*1
Disсiplinary
v. Summers.
Counsel
Disciplinary
Summers,
Counsel
[Cite
467,
Registration practice Kentucky. is also licensed to 2010, relator, counsel, charged Summers with April disciplinary On represen- from his arising violations of the Rules of Professional Conduct
several A of multiple felony panel a with offenses. charged tation of client who had been hearing on conducted Discipline Board of Commissioners Grievances (1) fee, a clearly excessive finding that Summers had report, and issued (2) if writing complete he failed failed to advise client (3) fee, of all part the client be to refund might entitled representation, the time of his portion of his fee at promptly refund the unearned failed (4) adversely engaged conduct that representation, from the withdrawal recommended that Summers upon panel his fitness law. The practice reflects of law for six months and the issue practice from the suspended be board proceedings. arbitration other court restitution be rеsolved its recommended sanction findings of fact and misconduct and panel’s adopted full fee to required to refund the but also recommends Summers be his client. fact misconduct and findings objects board’s punitive. are excessive and recommended sanction restitution that the
argues of fact and misconduct findings the board’s objections We overrule recommended sanction. regard objection and overrule Misconduct *2 client, Bell, The and board found that the panel Anthony years was old
4}{¶ when he with multiple felony was offenses for a allegedly assaulting a in the police during professional officer brawl stands a game baseball Cleveland New Anthony, between the Indians and York Yankees. a resident record, innocent; York upstate New who had no criminal he insisted was position today. maintains that Anthony family his no and knew one in Cleveland. Acting on referral
5}{¶ bondsman, of a and with family’s Anthony financial support, retained Sum- beginning mers defend him. From the of the representation, Anthony and his family equivocated expressing never they what wanted from Summers: exon- charges. eration Summers’s first agreement fee with the Bell family was executed around
{¶ 6} the time of Anthony’s April in late At arraignment the initial meeting, $1,000 Summers $2,500 secured an advance of for expenses and a from retainer of them, family. And “to a them,” do favor for to be kind to Summers agreed hourly reduce his charge per Nonetheless, hour to per hour. $350 $250 Anthony’s family when received Summers’s first shortly July invoice after 2008, they hour, discovered that had charged per Summers the initial $350 $2,500 exhausted, they retainer had been $2,500, owed Summers an additional they and for being charged performed associate, were work by Summers’s Aaron Baker, at rate of per hour. $125 evidently Baker had years worked Summers for only been to practice
licensed law for several months when him respondent assigned to this case. that Summers avers Baker’s time normally billed at per hour but $175 Summers also reduced Baker’s rate for this case. Upon the inquiry, Bells’ Baker acknowledged per-hour billing $100 and discrepancy assured them that the bill would be corrected. Rather than adjust himself, the bill Anthony’s Baker asked pay mother to the corrected amount. The Bell family never received an with invoice the correct rate billing not pay did erroneous invoiсe. continued to represent Anthony for the next two months nonpayment. without word about the pretrial 9, 2008, Less than one week before set for hearing September however, Summers informed Anthony agreement he was breach of the representation threatened withdraw from his agreement unless a new fee so, was secured. In doing Summers did not focus on issue or nonpayment Rather, as a alleged of fees reason for the breach. Anthony’s chastised parents their “interference” of him way completing in the something standing that “there was stated case.”1 out оf his mind he was scared Anthony testified counsel; they new retaining were worried about parents to withdraw. His
threat to paying in addition new counsel pay could afford did not think flat-fee fee agreement new agreed Bells therefore Summers’s fee. The —a Summers. arrangement —with pay would Anthony agreement specified that The flat-fee already all amounts any paid.”2 “in
$15,000 to addition owe, regardless would was all that agreement provided behalf, through the work spend including would on his the time that Summers “and, trial, necessary, if sentencing, necessary, through if investigation disposition оf the case.” other *3 $15,000 the fee as characterized agreement, In the fee Summers 1.5(d)(3), and, did not of Prof.Cond.R. despite requirements
nonrefundable a refund of all or that be entitled to might the client and his advise fact, although In representation. if to part complete of the fee he failed Anthony word of the retainer to initially insisted that he had read each Summers them, admitted that he to he later parents explained paragraph and his each fee not refundable. And being to about the paragraph had not read them asking to Summers reason- subsеquently mother sent an e-mail Anthony’s when meant, responded what it about the flat-fee retainer and questions able worst, best, was, and at impatient intemperate, at with an e-mail that e-mail, $15,000flat “will cover all of that also stated that the fee scathing. he to end, to of what time we have regardless fees for the matter Attorney you. us, for to If will however owe us you discharge you which is a benefit spend far, owe thus less the initial retainer. You