The opinion
[This decision has been published in Ohio Official Reports at 95 Ohio St.3d 129.]
OFFICE OF DISCIPLINARY COUNSEL v. HENDERSON.
[Cite as Disciplinary Counsel v. Henderson, 2002-Ohio-1756.]
Attorneys at law—Misconduct—Six-month suspension with entire six months
stayed—Engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation—Engaging in conduct prejudicial to the administration
of justice—Engaging in conduct adversely reflecting on fitness to practice
law—Concealing or knowingly failing to disclose that which attorney is
required by law to reveal while representing a client—Knowingly making
a false statement of law or fact—Using letterhead implying partnership
with another attorney.
(No. 2001-1650—Submitted January 9, 2002—Decided May 1, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-31.
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Per Curiam.
{¶1} On September 27, 2000, relator, Office of Disciplinary Counsel, filed
a four-count amended complaint charging that respondent, Ronald R. Henderson of
Toledo, Ohio, Attorney Registration No. 0023880, violated several provisions of
the Code of Professional Responsibility, primarily relating to his representation of
Kyle and Katia Kisseberth from 1994 through 1999. Respondent answered, and on
November 6, 2000, the matter was heard by a panel of the Board of Commissioners
on Grievances and Discipline of the Supreme Court (“board”).
{¶2} The parties stipulated that in 1993, Kyle and Katia Kisseberth filed a
lawsuit against Eagle American Insurance, which had refused to pay a claim made
by the Kisseberths for the destruction of their jewelry store by fire. Martin Mohler
of Toledo and Robert Rutter of Cleveland represented the Kisseberths in the case.
SUPREME COURT OF OHIO
After the jury found for Eagle American in March 1994, the Kisseberths met with
respondent, who shared office space with Attorney Mohler, to discuss filing for
bankruptcy protection. Respondent and Mohler were not partners, but their
letterhead read, “Law Offices [of] Mohler, Bingle & Henderson.”
{¶3} The Kisseberths agreed to pay respondent a retainer of $1,500 plus
$100 per hour for the bankruptcy. In the meantime, in April 1994, the Kisseberths
appealed the trial court’s decision in favor of Eagle American. Three persons,
Bonnie Kisseberth, Kyle’s mother, Christine Heatherly, his grandmother, and Nina
Mull, a relative of Katia, advanced $4,500, $700, and $996, respectively, to pay for
the transcript in the case. The money was given to respondent, and he used it to
pay for the transcript.
{¶4} In May 1994, respondent filed the bankruptcy petition for the
Kisseberths in the United States Bankruptcy Court for the Northern District of
Ohio, Western Division. With the bankruptcy petition, respondent, as bankrupts’
counsel, filed the compensation statement required by Fed.R.Bankr.P. 2016(b). In
that statement, respondent represented that his fee to the Kisseberths was $1,500
plus $100 an hour, that he had so far received only $1,500, and that a source of
other compensation would be “payment by relatives.”
{¶5} In February 1995, the bankruptcy trustee appointed Rutter and Mohler
as appellate counsel in the appeal against Eagle American. In July 1995, the appeal
was settled and in November 1995, Eagle American paid $45,000 to the bankruptcy
trustee. Rutter, as court-appointed appellate counsel, applied to the bankruptcy
court for compensation, and the trustee paid him an amount that included
reimbursement for the cost of the trial transcript.
{¶6} Rutter then sent respondent $7,619.03 to cover the charges for the
transcript, UPS fees, and $1,575.96 in court costs. Respondent paid half the court
costs and applied the balance to the $15,100 in fees that he said the Kisseberths
owed him for the bankruptcy and several other matters. Those matters included
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January Term, 2002
representation in the bankruptcy, services rendered in collection actions for the
Kisseberths, services rendered in a subrogation suit against the Kisseberths by State
Farm Insurance, services rendered in a matter involving Mid American Bank, and
services in the Eagle American case. There was no issue as to whether respondent
rendered the services.
