Disciplinary Counsel v. Cicero

[Cite as Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457.]

DISCIPLINARY COUNSEL v. CICERO.

[Cite as Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457.]

Attorney misconduct, including communicating information received from a

prospective client to a third party—One-year suspension.

(No. 2012-0278—Submitted September 11, 2012—Decided November 28, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-055.

__________________

LANZINGER, J.

{¶ 1} Respondent, Christopher T. Cicero of Columbus, Ohio, Attorney

Registration No. 0039882, was admitted to the practice of law in Ohio in 1988.

On June 13, 2011, relator, disciplinary counsel, filed a complaint with the Board

of Commissioners on Grievances and Discipline. The complaint charged Cicero

with professional misconduct based on his communicating information that he

had received from a prospective client to a third party. Relator alleged that

Cicero’s conduct violated Prof.Cond.R. 1.18 (prohibiting a lawyer from using or

revealing information learned during discussions with a prospective client) and

8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on

the lawyer’s fitness to practice law).

{¶ 2} A panel of the Board of Commissioners on Grievances and

Discipline heard testimony, reviewed the evidence, and made findings of fact and

conclusions of law. The panel concluded that Cicero had violated Prof.Cond.R.

1.18 and 8.4(h) and recommended that this court suspend his license to practice

law in Ohio for six months. The board adopted the panel’s findings and

recommended sanction, and further recommended that the costs of the

proceedings be taxed to Cicero.

SUPREME COURT OF OHIO

{¶ 3} Cicero filed objections to the board’s report. For the reasons that

follow, we overrule those objections, accept the board’s findings of fact and

misconduct, and suspend Cicero from the practice of law in Ohio for one year.

Misconduct

Factual Background

{¶ 4} On April 1, 2010, federal law enforcement officials raided Edward

Rife’s house and seized $15,000 to $20,000 worth of Ohio State University

football memorabilia as part of a drug-trafficking investigation. Rife testified that

on April 2, the day after the raid, he and Joseph Epling, a former partner in Rife’s

tattoo business, met with Cicero to discuss his criminal case. Cicero and Epling

testified before the panel and denied that an April 2 meeting occurred, but both

testified that Cicero and Epling had a phone conversation on April 1 during which

they discussed the raid on Rife’s home.

{¶ 5} On the afternoon of April 2, Cicero sent an e-mail to Jim Tressel,

who was then the head coach of the Ohio State University football team. In the e-

mail, Cicero alerted Tressel to a possible association between Rife and team

members and provided general information about Rife’s background and the raid

on Rife’s home.

{¶ 6} Rife retained Stephen Palmer to represent him in the criminal case,

and Palmer discussed a possible plea deal and ten-year prison sentence with Rife.

Rife testified that he became unsatisfied with Palmer and scheduled another

meeting with Cicero to discuss his case. This meeting took place on April 15.

Although Cicero denies giving any legal advice, the panel found that Cicero did

express legal opinions during this meeting. First, the panel found that Cicero

assured Epling, who was also present at the meeting, that he did not need to hire a

lawyer. The panel believes Cicero gave this advice to clear away any potential

conflict so he could represent Rife. Second, Cicero admitted that he advised Rife

that he could not get the Ohio State memorabilia back if the federal government

2

January Term, 2012

believed that Rife had purchased it using drug money. This was advice that the

panel considered to be of a legal nature and within the particular expertise of a

criminal-law attorney. Third, Cicero testified that he told Rife that a person in

Rife’s situation faces two choices: “You either can sit in the county jail for a long

period of time, or you can start cooperating with the federal government and

become a snitch.” Rife testified that although he never specifically asked for the

information he gave at the April 15 meeting to be kept confidential, he assumed

that it would be. He never gave Cicero permission to reveal to Tressel any

information discussed. The panel found that Cicero should have treated the

information from Rife as confidential, but instead, he planned to forward the

information he learned to Tressel, and he did not disclose to Rife this intent.

{¶ 7} On the morning of April 16, Cicero sent a second e-mail to Tressel.

