Cincinnati Bar Assn. v. Seibel , 132 Ohio St. 3d 411 ( 2012 )

[Cite as Cincinnati Bar Assn. v. Seibel, 132 Ohio St.3d 411, 2012-Ohio-3234.]
CINCINNATI BAR ASSOCIATION v. SEIBEL.
[Cite as Cincinnati Bar Assn. v. Seibel, 132 Ohio St.3d 411, 2012-Ohio-3234.]
Attorneys—Misconduct—Improper treatment of retainer as nonrefundable—
Failure to account to client or return file upon termination of
representation—Failure to put contingent-fee agreement in writing—
Public reprimand.
(No. 2011-2058—Submitted January 18, 2012—Decided July 19, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-092.
__________________
Per Curiam.
{¶ 1} Respondent, Ronald E. Seibel of Loveland, Ohio, Attorney
Registration No. 0077296, was admitted to the bar in 2004. On December 6,
2010, relator, Cincinnati Bar Association, filed a complaint alleging that Seibel
had accepted $2,500 from a client in two installments as a nonrefundable retainer,
that he had failed to deposit the money into his client trust account, and that he
had failed to return the client’s file and provide an accounting when the client
sought to terminate his representation.
{¶ 2} The parties submitted a consent-to-discipline agreement that
included stipulated findings of fact and misconduct and recommended that Seibel
receive a six-month stayed suspension, provided that he refund $2,000 to the
client. The panel recommended that the agreement be accepted, but the board
rejected it and sent the matter to the panel for further proceedings.
{¶ 3} After a hearing, the board adopted the parties’ submitted
stipulations of fact and misconduct but rejected the parties’ proposed sanction of a
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six-month stayed suspension. The board now recommends that we publicly
reprimand Seibel. We adopt the board’s recommendation.
Misconduct
{¶ 4} The stipulated facts show that Darlene Mincey retained Seibel in
January 2007 to pursue a sexual-harassment and retaliation action against the
University of Cincinnati. Mincey paid a $500 retainer, which Seibel treated as
nonrefundable and deposited into his operating account, and which the parties
agree Seibel later earned. Seibel and Mincey then entered into a verbal
contingent-fee agreement that was never reduced to writing.
{¶ 5} Seibel represented Mincey in negotiations at an Equal Employment
Opportunity Commission conciliation meeting with the university in August
2007. Mincey rejected the university’s settlement offer and instructed Seibel to
request a notice of right to sue and proceed with a federal lawsuit. After the
conciliation meeting, Seibel requested another $2,000, which Mincey understood
to be for litigation costs. Seibel, however, deposited the money in his operating
account and claims that this payment was a part of the $2,500 nonrefundable
retainer he regularly charges his clients.
{¶ 6} Seibel requested a right-to-sue letter from the EEOC numerous
times, but through no fault of his own, he did not receive one. Over the next two
and a half years, Mincey attempted to contact Seibel and spoke with him a few
times. Seibel eventually discovered that the reason for the delay was that the
EEOC had destroyed Mincey’s file.
{¶ 7} Unhappy with the lack of progress, and unable to reach Seibel by
phone, Mincey sent him a certified letter on March 1, 2010, requesting her files
and an accounting of the $2,500 retainer she had paid. Seibel did not return
Mincey’s file or provide her with an accounting, but on October 26, 2011, he
issued a $2,000 refund to Mincey. Mincey retained another attorney to pursue her
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case, and Seibel has forwarded a copy of Mincey’s file to her new counsel. Her
case has not been prejudiced as a result of Seibel’s actions or inaction.
{¶ 8} The parties stipulated and the board found that Seibel’s conduct
violated Prof.Cond.R. 1.5(c)(1) (requiring an attorney to set forth a contingent-fee
agreement in a writing signed by the client), 1.5(d)(3) (prohibiting a lawyer from
charging a fee denominated as “earned upon receipt” or “nonrefundable” without
simultaneously advising the client in writing that the client may be entitled to a
refund of all or part of the fee if the lawyer does not complete the representation),
1.15(a) (requiring a lawyer to hold funds of clients in an interest-bearing client
trust account, separate from the lawyer’s own funds), and 1.15(d) (requiring a
lawyer to promptly deliver funds or other property that the client is entitled to
receive).
{¶ 9} We adopt the facts and misconduct as stipulated by the parties and
found by the board.
Sanction
{¶ 10} In recommending a sanction, the board considered the aggravating
and mitigating factors listed in BCGD Proc.Reg. 10(B)(1) and (2). See Stark Cty.
Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818,
¶ 16.