{¶7} When the bankruptcy case was closed in August 1996, respondent had
been paid $11,887 of the $15,100 that he claimed was owed, in December 1997, he
filed a collection suit in Lucas County against the Kisseberths for the balance.
{¶8} The Kisseberths hired attorney Elliot Feit, who, in September 1998,
filed a motion to reopen the bankruptcy case. The motion was granted, and the case
was reopened. Respondent then filed an application for fees in the bankruptcy
court, and the Kisseberths filed a motion to require respondent to disgorge fees.
Respondent’s collection action was removed to the bankruptcy court.
{¶9} After a hearing, Chief Bankruptcy Judge Richard L. Speer disallowed
$12,812.02 of respondent’s claim for fees, awarded him $2,287.98 as fees for the
bankruptcy, ordered him to disgorge $9,600 in attorney fees, and dismissed his
collection claim against the Kisseberths. On appeal, the United States District
Court affirmed the order of the bankruptcy court.
{¶10} The panel concluded that with respect to Count I of the complaint
(failure to reimburse his client’s relatives for the cost of the trial transcript),
respondent’s conduct violated DR 1-102(A)(4) (a lawyer shall not engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (a
lawyer shall not engage in conduct prejudicial to the administration of justice), 1-
102(A)(6) (a lawyer shall not engage in conduct adversely reflecting on the
lawyer’s fitness to practice law), and 7-102(A)(3) (in representing a client, a lawyer
shall not conceal or knowingly fail to disclose that which he is required by law to
reveal). With respect to Count II, the panel found that relator had not proved by
clear and convincing evidence that respondent had charged a clearly excessive fee.
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The panel further concluded that clear and convincing evidence established the
charge in Count III, that respondent had misrepresented to the bankruptcy court the
amount of fees he intended to charge the Kisseberths, and thus respondent violated
DR 7-102(A)(3) and 7-102(A)(5) (in representing a client, a lawyer shall not
knowingly make a false statement of law or fact). The panel finally concluded with
respect to Count IV that respondent’s use of a letterhead that implied that he was a
partner with Mohler violated DR 2-102(B) (a lawyer shall not practice under a name
that is misleading or a firm name containing names other than those of one or more
lawyers in the firm except as otherwise provided) and 2-102(C) (a lawyer shall not
hold himself out as being in partnership with other lawyers unless they are in fact
partners).
{¶11} The panel found in mitigation that respondent was a well-respected
attorney and had no prior disciplinary offenses. It recommended that respondent
be suspended from the practice of law for one year with six months stayed. The
board adopted the findings, conclusions and recommendation of the panel.
{¶12} On review of the record, we adopt the findings and conclusions but
not the recommendation of the board. There is no indication in the record that
anyone disputes that respondent expended the hours he claims to have worked. The
record also indicates that while the bankruptcy court ordered respondent to disgorge
some of his fees, it found that respondent did not affirmatively act to conceal his
fees. Since this was a first violation, respondent is suspended from the practice of
law for six months with the entire six months stayed. Costs are taxed to respondent.
Judgment accordingly.
DOUGLAS, LAZARUS, F.E. SWEENEY and PFEIFER, JJ., concur.
LUNDBERG STRATTON, J., concurs in judgment.
MOYER, C.J., and COOK, J., dissent.
CYNTHIA A. LAZARUS, J., of the Tenth Appellate District, sitting for
RESNICK, J.
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January Term, 2002
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COOK, J., dissenting.
{¶13} The majority’s imposition of a six-month suspension with the six
months stayed insufficiently sanctions respondent for his misconduct. I would
adopt the sanction recommended by both the panel and the board and would
suspend respondent for one year with six months stayed.
MOYER, C.J., concurs in the foregoing dissenting opinion.
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Jonathan E. Coughlan, Disciplinary Counsel, and Dianna M. Anelli,
Assistant Disciplinary Counsel, for relator.
James D. Caruso, for respondent.
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