Disciplinary Counsel v. Summers

[Cite as Disciplinary Counsel v. Summers, 131 Ohio St.3d 467, 2012-Ohio-1144.]

DISCIPLINARY COUNSEL v. SUMMERS.

[Cite as Disciplinary Counsel v. Summers,

131 Ohio St.3d 467, 2012-Ohio-1144.]

Attorneys—Misconduct—Multiple violations of Rules of Professional Conduct,

including charging or collecting an illegal or clearly excessive fee and

failing to promptly refund any unearned fee upon the lawyer’s withdrawal

from employment—Six-month suspension and $15,000 restitution.

(No. 2011-0464—Submitted September 7, 2011—Decided March 22, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-037.

__________________

Per Curiam.

{¶ 1} Respondent, William Lawrence Summers of Cleveland, Ohio,

Attorney Registration No. 0013007, was admitted to the practice of law in Ohio in

1969 and is also licensed to practice in Kentucky.

{¶ 2} On April 12, 2010, relator, disciplinary counsel, charged Summers

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

representation of a client who had been charged with multiple felony offenses. A

panel of the Board of Commissioners on Grievances and Discipline conducted a

hearing and issued a report, finding that Summers had (1) charged a clearly

excessive fee, (2) failed to advise his client in writing that if he failed to complete

the representation, the client might be entitled to a refund of all or part of the fee,

(3) failed to promptly refund the unearned portion of his fee at the time of his

withdrawal from the representation, and (4) engaged in conduct that adversely

reflects upon his fitness to practice law. The panel recommended that Summers

be suspended from the practice of law for six months and that the issue of

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restitution be resolved in fee arbitration or other court proceedings. The board

adopted the panel’s findings of fact and misconduct and its recommended

sanction but also recommends that Summers be required to refund the full

$15,000 fee to his client.

{¶ 3} Summers objects to the board’s findings of fact and misconduct

and argues that the recommended sanction and restitution are excessive and

punitive. We overrule Summers’s objections to the board’s findings of fact and

misconduct and overrule his objection with regard to the recommended sanction.

Misconduct

{¶ 4} The panel and board found that the client, Anthony Bell, was 19

years old when he was charged with multiple felony offenses for allegedly

assaulting a police officer during a brawl in the stands at a professional baseball

game between the Cleveland Indians and New York Yankees. Anthony, a

resident of upstate New York who had no criminal record, insisted he was

innocent; he maintains that position today.

{¶ 5} Anthony and his family knew no one in Cleveland. Acting on the

referral of a bondsman, and with his family’s financial support, Anthony retained

Summers to defend him. From the beginning of the representation, Anthony and

his family never equivocated in expressing what they wanted from Summers:

exoneration of the charges.

{¶ 6} Summers’s first fee agreement with the Bell family was executed

around the time of Anthony’s arraignment in late April 2008. At the initial

meeting, Summers secured an advance of $1,000 for expenses and a retainer of

$2,500 from the family. And “to do a favor for them, to be kind to them,”

Summers agreed to reduce his hourly charge from $350 per hour to $250 per

hour. Nonetheless, when Anthony’s family received Summers’s first invoice

shortly after July 1, 2008, they discovered that Summers had charged them $350

per hour, the initial $2,500 retainer had been exhausted, they owed Summers an

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additional $2,500, and they were being charged for work performed by

Summers’s associate, Aaron Baker, at the rate of $125 per hour.

{¶ 7} Baker evidently had worked for Summers for years but had only

been licensed to practice law for several months when Summers assigned him to

this case. Summers avers that Baker’s time was normally billed at $175 per hour

but that Summers had also reduced Baker’s rate for this case.

{¶ 8} Upon the Bells’ inquiry, Baker acknowledged the $100 per hour

billing discrepancy and assured them that the bill would be corrected. Rather than

adjust the bill himself, Baker asked Anthony’s mother to pay the corrected

amount. The Bell family never received an invoice with the correct billing rate

and did not pay the erroneous invoice. Summers continued to represent Anthony

for the next two months without a word about the nonpayment.