will also us spent all of our time sic.) speed.” (Underlining bringing Lawyer up the new agreement, repre- after the flat-fee Summers’s extraсting Four months 13} {¶ $17,726.01 fees, in Summers called collecting After abruptly sentation ended. looking good, him and he was Anthony “things in and told that weren’t December month, following a Summers screamed to work out going try plea.” time, private investigator he retained to assist 1. was in conflict with a had At the case, Anthony’s investigator performed unauthorized work case. He believed that him, derogatory negative and tried to refer statements to the Bells about made parents represent in the case. to another stated, Summers, response questioned by “Our initial bill sent Baker’s Bells When circumstances, $15,000. your agreed we typically Because of on case like this would be retainer a along. $2,500, you This heavily agreed to our as we went a bill time reduced retainer prompt payment.” arrangement upon anticipated based was Anthony’s father that he was “done” and “finished.” After nine months of Anthony, representing Summers refused continue the and then withdraw, securing moved to without a for his client or plea agreement otherwise finishing representation. The board found clear and that convincing evidence 1.5(d)(3) lawyer
violated Prof.Cond.R. a from a fee (prohibiting charging flat simultaneously without the client in advising writing may the client be a or part entitled to refund of all of the fee if the lawyer complete does reject representation). expressly protestations We Summers’s his failure language include the an honest mistake arose from his use a form where, document intended for Kentucky, argues, use such notification is not required. 1.5(a) The board also found that Summers violated Prof.Cond.R. (pro-
hibiting lawyer making agreement for, a an charging, or collecting illegal 1.16(e) clearly fee), (requiring lawyer excessive to prоmptly any refund 8.4(h) upon unearned the lawyer’s employment), withdrawal from (prohib- iting lawyer from in conduct that engaging adversely reflects on the lawyer’s law). claim, fitness to practice challenged The board and the testimo- ny experienced of two attorneys, criminal-defense that he was entitled to the entire upon fee based hours he spent multiplied by on the case 1.5(a) then hourly rate of Prof.Cond.R. lists number factors that $400. be must considered determining whether a fee is In determining reasonable.3 excessive, clearly fee was the board noted Summers had not *4 any witnesses, interviewed the prosecutor yet to turn his over to responses filed, discovery request, no motions suppress to had been no trial date had been set, and complete failed to the representation agreed that he had to through Moreover, see to trial or sentencing. the board found that Summers had withdrawing fabricated reasons for from representing Anthony, claiming that he and his parents were difficult to work expectations with and had unrealistic about 1.5(a) Factors to be under {ft} considered Prof.Cond.R. include: (1) required, novelty difficulty involved, questions the time and labor the and of the {ft} and the requisite legal perform properly; skill to the service (2) likelihood, client, apparent acceptance the if particular employment to the of {ft} the the preclude employment by lawyer; will other the (3) services; customarily charged locality legal the fee in the for similar {id} (4) obtained; the amount and involved the results {ie} (5) imposed by circumstances; by the time limitations the client or the {if} (6) {ig} client; length relationship professional the nature and of the with the (7) experience, lawyer services; reputation, ability lawyers performing the of the the {ih} (8) contingent. the fee whether is fixed or {ii} to attempting of suborn exoneration, accusing as for as well his prospects '
perjury. misconduct, arguing of fact and findings the board’s objects to {¶ 16} could was relator appropriate, to calculate fee that the method used testimony, expert clearly absence of not that his excessive fee prove 1.5(d)(3)by of Prof.Cond.R. substantially complied requirements with the that he fee, flat and that of the entire justify his retention an itemized bill to providing excessive, сlearly that his fee is prove insufficient because there is evidence that he violated finding support insufficient is also evidence there 8.4(h). Prof.Cond.R. objections record, we conclude that these carefully reviewed the Having reputation, Although spent experience, the time
are without merit. are factors to be considered lawyer services providing of the ability reasonable, relevant to only are factors a fee determining whether is obtained and the Indeed, identifies both the results the rule determination. fee, relevant considerаtions. contingent, it fixed or nature of the be 1.5(a)(4) (8). Prof.Cond.R. the conclusion agrees through a client lawyer represent When without fee, withdraws from lawyer
the case for a flat flat is he cannot retain the entire completed, before the work cause To otherwise of his billable hours. hold resorting a mathematical calculation flat fees to mercy lawyers charge significant who would leave clients at of the case to withdraw when demands only provide complete representation is entitled to be recognize too onerous. Whilе we become Bells are entitled to provided, for services he has also compensated bargain. receive a benefit their fiat-fee that he Notwithstanding kept “copious” insistence errors,
