Disciplinary Counsel v. Milhoan (Slip Opinion) , 142 Ohio St. 3d 230 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Milhoan, Slip Opinion No. 2014-Ohio-5459.]
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. 2014-OHIO-5459DISCIPLINARY COUNSEL v. MILHOAN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Milhoan,
Slip Opinion No. 2014-Ohio-5459.]
Attorneys—Misconduct—Excessive fees—Handling a legal matter without
adequate preparation—Conduct adversely reflecting on fitness to practice
law.
(No. 2014-0201—Submitted April 8, 2014—Decided December 17, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 2012-040.
_______________________
Per Curiam.
{¶ 1} Respondent, Douglas Alan Milhoan of Middlebranch, Ohio,
Attorney Registration No. 0073219, was admitted to the practice of law in Ohio in
2001.
{¶ 2} On May 14, 2012, relator filed a complaint with the Board of
Commissioners on Grievances and Discipline, charging Milhoan with two
violations of the Disciplinary Rules of the Code of Professional Conduct and three
SUPREME COURT OF OHIO
violations of the Rules of Professional Conduct arising from his conduct in filing
of virtually identical briefs in 31 of 35 criminal appeals that he was appointed to
handle from decisions of the Ashland County Court of Common Pleas from 2006
to 2010. Milhoan waived his right to a probable-cause hearing, and after he filed
his answer, the matter was set for hearing.
{¶ 3} At the January 16, 2013 hearing, a panel of the board received the
parties’ stipulations of fact and 36 stipulated exhibits and heard testimony from
Milhoan. The day before the hearing, Milhoan had disclosed to relator that he had
been abusing alcohol at the time of his misconduct. He testified that he began
drinking excessively during a series of challenges in his personal life including his
responsibilities as the primary caretaker for his mother (who had suffered a stroke
in 1993), juggling his responsibilities for his mother’s care with those of
parenthood following the birth of his first child in 2004, his mother’s declining
health leading up to her death in late 2004, and several other losses of a more
personal nature in subsequent years. He explained that he had not previously
mentioned his drinking problem, because he was ashamed and did not want to use
it as an excuse for his misconduct. He reported that he had stopped drinking in
January 2011 and had attended a couple of Alcoholics Anonymous meetings with
a neighbor but stated that he had never spoken with a professional about his
problem. After hearing Milhoan’s testimony, the panel continued the hearing to
enable him to obtain an evaluation through the Ohio Lawyers Assistance Program
(“OLAP”).
{¶ 4} When the hearing resumed on October 21, 2013, the panel heard
additional testimony from Megan R. Snyder, M.S.W., L.I.S.W., of OLAP, and
Milhoan. Thereafter, the panel issued a report containing findings of fact and
conclusions of law and recommending that we suspend Milhoan for one year but
stay that suspension on the condition that he make restitution of $8,757.50 to the
Ohio Public Defender’s Office and the Ashland County auditor by paying 50
2
January Term, 2014
percent of his disposable income until the debt is paid in full. The board adopted
the panel’s report in its entirety.
{¶ 5} We adopt the board’s findings of fact and misconduct. We suspend
Milhoan from the practice of law in Ohio for two years, all stayed on the
conditions that he engage in no further misconduct, remain in compliance with his
OLAP contract, and make restitution of $8,757.50, to be apportioned between the
Ohio Public Defender’s Office and the Ashland County auditor according to the
percentage that each office pays toward the fees for court-appointed counsel in
Ashland County.
Misconduct
{¶ 6} Since being admitted to the bar in 2001, respondent has been a solo
practitioner. In recent years, his practice has consisted of court-appointed work,
primarily in juvenile court. But from 2006 to 2010, the Ashland County Court of
Common Pleas appointed Milhoan to handle 35 criminal appeals. Of those 35
cases, 31 involved appeals from guilty pleas. In each of those cases, Milhoan
filed appellate briefs that were identical except for certain “case-specific
modifications such as names, dates, crimes, sentences, and potential mitigation,”
according to the stipulations.
{¶ 7} The parties stipulated and the board found that each brief (1) was ten
pages long, (2) repeated the same grammatical errors, (3) raised the same
assignment of error—“The imposition of a prison sentence in this case imposes an
unnecessary burden on state’s resources”—(4) failed to cite any case law in
support of the assigned error, and (5) failed to include any information regarding
the cost of incarceration or why the appellant’s sentence would burden the state’s
resources. The briefs cited only one case (for the definition of clear and
convincing evidence) and four sections of the Revised Code—three related to
sentencing and one regarding appeal as a matter of right. And although these 31
3
SUPREME COURT OF OHIO
briefs were virtually identical, in 29 of these cases, Milhoan requested at least
three extensions of time to file his appellate briefs.
