Opinion

Cincinnati Bar Assn. v. Britt

  • 133 Ohio St. 3d 217
  • 977 N.E.2d 620
  • 2012 Ohio 4541
Court
Ohio Supreme Court
Filed
Oct 3, 2012
Status
Published
On the bench
O'Connor, Pfeifer, Stratton, O'Donnell, Lanzinger, Cupp, Brown
Cited by
4 cases
Authority
More cited than 66.9%

The opinion

[Cite as Cincinnati Bar Assn. v. Britt, 133 Ohio St.3d 217, 2012-Ohio-4541.]

CINCINNATI BAR ASSOCIATION v. BRITT.

[Cite as Cincinnati Bar Assn. v. Britt, 133 Ohio St.3d 217, 2012-Ohio-4541.]

Attorneys—Misconduct—Failure to provide competent representation—Failure to

act with reasonable diligence in representing client—Charging an

excessive fee—Failure to properly supervise staff—Failure to hold fees in

trust account until earned—Indefinite suspension.

(No. 2011-2043—Submitted March 21, 2012—Decided October 3, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-048.

__________________

Per Curiam.

{¶ 1} Respondent, Curtis D. Britt of Dayton, Ohio, Attorney Registration

No. 0070966, was admitted to the practice of law in Ohio in 1999. In March

2007, he was also admitted to the bar in Kentucky. Although his Kentucky

license was suspended from December 2008 to November 2009 for nonpayment

of his bar dues, that license is now in good standing.1

{¶ 2} In June 2010, relator, Cincinnati Bar Association, charged Britt

with multiple violations of the Rules of Professional Conduct arising from his

handling of a client’s bankruptcy matter. In a second amended complaint, relator

further alleged that Britt had collected retainers and filing fees from more than 40

clients, converted those funds, and failed to perform the promised services and

that the Internal Revenue Service (“IRS”) had obtained levies against him for

past-due employee tax withholdings.

1. It appears, however, that Britt has a nonpractice exemption for which he has voluntarily agreed

not to practice law in Kentucky until the exemption is removed by the Continuing Legal Education

Commission upon certification of completion of appropriate continuing-legal-education credit

hours. See http://www.kybar.org/26 (accessed Aug. 23, 2012).

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{¶ 3} The parties stipulated that Britt neglected numerous client matters;

failed to reasonably communicate with his clients; failed to preserve the identity

of client funds and property; and engaged in conduct involving dishonesty, fraud,

deceit, or misrepresentation and conduct that was prejudicial to the administration

of justice by converting those funds to his own use and that his conduct adversely

reflects on his fitness to practice law.

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

Discipline adopted the parties’ stipulations of fact and misconduct. After a

hearing, where the panel heard Britt’s testimony and received exhibits, the panel

recommended that he be indefinitely suspended from the practice of law in Ohio

and ordered to make full restitution to those clients affected by his misconduct.

The board adopted the panel’s report in its entirety.

{¶ 5} Relator objects to the board’s recommended sanction, arguing that

Britt’s conduct warrants permanent disbarment. For the reasons that follow, we

overrule relator’s objection, adopt the board’s findings of fact, conclusions of law,

and recommended sanction with the additional requirements that Britt complete

12 hours of continuing legal education (“CLE”) in law-office and trust-account

management and that he serve one year of monitored probation upon his

reinstatement to the practice of law in Ohio.

Misconduct

Count One

{¶ 6} With respect to Count One, the parties stipulated and the board

found that Sonya Weaver met Britt through Total Bankruptcy, a website that

provided bankruptcy client referrals for a fee. At her first appointment, Weaver

met Britt’s employee, Kenneth Cooper, who, although he was not an attorney,

told her that she would qualify for Chapter 7 bankruptcy notwithstanding her

ownership interest in three time-share properties. Cooper also advised her to stop

paying her credit-card bills and quit her part-time job, which she did.

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{¶ 7} At that February 6, 2009 appointment, Weaver signed a fee

agreement that required her to pay a $1,000 flat fee plus filing fees, and within

several weeks she wrote two checks to Britt for a total of $1,424. By early

March, she had returned her completed paperwork and bank records to Britt’s

office and completed an online credit-counseling course. At her first meeting

with Britt in April 2009, he informed her that Chapter 7 bankruptcy might not be

a viable option, given her ownership interest in certain property, including the

time-share properties she had disclosed to Cooper, but that he needed additional

information to make a final determination.

