THE STATE OF OHIO, APPELLANT, v. SIMONS, APPELLEE.
No. 2011-0990
Supreme Court of Ohio
July 18, 2012
[Cite as State v. Simons, 132 Ohio St.3d 411, 2012-Ohio-3213.]
Submitted July 11, 2012
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Nick A. Selvaggio, Champaign County Prosecuting Attorney, for appellant.
Carl R. Simons, pro se.
CINCINNATI BAR ASSOCIATION v. SEIBEL.
No. 2011-2058
Supreme Court of Ohio
July 19, 2012
[Cite as Cincinnati Bar Assn. v. Seibel, 132 Ohio St.3d 411, 2012-Ohio-3234.]
Submitted January 18, 2012
Per Curiam.
{¶ 1} Respondent, Ronald E. Seibel of Loveland, Ohio, Attorney Registration No. 0077296, was admitted to the bar in 2004. On December 6, 2010, relator,
{¶ 2} The parties submitted a consent-to-discipline agreement that included stipulated findings of fact and misconduct and recommended that Seibel receive a six-month stayed suspension, provided that he refund $2,000 to the client. The panel recommended that the agreement be accepted, but the board rejected it and sent the matter to the panel for further proceedings.
{¶ 3} After a hearing, the board adopted the parties’ submitted stipulations of fact and misconduct but rejected the parties’ proposed sanction of a six-month stayed suspension. The board now recommends that we publicly reprimand Seibel. We adopt the board‘s recommendation.
Misconduct
{¶ 4} The stipulated facts show that Darlene Mincey retained Seibel in January 2007 to pursue a sexual-harassment and retaliation action against the University of Cincinnati. Mincey paid a $500 retainer, which Seibel treated as nonrefundable and deposited into his operating account, and which the parties agree Seibel later earned. Seibel and Mincey then entered into a verbal contingent-fee agreement that was never reduced to writing.
{¶ 5} Seibel represented Mincey in negotiations at an Equal Employment Opportunity Commission conciliation meeting with the university in August 2007. Mincey rejected the university‘s settlement offer and instructed Seibel to request a notice of right to sue and proceed with a federal lawsuit. After the conciliation meeting, Seibel requested another $2,000, which Mincey understood to be for litigation costs. Seibel, however, deposited the money in his operating account and claims that this payment was a part of the $2,500 nonrefundable retainer he regularly charges his clients.
{¶ 6} Seibel requested a right-to-sue letter from the EEOC numerous times, but through no fault of his own, he did not receive one. Over the next two and a half years, Mincey attempted to contact Seibel and spoke with him a few times. Seibel eventually discovered that the reason for the delay was that the EEOC had destroyed Mincey‘s file.
{¶ 7} Unhappy with the lack of progress, and unable to reach Seibel by phone, Mincey sent him a certified letter on March 1, 2010, requesting her files and an accounting of the $2,500 retainer she had paid. Seibel did not return Mincey‘s file or provide her with an accounting, but on October 26, 2011, he issued a $2,000 refund to Mincey. Mincey retained another attorney to pursue her case, and
{¶ 8} The parties stipulated and the board found that Seibel‘s conduct violated
{¶ 9} We adopt the facts and misconduct as stipulated by the parties and found by the board.
Sanction
{¶ 10} In recommending a sanction, the board considered the aggravating and mitigating factors listed in
{¶ 11} The parties did not stipulate to any aggravating or mitigating factors, and the board did not find that any aggravating factors were present. The board attributes mitigating effect, however, to the facts that Seibel does not have a prior disciplinary record, did not act with a dishonest or selfish motive, has accepted moral and legal responsibility for his misconduct, has apologized to the client, and ultimately released the client‘s file to her new counsel. See
{¶ 12} In their consent-to-discipline agreement and at the hearing, the parties agreed that in line with the sanctions imposed for similar misconduct, a six-month suspension, all stayed, is the appropriate sanction for Seibel‘s misconduct. See, e.g., Columbus Bar Assn. v. Halliburton-Cohen, 106 Ohio St.3d 98, 2005-Ohio-3956, 832 N.E.2d 42 (imposing a six-month, fully stayed suspension for an attorney who charged a clearly excessive fee in the form of a “lost-opportunity
{¶ 13} The board, however, rejected the parties’ proposed sanction, finding that Seibel‘s misconduct was less egregious than the conduct in other cases in which we had imposed only public reprimands. See Cincinnati Bar Assn. v. Schmalz, 123 Ohio St.3d 130, 2009-Ohio-4159, 914 N.E.2d 1024 (publicly reprimanding an attorney who had engaged in an inappropriate romantic relationship with a client); Akron Bar Assn. v. Finan, 118 Ohio St.3d 106, 2008-Ohio-1807, 886 N.E.2d 229 (publicly reprimanding an attorney who had signed a client‘s name to an affidavit and then notarized that signature); and Lorain Cty. Bar Assn. v. Godles, 128 Ohio St.3d 279, 2010-Ohio-6274, 943 N.E.2d 988 (publicly reprimanding an attorney who had done very little work on his client‘s case and failed to fully communicate with the client regarding management and status of the case). The board observed that Seibel did not have any inappropriate contact with a client or engage in dishonesty about the misconduct as in Schmalz, that he did not attempt to deceive others as in Finan, and that he did not engage in ineffective representation resulting in a malpractice action as in Godles.
{¶ 14} The board also cited a number of additional factors that it considered to be mitigating, including (1) the absence of any injury to the client, (2) the absence of any alleged malpractice or incompetence, (3) the unique events precipitating the misconduct, (4) Seibel‘s sincere remorse, (5) his “complete cooperation with the investigation as well as with successor counsel,” and (6) his effective performance of his attorney functions prior to the EEOC‘s destruction of his client‘s file. See
{¶ 15} Having considered Seibel‘s conduct, the presence of substantial mitigating factors, and the sanctions imposed for similar misconduct, we agree that a public reprimand is the appropriate sanction for Seibel‘s misconduct.
{¶ 16} Accordingly, Ronald E. Seibel is publicly reprimanded for charging a nonrefundable fee without advising the client that she might be entitled to a refund of all or part of the fee if he did not complete the representation, failing to memorialize a contingent-fee agreement in a writing signed by the client, failing to hold a client‘s funds in an interest-bearing client trust account, and failing to
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Edwin Patterson III, Bar Counsel, and Robert F. Laufman, for relator.
Ronald E. Seibel, pro se.