{¶ 8} Milhoan challenged relator’s allegation that he did not provide good
service for the criminal defendants he was appointed to represent, explaining that
the majority of the appeals were taken from convictions upon guilty pleas and did
not present any appealable issues. Although he acknowledged that his briefs were
sloppy, he testified that when he filed them, he believed that they were better than
Anders briefs. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967) (permitting an attorney who, after conscientious examination
of the record, concludes that a criminal appeal is wholly frivolous to so advise the
court and request permission to withdraw, provided that his request is
accompanied with a brief identifying anything in the record that could arguably
support the client’s appeal). He now recognizes that it would have been more
appropriate to file Anders briefs in many of these cases.
{¶ 9} Milhoan fully acknowledged that he did not keep proper track of the
time he spent on his appellate cases, testifying that he would “go back and
recreate [his] time” when he completed his fee applications. He submitted fee
applications to the Fifth District Court of Appeals in 28 of the 31 cases involving
appeals of guilty pleas, billing an average of 18.49 hours ($924.50) per case. And
he admitted that in three instances he billed two separate clients for the same drive
to the Ashland County clerk of courts to file briefs (approximately 3.0 hours
round trip). Relator calculated that Milhoan double-billed for 8.5 hours of travel
time, for a total of $425, and Milhoan did not object to this calculation. After
relator notified him of the investigation, Milhoan elected not to submit fee
applications for approximately 12 pending appellate matters that he had been
appointed to handle.
{¶ 10} The parties stipulated and the panel and board found that Milhoan
violated DR 6-101(A)(2) (prohibiting a lawyer from handling a legal matter
4
January Term, 2014
without adequate preparation) and Prof.Cond.R. 1.1 (requiring a lawyer to provide
competent representation to a client) by submitting nearly identical briefs in 31
separate cases without providing any case law to support his sole assignment of
error. He also violated Prof.Cond.R. 1.5(a) (prohibiting a lawyer from making an
agreement for, charging, or collecting an illegal or clearly excessive fee) by
failing to properly track the hours he spent working on each case and submitting
fee applications with inflated hours. Lastly, the board found that Milhoan’s
practice of filing of nearly identical briefs for each of his indigent clients’
criminal appeals provided those clients with substandard representation, the
egregiousness of which was further compounded by his continuous pattern of
overbilling the appointed-counsel system for this substandard work. Therefore,
the board made the additional finding that his conduct adversely reflected on his
fitness to practice law in violation of DR 1-102(A)(6) and Prof.Cond.R. 8.4(h)
(both prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law).
{¶ 11} Having determined that they are supported by clear and convincing
evidence, we adopt the board’s findings of fact and misconduct.
Sanction
{¶ 12} 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 BCGD Proc.Reg. 10(B).
{¶ 13} The board found that just two aggravating factors are present.
First, Milhoan engaged in a pattern of misconduct, submitting what was
essentially the same brief in 31 separate cases and billing an average of 18.49
hours ($924.50) for what was in effect the same work. See BCGD Proc.Reg.
5
SUPREME COURT OF OHIO
10(B)(1)(c). And while noting that there was no evidence that any of Milhoan’s
clients suffered harm as a result of his conduct, the board found that the judicial
system and the public were harmed by his overbilling for indigent representation.
See BCGD Proc.Reg. 10(B)(1)(h); Disciplinary Counsel v. Holland, 106 Ohio
St.3d 372, 2005-Ohio-5322, 835 N.E.2d 361, ¶ 22 (overbilling the state for
providing representation to indigent clients causes “serious harm * * * to the
taxpaying public, the judicial system, and the legal profession”).
{¶ 14} As mitigating factors, the board found that Milhoan has no prior
disciplinary record, has accepted full responsibility for his misconduct, has
provided full and free disclosure to the board, has maintained a cooperative
attitude toward the disciplinary proceedings, and has a positive reputation in the
legal community apart from the charged misconduct. See BCGD Proc.Reg.
10(B)(2)(a), (d), and (e). He has also been diagnosed with a chemical dependency
on alcohol that contributed to his misconduct, has entered into a three-year
contract with OLAP requiring him, among other things, to attend at least two
Alcoholics Anonymous (“AA”) meetings per week, has achieved a sustained
period of full remission, and has received a prognosis from a qualified healthcare
professional that he is capable of practicing law in a competent, ethical, and
professional manner. When the hearing reconvened on October 21, 2013, Megan
Snyder testified that as part of Milhoan’s OLAP contract, he had been attending at
least three AA meetings per week, had obtained a sponsor, had been calling to
check in with OLAP three times per week, and had begun individual counseling
to deal with low-level depression. Therefore, the board concluded that his alcohol
dependency qualified as a mitigating factor pursuant to BCGD Proc.Reg.