{¶ 8} At a brief meeting several days later, Britt reviewed Weaver’s

documents and confirmed that Chapter 7 bankruptcy was not a viable option.

When Weaver expressed dissatisfaction because she had relied on Cooper’s

flawed advice and was two months behind in her credit-card payments, Britt

suggested that she contact her creditors to set up a payment plan.

{¶ 9} On April 30, 2009, Weaver sent Britt a certified letter terminating

his representation and requesting the return of her file, an itemized statement of

the legal services rendered, and the return of any unearned fees. Approximately

one month later, Britt sent her a $499 check—$299 for the filing fee and $200 for

unearned legal fees—but he failed to provide an itemized statement of the

services provided and failed to return her file. He had not kept any

contemporaneous time records in Weaver’s case, but in responding to relator’s

inquiries, he maintained that he had earned $925 for two hours of direct

consultation with Weaver and one hour of file review, billed at $225 per hour,

$150 for administrative work performed by his assistant, and a $50

reimbursement for Weaver’s credit-counseling course. Weaver, however,

disputed that she had spent two hours with Britt. She has retained new counsel to

assist her with her bankruptcy filing.

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Count Two

{¶ 10} With regard to Count Two, the parties stipulated and the board

found that in May 2010, Britt agreed to represent Craig Smith in a Chapter 7

bankruptcy. Smith paid a retainer of $800 and gave Britt $299 for the filing fee,

and Britt deposited the money into his operating account. Britt did not promptly

file the bankruptcy petition and did not respond to Smith’s inquiries. He

stipulated that the delay in filing was due, in part, to the fact that he had spent the

filing fee on unrelated matters. He did eventually file the petition, but only after

he received and misapplied other client funds to pay the filing fee.

Count Three

{¶ 11} Neil Frazier retained Britt in October 2009 to represent him in the

dissolution of his marriage. He gave Britt an $800 retainer and $250 for the filing

fee, which Britt deposited in his operating account. Frazier terminated Britt’s

representation in October 2010 based upon his lack of communication and his

failure to file the petition for dissolution. Britt failed to refund Frazier’s money

because he had spent it on other matters.

Count Four

{¶ 12} During relator’s investigation of the Smith grievance, Britt

admitted that he had a client trust account but that he regularly deposited client

money, whether earned or unearned, into his operating account. During his

September 28, 2010 deposition, he admitted that he had accepted employment,

retainers, and filing fees from 24 to 30 additional bankruptcy clients. He further

acknowledged that he had spent their money on other matters and had failed to

file their bankruptcy petitions. Although relator asked Britt to provide names and

contact information for these clients by October 8, 2010, he did not comply with

the request until approximately November 4, 2010—after he had retained counsel.

{¶ 13} The documents Britt provided to relator demonstrated that he had

accepted over $40,000 in retainers and filing fees from 41 clients, in addition to

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the clients discussed in Counts One through Three, and deposited all of the money

into his operating account. Britt used those funds, in part, for his own purposes

without any regard to whether he had earned them. He did not take any action to

notify the affected clients of his misconduct until after relator initiated its

investigation. At the time of the panel hearing, Britt had not made restitution to

any of the affected clients, though he had been paying $1,000 per month ($9,350

in all) to local bankruptcy attorney Nick Zingarelli, who had assumed the

representation of some of the affected clients.

{¶ 14} The parties further stipulated and the board found that as a result of

Britt’s failure to withhold federal income taxes or pay unemployment taxes, the

IRS had filed two levies, totaling more than $16,000, against him in the

bankruptcy court. Consequently, the bankruptcy trustee has remitted fees earned

by Britt to the IRS.

Violations

{¶ 15} The parties stipulated and the board found that Britt violated

Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation to a

client) by failing to provide Weaver with competent representation as a result of

his flawed office intake and review process and violated Prof.Cond.R. 1.5

(prohibiting a lawyer from making an agreement for, charging, or collecting an

illegal or clearly excessive fee) and 7.1 (prohibiting a lawyer from making or

using false, misleading, or nonverifiable communication about the lawyer or the

lawyer’s services) by failing to provide Weaver the free initial consultation that

the Total Bankruptcy website had promised. The parties also stipulated and the

board found that Britt aided in the unauthorized practice of law by failing to

properly supervise Cooper, in violation of Prof.Cond.R. 5.3(b) (requiring a lawyer

to make reasonable efforts to ensure that a nonlawyer employee’s conduct is

compatible with the professional obligations of the lawyer) and 5.5(a) (prohibiting

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a lawyer from assisting another to practice law in a jurisdiction in violation of the

regulation of the legal profession in that jurisdiction).

