2019 Ohio 5191
Ohio2019Background
- Mark Mariotti, an Ohio attorney with prior short suspensions for CLE and registration lapses, faced a formal complaint after two client matters and for failing to cooperate with disciplinary investigators.
- Borisenko: Mariotti agreed orally to assist in a municipal eviction, failed to enter appearance or appear at a default-judgment hearing, falsely told the client by text that “everything is fine,” later filed a late answer and an unsuccessful motion for relief, and did not advise the client of appeal rights.
- Lyons: Retained Mariotti for a criminal matter; family paid an $800 retainer that Mariotti did not deposit into his client trust account; scope of representation and lack of malpractice insurance were not communicated in writing; Mariotti did not appear in a related Geauga County matter and Lyons obtained new counsel.
- Mariotti initially failed to answer the disciplinary complaint and was interim-suspended; he later answered after the interim suspension was lifted and the matter was remanded to the Board, where the parties stipulated to most facts and violations.
- The Board found violations including neglect, inadequate communication, misrepresentation to a client, failure to limit and communicate scope of representation, failure to deposit advance fees, and failure to cooperate in the investigation, and recommended a one-year suspension fully stayed on conditions.
- The Supreme Court adopted the Board’s misconduct findings and imposed a one-year suspension fully stayed conditioned on 6 hours of CLE in law-office management, one year of monitored probation focused on client communication and trust-account management, and no further misconduct; failure to comply lifts the stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Mariotti neglect and fail to communicate in the Borisenko eviction? | Bar alleged neglect, failure to appear, and false assurances to client. | Mariotti admitted neglect, expressed remorse, and said he warned client case was weak. | Court found violations of Prof.Cond.R. 1.3, 1.4(b), and 1.4(a)(3) and 8.4(c) for the false statement. |
| Did Mariotti improperly limit scope, mishandle fees, and fail to communicate in Lyons’s matters? | Bar alleged uncommunicated scope limitation, failure to deposit retainer, and failure to appear in related case. | Mariotti acknowledged scope confusion and fee handling issues; disputed retrieval of additional payment. | Court found violations of Prof.Cond.R. 1.2(c), 1.4(c), and 1.15(c). |
| Did Mariotti fail to cooperate with the disciplinary investigation? | Bar alleged nonresponsive conduct and delay until subpoena. | Mariotti only provided responses after subpoena. | Court found violations of Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G). |
| What sanction is appropriate given misconduct, aggravating and mitigating factors? | Bar proposed one-year suspension fully stayed with conditions (CLE, monitored probation). | Mariotti relied on mitigating factors (cooperation at hearing, remorse, disclosure) to support stayed suspension. | Court imposed a one-year suspension fully stayed on conditions (6 CLE hrs, one-year monitored probation, no further misconduct). |
Key Cases Cited
- Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187 (1995) (presumptive actual suspension for misconduct involving dishonesty or misrepresentation)
- Disciplinary Counsel v. Fumich, 116 Ohio St.3d 257 (2007) (fully stayed one-year suspension where dishonesty was mitigated by cooperation, restitution, and character evidence)
- Toledo Bar Assn. v. Crosser, 147 Ohio St.3d 499 (2016) (fully stayed one-year suspension for neglect plus misrepresentations where mitigating factors were present)