records, billing was Bells had numerous and his invoices law with an And he violated Ohio completed. excessive the amount work illegal agreement. nonrefundable flat-fee concluded, great pains took “Respondent during And as the board continued as difficult whose conduct made
hearing people the Bells portray However, the does not beliеve impossible. panel simply involvement with them regarding Bells’ allegations complaints and concludes that Respondent’s *5 designed panel to convince the nothing conduct are more than fabrication as clients.” discharge the Bells acceptable he had basis for eventual withdrawing. asserted several reasons for First, had taken Bells to see another investigator he claimed that his get him take the case.” lawyer try “to over Second, Summers asserted that situa- there were “several instances of just tions where were incredibly they unreasonаble. And started to [the Bells] truth, have times not so it telling where were was whole package * * asked, already oath, started *.” But August when under what the Bells about, “I responded, complain lied don’t did remember.” Summers Anthony phone working. had lied about his cell Third, Summers claimed that he Anthony’s would answer questions about his only subsequently defense to be questioned by parents about what he had said to Anthony. He intimated that the Bells interfering were with his representation by second-guessing his The decision-making. record does not support those contentions. Bells, who wanted their “son to possible” hаve the best counsel incarceration,
serious criminal case in which he faced initially they admit that many asked questions of Summers an effort to understand what was happen- ing. But receiving after the first invoice that quarter-hour showed minimum e-mails, responding to even brief the Bells insist that they ceased all testified, almost communication with As Summers. Mrs. Bell family when the saw communications, the charges they incurring were much all “pretty stopped communications barely there. We talked.” after Even executing agreement, flat-fee nothing {¶ the Bells had 25} incidental communicаtion with discussions, Summers and “no meaningful commu- nications, correspondence any [or] kind.” Anthony observed that Summers “did not take kindly
{¶ to a simple 26} mother, question” from his Anthony and thereafter asked few questions himself. He it knew that very expensive [Summers], “became to communicate with especially through e-mails.” And was afraid even take the time to read agreement the flat-fee because “we didn’t time, want to take too much of his to save money.” Mrs. Bell demeanor, also testified about Summers’s describing how he
“blew up” exploded when about she asked efforts secure a video and expert video subjected and how her husband was to a “one-sided screaming fiasco by Mr. Summers” when Summers called to announce he was done with the case. That call reduced her husband to tears and plead Summers, forced him to “Don’t do this to my son. Please don’t do I’m you, this. begging of don’t do * * * this.” said, As Mrs. Bell were “[W]e treated like low life.” The fact that the Bell family questions asked Summers did not make obstructionist, difficult, Moreover, knew, contemptuous. known, should have that the questions Bells would ask of him. Summers met the family Bell of the outset and included them as signatories knew retainer. He that this was committed to obtaining justice for their
473 Indeed, them he system. promised the legal with inexperienced son but were depositing had no trouble he promptly, calls would be returned that their fees, while of even to him for thousands dollars they wrote checks those that representation with the “interfering” that were complained thereof) (or lack progress about by simply asking questions for paid checks of son. the defense their necessary because that his withdrawal was suggested Summers Finally,
{¶ 29} the stand.” perjury him “to commit on asking conduct of Bells’ unethiсal testimony is given cryptic of that claim not clear The context specific the Bells point, on but intimated provided game the incident at the ball testify falsely would about identified witness who Bells, however, knowledge The Anthony. any denied in an effort exonerate that witness. amply had no merit is The that Summers’s contentions finding board’s
{¶ 30} to establish that Bells interfered supported by the record. Summers failed questions, his time with representation monopolized with his or that the Bells no there is inappropriately. Certainly, acted dishonestly, acted otherwise suborning in this claim that thе Bells were support record for scandalous Bell terminated board found perjury. justifiable “without cause.” stop The affronts the Bells and did not with Summers’s profession a final withdrawing, After Summers submitted representation.
withdrawal family. invoice to That invoice showed that additional Baker, $2,586.49 not support records the board’s conclusion that Billing due. Summers, temerity work And Summers had the did much on this case. the motion only charge Anthony preparing counsel, on Anthony’s charge to then for Summers’s work withdraw (Summers’s) claiming private investigator to a that the complaint agency state unethically relationship in her with the Bells. he hired acted us, record before we conclude carefully considered the Having of fact objections findings merit and adopt are without therefore of the board. misconduct
Sanction
misconduct,
we consider relevant
When
sanctions
imposing
factors,
violated and the sanctions
lawyer
the ethical duties that
including
424,
Buttacavoli, 96
St.3d
Cty.
in similar
Stark
Bar Assn. v.
