DAYTON BAR ASSOCIATION v. PARISI
No. 2011-0340
Supreme Court of Ohio
March 8, 2012
131 Ohio St.3d 345, 2012-Ohio-879
Submitted June 7, 2011
{¶ 1} Respondent, Georgianna I. Parisi of Dayton, Ohio, Attorney Registration No. 0022538, was admitted to the practice of law in Ohio in 1982. In August 2009, relator, Dayton Bar Association, filed a complaint alleging that Parisi had violated the Code of Professional Responsibility and Rules of Professional Conduct by representing both the proposed guardian and ward in a guardianship proceeding, collecting legal fees from her client‘s account without court approval while the application for guardianship was pending, and collecting a clearly excessive fee from an elderly client with diminished mental capacity.1
{¶ 2} A panel of the Board of Commissioners on Grievances and Discipline conducted a hearing, at which it received the parties’ stipulations of fact, witness testimony, and numerous exhibits. Having considered the evidence, the panel found that Parisi had engaged in a conflict of interest and conduct prejudicial to the administration of justice and had charged a clearly excessive fee. The board adopted the panel‘s findings of fact and misconduct and its recommendation that Parisi be suspended from the practice of law for six months, with the entire suspension stayed on the condition that she commit no further misconduct.
{¶ 3} Both parties have objected to the board‘s report. Parisi challenges the sufficiency of the evidence, raises constitutional challenges to several of the ethical rules that she has been found to have violated, and seeks dismissal of relator‘s complaint. Relator argues that the clearly excessive fee charged by Parisi is tantamount to misappropriation and therefore warrants a period of actual suspension.
Misconduct
The Demming Guardianship
{¶ 5} The board found that Parisi began to provide legal services for Sylvia Demming, a 93-year-old woman who claimed that she was being held against her will in a nursing home. Concerned about Demming‘s financial welfare and having observed her confusion and disorientation, on November 8, 2007, Parisi applied for guardianship in the Warren County Probate Court. In her guardianship application, Parisi alleged that Demming was incompetent as a result of Alzheimer‘s-related memory loss, and Parisi submitted an evaluation from a licensed physician diagnosing Demming with dementia. Seven weeks later, Parisi had Demming sign a durable power of attorney designating Parisi as her attorney-in-fact. The next month, Parisi withdrew her own application and filed a separate application for guardianship on behalf of Demming‘s niece.
{¶ 6} Believing that the court no longer had jurisdiction after Demming informed the court that she had left the county and intended to move out of state, Parisi sent her bill to Demming‘s niece for review. The guardianship proceeding was not dismissed as Parisi had anticipated; but acting as Demming‘s attorney-in-fact, Parisi paid her own fees of more than $18,000 without first obtaining the court‘s approval. The probate court later removed Parisi as counsel for both women, and Parisi returned the money to Demming‘s account.
