Disciplinary Counsel v. Milhoan
2014 Ohio 5459
Ohio2014Background
- Douglas A. Milhoan, admitted 2001, was appointed to handle 35 criminal appeals from Ashland County (2006–2010); 31 were appeals from guilty pleas.
- In those 31 cases Milhoan filed virtually identical 10‑page briefs (same assignment of error, repeated grammatical errors), cited almost no case law, and omitted facts showing any state‑resource burden.
- Milhoan submitted fee applications in 28 of those guilty‑plea appeals, averaging 18.49 hours ($924.50) per case; relator found 8.5 hours of double‑billing ($425), which Milhoan did not dispute.
- Milhoan disclosed alcohol dependency during proceedings; he stopped drinking in Jan. 2011, contracted with the Ohio Lawyers Assistance Program (OLAP), and engaged in AA and counseling. OLAP assessed him and provided a favorable prognosis.
- The Board found violations for handling matters without adequate preparation and incompetence, charging/exacting excessive fees, and conduct reflecting adversely on fitness to practice; recommended a one‑year suspension fully stayed with restitution of $8,757.50 and payment terms.
- The Ohio Supreme Court adopted the misconduct findings but imposed a two‑year suspension fully stayed on conditions (no further misconduct, compliance with OLAP contract, and full restitution of $8,757.50 apportioned between the Ohio Public Defender and Ashland County auditor).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Competence / adequate preparation | Milhoan filed essentially identical briefs in 31 appeals, failing to provide competent, case‑specific representation in violation of DR 6‑101(A)(2) and Prof.Cond.R. 1.1 | Milhoan said most appeals stemmed from guilty pleas and lacked nonfrivolous issues; thought briefs were better than Anders briefs and acknowledged sloppiness | Court held he violated rules requiring competent representation and adequate preparation; Anders briefs would have been more appropriate in many cases |
| Excessive / improper fees (overbilling) | Milhoan inflated hours, double‑billed travel, and failed to contemporaneously track time, violating Prof.Cond.R. 1.5(a) | Milhoan recreated time records and argued he performed work; no client monetary harm shown | Court found fee practices excessive/illegal; adopted finding of overbilling and double billing totaling $425 and excessive average fee claims |
| Conduct reflecting on fitness to practice | Pattern of substandard, virtually identical briefs combined with systematic overbilling shows conduct adversely reflecting on fitness to practice (DR 1‑102(A)(6), Prof.Cond.R. 8.4(h)) | Milhoan accepted responsibility, cooperated, had no prior discipline, and alcohol dependency contributed | Court agreed the combined pattern qualified as conduct adversely reflecting on fitness to practice |
| Appropriate sanction | Relator sought at least a one‑year suspension (fully stayed) plus restitution $8,757.50; Board recommended one‑year suspension stayed with restitution and income‑based payment | Milhoan emphasized mitigation: no prior record, cooperation, remediation via OLAP, sustained remission, and favorable prognosis | Court imposed two‑year suspension fully stayed on conditions (no new misconduct, OLAP compliance, full restitution $8,757.50 apportioned to public defender and county auditor); costs taxed to Milhoan |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (allows counsel to request permission to withdraw when appeal is frivolous if accompanied by a brief identifying arguable issues)
- Disciplinary Counsel v. Agopian, 858 N.E.2d 368 (Ohio 2006) (public reprimand for inaccurate fee applications where attorney had actually performed billed work and extensive mitigation)
- Disciplinary Counsel v. Holland, 835 N.E.2d 361 (Ohio 2005) (one‑year actual suspension for dishonest double‑billing of court‑appointed cases)