Cleveland Metropolitan Bar Association v. Zoller and Mamone
149 Ohio St. 3d 125
| Ohio | 2016Background
- Eleanor Locher retained Gurney, Miller & Mamone (GM&M) to manage her finances; attorneys Nancy Zoller and Edward Mamone were authorized signatories on a firm "special account."
- The special account was not an interest-bearing fiduciary trust account, records were incomplete or inaccurate, monthly reconciliations were not performed, and the account overdrew 34 times.
- GM&M charged Locher a monthly maintenance fee and substantial separate attorney fees; many fees were undocumented or billed at attorney rates for nonlegal tasks, and some fees were paid directly to Joseph Mamone (their partner/father).
- Board found Zoller violated Prof.Cond.R. 1.5(a) and multiple provisions of Prof.Cond.R. 1.15(a); Edward Mamone violated Prof.Cond.R. 1.15(a) provisions for recordkeeping and account management.
- After remand, Zoller stipulated to $30,466 restitution and Mamone to $11,116; the Supreme Court adopted misconduct findings and restitution but increased sanctions to one-year suspensions (actual, not stayed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondents violated trust-account and recordkeeping rules | Bar: respondents failed to maintain a fiduciary, interest-bearing account, keep complete records, and reconcile monthly | Zoller/Mamone: associates with limited control; some fees paid to father unknown to them | Held: Violations of Prof.Cond.R. 1.15(a), 1.15(a)(2), 1.15(a)(5) by both; Zoller also violated Prof.Cond.R. 1.5(a) for excessive fees |
| Whether fees charged were excessive | Bar: many fees undocumented, billed at attorney rates for nonlegal tasks, and double-billed beyond the maintenance fee | Respondents: disputed extent; lacked complete records to prove excess | Held: Zoller charged clearly excessive fees in violation of Prof.Cond.R. 1.5(a) |
| Appropriate restitution and calculation method | Bar: restitution required because respondents’ poor records prevented precise accounting | Respondents: argued over amounts but ultimately stipulated | Held: Court adopted stipulations: Zoller pay $30,466; Mamone pay $11,116 to Locher’s estate |
| Appropriate sanction | Bar: suspension appropriate given multiple offenses and harm to vulnerable client | Respondents: urged stayed suspensions or lesser discipline citing mitigation | Held: One-year actual suspensions for both (court rejected board’s fully-stayed suspensions) to protect public |
Key Cases Cited
- Cleveland Metro. Bar Assn. v. Zoller and Mamone, 144 Ohio St.3d 142 (Ohio 2015) (prior opinion remanding for restitution determination)
- Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345 (Ohio 2012) (excessive billing for nonlegal services warranted significant discipline)
- Disciplinary Counsel v. Kick, 28 Ohio St.3d 91 (Ohio 1986) (suspension for failure to maintain client-trust-account records that facilitated theft)