{¶ 16} With respect to the remaining counts, the parties stipulated and the

board found that Brit failed to provide diligent, prompt, and competent

representation to his clients in violation of Prof.Cond.R. 1.1, 1.3 (requiring a

lawyer to act with reasonable diligence in representing a client) and 1.4 (requiring

a lawyer to reasonably communicate with a client), that he violated Prof.Cond.R.

1.15(a) (requiring a lawyer to hold property of clients in an interest-bearing client

trust account, separate from the lawyer’s own property) and (c) (requiring a

lawyer to deposit into a client trust account legal fees and expenses that have been

paid in advance) by failing to properly segregate client funds in a client trust

account, that he violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging

in conduct involving dishonesty, fraud, deceit, or misrepresentation) and (d)

(prohibiting a lawyer from engaging in conduct that is prejudicial to the

administration of justice) by converting client funds, and that the sum of his

conduct adversely reflects on his fitness to practice law, in violation of

Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that

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

{¶ 17} We adopt the board’s findings of fact and misconduct.

Sanction

{¶ 18} Noting that taking retainers from clients and failing to perform the

promised work is tantamount to theft, relator argued that the appropriate sanction

for Britt’s conduct is disbarment. Britt, in contrast, requested that the board

recommend a two-year suspension, with reinstatement conditioned upon his

making full restitution to the affected clients.

{¶ 19} The board found that Britt should be indefinitely suspended from

the practice of law in Ohio and ordered to pay full restitution to the clients

affected by his misconduct. Relator objects to the board’s recommendation and

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January Term, 2012

argues that permanent disbarment is the only appropriate sanction for the

misconduct at issue in this case.

{¶ 20} 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. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

listed in BCGD Proc.Reg. 10. Disciplinary Counsel v. Broeren, 115 Ohio St.3d

473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

{¶ 21} Here, in addition to Britt’s treating his flat fees as earned upon

receipt, depositing them with his client’s fee deposits into his operating account,

and spending the money without performing the promised work, he has also aided

in the unauthorized practice of law by failing to adequately supervise Cooper, and

charged a clearly excessive fee.

{¶ 22} We have held that disbarment is the presumptive sanction for

misappropriation, but we have recognized that this sanction may be tempered with

sufficient evidence of mitigating or extenuating circumstances. See, e.g., Dayton

Bar Assn. v. Gerren, 103 Ohio St.3d 21, 2004-Ohio-4110, 812 N.E.2d 1280, ¶ 14,

citing Disciplinary Counsel v. France, 97 Ohio St.3d 240, 2002-Ohio-5945, 778

N.E.2d 573, ¶ 11 (presumptive disciplinary measure for acts of misappropriation

is disbarment); Disciplinary Counsel v. Smith, 101 Ohio St.3d 27, 2003-Ohio-

6623, 800 N.E.2d 1129, ¶ 9 (lesser sanction of indefinite suspension based on the

mitigating evidence that respondent had been licensed to practice for

approximately 45 years without any previous ethical infraction); Disciplinary

Counsel v. Garrity, 98 Ohio St.3d 317, 2003-Ohio-740, 784 N.E.2d 691

(indefinitely suspending a lawyer and former pharmacist convicted of stealing

prescription drugs for his own use where mitigating factors included the lawyer’s

drug addiction, demonstrated commitment to sobriety, cooperation in the

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investigations leading to and arising out of his drug-related convictions, and the

absence of harm to his legal clients).

{¶ 23} Relator argues that Britt has failed to present sufficient mitigating

evidence to overcome the presumptive sanction of disbarment. Specifically,

relator argues that this court has deviated from the presumptive sanction in cases

involving only a handful of clients and significant mitigation such as a mental

illness or addiction or in cases where the respondent has practiced for many years

without misconduct—factors that are not present in this case. See, e.g.,

Disciplinary Counsel v. Squire, 130 Ohio St.3d 368, 2011-Ohio-5578, 958 N.E.2d

914, ¶ 65-66, 70 (indefinitely suspending an attorney who failed to hold client

funds separate from his own property, misappropriated client funds for his own

benefit, failed to maintain detailed records of the money held and disbursed on

behalf of his clients, failed to maintain or produce documentation to support

claimed client-related expenditures, borrowed money from clients without

disclosing the inherent conflicts of such arrangements or advising his clients to

seek independent counsel, engaged in conduct involving dishonesty, fraud, deceit,

or misrepresentation, and knowingly made false statements of material fact during

the ensuing disciplinary proceeding when mitigating factors included practice of

more than 25 years without disciplinary action), citing Akron Bar Assn. v.

