1.14 clearly
delineates the conduct permitted when an attorney represents a client with
diminished capacity and does not purport to alter the prohibition against engaging
in conflicts of interest set forth in Prof.Cond.R. 1.7, we reject Parisi’s argument
that those rules are void for vagueness and cannot constitutionally be applied to
her.
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{¶ 15} We also reject Parisi’s claims that she was entitled to an
evidentiary hearing prior to her disqualification in the probate matter. We have
held that a court must hold an evidentiary hearing and issue findings of fact in
ruling on a motion for disqualification of an individual or of an entire firm when
an attorney has left a law firm that represents one party to an action and has joined
a firm that represents an opposing party. Kala v. Aluminum Smelting & Refining
Co., Inc. (1998), 81 Ohio St.3d 1, 688 N.E.2d 258, syllabus. But we have never
held that a court must hold an evidentiary hearing before ruling on every motion
for disqualification. Nor are we willing to impose such a requirement when an
attorney has admitted that she represents two clients, it is apparent that those
clients have inherently conflicting interests, and the entire basis of the legal action
is to determine that one of those clients is incompetent to handle his or her
personal affairs—incompetence that would presumably render the client unable to
give informed consent to the conflict.
{¶ 16} Parisi’s claim that her use of Demming’s power of attorney to pay
her legal fees during the pendency of the guardianship proceeding was not
prejudicial to the administration of justice is likewise without merit. Regardless
of Parisi’s claims that the probate court no longer had jurisdiction over the
guardianship proceeding due to Demming’s purported departure from the county
and her expressed intent to move to Florida, the action remained pending at the
time she paid her own fees. And as the board found, the very power of attorney
that Parisi used to make the unauthorized payment was obtained at a time when
she had reason to believe that Demming was incompetent. Therefore, we have no
difficulty concluding that Parisi’s conduct violated Prof.Cond.R. 8.4(d).
{¶ 17} Having rejected Parisi’s factual and constitutional objections, we
adopt the board’s findings of fact and misconduct with respect to count one of
relator’s complaint.
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The Royal John Greene Matter
{¶ 18} In August 2004, Royal John Greene, a widower in his mid-70s
whose extended family was either unwilling or unable to assist in his care,
appointed Parisi his attorney-in-fact. At that time, it was apparently understood
that Parisi would be paid at her usual attorney hourly rate for legal and nonlegal
services, but this agreement was not reduced to writing. While Greene was
competent at the time that he retained Parisi, his physical and mental health
declined significantly during the course of her representation. As early as
November 2005, Parisi’s records indicate that Greene was “sometimes forgetful.”
Billing records express concern about his increased memory loss in January 2006,
profound cerebral atrophy and small strokes in August, and confusion in
December.
{¶ 19} Parisi provided some traditional legal services for Greene,
including the preparation of estate-planning documents and the administration of
his wife’s estate. She also advised him about several annuities that he had
purchased. The bulk of her time, however, was devoted to the nonlegal tasks of
managing Greene’s life—overseeing his living arrangements, supervising his
medical care, transporting him to doctors’ appointments and dialysis treatments,
reconciling his bank and brokerage statements, and delivering spending money
and an occasional meal to him. The board found that Parisi had done a good job
taking care of Greene and indicated that without her assistance, he probably
would not have been able to achieve his goal of avoiding a nursing home.
{¶ 20} The board found that most of the work that Parisi and her staff
performed did not require legal skill and that in many instances, the client’s
demands for services resulted in costs that were not proportionate to the monetary
importance of the matters involved.
{¶ 21} Having reviewed Parisi’s voluminous and detailed records
regarding the services provided to Greene, the board found that her conduct
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violated Prof.Cond.R. 1.5(a) and DR 2-106(A) (both prohibiting a lawyer from
making an agreement for, charging, or collecting an illegal or clearly excessive
fee). But citing the insufficiency of the evidence, the board recommends that we
dismiss alleged violations of Prof.Cond.R. 8.4(a) and DR 1-102(A)(1)
(prohibiting a lawyer from violating or attempting to violate the Ohio Rules of
Professional Conduct or a Disciplinary Rule), Prof.Cond.R. 8.4(c) and DR 1-
102(A)(4) (each prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation), and Prof.Cond.R. 8.4(d) and DR
1-102(A)(5) (prohibiting a lawyer from engaging in conduct that is prejudicial to
the administration of justice).
