Lorain Cty. Bar Assn. v. Vagotis (Slip Opinion) , 2021 Ohio 806 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lorain Cty. Bar Assn. v. Vagotis, Slip Opinion No. 2021-Ohio-806.]
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SLIP OPINION NO. 2021-OHIO-806LORAIN COUNTY BAR ASSOCIATION v. VAGOTIS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lorain Cty. Bar Assn. v. Vagotis, Slip Opinion No.
2021-Ohio-806.]
Attorneys—Misconduct—Failure to advise a client in writing that client may be
entitled to refund of fee denominated as “earned upon receipt” if the
lawyer does not complete representation—Failure to disclose to client
attorney’s failure to carry professional-liability insurance—Failure to
hold client’s property in an interest-bearing client trust account—Failure
to hold legal fees paid in advance in a client trust account—Public
reprimand.
(No. 2020-1193—Submitted January 27, 2021—Decided March 18, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-016.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Christina Nicole Vagotis, of Elyria, Ohio, Attorney
Registration No. 0096246, was admitted to the practice of law in Ohio in 2017.
{¶ 2} In a March 26, 2020 complaint, relator, Lorain County Bar
Association, alleged that Vagotis violated multiple ethical rules while handling a
single probate matter. The parties submitted stipulations of fact, including
misconduct, and aggravating and mitigating factors, and relator agreed to dismiss
several alleged rule violations. The parties agreed that a six-month stayed
suspension was the appropriate sanction for Vagotis’s misconduct.
{¶ 3} After a hearing, a three-member panel of the Board of Professional
Conduct issued a report in which it found that Vagotis committed four of the
seven stipulated rule violations, unanimously dismissed three others based on the
insufficiency of the evidence, and recommended that Vagotis be publicly
reprimanded for her misconduct. The board adopted the panel’s report in its
entirety. Although relator initially objected to the board’s dismissal of two of the
alleged rule violations, it later moved to withdraw those objections and we
granted that motion.
{¶ 4} After reviewing the record in this case, we adopt the board’s
findings of misconduct and recommended sanction and publicly reprimand
Vagotis for the misconduct described herein.
Stipulated Facts and Misconduct
{¶ 5} In March 2018, ten months after Vagotis was admitted to the
practice of law, Troy Hill retained her to probate his late father’s estate. Vagotis
proposed a flat fee of $2,500, with a down payment of $500 and five monthly
payments of $400. The engagement letter that Vagotis presented to Hill did not
inform him that Vagotis considered the fee to be earned upon receipt or that he
could be entitled to a full or partial refund if she did not complete the work. Hill
signed the engagement letter and returned it to Vagotis with a $500 check, but
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January Term, 2021
Vagotis never negotiated that check. Hill later made three $400 payments, and
Vagotis deposited those checks into her operating account. Although Vagotis’s
professional-liability-insurance coverage lapsed during the representation, she did
not inform Hill of that fact.
{¶ 6} Vagotis communicated with Hill on multiple occasions and
performed some work on the estate. She and Hill discussed the best course of
action for disposing of the decedent’s home and vehicles, and Vagotis offered to
assist Hill with the foreclosure proceeding against the decedent’s home. Vagotis
reviewed documents pertaining to the estate and prepared several rough drafts of
the probate forms—though she did not file the documents with the court, because
she was waiting for Hill’s sisters to return signed waivers of their right to
administer the estate. On April 19, 2019, Vagotis wrote to Hill to inform him that
she would terminate the representation if she did not receive the documents by
May 1, but at Vagotis’s disciplinary hearing, Hill testified that he did not receive
the letter. After Vagotis failed to respond to a couple of his text messages, Hill
filed a grievance with relator.
{¶ 7} The board found that Vagotis’s conduct violated Prof.Cond.R.
1.5(d)(3) (prohibiting a lawyer from charging a fee denominated as “earned upon
receipt,” or “nonrefundable,” or in any similar terms 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), 1.4(c)
(requiring a lawyer to inform the client if the lawyer does not maintain
professional-liability insurance and obtain a signed acknowledgment of that
notice from the client), 1.15(a) (requiring a lawyer to hold the property of clients
in an interest-bearing client trust account, separate from the lawyer’s own
property), and 1.15(c) (requiring a lawyer to deposit into a client trust account
legal fees and expenses that have been paid in advance). We adopt these findings
of misconduct.
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SUPREME COURT OF OHIO
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 9} The parties stipulated and the board found that the sole aggravating
factor present in this case is that Vagotis committed multiple offenses, Gov.Bar R.
V(13)(B)(4), though they all arose from a single undertaking. As for mitigating
factors, the parties stipulated and the board found that Vagotis had no prior
discipline, did not act with a dishonest or selfish motive, voluntarily made
restitution of the entire fee notwithstanding the fact that she had performed a
significant amount of work for the client, and exhibited a cooperative attitude
toward the disciplinary proceedings. Gov.Bar R. V(13)(C)(1) through (4). In
addition, the panel was strongly influenced by Vagotis’s testimony regarding her
sincere effort to pursue Hill’s legal matter, despite her lack of probate experience.
{¶ 10} The parties stipulated that a conditionally stayed six-month
suspension was the appropriate sanction for Vagotis’s misconduct. The board,
however, determined that a public reprimand was more appropriate, given its
unanimous dismissal of multiple alleged rule violations.
{¶ 11} In support of that sanction, the board cites four cases in which we
publicly reprimanded attorneys for misconduct comparable to that of Vagotis.
See Warren Cty. Bar Assn. v. Ernst, 154 Ohio St.3d 131, 2018-Ohio-3900, 111
N.E.3d 1179 (attorney failed to act with reasonable diligence, failed to reasonably
communicate with the client, and failed to deposit the retainer into his client trust
account); Lorain Cty. Bar Assn. v. Smith, 147 Ohio St.3d 419, 2016-Ohio-7469,
66 N.E.3d 731 (attorney failed to advise the client in writing that he could be
entitled to a refund of all or part of his flat fee if the attorney did not complete the
representation, failed to deposit the unearned fee into his client trust account, and
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January Term, 2021
failed to maintain required records regarding the funds held in that account);
Akron Bar Assn. v. Harsey, 142 Ohio St.3d 97, 2015-Ohio-965, 28 N.E.3d 86(attorney neglected a criminal appeal and failed to reasonably communicate with
the client, failed to communicate the nature and scope of his representation and
the basis or rate of the fee to another client, and failed to deposit unearned fees
into his client trust account); Trumbull Cty. Bar Assn. v. Rucker, 134 Ohio St.3d
282, 2012-Ohio-5642, 981 N.E.2d 866 (attorney failed to act with reasonable
diligence, improperly charged a nonrefundable fee, and failed to deposit unearned
client funds into a client trust account).
{¶ 12} Having thoroughly reviewed the board’s findings of fact and
conclusions of law, the applicable aggravating and mitigating factors, and the
sanctions we have imposed for comparable misconduct, we agree that a public
reprimand is the appropriate sanction in this case.
Conclusion
{¶ 13} Accordingly, Christina Nicole Vagotis is publicly reprimanded for
her misconduct. Costs are taxed to Vagotis.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
O’Toole, McLaughlin, Dooley & Pecora Co., L.P.A., Matthew A. Dooley,
and Michael R. Briach, for relator.
Christina Nicole Vagotis, pro se.
_________________
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