Smithern, 125 Ohio St.3d 72, 2010-Ohio-652, 926 N.E.2d 274 (indefinitely

suspending an attorney for converting client funds on more than 30 separate

occasions and for depositing more than $100,000 in client retainers in her

personal bank account rather than in her firm’s trust account when mitigating

factors included more than 20 years of practice without disciplinary violations,

cooperation in the disciplinary proceedings, an agreement to make full restitution,

and gambling and alcohol addictions that were causally related to the attorney’s

misconduct); and Cleveland Bar Assn. v. Harris, 96 Ohio St.3d 138, 2002-Ohio-

2988, 772 N.E.2d 621 (indefinitely suspending an attorney who converted more

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than $29,000 in client funds when mitigating factors included the attorney’s status

as a military veteran, his 27 years of practice without incident, and letters and

testimony from his pastor and several professional acquaintances, including

current and former judges, attesting to his dedication and trustworthiness).

{¶ 24} As aggravating factors in this case, we find that Britt has engaged

in a pattern of misconduct involving multiple offenses. See BCGD Proc.Reg.

10(B)(1)(c) and (d). The parties also stipulated that the vulnerability of and harm

to Britt’s clients, who had limited resources and whose bankruptcy filings were

delayed, sometimes indefinitely, by Britt’s neglect and conversion of their fees,

are an aggravating factor. See BCGD Proc.Reg. 10(B)(1)(h). And although Britt

has retained attorney Nick Zingarelli to assist some clients affected by his

misconduct and paid him more than $9,000 for that work, at the time of the panel

hearing, there were other clients to whom Britt had made no restitution. See

BCGD Proc.Reg. 10(B)(1)(i).

{¶ 25} Relator argues that Britt acted with a dishonest or selfish motive

because he deposited his clients’ funds into his operating account and then used

them to pay his professional and personal obligations. See BCGD Proc.Reg.

10(B)(1)(b).

{¶ 26} At the panel hearing, Britt testified that he spent 20 years in the Air

Force working in the areas of federal acquisitions and contract management and

that upon his honorable discharge from the service in 1996, he chose to attend law

school. Upon graduating from the University of Cincinnati College of Law in

1999, he worked as a foreclosure attorney for two law firms and then became a

staff attorney for a title company. He was laid off by the title company in October

2007 and shared office space with a friend for approximately six months before

an Indianapolis law firm opened an office in the Cincinnati suburb of Blue Ash

and hired him to handle consumer bankruptcy matters for clients obtained through

an Internet-based referral service. Britt was the only employee at the Blue Ash

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location and had no experience in bankruptcy law. He quit after two of his first

three paychecks bounced.

{¶ 27} After leaving the firm, Britt took the suggestion of Ken Cooper,

the Indianapolis firm’s business and marketing manager, and opened his own

bankruptcy firm, using the same Internet referral service to obtain clients. He

maintained an office in Blue Ash from July 2008 through July 2009, an office in

the Cincinnati suburb of Kenwood from October 2008 to November 2009, an

office in Cincinnati from February 2009 through January 2010, and an office in

Florence, Kentucky, from October 2008 through September 2010. His conduct in

this case does not appear to have been dishonest or selfish. It was born of his

inexperience and lack of guidance as he commenced and rapidly expanded his

solo practice.

{¶ 28} As the board found, and relator now argues, Britt has failed to

demonstrate that his diagnosis of depression is a mitigating factor pursuant to

BCGD Proc.Reg. 10(B)(2)(g) because his evaluating psychiatrist opined that his

condition “was not severe enough to substantially impair his ability to practice

law.” (Emphasis sic.) Nonetheless, we find that sufficient mitigating factors are

present to warrant an indefinite suspension rather than a permanent disbarment in

this case.

{¶ 29} First, Britt has no prior disciplinary record. BCGD Proc.Reg.

