Opinion

Cuyahoga Cty. Bar Assn. v. Okocha

  • 83 Ohio St. 3d 3
  • 1998 Ohio 183
Court
Ohio Supreme Court
Filed
Aug 12, 1998
Status
Published
Cited by
1 cases
Authority
More cited than 53.5%

The opinion

[This opinion has been published in Ohio Official Reports at 83 Ohio St.3d 3.]

CUYAHOGA COUNTY BAR ASSOCIATION v. OKOCHA.

[Cite as Cuyahoga Cty. Bar Assn. v. Okocha, 1998-Ohio-183.]

Attorneys at law—Misconduct—Disbarment—Charging fees that are clearly

excessive—Overstating expenses and charging clients for expenses not

incurred.

(No. 97-2648—Submitted May 12, 1998—Decided August 12, 1998.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 96-111.

__________________

{¶ 1} Respondent, Nwabueze V. Okocha of Cleveland, Ohio, Attorney

Registration No. 0025024, was indefinitely suspended from the practice of law on

June 8, 1994 for charging a clearly excessive fee, for conduct involving dishonesty,

fraud, deceit, or misrepresentation, and for failing to preserve the identity of a

client’s funds or property. Cuyahoga Cty. Bar Assn. v. Okocha (1994), 69 Ohio

St.3d 398, 632 N.E.2d 1284.

{¶ 2} On March 4, 1997, relator, Cuyahoga County Bar Association, filed

an amended complaint charging that respondent had committed various violations

of the Code of Professional Responsibility during the period 1989 through early

1995. Respondent filed his answer, and on May 22, 1997, he filed a motion to

dismiss Counts II, III, and IV of the amended complaint, which was denied. On

May 27, 1997, respondent filed a complaint in mandamus and prohibition in this

court, which we later dismissed sua sponte. State ex rel. Okocha v. Cuyahoga Cty.

Bar Assn. (1997), 79 Ohio St.3d 1412, 679 N.E.2d 1138. A panel of the Board of

Commissioners on Grievances and Discipline (“board’) heard the matter on May

28, 1997. After closing briefs were filed, the relator filed a motion for leave to file

a second amended complaint on July 18, 1997, which was accepted by the panel.

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{¶ 3} The panel found with respect to Count I of the second amended

complaint that in 1989 respondent agreed to represent Carol Hagins in a case in

common pleas court involving assault and battery, and in an employment

discrimination case in federal court. Hagins agreed to pay respondent a

nonrefundable retainer of $6,000 and, in addition, forty percent of any money she

received as well as the expenses of the cases. The common pleas trial resulted in a

judgment in favor of Hagins for $10.

{¶ 4} In October 1992, Hagins asked for a breakdown of the expenses

incurred by respondent. In May 1993, respondent provided Hagins with an

itemization stating that the expenses he incurred on her behalf were $47,212.35.

The itemization included amounts paid to Carla Elliott, a law student, and Mary

Oluonye, a paralegal, both of whom worked for respondent. The expense

itemization also included $11,100 for the employment of four economists as

experts. When challenged by Hagins, respondent waived the fee for three of the

economists because their services were not used. The one expert who was used,

Dr. John Burke, provided a written analysis of Hagins’s earning potential, and

respondent’s itemization indicated that Burke’s fee was $4,600. Burke, however,

testified that his charge for preparing the Hagins analysis was $2,000 and that it

was never paid. Evidence indicated that respondent received a check from Hagins

for $2,600 and paid this amount to Burke for work Burke had done in previous

cases because Burke would not go forward with the Hagins report until respondent

had paid him for his prior reports.

{¶ 5} In addition, respondent’s expense itemization included the amount of

$11,852.75 for court reporting services. However, the invoices presented to Hagins

by respondent to support that amount totaled only $1,707.50.

{¶ 6} Respondent’s itemization of expenses did not reflect Hagins’s

payment of the $6,000 retainer, her payment for the expert witnesses, or other small

amounts Hagins paid to respondent. After the common pleas case, Hagins was

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January Term, 1998

awarded $4,100 in reimbursement of appeal costs. Hagins never received the

$4,100.

{¶ 7} The panel concluded that the actions of respondent with respect to his

client, Hagins, violated DR 1-102(A)(3) (engaging in illegal conduct involving

moral turpitude), (4) (engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation), and (6) (engaging in conduct that reflects upon the fitness to

practice law).

{¶ 8} With respect to Count II, the panel found that in October 1989 Roger

Wilkerson retained respondent to represent him in a wrongful discharge case. After

his discharge, Wilkerson received severance pay for three months from his

employer and was hired by another company at a $1,500 increase in annual pay.