{¶ 7} The board found that by representing both Demming and her niece in the guardianship proceeding, Parisi violated
{¶ 9} None of the cases, however, stands for the proposition that an applicant for guardianship has no interest in the determination of the proposed ward‘s competence or incompetence or that an applicant cannot have an interest that is adverse to that of the proposed ward. Indeed, the far-reaching and life-altering consequences of an incompetency determination—involving a judicial determination that a mental or physical illness or disability has left a person so mentally impaired that the person is incapable of taking proper care of the person‘s self or property—create an inherent conflict between the proposed ward and the applicant for guardianship, even if guardianship is ultimately in the proposed ward‘s best interest. Nevertheless, Parisi contends that
{¶ 10}
{¶ 11}
{¶ 12} The American Bar Association (“ABA“) Standing Committee on Ethics and Professional Responsibility has addressed this situation. ABA Committee on Ethics & Professionalism, Formal Ops. No. 96-404 (1996) (discussing clients under disability). The ABA recognizes that Model Rule of Professional Conduct 1.14 (1983, as amended), which is identical to our
{¶ 13} We concur in this analysis and conclude that the guardianship proceeding that Parisi initiated on behalf of Demming‘s niece, no matter how well-intentioned, was necessarily adverse to Demming. Therefore, Parisi‘s actions in representing both women in the guardianship proceeding violated
{¶ 14} Parisi‘s constitutional objections to the application of
{¶ 15} We also reject Parisi‘s claims that she was entitled to an evidentiary hearing prior to her disqualification in the probate matter. We have held that a court must hold an evidentiary hearing and issue findings of fact in ruling on a motion for disqualification of an individual or of an entire firm when an attorney has left a law firm that represents one party to an action and has joined a firm that represents an opposing party. Kala v. Aluminum Smelting & Refining Co., Inc. (1998), 81 Ohio St.3d 1, 688 N.E.2d 258, syllabus. But we have never held that a court must hold an evidentiary hearing before ruling on every motion for disqualification. Nor are we willing to impose such a requirement when an attorney has admitted that she represents two clients, it is apparent that those clients have inherently conflicting interests, and the entire basis of the legal action is to determine that one of those clients is incompetent to handle his or her personal affairs—incompetence that would presumably render the client unable to give informed consent to the conflict.
{¶ 16} Parisi‘s claim that her use of Demming‘s power of attorney to pay her legal fees during the pendency of the guardianship proceeding was not prejudicial to the administration of justice is likewise without merit. Regardless of Parisi‘s claims that the probate court no longer had jurisdiction over the guardianship proceeding due to Demming‘s purported departure from the county and her expressed intent to move to Florida, the action remained pending at the time she paid her own fees. And as the board found, the very power of attorney that Parisi used to make the unauthorized payment was obtained at a time when she had reason to believe that Demming was incompetent. Therefore, we have no difficulty concluding that Parisi‘s conduct violated
{¶ 17} Having rejected Parisi‘s factual and constitutional objections, we adopt the board‘s findings of fact and misconduct with respect to count one of relator‘s complaint.
The Royal John Greene Matter
{¶ 18} In August 2004, Royal John Greene, a widower in his mid-70s whose extended family was either unwilling or unable to assist in his care, appointed Parisi his attorney-in-fact. At that time, it was apparently understood that Parisi would be paid at her usual attorney hourly rate for legal and nonlegal services, but this agreement was not reduced to writing. While Greene was competent at the time that he retained Parisi, his physical and mental health declined significantly during the course of her representation. As early as November 2005, Parisi‘s records indicate that Greene was “sometimes forgetful.” Billing records express concern about his increased memory loss in January 2006, profound cerebral atrophy and small strokes in August, and confusion in December.
{¶ 20} The board found that most of the work that Parisi and her staff performed did not require legal skill and that in many instances, the client‘s demands for services resulted in costs that were not proportionate to the monetary importance of the matters involved.
{¶ 21} Having reviewed Parisi‘s voluminous and detailed records regarding the services provided to Greene, the board found that her conduct violated
{¶ 22} Parisi objects to the board‘s finding that she charged a clearly excessive fee, arguing that among other things, (1) such a finding impairs her constitutional rights to contract, (2)
{¶ 23} This court possesses the inherent, original, and exclusive jurisdiction to regulate all matters relating to the practice of law. Section 2(B)(1)(g), Article IV of the
{¶ 24}
{¶ 25} We have previously denounced as a clearly excessive fee charging legal fees for nonlegal services. Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418, 2005-Ohio-5411, 835 N.E.2d 707, ¶ 17, 25 (attorney rates for administrative tasks, including picking up mail, depositing checks, paying bills, and arranging for lawn care, house cleaning, and the delivery of necessities result in a clearly excessive fee); Cincinnati Bar Assn. v. Alsfelder, 103 Ohio St.3d 375, 2004-Ohio-5216, 816 N.E.2d 218, ¶ 22-23 (attorney rates for social interaction with a client constituted a clearly excessive fee). The factors set forth in
{¶ 26} Parisi charged over $220,000 for services provided by herself and her staff and for cost reimbursements during the nearly three years that she
{¶ 27} The board found that Parisi‘s hourly rates for legal work were reasonable and that Greene believed that the services Parisi performed were important, had demanded (for the most part and sometimes irrationally) that she perform them, and had rejected some services when Parisi sought to have others provide them. Although relator did not present any expert testimony about the charges for Parisi‘s nonlegal services, it is clear that the bulk of those services required little, if any, legal skill and that the cost of providing the services was disproportionate to the benefit that Greene received. There is no question that those charges specifically addressed by relator and the scores of nonlegal services billed at attorney rates in Parisi‘s 404-page billing record are clearly excessive.