{¶ 22} Parisi objects to the board’s finding that she charged a clearly
excessive fee, arguing that among other things, (1) such a finding impairs her
constitutional rights to contract, (2) Prof.Cond.R. 1.5(a) and DR 2-106(A) are
void for vagueness and therefore cannot be constitutionally applied to her, (3)
because relator did not offer any expert testimony regarding the reasonableness of
her fees, there is insufficient evidence to support a finding that her fee was clearly
excessive, and (4) Prof.Cond.R. 1.2 (“Scope of Representation and Allocation of
Authority Between Client and Lawyer”), 1.4 (“Communication”), and 5.7
(“Responsibilities Regarding Law-Related Services”) required her to abide by
Greene’s decisions concerning the objectives of her representation and the means
of pursuing those objectives.
{¶ 23} This court possesses the inherent, original, and exclusive
jurisdiction to regulate all matters relating to the practice of law. Section
2(B)(1)(g), Article IV of the Ohio Constitution. Nonetheless, rules adopted by
this court must comply with the state and federal constitutions. Shimko v. Lobe,
103 Ohio St.3d 59, 2004-Ohio-4202, 813 N.E.2d 669, ¶ 27, quoting Christensen
v. Bd. of Commrs. on Grievances & Discipline (1991), 61 Ohio St.3d 534, 537,
575 N.E.2d 790. While the Fourteenth Amendment to the United States
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Constitution and Section 1, Article I of the Ohio Constitution protect the freedom
of contract, we have long recognized that that freedom is not absolute, but is
subservient to the public welfare. See, e.g., Pittsburgh, Cincinnati, Chicago & St.
Louis Ry. Co. v. Kinney (1916), 95 Ohio St. 64, 115 N.E. 505, paragraph one of
the syllabus. And “compensation for advocacy has never been treated as an
ordinary debt or contractual right, but has since antiquity been regulated by the
prevailing governmental authority possessing the power to control the practice of
law.” Shimko at ¶ 47.
{¶ 24} Prof.Cond.R. 1.5 and DR 2-106(A) prohibit a lawyer from
charging or collecting an illegal or clearly excessive fee and set forth a number of
factors to aid attorneys in determining whether their fees are reasonable. Those
factors include the time, labor, and skill involved in the representation; the
likelihood that the acceptance of the employment will preclude other employment
by the lawyer; the fee customarily charged in the locality for similar services; the
amount involved and the results obtained; the nature and length of the
professional relationship; the experience, reputation, and ability of the lawyer; and
whether the fee is fixed or contingent. Prof.Cond.R. 1.5(a)(1) through (8). The
prohibition against clearly excessive fees is a reasonable restriction of the
freedom of contract that permits attorneys to charge a fee for their services, while
also preserving the integrity of the legal profession. See Shimko, 103 Ohio St.3d
59, 2004-Ohio-4202, 813 N.E.2d 669, ¶ 55 (“virtually all aspects of the practice
of law in general, and remuneration in particular, have always been considered to
lie within the regulatory jurisdiction of the granting or admitting authority and to
be distinct from other types of contractual arrangements”).
{¶ 25} We have previously denounced as a clearly excessive fee charging
legal fees for nonlegal services. Disciplinary Counsel v. Hunter, 106 Ohio St.3d
418, 2005-Ohio-5411, 835 N.E.2d 707, ¶ 17, 25 (attorney rates for administrative
tasks, including picking up mail, depositing checks, paying bills, and arranging
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for lawn care, house cleaning, and the delivery of necessities result in a clearly
excessive fee); Cincinnati Bar Assn. v. Alsfelder, 103 Ohio St.3d 375, 2004-Ohio-
5216, 816 N.E.2d 218, ¶ 22-23 (attorney rates for social interaction with a client
constituted a clearly excessive fee). The factors set forth in Prof.Cond.R. 1.5(a)
and the decisions of this court give attorneys a reasonable opportunity to know
what is prohibited and to conduct themselves accordingly. Thus, Parisi’s
freedom-of-contract and void-for-vagueness arguments are without merit.
{¶ 26} Parisi charged over $220,000 for services provided by herself and
her staff and for cost reimbursements during the nearly three years that she
represented Greene. Her billings, however, were replete with charges at her
attorney rate for nonlegal services like arranging and attending Greene’s doctors’
appointments, handling mundane tasks related to Greene’s cable-television and
magazine subscriptions, researching local feline clubs, and arranging for the
replacement of Greene’s watch battery. She billed approximately $13,000 in fees
and expenses for overseeing the partial restoration of Greene’s beloved Jaguar.
{¶ 27} The board found that Parisi’s hourly rates for legal work were
reasonable and that Greene believed that the services Parisi performed were
important, had demanded (for the most part and sometimes irrationally) that she
perform them, and had rejected some services when Parisi sought to have others
provide them. Although relator did not present any expert testimony about the
charges for Parisi’s nonlegal services, it is clear that the bulk of those services
required little, if any, legal skill and that the cost of providing the services was
disproportionate to the benefit that Greene received. There is no question that
those charges specifically addressed by relator and the scores of nonlegal services
billed at attorney rates in Parisi’s 404-page billing record are clearly excessive.
