*1
Espohl.
v. Bar Association
Cincinnati
Assn. v. Mezher
Cincinnati
as
[Cite
319,
tion No. was admitted Ohio, No. dent, Cincinnati, Attorney Registration Eric Frank Espohl practice together to the bar 1996. Mezher was admitted Ohio (“Mezher Associates, Associ- & L.L.C. & of Kathleen Mezher the Law Offices ates”). Association, 2011, relator, an the Cincinnati Bar filed On December on and Disci- of Commissioners Grievances complaint
amended Board profession- committed complaint that Mezher pline. alleged initial consultation advertised charged a client for an al misconduct to the the basis for the firm’s to communicate free on the website failed 1.5(b) (requiring violated Prof.Cond.R. fee. asserted that conduct fee) (a lawyer rate and 7.1 to communicate the basis or services). lawyer’s communication about the misleading or use false or make the Board of Commissioners conducting hearing, After violated Prof.Cond.R. 7.1 and found that Mezher had Discipline Grievances recommended that both had violated Prof.Cond.R. adopted panel’s findings The board publicly reprimanded. fact, law, and recommended sanction. Both Mezher and conclusions recommendation, and relator filed objections filed the board’s record, the board’s response objections. reviewing to those After misconduct, public reprimand that a findings of fact and and we respondents. sanction for both appropriate
Misconduct misconduct, must lawyer’s prove relator professional To establish clear and evidence. of Professional Conduct violation of Rules Reid, V(6)(I); R. Assn. Gov.Bar Ohio State Bar (1999), two of paragraph syllabus. *2 “Clear evidence” has been defined as “that or measure degree which more than proof a mere of the evi- ‘preponderance dence,’ but not to the of such certainty required ‘beyond extent as is cases, whiсh reasonable doubt’ criminal will mind produce the the trier of facts firm or belief conviction as to the facts to be sought established.” 331, 469,
Id. at
quoting
Ledford,
(1954),
Cross
161
St.
Ohio
contacted Mezher & Associates to set up appointment to talk about her mother’s estate and a trust that Mezher had prepared. Stephanie was aware website, that on its firm the advertised free consultations. The website does not disclose on the limitation free consultation. 3, 2011, On February Stephanie, husband, sister, her and her Jessiсa
Burns, met with Espohl. Espohl
husband,
asked Mezher’s
who
at the
worked
firm as a
nonattorney
background,
who had business
to attend
the
the nature of some of the trust and estate assets. What
at
transpired
February
the
2011 consultation is disputed by the participants.
panel
board, however,
Espohl,
by
husband,
found
corroborated Mezher’s
offered
the
explanation.
most reasonable
While
by
this court is not
findings
bound
the
board,
fact
the
panel
Reid,
the
see
State
Ohio
Bar Assn. v.
85 Ohio
(1999),
St.3d
minutes. He the will reviewed explained probate process and the Clermont County guidelines, Probate Court fee and answered the ques- sisters’ Associates, tions. The sisters to agreed hire Mezher & and Jessica signed fee agreement because she been named executor in her will. mother’s testified the sisters to get wanted started after the fee signed. was He left the conference room review the will and trust and to research the deeds two of real pieces estate. After to 25 talking with and continued
minutes, conference room returned to the he spent another meeting, he testified that aftеr half hour. sisters for anything. not missed he had to make sure on the matter 15 minutes later, & Associates called Mezher Jessica three weeks Approximately 9}{¶ documents, which original wanted retrieve that she receptionist informed a wished retain firm, family longer because the the sisters husbаnd day. next Mezher’s to the office the to come arranged the firm. Jessica time kept contemporaneous had not prepare bill. asked on the spent of time with a statement husband provided but Mezher’s records $375; it matter, The invoice was generated. invoice was frоm which the February for an “ATTY-CONFERENCE” included a $250 day. in full that paid Ultimately, bill questioned. Jessica *3 Misleading Communication 7.1—False Prof.Cond.R. consultation; it advertised free The & Associates website Mezher 10}
{¶ approved The found Mezher any panel include limitations. not provides Prof.Cond.R. 7.1 information for the website. false, misleading, use or nonverifiable not make or lawyer
A A lawyer’s or the services. communica- lawyer about the communication of fact misrepresentation if contains a material misleading is false or tion aas necessary a fact to make the statement considered or law or omits materially misleading. whole not firm, Mezher, adopted an as owner panel The also found consultation, for a charged fees policy
unwritten that while no would be engaging either without prospective ended when the free consultation this conveyed Mezher agrеement. firm the firm fee by or hired of the firm. policy to associates policies of the firm’s explanation the lack of further found that inherently misleading. The free consultation was regarding
on the website that Mezher violated concurred with the concluded board on by failing 7.1 include thаt Mezher violated Prof.Cond.R. 7.1. We begin charge the law firm would explaining information when the website its services. face, is term “free consultation” that on its acknowledges on the a free consultation inherently misleading, argues advertising but charged for a consulta- the sisters were misleading firm’s website became Relator relies on two cases they reasonably to be free. tion that assumed that clients would be liable attorneys disciplined failing to disclose 322 despite advertising
for costs
that clients
not be
liable for
fees if
recovery:
there was no
v.
Disciplinary
Zauderer
Counsel
Supreme
Office of
Ohio,
652,
(1985)
Court
U.S.
