Disciplinary Counsel v. Summers
131 Ohio St. 3d 467
| Ohio | 2012Background
- Summers, Ohio attorney, was admitted in 1969 and licensed in Kentucky.
- Relator charged Summers on April 12, 2010 with multiple Rules of Professional Conduct violations arising from a felonies defense.
- Board panel found: excessive fee, failed to warn of potential refund, failed to promptly refund unearned fee, conduct reflecting on fitness.
- Flat-fee retainer of $15,000 labeled nonrefundable; Summers failed to inform about refund rights per Prof.Cond.R. 1.5(d)(3).
- Summers withdrew after 9 months with $17,726 received; billing inconsistencies and asserted improper conduct by client; material misconduct established.
- This opinion sanctions Summers with a six-month Ohio license suspension and restitution of $15,000 to the Bells; costs taxed to Summers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the flat fee improper and nonrefundable without written refund notice? | Bell argues fee violated 1.5(d)(3) and was illegal. | Summers claims Kentucky form and error was inadvertent. | Yes; fee deemed clearly excessive and illegal; lacked required refund notice. |
| Did Summers violate 1.5(a) by charging an excessive fee? | Relator contends fee exceeded service value and was inflated. | Summers contends reasonable under time spent and rates. | Yes; fee was clearly excessive given limited progress and work performed. |
| Did Summers fail to refund unearned fees upon withdrawal as required by 1.16(e)? | Relator asserts failure to promptly refund unearned portion. | Summers argues no unjust enrichment and contested amount. | Yes; failed to promptly refund unearned portion. |
| Did Summers engage in conduct reflecting on fitness to practice per 8.4(h)? | Relator alleges dishonesty and improper treatment of clients. | Summers denies dishonest intent. | Yes; conduct adversely reflects on fitness. |
| What sanction is appropriate? | Six-month suspension plus restitution to Bells. | Proportional punishment with mitigation. | Six-month suspension; repayment of $15,000; costs to Summers. |
Key Cases Cited
- Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424 (2002-Ohio-4743) (aggravating/mitigating factors in sanctions guidance)
- Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473 (2007-Ohio-5251) (weighing aggravating/mitigating factors in sanctions)
- Disciplinary Counsel v. Jackson, 127 Ohio St.3d 250 (2010-Ohio-5709) (continued misconduct weighs heavily in sanction)
- Disciplinary Counsel v. Johnson, 113 Ohio St.3d 344 (2007-Ohio-2074) (protecting vulnerable clients; excessive fees sanction guidance)
- Dayton Bar Assn. v. Schram, 98 Ohio St.3d 512 (2003-Ohio-2063) (comparable fee sanctions for illegal/overcharged fees)