As the e-mail reveals, Cicero revealed specifics of Rife’s case that he had learned

the previous day:

 I had Eddie Rife in my office for an hour and a half last

night.

 What I tell you is confidential.

 He told me [a former player] gave him some type of

MVP trophy—but I dont [sic] know the year.

 He told me he has about 15 pairs of cleats (with

signatures), 4-5 jerseys—all signed by players, the 2009 Wisconsin

game ball (whoever that was awarded to).

 He told me he has about 9 rings Big Ten Championship

* * *.

***

 He will not talk publicly about this.

3

SUPREME COURT OF OHIO

 If he retains me, and he may, I will try to get these items

back that the government now wants to keep for themselves * * *.

***

 Just passing this info on…especially now that I actually

talked to Mr. Rife.

(Emphases added.) Later that day, Cicero sent another e-mail to Tressel in which

he disclosed further information about Rife:

 He is in really big trouble. The federal government has

told him that his best offer is to take 10 years in prison. He wanted

my opinion yesterday on his situation.

***

 I have to sit tight and wait to see if he retains me, but at

least he came in last night to do a face to face with me.

 One correction from my first email to you…he did

confirm to me that he put out on the street the government took

70,000 from his house, but he made that up so other associates of

his would think it; so they wouldnt [sic] do a home invasion on

him and his family. But, he had that much cash just lying around.

***

 Take care. I will keep you posted as relevant information

becomes available to me. Just keep our emails confidential.

Thank you.

(Emphases added.) Cicero testified that he did not intend to tell Tressel that Rife

might retain him and that he was not referring to Rife when he said, “If he retains

4

January Term, 2012

me, and he may,” but Cicero did admit that the e-mails are written in a way that

the only person Cicero could be referring to is Rife.

Legal Analysis

{¶ 8} Prof.Cond.R. 1.18 sets forth a lawyer’s duties to a prospective

client. It provides:

(a) A person who discusses with a lawyer the possibility of

forming a client-lawyer relationship with respect to a matter is a

prospective client.

(b) Even when no client-lawyer relationship ensues, a

lawyer who has had discussions with a prospective client shall not

use or reveal information learned in the consultation, except as

Rule 1.9 would permit with respect to information of a former

client.

{¶ 9} We agree with the board that relator has proved by clear and

convincing evidence that Rife was a prospective client of Cicero. As the panel

found, the two discussed the possibility of a client-lawyer relationship; Cicero

admitted this in his e-mails to Tressel, and Rife testified as to the discussion.

Rife’s testimony was corroborated by Palmer, who testified that Rife had told him

soon after the meeting with Cicero that Cicero had quoted him a fee. Rife met

with Cicero on April 15 to discuss his case, and Cicero offered legal advice in

response to Rife’s questions.

{¶ 10} Cicero argues that Epling’s presence during the April 15 meeting

indicates that Epling, rather than Rife, was his client. We find this argument

unpersuasive. While Prof.Cond.R. 2.3 does permit a lawyer to provide an

evaluation of a matter affecting a client for the use of a third party, the record is

clear that Epling was not a client of Cicero during the events in question. Epling

5

SUPREME COURT OF OHIO

testified that Cicero told him he did not need a lawyer for representation in

relation to the raid on Rife’s home. Epling stated, “I knew I didn’t need a lawyer

because I wasn’t involved.” Furthermore, Cicero’s e-mails to Tressel clearly

indicate that Cicero believed that Rife was a prospective client.

{¶ 11} Because relator has established that Rife was a prospective client

of Cicero, we must next consider whether Cicero improperly revealed information

learned during his consultation with Rife. Prof.Cond.R. 1.18(b) states that

information that an attorney receives from a prospective client should not be

revealed, except as permitted under Prof.Cond.R. 1.9(c), which states:

A lawyer who has formerly represented a client in a matter

* * * shall not thereafter do either of the following:

(1) use information relating to the representation to the

disadvantage of the former client except as these rules would

permit or require with respect to a client or when the information

has become generally known;

(2) reveal information relating to the representation except

as these rules would permit or require with respect to a client.

