2010 Ohio 5987
Ohio2010Background
- Mishler, admitted in 1973 in Ohio, had prior suspensions including a two-year term (with one year stayed) in 2008 for misconduct in another matter, a 2009 suspension for failing to file a certificate of registration, and an interim 2010 suspension after a felony conviction.
- Relator Cleveland Metropolitan Bar Association filed a complaint alleging numerous violations of the Code of Professional Responsibility and the Rules of Professional Conduct arising from Mishler’s representation of multiple clients.
- A Board panel found Mishler committed more than 50 violations; the Board adopted the panel’s findings and recommended permanent disbarment, which the Court granted.
- Count I concerns a 2003 probate matter for the decedent’s daughter and siblings, where Mishler took over $60,000 in fees and funds not properly accounted for and engaged in improper estate administration.
- Mishler allegedly overcomplicated tasks, failed to provide a complete accounting, misrepresented intestacy, and negotiated a settlement with a bank holding the trust while delaying distributions to heirs.
- Counts II–VII describe additional misconduct including improper fee collection and settlement practices, failure to provide timely accounting, misappropriation of settlement funds, escrow irregularities, and continued litigation without client consent or knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Mishler violate multiple disciplinary rules in Count I? | Mishler engaged in dishonesty, misappropriation, neglect, and accounting failures. | Mishler may have disputed the extent or characterization of the conduct, arguing penalties or interpretations differ. | Yes; the panel and board found numerous rule violations in Count I and the court accepted. |
| Did Mishler violate rules governing fees and client funds in Counts II–V? | Fees were excessive or improperly charged without proper accounting or client consent. | Mishler contends some charges or settlements were appropriate; some charges were not proven by clear and convincing evidence. | Yes for several counts (e.g., 1.8(h), 1.15(d)); some counts were dismissed as not proven or redundant. |
| Is Mishler’s handling of pension and other client funds a sanctionable pattern? | Misconduct included misappropriation and improper escrow handling that harmed clients. | Some alleged misappropriations were not proven by clear and convincing evidence or were treated as continuation of prior misconduct. | Yes; findings support violations tied to misappropriation and improper fund handling, though some charges were dismissed as redundant. |
| Was disbarment an appropriate sanction given the misconduct? | Pattern of dishonesty, neglect, and misappropriation; insufficient restitution; extensive harm to clients. | Not specifically presented in the record for reducing sanction; some mitigation considered. | Disbarment is proper given the sustained pattern of misconduct and aggravating factors. |
Key Cases Cited
- Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473 (2007-Ohio-5251) (aggravating/mitigating-factor framework for sanctions)
- Columbus Bar Assn. v. Kiesling, 125 Ohio St.3d 36 (2010-Ohio-1555) (presumptions and considerations for disbarment in repeated misconduct)
- Disciplinary v. Freeman, 119 Ohio St.3d 330 (2008-Ohio-3836) (recognizes continuation-of-misconduct concept and related sanctions)
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424 (2002-Ohio-4743) ( aggravation/mitigation and sanctions standards in attorney discipline)