Cleveland Metropolitan Bar Association v. Heben
150 Ohio St. 3d 335
| Ohio | 2017Background
- Edward J. Heben Jr., an Ohio attorney since 1975, represented Jennifer Cecchini briefly in 2008 and again in September 2013; Cecchini paid a $3,000 retainer, Heben filed a notice of appearance, and Cecchini terminated his services within two weeks.
- Heben filed a motion to withdraw and attached an affidavit that disclosed confidential attorney-client communications, accused Cecchini of refusing to pay agreed fees, and alleged she engaged in "objectionable and potentially illegal actions."
- The trial judge struck Heben’s affidavit as containing inappropriate disclosures of attorney-client communications.
- The Cleveland Metropolitan Bar Association charged Heben with professional misconduct; a Board panel found a violation of Prof.Cond.R. 1.6(a) (client confidentiality) and dismissed other charges.
- The Board recommended a one-year suspension with six months stayed; Heben acknowledged the confidentiality violation on appeal but argued the sanction was too severe and requested a public reprimand or fully stayed suspension.
- The Supreme Court of Ohio agreed Heben violated Prof.Cond.R. 1.6(a) but imposed a one-year suspension fully stayed (conditioned on no further misconduct), finding mitigating factors (no prior discipline, cooperation, character letters) outweighed aggravation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Heben violated Prof.Cond.R. 1.6(a) by filing affidavit disclosing client confidences | Relator: affidavit revealed protected client communications and was not authorized or necessary | Heben: disclosures justified under Prof.Cond.R. 1.6(b) (defense in fee dispute; mitigation of fraud) | Violation of Prof.Cond.R. 1.6(a) affirmed; 1.6(b)(5) and 1.6(b)(3) did not apply and means of disclosure were improper |
| Whether Prof.Cond.R. 1.6(b)(5) permits revealing client info to establish lawyer’s fee claim | Relator: fee dispute did not justify the scope/public filing of disclosures | Heben: affidavit aimed to support fee recovery and possible intervention for fees | 1.6(b)(5) inapplicable — Heben never filed fee motion and affidavit disclosed more than necessary |
| Whether Prof.Cond.R. 1.6(b)(3) permits disclosure to mitigate financial injury from client fraud | Relator: assertions were vague and not shown to mitigate any financial injury; no use of lawyer’s services to commit fraud shown | Heben: suspected Cecchini of illegal/fraudulent acts harming third party justified disclosure | 1.6(b)(3) inapplicable — no evidence client used counsel to facilitate fraud and disclosures did not mitigate identified financial injury |
| Appropriate sanction for unauthorized disclosure of client confidences | Relator: recommended one-year suspension with six months stayed | Heben: urged public reprimand or fully stayed suspension given isolated incident and long unblemished career | Court: imposed one-year suspension fully stayed on condition of no further misconduct (less severe than Board’s partially active suspension) |
Key Cases Cited
- Akron Bar Assn. v. Holder, 102 Ohio St.3d 307, 810 N.E.2d 426 (2004) (attorney impermissibly disclosed client secrets and received suspension with portion stayed)
- Kala v. Aluminum Smelting & Refining Co., Inc., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998) (attorney duty to maintain client confidentiality is fundamental)
- Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995) (misleading court/client generally merits actual suspension)
- Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 842 N.E.2d 35 (2006) (deference to hearing panel credibility findings)