{¶ 12} In his objections to the board’s report, Cicero argues that the

information he communicated to Tressel was “generally known” and that the

communication was therefore permitted by Prof.Cond.R. 1.9(c)(1). A close

examination of the April 16 e-mails, however, reveals that Cicero disclosed not

only generally known information—for example, that Rife’s home had been

raided by federal agents—but also a number of specific details about Rife’s case

that Cicero could only have learned during his consultation with Rife. This

information does not fall into the “generally known” exception of Prof.Cond.R.

6

January Term, 2012

1.9(c)(1). Cicero violated Prof.Cond.R. 1.18(b) when he disclosed to Tressel

confidential information about Rife’s case learned during the April 15 meeting.

{¶ 13} We note that this is the first case in which we have had the

occasion to determine whether an attorney violated Prof.Cond.R. 1.18 by

revealing the confidences of a prospective client. We also recognize that the

Official Comments to the rule indicate that the protection afforded by the rule is

limited in scope:

[1] Prospective clients, like clients, may disclose

information to a lawyer, place documents or other property in the

lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s

discussions with a prospective client usually are limited in time

and depth and leave both the prospective client and the lawyer free

(and sometimes required) to proceed no further. Hence,

prospective clients should receive some but not all of the

protection afforded clients.

[2] Not all persons who communicate information to a

lawyer are entitled to protection under this rule. A person who

communicates information unilaterally to a lawyer, without any

reasonable expectation that the lawyer is willing to discuss the

possibility of forming a client-lawyer relationship, is not a

“prospective client” within the meaning of division (a).

While we recognize that some limitations on the rule’s protection to prospective

clients may be justified, those limitations do not come into play here. Indeed, this

case goes to the very heart of confidentiality between a prospective client and an

attorney. Before obtaining representation, clients must meet with attorneys, and

attorneys often must obtain sensitive information before they can decide whether

7

SUPREME COURT OF OHIO

to represent a client. Prospective clients trust that their confidences will be

protected when they engage in an initial consultation with an attorney. Cicero’s

almost immediate dissemination of the detailed information that Rife provided on

April 15 directly violated that trust. This conduct violates Prof.Cond.R. 1.18, as

well as Prof.Cond.R. 8.4(h), which prohibits a lawyer from engaging in conduct

that adversely reflects on the lawyer’s fitness to practice law.

{¶ 14} Cicero argues that the evidence on the record does not clearly and

convincingly prove the violations found by the board. He asserts that Rife was an

unreliable witness and that the panel did not explain why it accepted Rife’s

testimony over his own. Cicero’s argument is unavailing. “Unless the record

weighs heavily against a hearing panel’s findings, we defer to the panel’s

credibility determinations, inasmuch as the panel members saw and heard the

witnesses firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164,

2006-Ohio-550, 842 N.E.2d 35, ¶ 24, citing Cincinnati Bar Assn. v. Statzer, 101

Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶ 8. The panel did explain

why it chose not to believe Cicero’s testimony, stating, “Respondent’s testimony

at the hearing was at times disingenuous and not credible.” Furthermore, Cicero’s

own testimony and the e-mails he sent to Tressel form a sufficient basis for a

finding that he violated Prof.Cond.R. 1.18(b).

{¶ 15} We therefore hold that relator has proved by clear and convincing

evidence that Cicero violated Prof.Cond.R. 1.18 and 8.4(h).

Sanction

{¶ 16} 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. We also weigh evidence of

the aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B).

Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875

8

January Term, 2012

N.E.2d 935, ¶ 21. Because each disciplinary case is unique, we are not limited to

the factors specified in the rule but may take into account “all relevant factors” in

determining what sanction to impose. BCGD Proc.Reg. 10(B).

{¶ 17} The board found as a mitigating factor that Cicero has an excellent

reputation among judges and attorneys for professional integrity and competence.

But the board found five aggravating factors. First, Cicero has a prior disciplinary

offense for which he was suspended from the practice of law in Ohio for one year.