{¶ 28} Parisi’s claims that Prof.Cond.R. 1.2, 1.4, and 5.7 authorized her
conduct must also fail. There is no dispute that these rules require attorneys to
consult with and abide by decisions concerning the objectives of their
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representation and the means by which they are pursued, promptly inform the
client of decisions or circumstances that require the client’s informed consent, and
permit attorneys to perform law-related services on their clients’ behalf. But
nothing in those rules permits attorneys to violate their ethical obligations in
pursuing their clients’ objectives or to charge attorney rates for nonlegal services
at the behest of a client.
{¶ 29} Accordingly, we overrule each of Parisi’s objections, adopt the
board’s findings of fact and misconduct with respect to the Greene representation,
and dismiss the alleged violations of Prof.Cond.R. 8.4(a), (c), and (d) and DR 1-
102(A)(1), (4), and (5) as recommended by the board.
Sanction
{¶ 30} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 31} The board found three aggravating factors, including Parisi’s
selfish motive in taking her attorney fees from Demming’s account, her
commission of multiple offenses, and the vulnerability of the clients harmed by
her conduct. See BCGD Proc.Reg. 10(B)(1)(b), (d), and (h).
{¶ 32} As mitigating factors, the board found that Parisi had no prior
disciplinary record in almost 30 years of practice, that she returned the attorney
fees she had collected from Demming’s account before the probate court issued a
formal order for her to do so, that she cooperated in the disciplinary proceedings,
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and that she demonstrated her good reputation and character apart from the
charged misconduct. See BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (e).
Although Parisi denied having committed any ethical violations, the board also
found that she fully acknowledged that she should not have taken her fee from
Demming during the pendency of the guardianship proceeding and that it would
have been a better practice to show Greene her monthly bills, to have him sign
and date them, and to have him personally sign the checks for his legal fees. She
also acknowledged that she should have arranged for someone else to review her
monthly bills before Greene paid them.
{¶ 33} The board recommends that we impose a six-month suspension for
Parisi’s misconduct but, citing the panel’s belief that she will not repeat her
transgressions and the difficult choices Parisi faced in representing these clients as
their mental and physical conditions deteriorated, recommends that we stay the
entire suspension on the condition that she commit no further misconduct. In
support of this recommendation, the board observes that in the absence of fraud or
dishonesty, we have imposed comparable stayed suspensions for attorneys who
have charged or collected a clearly excessive fee. See Akron Bar Assn. v.
Watkins, 120 Ohio St.3d 307, 2008-Ohio-6144, 898 N.E.2d 946, ¶ 6, 15
(imposing a six-month stayed suspension on an attorney who charged his hourly
attorney rate for nonlegal services while serving as the trustee of a revocable
living trust); Cincinnati Bar Assn. v. Alsfelder, 103 Ohio St.3d 375, 2004-Ohio-
5216, 816 N.E.2d 218, ¶ 25, 34 (imposing a one-year stayed suspension for an
attorney who allowed a client to consult him as a friend while charging her for his
time as a lawyer); Disciplinary Counsel v. Dettinger, 121 Ohio St.3d 400, 2009-
Ohio-1429, 904 N.E.2d 890, ¶ 4, 10 (imposing a six-month stayed suspension for
an attorney who borrowed money from a client without disclosing the inherent
conflict of interest or advising the client, or upon the client’s death, his executor,
to seek independent counsel); Disciplinary Counsel v. Jacobs, 109 Ohio St.3d
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252, 2006-Ohio-2292, 846 N.E.2d 1260, ¶ 3-5, 8 (publicly reprimanding an
attorney for representing a husband and wife in their divorce and, while it was
pending, representing each one on other matters without disclosing the conflict of
interest).
{¶ 34} Both parties object to the recommended sanction. Parisi seeks
dismissal of the complaint. Citing Disciplinary Counsel v. Bandman, 125 Ohio
St.3d 503, 2010-Ohio-2115, 929 N.E.2d 442, Toledo Bar Assn. v. Stahlbush, 126
Ohio St.3d 366, 2010-Ohio-3823, 933 N.E.2d 1091, and Disciplinary Counsel v.
Johnson, 113 Ohio St.3d 344, 2007-Ohio-2074, 865 N.E.2d 873, relator argues
that Parisi’s misconduct warrants an actual suspension from the practice of law
with specific conditions imposed upon any stayed portion of that suspension.