10(B)(2)(a). Britt also made a full and free disclosure to the board and displayed

a cooperative attitude toward the proceedings. BCGD Proc.Reg. 10(B)(2)(d). He

responded to relator’s letters of inquiry and agreed to be deposed on two separate

occasions. He admitted the misconduct alleged in the initial grievances against

him. And when questioned during his second deposition about his handling of

client funds, he admitted that he routinely deposited client payments, including

filing-fee deposits, directly into his operating account. At that time, Britt

estimated that he had 25 to 30 clients whose bankruptcy petitions had not been

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filed because he no longer had the money to pay the filing fees. This disclosure

resulted in additional charges levied against Britt in relator’s second amended

complaint.

{¶ 30} Not only was Britt candid with relator, he also openly

acknowledged his own misconduct to the affected clients. In letters to each of

them, Britt set out the amount of the payments he had received and advised them:

These monies should have been deposited into my attorney trust

account and held there until earned. I did not deposit them into my

trust account but instead deposited them into my operating

account. Additionally, I have not instituted your bankruptcy

proceeding and so no fees were earned by me. In plain English, I

spent the money you paid me before it was earned. My failure to

properly hold your money in trust until earned and my failure to

prosecute your bankruptcy are both serious ethical violations to

which I have admitted. I am currently being prosecuted by the

Cincinnati Bar Association in an action pending before the Board

of Commissioners on Grievance[s] and Discipline.

{¶ 31} Britt advised his clients that he had made arrangements with

attorney Zingarelli to complete their representation, if they so chose, and

explained that once his disciplinary action was resolved, his clients could file

claims with the Client Security Fund. He also apologized to his clients, stating:

I know that I have violated your trust and put you in jeopardy by

not timely performing the services I promised to perform. I have

been suffering from depression and have only recently begun to

receive treatment. I say this as an explanation and not an excuse.

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As you may know, I served in the Air Force for 20 years and was

honorably discharged. I have a family and have always prided

myself on being an honest, contributing member of our

community. I have dishonored myself and my profession and have

let you down. I cannot adequately convey how sorry I am for my

actions.

{¶ 32} Britt offered a sincere apology to the members of the panel and

expressed his desire to return to the practice of law at some point in the future so

that he could provide pro bono services for a nonprofit organization in an effort to

fulfill his obligations to the public and to restore his honor and integrity. He has

also submitted letters from four former clients and one colleague attesting to his

competency, integrity, and professionalism. The writers do not state that they are

aware of the pending disciplinary action against Britt, but at a minimum, their

letters offer some indication that Britt can be rehabilitated.

{¶ 33} Based on the foregoing, and in light of the sincerity with which

Britt has expressed both his remorse and his desire to make amends for his

misconduct, we believe that he may one day be able resume the competent,

ethical, and professional practice of law. Therefore, we overrule relator’s

objections and adopt the board’s recommended sanction of an indefinite

suspension coupled with an order of restitution. Recognizing, however, that

Britt’s inexperience and lack of guidance contributed significantly to his

misconduct, we supplement the board’s recommended sanction with the

additional requirements that Britt complete 12 hours of CLE in law-office and

trust-account management before seeking reinstatement and serve a one-year

period of monitored probation upon reinstatement to the practice of law in Ohio.

{¶ 34} Accordingly, Curtis D. Britt is indefinitely suspended from the

practice of law in Ohio and ordered to provide to relator, within 30 days of this

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opinion, documentation of all funds received from Sonya Weaver, Craig Smith,

Neil Frazier, and each of the clients identified in Exhibits D, K, L, and M of Joint

Exhibit 1 and make restitution to those clients (or their designated payees) in the

aggregate amount of $2,000 per month until he has made full restitution. Britt is

further ordered to provide a monthly accounting to relator of all restitution

payments made pursuant to this order, commencing with 30 days of this opinion.

Any future reinstatement shall be conditioned on proof that Britt has fully

complied with this restitution order and completed 12 hours of CLE in law-office

and trust-account management in addition to the general requirements of Gov.Bar

R. X. Furthermore, upon reinstatement to the practice of law in Ohio, Britt is

ordered to serve one year of monitored probation in accordance with Gov.Bar R.

V(9). Costs are taxed to Britt.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

Dimity V. Orlet, Assistant Bar Counsel; Crabbe, Brown & James, L.L.P.,

and Robert J. Gehring; and Phillip J. Smith, for relator.

Montgomery, Rennie & Jonson, L.P.A., George D. Jonson, and Brian M.

Spiess, for respondent.

______________________

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