{¶ 11} The parties did not stipulate to any aggravating or mitigating
factors, and the board did not find that any aggravating factors were present. The
board attributes mitigating effect, however, to the facts that Seibel does not have a
prior disciplinary record, did not act with a dishonest or selfish motive, has
accepted moral and legal responsibility for his misconduct, has apologized to the
client, and ultimately released the client’s file to her new counsel. See BCGD
Proc.Reg. 10(B)(2)(a) and (b). While acknowledging that Seibel did not make
restitution before submitting the original consent-to-discipline agreement, the
board found that he has now done so and that his delay was due to his
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inexperience with the appropriate timing and procedure for making restitution.
The board states that relator has not disputed Seibel’s explanation for the delay
and has not argued that his initial failure to make restitution should be considered
as an aggravating factor. Thus, it appears that the board considered Seibel’s
belated restitution to be a mitigating factor pursuant to BCGD Proc.Reg.
10(B)(2)(c).
{¶ 12} In their consent-to-discipline agreement and at the hearing, the
parties agreed that in line with the sanctions imposed for similar misconduct, a
six-month suspension, all stayed, is the appropriate sanction for Seibel’s
misconduct. See, e.g., Columbus Bar Assn. v. Halliburton-Cohen, 106 Ohio St.3d
98, 2005-Ohio-3956, 832 N.E.2d 42 (imposing a six-month, fully stayed
suspension for an attorney who charged a clearly excessive fee in the form of a
“lost-opportunity fee” and failed to promptly refund unearned fees upon her
withdrawal from employment); Cleveland Bar Assn. v. Ramos, 119 Ohio St.3d 36,
2008-Ohio-3235, 891 N.E.2d 730 (imposing a six-month stayed suspension for an
attorney who neglected one client’s case and failed to properly maintain and
account for fees that client had advanced); and Cuyahoga Cty. Bar Assn. v. Cook,
121 Ohio St.3d 9, 2009-Ohio-259, 901 N.E.2d 225 (imposing a six-month stayed
suspension for an attorney who charged a flat earned-upon-receipt retainer plus a
20 percent contingent fee, failed to deposit unearned funds in a client trust
account, and failed to maintain records and account for client funds in his
possession).
{¶ 13} The board, however, rejected the parties’ proposed sanction,
finding that Seibel’s misconduct was less egregious than the conduct in other
cases in which we had imposed only public reprimands. See Cincinnati Bar Assn.
v. Schmalz, 123 Ohio St.3d 130, 2009-Ohio-4159, 914 N.E.2d 1024 (publicly
reprimanding an attorney who had engaged in an inappropriate romantic
relationship with a client); Akron Bar Assn. v. Finan, 118 Ohio St.3d 106, 2008-
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Ohio-1807, 886 N.E.2d 229 (publicly reprimanding an attorney who had signed a
client’s name to an affidavit and then notarized that signature); and Lorain Cty.
Bar Assn. v. Godles, 128 Ohio St.3d 279, 2010-Ohio-6274, 943 N.E.2d 988(publicly reprimanding an attorney who had done very little work on his client’s
case and failed to fully communicate with the client regarding management and
status of the case). The board observed that Seibel did not have any inappropriate
contact with a client or engage in dishonesty about the misconduct as in Schmalz,
that he did not attempt to deceive others as in Finan, and that he did not engage in
ineffective representation resulting in a malpractice action as in Godles.
{¶ 14} The board also cited a number of additional factors that it
considered to be mitigating, including (1) the absence of any injury to the client,
(2) the absence of any alleged malpractice or incompetence, (3) the unique events
precipitating the misconduct, (4) Seibel’s sincere remorse, (5) his “complete
cooperation with the investigation as well as with successor counsel,” and (6) his
effective performance of his attorney functions prior to the EEOC’s destruction of
his client’s file. See BCGD Proc.Reg. 10(B)(2)(d). Neither party has objected to
the board’s recommendation.
{¶ 15} Having considered Seibel’s conduct, the presence of substantial
mitigating factors, and the sanctions imposed for similar misconduct, we agree
that a public reprimand is the appropriate sanction for Seibel’s misconduct.
{¶ 16} Accordingly, Ronald E. Seibel is publicly reprimanded for
charging a nonrefundable fee without advising the client that she might be entitled
to a refund of all or part of the fee if he did not complete the representation,
failing to memorialize a contingent-fee agreement in a writing signed by the
client, failing to hold a client’s funds in an interest-bearing client trust account,
and failing to promptly deliver the unearned fees and the client’s file upon the
termination of his representation. Costs are taxed to Seibel.
Judgment accordingly.
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O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Edwin Patterson III, Bar Counsel, and Robert F. Laufman, for relator.
Ronald E. Seibel, pro se.
______________________
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