{¶ 35} Unlike Parisi’s conduct, however, the misconduct in each of
relator’s cited authorities involved fraud, misrepresentation, or deceit, and two of
the cases involved findings that the attorney had misappropriated client funds.
Bandman withdrew $60,050 from an elderly client’s trust account without the
knowledge or consent of the client or her attorney-in-fact and altered a bank
record and payment records to conceal his misdeeds. Bandman, 125 Ohio St.3d
503, 2010-Ohio-2115, 929 N.E.2d 442, ¶ 7, 10. Because Bandman had
misappropriated client funds, we indefinitely suspended him from the practice of
law and conditioned reinstatement on proof that he has made full restitution. Id.
at ¶ 18-19. And in Stahlbush, we imposed a two-year suspension with the second
year stayed on conditions upon finding that the attorney had deceptively inflated
her billable hours for court-appointed work, billing more than 24 hours per day in
three instances. Stahlbush, 126 Ohio St.3d 366, 2010-Ohio-3823, 933 N.E.2d
1091, ¶ 2-3, 11, 17.
{¶ 36} Of the cases cited by relator, Johnson’s conduct is perhaps the
most comparable to Parisi’s. Johnson represented two elderly sisters—initially as
the attorney-in-fact for one sister, and as a court-appointed guardian for the other.
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Johnson, 113 Ohio St.3d 344, 2007-Ohio-2074, 865 N.E.2d 873, ¶ 5. He sought
to recover more than $800,000 that had been misappropriated by his clients’
former attorney-in-fact, but failed to perform a cost-benefit analysis before
pursuing their claims. Id. at ¶ 71. While he charged a reasonable hourly rate for
his time and maintained detailed billing records, he overworked the client’s case,
billing almost $160,000 to collect $197,683.45. Id. at ¶ 24, 26, 71. We rejected
Johnson’s argument that he was acting at the behest of the sister for whom he had
initially served as attorney-in-fact, observing that she became mentally
incompetent during the representation, as evidenced by a June 1999 order
appointing Johnson as her guardian. Id. at ¶ 12, 74. Johnson had also billed the
sisters separately for his services and failed to disclose to the probate court the
fees and expenses that he had collected pursuant to the power of attorney. Id. at
¶ 17. In determining the appropriate sanction for Johnson’s misconduct, we
observed that deliberate efforts to deceive generally warrant an actual suspension
from the practice of law, and we imposed a one-year suspension, with the last six
months stayed on conditions, including the payment of restitution, and a six-
month period of probation. Id. at ¶ 85, 89.
{¶ 37} In this case, Parisi has engaged in a conflict of interest by
representing both Demming and the niece who sought her guardianship, has
engaged in conduct prejudicial to the administration of justice by paying her own
fees during the guardianship proceeding, and has charged a clearly excessive fee
for nonlegal services that she provided to Greene. But unlike the situations cited
by relator, there have been no findings that Parisi has engaged in fraud,
misrepresentation, or deceit. She returned the $18,820 payment to herself in the
Demming matter and has settled litigation with Greene’s heirs with her agreement
to forgo approximately $25,000 in additional billings and with a $21,000 payment
from her malpractice carrier. Furthermore, the panel believes that Parisi will not
repeat her transgressions, and we defer to that credibility determination because
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the panel members saw and heard her testimony firsthand. Cuyahoga Cty. Bar
Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24.
{¶ 38} Having considered Parisi’s misconduct, the aggravating and
mitigating factors present, and the sanctions imposed for comparable offenses, we
overrule the parties’ objections and adopt the board’s recommended sanction of a
six-month suspension, all stayed on the condition that Parisi commit no further
misconduct. Accordingly, we suspend Georgianna I. Parisi from the practice of
law in Ohio for six months, with the entire suspension stayed on the condition that
she commit no further misconduct. If Parisi fails to comply with that condition,
the stay will be lifted, and she will serve the entire six-month suspension. Costs
are taxed to Parisi.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, O’DONNELL, and MCGEE BROWN, JJ.,
concur.
CUPP, J., concurs in part and dissents in part.
O’CONNOR, C.J., dissents and would accept the relator’s recommended
sanction of an indefinite suspension.
LANZINGER, J., dissents and would impose a one-year suspension with six
months stayed.
__________________
CUPP, J., concurring in part and dissenting in part.
{¶ 39} Although I concur in the decision of the court, I would also add as
a condition of the stayed suspension that Parisi submit to the monitoring of her
practice by an attorney designated by relator during the entire term of the stayed
six-month suspension.
__________________
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Gary C. Schaengold and Mark A. Tuss, for relator.
Konrad Kuczak and Dianna M. Anelli, for respondent.
______________________
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