{¶ 9} Less than one week before a pretrial hearing set for September 9,

2008, however, Summers informed Anthony that he was in breach of the fee

agreement and threatened to withdraw from his representation unless a new fee

agreement was secured. In doing so, Summers did not focus on the billing issue

or nonpayment of fees as a reason for the alleged breach. Rather, Summers

chastised Anthony’s parents for their “interference” with his representation and

stated that “there was something standing in the way of him completing the

case.”1

{¶ 10} Anthony testified that he was scared out of his mind by Summers’s

threat to withdraw. His parents were worried about retaining new counsel; they

did not think that they could afford to pay new counsel in addition to paying

1. At the time, Summers was in conflict with a private investigator he had retained to assist in

Anthony’s case. He believed that the investigator had performed unauthorized work in the case,

made derogatory or negative statements to the Bells about him, and tried to refer Anthony and his

parents to another attorney to represent them in the case.

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Summers’s fee. The Bells therefore agreed to a new fee agreement—a flat-fee

arrangement—with Summers.

{¶ 11} The flat-fee agreement specified that Anthony and his family

would pay $15,000 to Summers “in addition to any and all amounts already

paid.”2 The agreement provided that $15,000 was all that Anthony would owe,

regardless of the time that Summers would spend on his behalf, including work

through the investigation “and, if necessary, through the trial, and if necessary,

sentencing, or other disposition of the case.”

{¶ 12} In the fee agreement, Summers characterized the $15,000 fee as

nonrefundable and, despite the requirements of Prof.Cond.R. 1.5(d)(3), did not

advise the client and his family that they might be entitled to a refund of all or

part of the fee if he failed to complete representation. In fact, although Summers

initially insisted that he had read each word of the retainer to Anthony and his

parents and explained each paragraph to them, he later admitted that he had not

read to them the paragraph about the fee not being refundable. And when

Anthony’s mother subsequently sent an e-mail to Summers asking reasonable

questions about the flat-fee retainer and what it meant, Summers responded with

an e-mail that was, at best, impatient and intemperate, and at worst, scathing. In

that e-mail, he also stated that the $15,000 flat fee “will cover all of the Attorney

fees for the matter to the end, regardless of what time we have to spend which is a

benefit to you. If you discharge us, you will however owe us for all of our time

spent thus far, less the initial retainer. You will also owe us for bringing the new

Lawyer up to speed.” (Underlining sic.)

{¶ 13} Four months after extracting the flat-fee agreement, Summers’s

representation abruptly ended. After collecting $17,726.01 in fees, Summers

2. When the Bells questioned the initial bill sent by Summers, Baker’s response stated, “Our

retainer on a case like this would typically be $15,000. Because of your circumstances, we agreed

to a heavily reduced retainer of $2,500, and agreed to bill you for our time as we went along. This

arrangement was based upon anticipated prompt payment.”

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called Anthony in December and told him that “things weren’t looking good, and

he was going to try to work out a plea.” The following month, Summers

screamed at Anthony’s father that he was “done” and “finished.” After nine

months of representing Anthony, Summers refused to continue the representation

and then moved to withdraw, without securing a plea agreement for his client or

otherwise finishing representation.

{¶ 14} The board found by clear and convincing evidence that Summers

violated Prof.Cond.R. 1.5(d)(3) (prohibiting a lawyer from charging a flat fee

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). We expressly reject Summers’s protestations that his failure to

include the language was an honest mistake that arose from his use of a form

document intended for use in Kentucky, where, he argues, such notification is not

required.

{¶ 15} The board also found that Summers violated Prof.Cond.R. 1.5(a)

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

illegal or clearly excessive fee), 1.16(e) (requiring a lawyer to promptly refund

any unearned fee upon the lawyer’s withdrawal from employment), and 8.4(h)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the

lawyer’s fitness to practice law). The board challenged Summers’s claim, and the

testimony of two experienced criminal-defense attorneys, that he was entitled to

the entire $15,000 fee based upon the hours he had spent on the case multiplied by

his then hourly rate of $400. Prof.Cond.R. 1.5(a) lists a number of factors that

must be considered in determining whether a fee is reasonable.3 In determining

3. {¶ a} Factors to be considered under Prof.Cond.R. 1.5(a) include:

