Mahoning Cty. Bar Assn. v. Bauer (Slip Opinion) , 143 Ohio St. 3d 519 ( 2015 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Mahoning Cty. Bar Assn. v. Bauer, Slip Opinion No. 2015-Ohio-3653.]
NOTICE
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to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-3653
MAHONING COUNTY BAR ASSOCIATION v. BAUER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Mahoning Cty. Bar Assn. v. Bauer, Slip Opinion No.
2015-Ohio-3653.]
Attorney misconduct, including attempting to resolve a fee dispute with another
lawyer through the court system rather than through mediation or
arbitration by a bar association—Public reprimand.
(No. 2015-0282—Submitted April 14, 2015—Decided September 10, 2015.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2014-056.
_______________________
Per Curiam.
{¶ 1} Respondent, Roger Richard Bauer of Warren, Ohio, Attorney
Registration No. 0015998, was admitted to the practice of law in Ohio in 1973.
SUPREME COURT OF OHIO
{¶ 2} On July 7, 2014, a probable-cause panel of the Board of
Commissioners on Grievances and Discipline1 certified to the board a single-
count complaint filed against Bauer by relator, Mahoning County Bar
Association. In that complaint, relator alleged that Bauer had committed multiple
ethical violations in attempting to collect fees from the settlement of a personal-
injury case that he had referred to another lawyer.
{¶ 3} The parties entered into stipulations of fact, misconduct, and
aggravating and mitigating factors and agreed that a one-year suspension, all
stayed on conditions, is the appropriate sanction for Bauer’s violation of three
rules governing the ethical conduct of lawyers in Ohio. The parties agreed that
six additional allegations of rule violations should be dismissed.
{¶ 4} The panel granted the parties’ joint motion to waive the hearing and
adopted their agreed stipulations. However, it rejected their agreed sanction and
recommended that Bauer be publicly reprimanded for his misconduct. The board
adopted the findings of fact, conclusions of law, and recommendation of the
panel. We adopt those findings and publicly reprimand Bauer for his misconduct.
Misconduct
{¶ 5} Sometime in 2000, a friend contacted Bauer to ask him whether he
knew any attorneys who handled medical-malpractice cases. According to Bauer,
after this discussion, he met with his friend’s sister, who was concerned that her
daughter, who was less than a year old, had brain damage caused by medical
negligence during her birth. Bauer recommended that the mother meet with
another attorney, who eventually entered into a written contingent-fee agreement
with the parents and, in 2010, obtained a substantial jury verdict in their favor.
{¶ 6} Although Bauer had not entered into a written fee agreement with
the child’s parents, he filed suit against the attorney who represented them in the
1
Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been
renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St. 3d CII.
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January Term, 2015
malpractice action, claiming that he was entitled to share in the attorney fees
earned in their case. The court dismissed the case, and the matter was ultimately
arbitrated by the Ohio State Bar Association, which ruled against Bauer.
{¶ 7} The parties stipulated and the board found that Bauer’s conduct
violated DR 2-107(A)(2) (requiring a lawyer to disclose in writing to the client
the terms of any division of fees between lawyers who are not in the same firm
and the identity of all lawyers sharing in the fees), Prof.Cond.R. 1.5(c) (requiring
an attorney to set forth a contingent-fee agreement in a writing signed by the
client), 1.5(e) (permitting attorneys who are not in the same firm to divide fees
only if the fee 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), and 1.5(f)
(requiring fee disputes regarding the division of fees between lawyers to be
resolved through mediation or arbitration by a local bar association or the Ohio
State Bar Association).2 They also recommend that the remaining charges
alleging rule violations be dismissed. We adopt the board’s findings of fact and
misconduct.
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties the lawyer violated and the sanctions
imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St. 3d 424,
2
Relator charged Bauer 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
Disciplinary Rules of the Code of Professional Responsibility. When both the former and current
rules are cited for the same acts, the allegations comprise a single continuing 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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SUPREME COURT OF OHIO
2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. We also weigh evidence of the
aggravating and mitigating factors listed in Gov.Bar R. V(13).
{¶ 9} The parties stipulated and the board found that no aggravating
factors are present. As mitigating factors, they determined that Bauer does not
have a prior disciplinary record, has made full and free disclosure and
demonstrated a cooperative attitude toward the disciplinary proceedings, has
presented evidence of his good character and reputation apart from the charged
misconduct, and acknowledged the wrongfulness of his actions. See Gov.Bar R.
V(13)(C)(1), (4), and (5).
{¶ 10} The parties jointly recommended that Bauer be suspended for one
year, all stayed on conditions. The board considered the sanctions imposed in
three cases involving similar violations: Cleveland Metro. Bar v. Schiff, 139 Ohio
St.3d 456, 2014-Ohio-2573, 12 N.E.3d 1207 (imposing a two-year suspension, all
stayed, for the attorney’s failure to obtain consent from numerous clients to refer
their matters to outside counsel and to split fees with those attorneys, neglect of a
client matter, and failure to reasonably communicate with a client); Columbus
Bar Assn. v. Adusei, 136 Ohio St. 3d 155, 2013-Ohio-3125, 991 N.E.2d 1142
(publicly reprimanding an attorney who failed to reduce a contingent-fee
agreement to writing signed by the client and charging an illegal or clearly
excessive fee); and Cincinnati Bar Assn. v. Seibel, 132 Ohio St. 3d 411, 2012-
Ohio-3234, 972 N.E.2d 594 (rejecting the parties’ stipulated sanction of a stayed
six-month suspension in favor of publicly reprimanding an attorney who failed to
reduce a contingent-fee agreement to a writing signed by the client, charged a
nonrefundable fee without making required disclosures about that fee, failed to
hold client funds in an interest-bearing client trust account separate from his own
funds, and failed to promptly deliver funds or other property that the client was
entitled to receive).
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January Term, 2015
{¶ 11} The board acknowledged that the parties’ recommended sanction
of a stayed one-year suspension fell within the range of sanctions imposed in
Schiff, Adusei, and Seibel. But the board distinguished Schiff on the ground that it
involved a pattern of misconduct consisting of multiple offenses and harm to
multiple vulnerable clients—aggravating factors that are not present here. See
Schiff at ¶ 13. Because we have recognized that a public reprimand is often the
appropriate sanction when violations of Prof.Cond.R. 1.5 are accompanied by
significant mitigating evidence and the corresponding absence of significant
aggravating factors, see Adusei at ¶ 18-21, the board recommends that we publicly
reprimand Bauer for his misconduct.
{¶ 12} We adopt the board’s analysis and agree that a public reprimand is
the appropriate sanction in this case.
{¶ 13} Accordingly, Roger Richard Bauer is publicly reprimanded for his
misconduct. Costs are taxed to Bauer.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Ronald E. Slipski, Bar Counsel, and David C. Comstock Jr., Bar Counsel,
for relator.
Michael D. Rossi, for respondent.
_________________
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