Ohio
imposed
cases.
¶
determination,
818,
making
final
dishonest selfish in the grudgingly disciplinary *7 process with an air of righteous indignation, during was evasive and lied his testimony panel hearing, the refused to acknowledge wrongful the nature of conduct, clients, his harmed vulnerable failed to and make restitution. See (i). 10(B)(1)(b),(e), (f), (h), Proc.Reg. (g), BCGD and found Mitigating by factors 41 years board include Summers’s of practice prior discipline without and his good reputation apart offense, character and from underlying disciplinary as by approximately attorneys, demonstrated 50 letters from judges, family mem- bers, and others. Citing Summers’s conduct toward the Bells and his attitude throughout
{¶ 35} the disciplinary proceedings, panel recommended Summers serve an actual six-month suspension practice from the of law and that the issue of restitution be left to a proceeding fee arbitration court initiated by Bells. agreed board suspended Summers should be for six months but required $15,000 recommends that he be to return the fee to the entire Bells. objects sanction, Summers to the recommended it arguing that is and punitive excessive light expert relator’s failure to submit any testimony other evidence еstablish reasonable fee for the he provided services and factors in mitigating this case. sure, To be the record here is with replete judges, lawyers,4 letters from family and members who have experienced positive interactions with Summers and cite who the contributions Summers has made to the bar community his good reputation. discuss Here, there dispute is no highly Summers has been successful country
around the state and the those defending with sensational and crimes, news-garnering and what high-line Summers boasts “high profile, cases.” There no suggestion is that he all has served of those quite clients well. But this is case, case about the services in a public he rendered far less with a public far less client. knew, As disorder, social-anxiety suffered from a
he
family
him,
and his
were very
by
charges against
troubled
which carried
with them the
specter
imprisonment.
nor
family
experi-
Neither he
was
enced with the
generally
criminal-justice system
law
or the
specifically. They
4. One of the
an
character
letters was written
whom
court
this
has
by
publicly reprimanded
Disciplinary
Agopian,
Counsel
Ohio
2006-Ohio-
improper
practices.
St.3d 6510,
who
found that after Summers was
representation. The board
continue Summers’s
fees
other defense
money
legal
more
to be had for
simply
“there was
no
paid,
* *
left his
Tony Bell destitute
knowingly left
Respondent
costs.
client for
insult of
charging
then added the
client without
representation.
time
to withdraw
spent preparing
law,
agreement
fact
violated Ohio
confronted with the
that the fee
When
Instead,
he averred
when
any wrongdoing.
to admit
Summers refused
mistakenly
confused and
family,
simply
the client and his
he
meeting with
of Kentucky,
is
the laws
agreement
authorized under
accessed a flat-fee
agreement
admitted that the
begrudgingly
practices.
where
also
1.5(d)(3)
error was mere over-
maintained that his
violated Prof.Cond.R.
language
even when confronted
persists
position
He
this
sight.
Kentucky law.
to Ohio law rather than
agreement,
repeatedly
which
referred
*8
matter,
in this
short,
accepting any responsibility
than
In
rather
41}
{¶
demonstrates
amply
and others. The record
Summers has blamed his clients
counsel,
only grudgingly
that he
condescending
disciplinary
to
has been
he has shown “an attitude
process, that
disciplinary
with the
cooperated
with “lies and evasive-
testimony
that his
was laced
indignation,” and
righteous
alone,
stay
in
to
the cases
which we decided
points
ness.” On these
us
clearly
are
distin-
appeared
who have
before
suspensions
previously
those
guishable.
N.E.2d
we publicly
2-106(A)
to
client funds
failing
pay
in
DR
and for
promptly
violation of former
9-102(B)(4). In that
of former DR
client was entitled to receive
violation
case, however,
indignation
not act with
evasiveness
respondent
did
relator, agreed to
contrary,
cooperated
To
she
with the
process.
disciplinary
partici
her client
in a
and after
declined
participate
program,
fee-arbitration
full
her client
nine
approximately
made
reimbursement
pate
program,
¶
Id.