{¶ 28} Parisi‘s claims that
{¶ 29} Accordingly, we overrule each of Parisi‘s objections, adopt the board‘s findings of fact and misconduct with respect to the Greene representation, and dismiss the alleged violations of
Sanction
{¶ 30} When imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties that the lawyer violated and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in Section 10(B) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.“). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 32} As mitigating factors, the board found that Parisi had no prior disciplinary record in almost 30 years of practice, that she returned the attorney fees she had collected from Demming‘s account before the probate court issued a formal order for her to do so, that she cooperated in the disciplinary proceedings, and that she demonstrated her good reputation and character apart from the charged misconduct. See BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (e). Although Parisi denied having committed any ethical violations, the board also found that she fully acknowledged that she should not have taken her fee from Demming during the pendency of the guardianship proceeding and that it would have been a better practice to show Greene her monthly bills, to have him sign and date them, and to have him personally sign the checks for his legal fees. She also acknowledged that she should have arranged for someone else to review her monthly bills before Greene paid them.
{¶ 33} The board recommends that we impose a six-month suspension for Parisi‘s misconduct but, citing the panel‘s belief that she will not repeat her transgressions and the difficult choices Parisi faced in representing these clients as their mental and physical conditions deteriorated, recommends that we stay the entire suspension on the condition that she commit no further misconduct. In support of this recommendation, the board observes that in the absence of fraud or dishonesty, we have imposed comparable stayed suspensions for attorneys who have charged or collected a clearly excessive fee. See Akron Bar Assn. v. Watkins, 120 Ohio St.3d 307, 2008-Ohio-6144, 898 N.E.2d 946, ¶ 6, 15 (imposing a six-month stayed suspension on an attorney who charged his hourly attorney rate for nonlegal services while serving as the trustee of a revocable living trust); Cincinnati Bar Assn. v. Alsfelder, 103 Ohio St.3d 375, 2004-Ohio-5216, 816 N.E.2d 218, ¶ 25, 34 (imposing a one-year stayed suspension for an attorney who allowed a client to consult him as a friend while charging her for his time as a lawyer); Disciplinary Counsel v. Dettinger, 121 Ohio St.3d 400, 2009-Ohio-1429, 904 N.E.2d 890, ¶ 4, 10 (imposing a six-month stayed suspension for an attorney who borrowed money from a client without disclosing the inherent conflict of interest or advising the client, or upon the client‘s death, his executor, to seek independent counsel); Disciplinary Counsel v. Jacobs, 109 Ohio St.3d 252, 2006-Ohio-2292, 846 N.E.2d 1260, ¶ 3-5, 8 (publicly reprimanding an attorney for representing a husband and wife in their divorce and, while it was pending, representing each one on other matters without disclosing the conflict of interest).