{¶ b} (1) the time and labor required, the novelty and difficulty of the questions involved, and

the skill requisite to perform the legal service properly;

{¶ c} (2) the likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer;

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that the fee was clearly excessive, the board noted that Summers had not

interviewed any witnesses, the prosecutor had yet to turn over his responses to a

discovery request, no motions to suppress had been filed, no trial date had been

set, and Summers had failed to complete the representation that he had agreed to

see through to trial or sentencing. Moreover, the board found that Summers had

fabricated reasons for withdrawing from representing Anthony, claiming that he

and his parents were difficult to work with and had unrealistic expectations about

his prospects for exoneration, as well as accusing them of attempting to suborn

perjury.

{¶ 16} Summers objects to the board’s findings of fact and misconduct,

arguing that the method he used to calculate his fee was appropriate, that relator

could not prove that his fee was clearly excessive in the absence of expert

testimony, that he substantially complied with the requirements of Prof.Cond.R.

1.5(d)(3) by providing an itemized bill to justify his retention of the entire flat fee,

and that because there is insufficient evidence to prove that his fee is clearly

excessive, there is also insufficient evidence to support a finding that he violated

Prof.Cond.R. 8.4(h).

{¶ 17} Having carefully reviewed the record, we conclude that these

objections are without merit. Although the time spent and the experience,

reputation, and ability of the lawyer providing the services are factors to be

considered in determining whether a fee is reasonable, they are not the only

factors relevant to that determination. Indeed, the rule identifies both the results

{¶ d} (3) the fee customarily charged in the locality for similar legal services;

{¶ e} (4) the amount involved and the results obtained;

{¶ f} (5) the time limitations imposed by the client or by the circumstances;

{¶ g} (6) the nature and length of the professional relationship with the client;

{¶ h} (7) the experience, reputation, and ability of the lawyer or lawyers performing the

services; and

{¶ i} (8) whether the fee is fixed or contingent.

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obtained and the nature of the fee, be it fixed or contingent, as relevant

considerations. Prof.Cond.R. 1.5(a)(4) and (8).

{¶ 18} When a lawyer agrees to represent a client through the conclusion

of the case for a flat fee, and that lawyer withdraws from representation without

cause before the work is completed, he cannot retain the entire flat fee by

resorting to a mathematical calculation of his billable hours. To hold otherwise

would leave clients at the mercy of lawyers who charge significant flat fees to

provide complete representation only to withdraw when the demands of the case

become too onerous. While we recognize that Summers is entitled to be

compensated for the services he has provided, the Bells are also entitled to receive

a benefit for their flat-fee bargain.

{¶ 19} Notwithstanding Summers’s insistence that he kept “copious”

billing records, his invoices to the Bells had numerous errors, and his billing was

excessive for the amount of work completed. And he violated Ohio law with an

illegal nonrefundable flat-fee agreement.

{¶ 20} And as the board concluded, “Respondent took great pains during

the hearing to portray the Bells as difficult people whose conduct made continued

involvement with them impossible. However, the panel simply does not believe

Respondent’s allegations and concludes that his complaints regarding the Bells’

conduct are nothing more than a fabrication designed to convince the panel that

he had an acceptable basis for his eventual discharge of the Bells as clients.”

Summers asserted several reasons for withdrawing.

{¶ 21} First, he claimed that his investigator had taken the Bells to see

another lawyer “to try and get him to take over the case.”

{¶ 22} Second, Summers asserted that there were “several instances of

situations where [the Bells] were just incredibly unreasonable. And they started to

have times where they were not telling the truth, so it was a whole package that

already started in August * * *.” But when asked, under oath, what the Bells had

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lied about, Summers responded, “I don’t remember.” Summers did complain that

Anthony had lied about his cell phone not working.

{¶ 23} Third, Summers claimed that he would answer Anthony’s

questions about his defense only to be subsequently questioned by his parents

about what he had said to Anthony. He intimated that the Bells were interfering

with his representation by second-guessing his decision making. The record does

not support those contentions.