Despite the fact that Wilkerson had no out-of-pocket damages, respondent led

Wilkerson to believe that he had a strong case worth several hundred thousand

dollars. Respondent and Wilkerson entered into an agreement providing that

Wilkerson was to pay respondent an $11,000 nonrefundable retainer, that

respondent would receive forty percent of “the amount of money [Wilkerson]

received,” and that Wilkerson would be responsible for all expenses. Wilkerson

paid respondent an $11,000 retainer and $2,500 for the services of a financial

expert. No financial expert was ever hired by respondent. After we suspended

respondent indefinitely from the practice of law, Wilkerson hired another attorney

who settled the federal case for $20,000. On the basis of these facts, the panel

concluded that respondent violated DR 2-106(A) (charging a fee that is clearly

excessive).

{¶ 9} Count III was withdrawn by relator. With respect to Count IV, the

panel found that in October 1992, Ruby Randolph hired respondent to represent her

in a discrimination case. Their contract stated that respondent is “willing to invest

our time and services * * * for a percentage of the amount of money received and

our retainer. The percentage is 40.00. The retainer is $12,000.00. The retainer is

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only for accepting your case and making our services available to you. The

$12,000[.00] retainer fee will not be refunded to you.” The contract also provided

that “in addition to these fees, out-of-pocket expenses directly attributable to your

case are to be paid by you.” Randolph paid not only the retainer, but also over

$2,000 for transcripts. After respondent was suspended, Randolph retained another

attorney who settled her case for $15,000. Randolph asked for a refund from

respondent but did not receive it. The panel concluded that respondent’s actions

violated DR 1-102(A)(3), (4), and (6), and 2-106(A). The panel recommended that

respondent be disbarred from the practice of law in Ohio. The board adopted the

findings, conclusions, and recommendation of the panel.

__________________

Howard A. Schulman and Michael E. Murman, for relator.

Nwabueze V. Okocha, pro se.

__________________

Per Curiam.

{¶ 10} Respondent has suggested that because he recently filed for

bankruptcy in the United States Bankruptcy Court in the Northern District of Ohio,

Section 362 of the Bankruptcy Code (Section 362, Title 11, U.S.Code) operates

automatically to stay this disciplinary proceeding. This proposition fails. Section

362(b)(4), Title 11, U.S.Code specifically exempts from the bankruptcy stay “an

action or proceeding by a governmental unit to enforce such governmental unit’s

police or regulatory power.” This court is a governmental unit; our actions to

regulate the bar are an exercise of our regulatory power. Cf. Wade v. State Bar of

Arizona (C.A.9, 1991), 948 F.2d 1122 (holding that a bankruptcy filing does not

stay disciplinary proceedings).

{¶ 11} We adopt the findings of fact and the conclusions of the board. In

each of the three disciplinary matters considered by the board, respondent entered

into a contract that provided he receive a fee of forty percent of any money realized

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January Term, 1998

and a nonrefundable retainer. In addition, each contract indicated that the client

would be responsible for the expenses of the case. It is clear from the contracts

and from respondent’s dealings with his clients that respondent regarded the

nonrefundable retainer as earned upon receipt and that it was not held by respondent

as security for fees or for an advance on expenses.

{¶ 12} Recently in Columbus Bar Assn. v. Klos (1998), 81 Ohio St.3d 486,

692 N.E.2d 565, and earlier in Cincinnati Bar Assn. v. Schultz (1994), 71 Ohio St.3d

383, 643 N.E.2d 1139, we criticized earned-upon-receipt retainers. We found such

retainers to be appropriate only in very limited circumstances, such as an

engagement to remain available and forgo employment by a competitor of the

client. Where not made within this narrow limit, an advance payment still may be

appropriate to serve as security for the attorney who provides services for a new or

financially unstable client.

{¶ 13} In these cases, however, respondent met none of these tests. There

was no likelihood that the employers would engage respondent to defend against

the claims of Hagins, Wilkerson, and Randolph. Because respondent was not

required to turn down work from employers that would conflict with his

engagement by these clients, the retainers he requested would be appropriate only

if they served as advance payments to provide security for respondent. But

respondent did not apply the retainers to reduce either his fees or the expenses he

incurred. In short, respondent’s earned-upon-receipt retainer in each of these cases

was unrelated to any legal services he might perform or be precluded from

performing. They therefore constituted excessive fees.

{¶ 14} Additionally, respondent overstated his expenses and charged clients

for expenses that he had not incurred.

{¶ 15} As we said in Toledo Bar Assn. v. Batt (1997), 78 Ohio St.3d 189,

677 N.E.2d 349, obtaining fees by padding client bills with hours not worked (and

in this case by charging for expenses not incurred) is equivalent to misappropriation

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of the funds of a client and warrants disbarment. Considering this case and

respondent’s prior discipline, we adopt the recommendation of the board.

Respondent is disbarred from the practice of law in Ohio. Costs taxed to

respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

__________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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