Disciplinary Counsel v. Smith., 96 N.E.3d 234

Background

Scott C. Smith, a former partner at Weston Hurd, was accused of altering firm billing records and charging clients for work he did not perform in five files involving three long-term-care clients (Beverly, Altercare, Covenant Care).
Firm investigation reviewed 88 files, reduced questionable time by 50–60%, and issued refunds exceeding $350,000; relator (Disciplinary Counsel) charged Smith with dishonest billing and charging excessive fees.
Evidence included duplicate "ditto-mark" entries across files, crossed-out initials to claim another lawyer's work, billing for work not performed, and admissions by Smith that narratives were misleading and billed to preapproved budgets.
Clients and firm partners contradicted Smith’s defense that clients approved vague/ambiguous narratives or that electronic repositories justified his entries; Smith provided some additional billing guidelines and emails on remand but board found them unpersuasive.
Board found violations of both the former Code and current Rules: dishonesty (DR 1-102(A)(4) / Prof.Cond.R. 8.4(c)), conduct reflecting adversely on fitness (DR 1-102(A)(6) / Prof.Cond.R. 8.4(h)), and charging excessive fees (DR 2-106(A) / Prof.Cond.R. 1.5(a)).
Court adopted the board’s findings of misconduct, rejected Smith’s due-process and sufficiency arguments, ordered restitution of $20,796.50 and imposed a two-year suspension (reinstatement conditioned on full restitution).

Issues

Issue	Disciplinary Counsel's Argument	Smith's Argument	Held
Sufficiency/weight of evidence of fraudulent billing	Evidence and documents show false narratives, duplicate billing, and taking credit for others’ work	Smith admitted narratives were misleading but claimed clients approved vague billing and work was stored in electronic systems	Overruled Smith’s challenges; record contains sufficient, persuasive evidence of fraudulent billing
Discovery / due process	Respondent had opportunity to subpoena, depose, and was given records; clients produced unprivileged billing records	Smith said he lacked access to firm hard drive and clients’ electronic systems and that withheld evidence deprived his defense	Court found no due-process violation; clients not required to waive privilege and Smith failed to show bad-faith destruction or prejudice
Applicable billing standard (clients v. TPAs/insurers)	Focus on long-term-care clients’ expectations; clients bore primary responsibility for fees	Smith argued insurers/TPAs governed billing practices and produced different guidelines	Court held primary duty was to the represented long-term-care clients; their guidelines govern and do not excuse false narratives
Sanction and restitution amount	Recommended indefinite suspension; board cited large refunds and pattern of deception	Smith argued board relied on refunds beyond the five charged files and that specific overbilling not proven	Court reduced sanction to a two-year suspension, computed restitution for 124 fraudulent hours = $20,796.50; full $350,000 refund not attributable solely to charged matters

Key Cases Cited

Cleveland Metro. Bar Assn. v. Wrentmore, 138 Ohio St.3d 16 (2013) (indefinite suspension for extended deceit to obtain financial benefit)
Cincinnati Bar Assn. v. Washington, 109 Ohio St.3d 308 (2006) (two-year suspension with partial stay where substance-abuse mitigation present)
Dayton Bar Assn. v. Swift, 142 Ohio St.3d 476 (2014) (two-year suspension with partial stay and significant restitution for overbilling)
Dayton Bar Assn. v. Rogers, 116 Ohio St.3d 99 (2007) (two-year suspension for intentional, fraudulent billing and refusal to acknowledge misconduct)
Neal-Pettit v. Lahman, 125 Ohio St.3d 327 (2010) (public policy: punitive damages are generally not insurable)
Wedge Prods., Inc. v. Hartford Equity Sales Co., 31 Ohio St.3d 65 (1987) (insurance public-policy principles)
Rothman v. Metropolitan Casualty Ins. Co., 134 Ohio St. 241 (1938) (historical insurance-public-policy authority)