10(B)(2)(g).
{¶ 15} Relator recommended that Milhoan be suspended from the practice
of law in Ohio for at least one year but that the suspension be fully stayed.
Relator stated that neither the Ohio Public Defender’s Office nor the Ashland
6
January Term, 2014
County auditor offered any estimate on the amount of restitution that should be
ordered. And acknowledging the difficulty of determining the value of the
services Milhoan had provided, relator suggested that Milhoan be required to pay
restitution of $8,757.50—representing 50 percent of the fees charged in the cases
at issue, plus the $425 he overbilled for trips he made to the Ashland County clerk
of court, with a credit of $5,400 representing one-half of the fees he agreed to
forgo in 12 additional appellate cases.
{¶ 16} In support of its recommended sanction, the board relies on our
decisions in Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-
6510, 858 N.E.2d 368, and Disciplinary Counsel v. Holland, 106 Ohio St.3d 372,
2005-Ohio-5322, 835 N.E.2d 361.
{¶ 17} Agopian submitted inaccurate fee applications for court-appointed
work, some of which gave the appearance that he had performed more than 24
hours of work on a given day. We found, however, that while he did not
accurately record the specific number of hours that he spent on each case or the
exact days on which he had performed the work, he had actually performed all of
the work for which he had billed. Indeed, the evidence demonstrated that he
routinely performed services far exceeding the time for which he submitted
payment requests. Acknowledging that Agopian did not have a prior disciplinary
record or possess any exploitative motive, and crediting him for his full
cooperation in the disciplinary process, his acceptance of responsibility for his
conduct, and the more than 40 letters attesting to his integrity, reputation, and
professionalism, we rejected the recommended sanction of a one-year suspension
and concluded that a public reprimand was the appropriate sanction for Agopian’s
misconduct.
{¶ 18} Holland, in contrast, did not apportion the per-hour charges for his
services in court on a given day among his court-appointed cases. If he
represented three separate clients in a single three-hour court session, he would
7
SUPREME COURT OF OHIO
claim three hours for each client, regardless of the amount of time he spent on the
individual case. Holland’s in-court billing sometimes exceeded the number of
hours that the juvenile court in which he practiced was open each day. This
billing practice resulted in outrageous fees, although the overcharges were not
readily apparent, because each case was billed on a separate form and filed at a
separate time. Finding that Holland’s pattern and practice of double billing was
dishonest and deceptive and that its impropriety should have been obvious to him,
we rejected the board’s recommended sanction of a one-year suspension with six
months stayed on conditions and imposed a one-year actual suspension from the
practice of law and conditioned his reinstatement on the payment of full
restitution.
{¶ 19} The board determined that Milhoan’s conduct, when considered
with the relevant aggravating and mitigating factors, falls somewhere between
that of Agopian and Holland. Therefore, the board recommends that we suspend
Milhoan for one year but stay the entire suspension on the conditions that he
engage in no further misconduct and remain in compliance with his OLAP
contract. The board further recommends that Milhoan be required to make
restitution of $8,757.50, but noting that his income in 2012 was just $12,919, the
board recommends that he be required to pay 50 percent of his disposable income
until the obligation is paid in full.
{¶ 20} We believe that a two-year suspension stayed on conditions is the
appropriate sanction for Milhoan’s misconduct. We agree that he should be
required to make restitution of $8,757.50 to be apportioned between the Ohio
Public Defender’s Office and the Ashland County auditor according to the
percentage that each office pays toward the fees for court-appointed counsel in
Ashland County.
{¶ 21} Accordingly, Douglas Alan Milhoan is suspended from the practice
of law in Ohio for two years and ordered to make restitution of $8,757.50 to be
8
January Term, 2014
apportioned between the Ohio Public Defender’s Office and the Ashland County
auditor according to the percentage that each office pays toward the fees for
court-appointed counsel in Ashland County. The entire suspension shall be
stayed on the conditions that he engage in no further misconduct, remain in
compliance with his OLAP contract, and make full restitution to the Ohio Public
Defender’s Office and the Ashland County auditor. If Milhoan fails to comply
with the conditions of the stay, the stay will be lifted and he will serve the full
two-year suspension. Costs are taxed to Milhoan.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________________
Scott J. Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Senior
Assistant Disciplinary Counsel, for relator.
Douglas Alan Milhoan, pro se.
_________________________
9