Opinion 2005-9 issued the Board of Commissioners on Grievances and Discipline on syllabus, December which states Although lawyer not use may coupons, a lawyer may advertise information regarding charges 2-101(E)(l), fеes as set forth in DR if 2-101(B). presented in DR compliance 2-101(E)(l)(a) Because DR permits advertisement of fee information regarding consultation, initial may a lawyer state in an advertisement whether an initial consultation is free. advisory however, opinion, informal nonbinding V(2)(C). Also, court. R. Gov.Bar Mеzher’s advertisement of free consulta-
tion, by itself,
*4
problem.
is not the
The
was misleading
advertisement
because it
(and
omitted a key
of
piece
information —the free consultation ended
billing
began)
agreement.
the
of the fee
of such
Use
an advertisement is
similar to
Shane,
the miscоnduct in
Zauderer and
which attorneys advertised
that there would be no fee if
was
there
no
but did
recovery
not inform clients that
still
responsible
paying costs.
have
recently
We
sanctioned
initial
another
under Prof.Cond.R. 7.1 for
failing
provide
consultation that a bankruptcy
promised.
referral website had
See Cincinnati
Britt,
¶
217,
against Espohl in the 7.1, nothing violated Prof.Cond.R. evidence a free the firm’s advertisement he control over record shows that had Nevertheless, that he did Espohl admitted the website. consultation on the fee they signed consultation ended when the their free advise sisters Espohl had violated and board concluded that Thus the agreement. Prof.Cond.R. 1.5(b)-Communication basis or rate the the fee
Prof.Cond.R. 1.5(b) provides rate of the the basis or nature and of the scope representation communi- the will be exрenses responsible fee and for which within a reasonable client, writing, before or preferably cated to the lawyer will representation, unless commencing time after basis as regularly represented has same lawyer client whom the previously charged. a half case, the the whole consultation lasted alleged In this sisters If signed. agreement and that after the fee been
hour fee would charging consultation undoubtedly been the then $250 However, version Espohl’s the board found that have been an ethical violation. him, was down meeting more brokеn According of events was reasonable. meeting, which lasted a half hour parts: into two the initial of the portion portion of the signed, the fee the second agreement concluded when was trust, estate researching included the real meeting, reviewing will deeds, meeting of the answering questions. portion additional second approximately hour. maintains that the sisters were billed lasted receive and therefore the sisters did only portion meeting, second free consultation —the initial portion —before signed. *5 sisters, however, meeting all February of the events of the For charged. constituted consultation for which believed one February that most would also view the laypersons We consider consultation, followed continuous rather than a free consultation one of the fee attorney Espohl viewed the Although a billable conference. demarcation, itself nothing agreement in the fee as the line of agreement that expressly alerted the sisters their free consultation was over.1 Nor did 1.5(b) Espohl advise them that the free consultation was over. Prof.Cond.R. requires that an attorney scоpe communicate to client the nature and of the Thus, representation and the basis rate of the fee. must inform the client when the representation chargeable and events commence. We therefore and Espohl conclusion the board that violated Mezher, agree As for we with the and recommendation 1.5(b) of violating Prof.Cond.R. be dismissed. Mezher had no sisters, contact with the participate nor she their preparation of invoice.
Sanction
sanctions,
imposing
When
appropriate
we consider the mitigating and
10(B).
aggravаting factors
Proc.Reg.
listed BCGD
See Columbus
Assn. v.
¶
Dugan,
370,
the record and the aggravating factors, and mitigating public reprimand appropriate is the sanction rеspondents’ violations. Kathleen Mezher and Frank are publicly reprimanded. Costs of proceedings
these are jointly assessed them. against
Judgment accordingly. O’Connor, C.J., JJ., and McGee concur. O’Donnell, Cupp, Brown, JJ., Lundberg dissent. Stratton, Pfeifer
Lundberg Stratton, J., dissenting. agreement Although 1. The fee does not refer to the free consultation. relies on the language upon receipt signed in the fee it “shall become effective Fee Agreement,” disputed this does not relate fact of when the free consultation was concluded. *6 for the rules Because charges. I dismiss I dissent would clear, I would still issue have never been a free consultation advertising should provides case, I that the standards in this but would find opinion of the requirements notice to the bar give clear only, apply prospectively advertising. type they once earning their fee Here, begin entitled were only Their thеy billed. retained, in fact the work perform That is a had started. their time to fail to advise client billable error was violation, If to make it a error, an ethical violation. we are not communication expected in the future fair to the bar of what do so notice only should time after the may billable a free consultation become advertising attorney is retained. respondents. They prompt- these charges against I would these dismiss good and I exercised after this believe changed practices
ly that she thought The fact that their dealing faith in with their client. agreeing attorneys more work after retain get would out, this have never majority pointed As assumption. reasonable representation. if the client had not decided to terminate the issue become Therefore, I dissent. respectfully J., opinion. in the foregoing concurs
Pfeifer, Brockman; Morgan, for & and James F. and Katherine C. Lindhorst Dreidame relator. Condit; Jr., Kathleen respondent and Michael B.
Thomas W. Mezher.
Frank E. se. pro J.V. in In re
In re
Held for
Cases
Decision
in In
In re
Held for the Decision
Cases
[Cite
J.V.,