See Disciplinary Counsel v. Cicero, 78 Ohio St.3d 351, 678 N.E.2d 517 (1997).

Second, the board concluded that Cicero acted with a selfish motive, because his

reason for disclosing to Tressel his possible attorney-client relationship with Rife

was self-aggrandizement. Third, the board stated that Cicero’s “testimony at the

hearing was at times disingenuous and not credible.” Fourth, the board stated that

Cicero refused to acknowledge the wrongful nature of his misconduct. Fifth, the

board concluded that the disclosure of the information about the Ohio State

memorabilia caused Rife and his family to be subjected to criticism and

harassment by the news media and others for causing harm to the Ohio State

football program.

{¶ 18} Cicero argues that only his prior disciplinary record should qualify

as an aggravating factor. Recognizing that the panel was in the best position to

evaluate the demeanor and credibility of the witnesses, we accept its findings in

regard to the additional four aggravating factors and consider them in our

determination of the appropriate sanction.

{¶ 19} As noted above, we have not yet addressed a case in which an

attorney has violated Prof.Cond.R. 1.18. Cicero argues for a six-month stayed

suspension, citing Disciplinary Counsel v. Yurich, 78 Ohio St.3d 315, 677 N.E.2d

1190 (1997); Disciplinary Counsel v. Shaver, 121 Ohio St.3d 393, 2009-Ohio-

1385, 904 N.E.2d 883; Geauga Cty. Bar Assn. v. Psenicka, 62 Ohio St.3d 35, 577

N.E.2d 1074 (1991); and Columbus Bar Assn. v. Boggs, 39 Ohio St.3d 601, 529

9

SUPREME COURT OF OHIO

N.E.2d 936 (1988). Relator correctly points out, however, that none of these

cases involved any aggravating factors. And in the other case cited by Cicero,

Disciplinary Counsel v. Kimmins, 123 Ohio St.3d 207, 2009-Ohio-4943, 915

N.E.2d 330, ¶ 18, in which the respondent received a one-year stayed suspension,

we found fewer aggravating factors and more mitigating factors and explicitly

noted that there was an absence of a dishonest or selfish motive.

{¶ 20} Relator cites Columbus Bar Assn. v. Dye, 82 Ohio St.3d 64, 694

N.E.2d 440 (1998), in which we imposed a two-year suspension. Dye, however,

involved more than disclosure of confidential client information. The violations

in Dye included collecting an illegal or clearly excessive fee, accepting and

continuing representation of a client when the attorney’s independent professional

judgment regarding another client would be adversely affected, and failing to

return the remainder of a fee. Id. at 66-67. Clearly, the violations in Dye were

more numerous than in the present case.

{¶ 21} Because the facts of this case fall between those in the cases cited

by Cicero and those cited by relator, we hold that a one-year suspension is proper.

This sanction comports with the severity of Cicero’s violations and takes into

account both the mitigating and aggravating factors. Cicero is hereby suspended

from the practice of law in Ohio for one year. Costs are taxed to Cicero.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, CUPP, and MCGEE BROWN, JJ., concur.

LUNDBERG STRATTON and O’DONNELL, JJ., dissent.

__________________

LUNDBERG STRATTON, J., dissenting.

{¶ 22} I dissent only because I disagree with the sanction. While I agree

with the finding of violations, I would impose a six-month suspension, all stayed

upon conditions. I believe that Cicero’s intentions were not for personal

aggrandizement or personal gain, as found by the majority, but were to alert the

10

January Term, 2012

coach about misconduct by his players that could affect the team. His request that

such information be held confidential does not support the notion that he was

trying to seek fame. That conclusion is contrary to the content of the e-mails.

Therefore, I respectfully dissent.

O’DONNELL, J., concurs in the foregoing opinion.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Joseph M. Caligiuri,

Senior Assistant Disciplinary Counsel, for relator.

The Behal Law Group, L.L.C., and John M. Gonzales, for respondent.

______________________

11