5. And there was no
doing
deadline set for
so.
at
months before the
client,
him without
abandoned
disrespectful
that she
her
suggestion
been
her
motive,
acknowledge
counsel,
refused
acted with
selfish
dishonest
circumstances,
and the respon
the relator
light
conduct.
those
wrongful
adopted.
court
agreement, which this
discipline-by-consent
entered a
dent
some of the errors she Id. had made. In those parties’ we adopted stipulations agreed sanction, which included one- year stayed suspension, the of an appointment attorney respon- monitor the ¶ dent’s in a practice, participation fee-dispute Id. at 21. program. justices Two disagreed with the sanction imposed in Mills. The
dissenting believed that than judges forcing rather respondent’s client to issue, arbitrate the fee the court should have ordered repayment. “We have already found that respondent collected an Why require excessive fee. should we [the to obtain go through client] new counsel and legal further hassles to collect ¶ an fee? overcharged We should this (Stratton, conclude matter now.” Id. at 23 J., So, too, in dissenting). this case. The Bells enough. have suffered The board has determined law, charged
Summers violated Ohio an illegal fee, excessive and fabricated mistruths about his clients. And he has shown disdain for the disciplinary process. Having considered Summers’s weighed misconduct and the aggravating
and mitigating factors as well imposed cases, sanctions in comparable we conclude that a suspension six-month and repayment of the to the Bell family are the approрriate sanctions for the misconduct in this case. decision, In rendering our we note that in Disciplinary Counsel
Jackson,
250,
{¶ St.3d 48} 865 N.E.2d the attorney charged excessive fees his and elderly vulnerable * * * clients. We found that “exploiting his wards incompetent attorney] [the public lessened confidence in legal profession the and compromised its integrity.” ¶ Id. at 88. imposed one-year We suspension attorney’s of the license to law, practice with the last six suspension months of the stayed. Johnson is instructive here similarly because Summers exploited vulnerable client. Bells had no experience criminal-justice system, were from Cleve- addition, In retainers. pay large
land, limited financial means and had nevertheless disorder. Summers anxiety suffers from a manner them such and then treated clearly Bells a excessive fee regarded them as “low life.” felt he in this mitigating factors and and aggravating In the misconduct light of of law Ohio practice from the
case, suspended is William Lawrence Summers must include proof Any reinstatement application for six months. are taxed to $15,000 family. Bell Costs of to the Summers has made restitution Summers. accordingly.
Judgment Lundberg O’Connor, C.J., Lanzinger, Cupp, Stratton, Pfeifer, Brown, JJ., concur. McGee J., dissents.
O’Donnell, J., dissenting.
O’Donnell,
that Summers’s
majority’s finding
I
from the
respectfully dissent
law in Ohio.
suspension from
of
practice
conduct warrants an actual
recommendation,
majority
has ordered
In
with the board’s
accord
law
suspension
practice
an actual six-month
from
that Summers serve
determining
fee to the Bells.
requirеd
he be
to return the entire
“
misconduct,
‘the
explained
we have
sanction for
appropriate
offender, but to
punish
is not to
primary
sanctions
purpose
disciplinary
”
Fumich,
257, 2007-
v.
Disciplinary Counsel
protect
public.’
¶
O’Neill,
6, 17,
103 Ohio
Ohio-6040,
quoting Disciplinary Counsel
878 N.E.2d
¶
204,
dispute, from 6 has letters long distinguished career. He submitted pleas common municipal (Judge Connally), judges current and former Ohio courts, Sutula), Kentucky appellate (Judge Rogers) Burnside and (Judges (Justiсe Keller), District Court and the United States Supreme Court Lambros), attorneys, lay and from 13 (Judge from 30 Northern District of Ohio values, and his excellent integrity, high his moral people who attest his strong commitment They speak in the reputation legal community. organizations, in a participation professional number of legal profession, to his clients. work, work and dedication *10 bono as well as hard pro case, I conclude that the facts in this attestations and upon Based these 42-year unblemished is an incident an otherwise Summers’s conduct isolated my view, legal suspension practice career. actual law is unnecessary protect harm, future public from but rather is excessive and punitive light Therefore, of the mitigating factors this I case. would impose suspension, six-month all stayed, on the conditions Summers commit no further misconduct submit to fee arbitration to determine the amount of refund, if any, owed to the family. Bell Counsel,
Jonathan E. Coughlan, Disciplinary Joseph M. Caligiuri, Assis- Counsel, tant Disciplinary for relator.
Wiles, Co., Boyle, L.P.A., Burkholder & Bringardner Close, Michael L. Cook, D. respondent. Dale Teays Valley Carna, Appellant, ex rel. State Local Apрellee. Education,
School District Board [Cite ex as State rel. Carna v. Teays Valley Local School Dist. Edn.,
Bd.
by the Assembly 3319.02(D), General through R.C. which governs renewal and nonrenewal of school administrators’ contracts. hold We that after an administrator has renewed, been informed that her contract will not upon be administrator’s request meeting with the school board discuss the contract, 3319.02(D)(4) nonrenewal of her R.C. requires the board to meet executive session with the administrator to discuss the reasons for nonrenewal.