The opinion
[Cite as Geauga Cty. Bar Assn. v. Snyder, 136 Ohio St.3d 320, 2013-Ohio-3688.]
GEAUGA COUNTY BAR ASSOCIATION v. SNYDER.
[Cite as Geauga Cty. Bar Assn. v. Snyder, 136 Ohio St.3d 320,
2013-Ohio-3688.]
Attorneys—Misconduct—Failure to advise in writing that client may be entitled to
refund of flat-fee retainer if lawyer does not complete representation—
Public reprimand.
(No. 2012-2074—Submitted February 6, 2013—Decided September 4, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-099.
____________________
Per Curiam.
{¶ 1} Respondent, Timothy Harry Snyder of Burton, Ohio, Attorney
Registration No. 0065926, was admitted to the practice of law in Ohio in 1996. In
an 11-count amended complaint, relator, Geauga County Bar Association, alleged
that Snyder committed 18 violations of the Rules of Professional Conduct,
including charging excessive and nonrefundable fees in several client matters, as a
result of his activities in connection with a paralegal support company and with
out-of-state counsel. The parties eventually submitted detailed stipulations that
for the most part state facts. Some of the stipulations, however, specify that the
parties disagree on certain matters. The stipulations do not include any admitted
violations. At the start of a hearing conducted before a panel of the Board of
Commissioners on Grievances and Discipline, relator withdrew five alleged
violations. The remaining allegations were fully heard.
{¶ 2} Following the hearing, the panel concluded that relator proved
three violations and recommended dismissal of the remaining alleged violations
as not proved by clear and convincing evidence. The board agreed with and
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adopted the panel’s findings of fact, conclusions of law, and recommendation of a
public reprimand. No objections have been filed.
{¶ 3} Upon our independent review of the record, we adopt the board’s
findings of fact and misconduct and agree that the appropriate sanction is a public
reprimand.
Misconduct
{¶ 4} Relator alleged that Snyder charged excessive and nonrefundable
fees, improperly shared fees with out-of-state counsel, engaged in the
unauthorized practice of law, failed to supervise nonlawyers in a connected
paralegal support company, and failed to disclose to his clients his relationship
with the paralegal support company. At the beginning of the hearing, relator
withdrew some allegations of violations contained in several counts and withdrew
two counts in their entirety.
{¶ 5} The board ultimately found that relator proved that Snyder violated
Prof.Cond.R. 7.3(c)(3) (requiring a written communication from a lawyer
soliciting professional employment from a prospective client to conspicuously
include in its text and on the outside envelope the recital “ADVERTISING
MATERIAL” or “ADVERTISEMENT ONLY”), 1.5(d)(3) (prohibiting a lawyer
from charging a fee denominated as “earned upon receipt” or “nonrefundable”
without simultaneously advising the client in writing that the client may be
entitled to a refund of all or part of the fee if the lawyer does not complete the
representation), and 1.5(e) (permitting attorneys who are not in the same firm to
divide fees only if the fees division is reasonable and proportional to the work
performed, the client consents to the arrangement in writing after full disclosure,
and a written closing statement is prepared and signed by the client and each
lawyer). The panel recommended dismissal of the remaining original allegations
in addition to those withdrawn at the hearing, and the board adopted that
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recommendation. We accept the recommendation to dismiss all alleged violations
except for the three that were found to have merit.
{¶ 6} The stipulated facts and evidence relevant to the three proven
violations demonstrate that Snyder, doing business as Snyder Professional Law
Services (“SPLS”), promoted SPLS as a foreclosure-defense firm with “of
counsel” relationships with out-of-state attorneys. SPLS’s office letterhead
reflected these “of counsel” relationships.
{¶ 7} Snyder shared office space with Performing Investment
Corporation (“PIC”), a business that provided paralegal and support services for
Snyder, including interacting with clients on the phone, compiling information,
and contacting lenders regarding mitigation options. PIC employed a former
Ohio attorney who had resigned from the practice of law in 2004 with disciplinary
action pending. One of the stipulations acknowledges both Snyder’s assertion
that he retained full supervision over the former attorney and relator’s
disagreement with that assertion. PIC contracted with a marketing firm that
assisted Snyder in attracting potential clients. Solicitation letters were sent to
homeowners who were behind in their mortgage payments. Although the
envelopes conspicuously showed that the enclosed letter was an advertisement,
the letters themselves did not conspicuously include in their text the capitalized
recital “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY.” See
Prof.Cond.R. 7.3(c)(3).
{¶ 8} As part of his representation, Snyder would enter into a fee
agreement with the client and SPLS that provided for a flat fee that was deemed
earned in full upon the opening of the file and provided that no refunds would be
made. The fee agreement also contained a provision that stated: “Client has the
right to terminate this Agreement by notifying the SPLS in writing. Fees earned
shall be retained * * *.” Snyder testified at the disciplinary hearing that the cost
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to the clients for representation ranged from $1,595 to $2,295. Of the contract fee
amounts for out-of-state cases, between $200 and $500—depending on the
state—would be sent to the attorney outside of Ohio who was listed as “of
counsel” for that particular state. Snyder generally retained $300 for each client,
with the balance of the client’s payment going to PIC for its services.
