Cincinnati Bar Assn. v. Hartke
132 Ohio St. 3d 116
| Ohio | 2012Background
- The Cincinnati Bar Association filed a complaint against Hartke alleging violations of Prof.Cond.R. 1.2(e) and 8.4(h).
- The board concluded Hartke violated those rules and recommended a six-month suspended sentence with conditions; Hartke did not object.
- Hartke represented Jacqueline Usher in a 2009 divorce and Usher owed Hartke over $5,000 in fees.
- In Feb 2010, Hartke and Usher agreed he would receive one-half of Usher’s 401(k) distribution as full satisfaction of the fee, with the check made to Usher and Hartke jointly.
- Usher explored bankruptcy; Hartke did not know of this; Usher later sought the proceeds to be paid to her alone and ultimately paid Hartke $3,000 after Hartke confronted her.
- In June 2010, Hartke confronted Usher at her home (with her child present), threatened criminal action to gain an advantage in a civil matter, and accepted $3,000
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Hartke violate 1.2(e) and 8.4(h) by threatening criminal action to gain advantage? | Cincinnati Bar Association argues yes; threats violated ethics rules. | Hartke contends the conduct was a boundary-line or not fully wrongful; disputes the severity. | Yes, violated 1.2(e) and 8.4(h). |
| Are aggravating factors sufficient to impose actual suspension rather than stayed suspension? | Board found aggravating factors warrant actual suspension. | Hartke argues mitigating factors could justify a stayed suspension. | Aggravating factors outweigh mitigating; six-month actual suspension. |
| Do prior suspensions and client-vulnerability considerations affect the sanction? | Prior suspension and vulnerability support harsher sanction. | Hartke challenges weight of prior sanction and vulnerability facts. | Yes; factors distinguish this case and support actual suspension. |
Key Cases Cited
- Cincinnati Bar Assn. v. Cohen, 86 Ohio St.3d 100 (1999) (single threat can merit reprimand)
- Bar Assn. v. Cunningham, 118 Ohio St.3d 188 (2008) (single threat to gain advantage—reprimand)
- Disciplinary Counsel v. Landis, 124 Ohio St.3d 508 (2010) (drove stayed suspension in other contexts)
- Disciplinary Counsel v. Miller, 130 Ohio St.3d 1 (2011) (aggravating factors; sexual comments; stayed suspension distinguished)
- Disciplinary Counsel v. Freeman, 106 Ohio St.3d 334 (2005) (vulnerability of client; heavier obligation on attorney)
- Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521 (2008) (admits wrongful conduct as mitigating factor)
- Cincinnati Bar Assn. v. Hartke, 132 Ohio St.3d 116 (2012) (six-month suspension for threats to gain civil advantage; aggravated factors)