2019 Ohio 4171
Ohio2019Background
- Phillip L. Harmon, an Ohio attorney admitted in 1980, represented longtime friend Donald Harper (an elderly man diagnosed with dementia) and served as his attorney-in-fact under two powers of attorney executed in Nov. and Dec. 2015.
- After a domestic altercation between Donald and his wife Sandra, Harmon represented Donald in the criminal case, helped him move, and then obtained durable powers of attorney naming himself agent and billing Donald at $200/hour for both legal and nonlegal services.
- Harmon continued communications with Sandra and with Anne Halliday (Donald’s daughter), despite knowing they were represented by counsel or that Halliday had become successor agent; Donald later revoked Harmon’s authority and retained new counsel.
- Harmon filed a probate declaratory-judgment action seeking to construe the power(s) of attorney and to collect fees; he also made statements to the probate magistrate (including that Donald had been kidnapped) that the board found false.
- The Board found violations of multiple Professional Conduct Rules (including 1.5(a), 1.7(a)(2), 1.16(a)(3), 3.1, 3.3(a)(1), 4.2, and 4.4). Harmon stipulated to many facts and admitted the violations at hearing but objected to the sufficiency of the evidence and various procedures.
- The Supreme Court of Ohio adopted the board’s findings of misconduct, overruled Harmon’s objections, and imposed a two-year suspension stayed in its entirety on condition of no further misconduct, plus two years of monitored probation; dissenting justices would have imposed a partially actual suspension.
Issues
| Issue | Plaintiff's Argument (Relator) | Defendant's Argument (Harmon) | Held |
|---|---|---|---|
| Whether stipulations may constitute clear and convincing proof of violations | Stipulated facts (plus hearing evidence) suffice to prove rule violations | Stipulations are not proof unless independently supported by clear and convincing evidence | Stipulations can constitute clear and convincing evidence; board also considered additional testimony/exhibits |
| Whether Harmon could present mitigation evidence that contradicted his stipulations | Relator: mitigation cannot be used to contradict freely made stipulations; panel allowed only mitigation evidence | Harmon: should be allowed to present evidence contradicting stipulations to avoid liability | Panel properly limited evidence to mitigation for sanction; Harmon did not withdraw stipulations, so stipulations stand |
| Whether the probate declaratory-judgment action was lawful/necessary to protect the client (Parisi invoked) | Harmon: filing was permissible and necessary to protect Donald and to effect withdrawal; Parisi supports probate filing to protect impaired clients | Relator: the suit was unnecessary, delayed, and primarily a vehicle to collect fees and to harass third parties | Court: Parisi doesn’t justify Harmon’s filing here; the action was not reasonably calculated to protect Donald and supported violations (1.16, 3.1, 4.4) |
| Whether findings of excessive fee, conflict of interest, improper contact with represented parties, and false tribunal statements were supported | Relator: documentary and testimonial evidence (and Harmon’s admissions) support rules 1.5(a), 1.7(a)(2), 4.2, 3.3(a) violations | Harmon: billing practices were technical/consensual; communications/remarks were overstated or justified | Court adopted the board’s findings; violations of 1.5(a), 1.7(a)(2), 4.2, and 3.3(a) were supported by clear and convincing evidence |
Key Cases Cited
- Disciplinary Counsel v. Squire, 130 Ohio St.3d 368 (2011) (relator must prove misconduct by clear and convincing evidence)
- State v. Tate, 138 Ohio St.3d 139 (2014) (parties may stipulate facts and waive formal proof)
- Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345 (2012) (probate filings may be appropriate to protect impaired clients but do not excuse misconduct)
- Disciplinary Counsel v. Schuman, 152 Ohio St.3d 47 (2017) (actual suspension warranted where attorney charged clearly excessive fees and knowingly lied to tribunal)
- Cincinnati Bar Assn. v. Alsfelder, 103 Ohio St.3d 375 (2004) (billing legal rates for nonlegal services and conflict-of-interest failures support suspension/restitution)
- Disciplinary Counsel v. Maniscalco, 68 Ohio St.3d 483 (1994) (public reprimand for filing frivolous suits where clients participated)
- Cincinnati Bar Assn. v. Lukey, 110 Ohio St.3d 128 (2006) (actual suspension appropriate for intentional misrepresentation to court)
- Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187 (1995) (dishonesty and misrepresentations to court undermine public trust and justify discipline)
- Erie-Huron Cty. Bar Assn. v. Zelvy, 155 Ohio St.3d 609 (2018) (charging legal rates for nonlegal services can violate fee rule)
- Toledo Bar Assn. v. Harvey, 141 Ohio St.3d 346 (2014) (court has ordered restitution for fees needed to complete work respondent failed to perform)