{¶ 9} We adopt the board’s findings and conclusions with regard to
violations of Prof.Cond.R. 1.5(d)(3), 1.5(e), and 7.3(c)(3).
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties violated, the actual injury
caused, the existence of any aggravating and mitigating factors listed in BCGD
Proc.Reg. 10(B), 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;
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.
{¶ 11} Snyder’s ethical breaches concerning the deficient solicitation
letters and fee matters are identified above. The board found as mitigating factors
Snyder’s absence of a prior disciplinary record, his lack of a dishonest or selfish
motive, his numerous voluntary refunds to his clients notwithstanding the
language in the fee agreements, his full and free disclosure and cooperative
attitude toward the proceedings, and his good character and reputation. See
BCGD Proc.Reg. 10(B)(2)(a), (b), (c), (d), and (e). The board further found that
no clients were harmed by Snyder’s misconduct and that he had voluntarily
terminated his relationship with PIC.
{¶ 12} The board found as aggravating factors that Snyder engaged in a
pattern of misconduct and committed multiple offenses. See BCGD Proc.Reg.
10(B)(1)(c) and (d). The board found as additional aggravating factors that
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Snyder should have recognized that his out-of-state solicitation letters were
misleading as to his ability to practice in those states and that he should have
registered with the Office of Disciplinary Counsel his employment, contractual, or
consulting relationship with a disqualified attorney. See Gov.Bar R. V(8)(G)(3).
{¶ 13} With regard to the violation of Prof.Cond.R. 1.5(d)(3), the board
cited two cases as precedent for its recommendation of a public reprimand. In
Akron Bar Assn. v. Freedman, 128 Ohio St.3d 497, 2011-Ohio-1959, 946 N.E.2d
753, we imposed a public reprimand on an attorney who was found to have
violated three Professional Conduct Rules, including Prof.Cond.R. 1.5(d)(3),
when he did not execute a written fee agreement and did not advise his clients that
they might be entitled to a refund of all or part of the fee if he did not complete
the representation. Id. at ¶ 3. Mitigating factors included no prior disciplinary
record in almost 30 years of practice, the absence of a dishonest or selfish motive,
respondent’s full and free disclosure to the disciplinary board, his expression of
remorse, and his character and reputation. Id. at ¶ 8.
{¶ 14} The board additionally cited Cincinnati Bar Assn. v. Seibel, 132
Ohio St.3d 411, 2012-Ohio-3234, 972 N.E.2d 594, in which we also imposed a
public reprimand, as instructive regarding a violation of Prof.Cond.R. 1.5(d)(3).
In that case, the respondent also was found to have violated three other rules when
he accepted two nonrefundable retainers from his client, failed to deposit those
retainers into his trust account, failed to return his client’s file and provide an
accounting after being terminated, and failed to reduce his contingent-fee
agreement to writing. Id. at ¶ 8. Mitigating factors included lack of a prior
disciplinary record, acceptance of responsibility, cooperation with the disciplinary
investigation, and restitution. Id. at ¶ 11, 14.
{¶ 15} In discussing sanctions for the remaining two violations, the board
stated that each warranted a sanction “of a low level” primarily because neither
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violation caused harm to any client, but did not identify any precedent. We have
not imposed discipline based on a violation of Prof.Cond.R. 7.3(c)(3). As to a
violation of Prof.Cond.R. 1.5(e), in Toledo Bar Assn. v. Johnson, 121 Ohio St.3d
226, 2009-Ohio-777, 903 N.E.2d 306, we imposed a six-month suspension, stayed
on the condition that the attorney commit no further misconduct, for violations of
DR 2-107(A) (now Prof.Cond.R. 1.5(e)) and three other rules. The attorney in
that case paid 35 percent of a $9,800 legal fee to another lawyer with whom he
was not formally associated, on two occasions collected a clearly excessive fee,
and committed two violations of the Disciplinary Rule requiring a lawyer to
deposit client funds in a separate identifiable bank account. Id. at ¶ 3-8. Given
the number of violations and the severity of their nature, the sanction in Johnson
is distinguishable from that appropriate here.
{¶ 16} A public reprimand here is consistent with our precedent involving
cases of similar misconduct and aggravating and mitigating factors. Accordingly,
we accept the board’s recommendation and hereby publicly reprimand Timothy
Harry Snyder for his violations of Prof.Cond.R. 1.5(d)(3), 1.5(e), and 7.3(c)(3).
Costs are taxed to Snyder.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
____________________
Todd Petersen and Patricia J. Schraff, for relator.
Timothy H. Snyder, pro se.
________________________
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