{¶ 35} Unlike Parisi‘s conduct, however, the misconduct in each of relator‘s cited authorities involved fraud, misrepresentation, or deceit, and two of the cases involved findings that the attorney had misappropriated client funds. Bandman withdrew $60,050 from an elderly client‘s trust account without the knowledge or consent of the client or her attorney-in-fact and altered a bank record and payment records to conceal his misdeeds. Bandman, 125 Ohio St.3d 503, 2010-Ohio-2115, 929 N.E.2d 442, ¶ 7, 10. Because Bandman had misappropriated client funds, we indefinitely suspended him from the practice of law and conditioned reinstatement on proof that he has made full restitution. Id. at ¶ 18-19. And in Stahlbush, we imposed a two-year suspension with the second year stayed on conditions upon finding that the attorney had deceptively inflated her billable hours for court-appointed work, billing more than 24 hours per day in three instances. Stahlbush, 126 Ohio St.3d 366, 2010-Ohio-3823, 933 N.E.2d 1091, ¶ 2-3, 11, 17.
{¶ 36} Of the cases cited by relator, Johnson‘s conduct is perhaps the most comparable to Parisi‘s. Johnson represented two elderly sisters—initially as the attorney-in-fact for one sister, and as a court-appointed guardian for the other. Johnson, 113 Ohio St.3d 344, 2007-Ohio-2074, 865 N.E.2d 873, ¶ 5. He sought to recover more than $800,000 that had been misappropriated by his clients’ former attorney-in-fact, but failed to perform a cost-benefit analysis before pursuing their claims. Id. at ¶ 71. While he charged a reasonable hourly rate for his time and maintained detailed billing records, he overworked the client‘s case, billing almost $160,000 to collect $197,683.45. Id. at ¶ 24, 26, 71. We rejected Johnson‘s argument that he was acting at the behest of the sister for whom he had initially served as attorney-in-fact, observing that she became mentally incompetent during the representation, as evidenced by a June 1999 order appointing Johnson as her guardian. Id. at ¶ 12, 74. Johnson had also billed the sisters separately for his services and failed to disclose to the probate court the fees and expenses that he had collected pursuant to the power of attorney. Id. at ¶ 17. In determining the appropriate sanction for Johnson‘s misconduct, we observed that deliberate efforts to deceive generally warrant an actual suspension from the practice of law, and we imposed a one-year suspension, with the last six months stayed on conditions, including the payment of restitution, and a six-month period of probation. Id. at ¶ 85, 89.
{¶ 38} Having considered Parisi‘s misconduct, the aggravating and mitigating factors present, and the sanctions imposed for comparable offenses, we overrule the parties’ objections and adopt the board‘s recommended sanction of a six-month suspension, all stayed on the condition that Parisi commit no further misconduct. Accordingly, we suspend Georgianna I. Parisi from the practice of law in Ohio for six months, with the entire suspension stayed on the condition that she commit no further misconduct. If Parisi fails to comply with that condition, the stay will be lifted, and she will serve the entire six-month suspension. Costs are taxed to Parisi.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, O‘DONNELL, and MCGEE BROWN, JJ., concur.
CUPP, J., concurs in part and dissents in part.
O‘CONNOR, C.J., dissents and would accept the relator‘s recommended sanction of an indefinite suspension.
LANZINGER, J., dissents and would impose a one-year suspension with six months stayed.
Cupp, J., concurring in part and dissenting in part.
{¶ 39} Although I concur in the decision of the court, I would also add as a condition of the stayed suspension that Parisi submit to the monitoring of her practice by an attorney designated by relator during the entire term of the stayed six-month suspension.
Gary C. Schaengold and Mark A. Tuss, for relator.
Konrad Kuczak and Dianna M. Anelli, for respondent.
Notes
“(a) A lawyer‘s acceptance or continuation of representation of a client creates a conflict of interest if either of the following applies:
“(1) the representation of that client will be directly adverse to another current client;
“(2) there is a substantial risk that the lawyer‘s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer‘s responsibilities to another client, a former client, or a third person or by the lawyer‘s own personal interests.
“(b) A lawyer shall not accept or continue the representation of a client if a conflict of interest would be created pursuant to division (a) of this rule, unless all of the following apply:
“(1) the lawyer will be able to provide competent and diligent representation to each affected client;
“(2) each affected client gives informed consent, confirmed in writing;
“(3) the representation is not precluded by division (c) of this rule [protecting certain representations regardless of client consent].”