{¶ 24} The Bells, who wanted their “son to have the best counsel

possible” in a serious criminal case in which he faced incarceration, admit that

initially they asked many questions of Summers in an effort to understand what

was happening. But after receiving the first invoice that showed minimum

quarter-hour billing for responding to even brief e-mails, the Bells insist that they

ceased almost all communication with Summers. As Mrs. Bell testified, when the

family saw the charges they were incurring for communications, “pretty much all

communications stopped from there. We barely talked.”

{¶ 25} Even after executing the flat-fee agreement, the Bells had nothing

but incidental communication with Summers and “no meaningful discussions,

communications, [or] correspondence of any kind.”

{¶ 26} Anthony observed that Summers “did not take kindly to a simple

question” from his mother, and thereafter Anthony asked few questions himself.

He knew that it “became very expensive to communicate with [Summers],

especially through e-mails.” And Anthony was afraid to even take the time to

read the flat-fee agreement because “we didn’t want to take too much of his time,

to save money.”

{¶ 27} Mrs. Bell also testified about Summers’s demeanor, describing

how he “blew up” and exploded when she asked about the efforts to secure a

video and video expert and how her husband was subjected to a “one-sided

screaming fiasco by Mr. Summers” when Summers called to announce he was

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done with the case. That call reduced her husband to tears and forced him to

plead with Summers, “Don’t do this to my son. Please don’t do this. I’m begging

of you, don’t do this.” As Mrs. Bell said, “[W]e were treated * * * like low life.”

{¶ 28} The fact that the Bell family asked questions of Summers did not

make them obstructionist, difficult, or contemptuous. Moreover, Summers knew,

or should have known, that the Bells would ask questions of him. Summers met

the Bell family at the outset of representation and included them as signatories in

the retainer. He knew that this family was committed to obtaining justice for their

son but were inexperienced with the legal system. Indeed, he promised them that

their calls would be returned promptly, and he had no trouble depositing the

checks they wrote to him for thousands of dollars in fees, even while he

complained that they were “interfering” with the representation that those checks

paid for by simply asking questions about the progress (or lack thereof) in the

defense of their son.

{¶ 29} Finally, Summers suggested that his withdrawal was necessary

because of the Bells’ unethical conduct in asking him “to commit perjury on the

stand.” The specific context of that claim is not clear given the cryptic testimony

Summers provided on that point, but Summers intimated that the Bells had

identified a witness who would testify falsely about the incident at the ball game

in an effort to exonerate Anthony. The Bells, however, denied any knowledge of

that witness.

{¶ 30} The board’s finding that Summers’s contentions had no merit is

amply supported by the record. Summers failed to establish that the Bells

interfered with his representation or that the Bells monopolized his time with

questions, acted dishonestly, or otherwise acted inappropriately. Certainly, there

is no support in this record for the scandalous claim that the Bells were suborning

perjury. The board found that Summers terminated representation of Bell

“without justifiable cause.”

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{¶ 31} The affronts to the Bells and the profession did not stop with

Summers’s withdrawal from representation. After withdrawing, Summers

submitted a final invoice to Anthony and his family. That invoice showed that an

additional $2,586.49 was due. Billing records support the board’s conclusion that

Baker, not Summers, did much of the work on this case. And Summers had the

temerity not only to charge Anthony and his family $1,425 for preparing the

motion to withdraw as Anthony’s counsel, but to then charge them for Summers’s

work on his (Summers’s) complaint to a state agency claiming that the private

investigator he hired had acted unethically in her relationship with the Bells.

{¶ 32} Having carefully considered the record before us, we conclude that

Summers’s objections are without merit and therefore adopt the findings of fact

and misconduct of the board.

Sanction

{¶ 33} 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(B). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

{¶ 34} As aggravating factors, the board found that Summers acted with a

dishonest and selfish motive, cooperated only grudgingly in the disciplinary

process with an air of righteous indignation, was evasive and lied during his

testimony at the panel hearing, refused to acknowledge the wrongful nature of his

conduct, harmed vulnerable clients, and failed to make restitution. See BCGD

Proc.Reg. 10(B)(1)(b), (e), (f), (g), (h), and (i). Mitigating factors found by the

board include Summers’s 41 years of practice without prior discipline and his

good character and reputation apart from the underlying disciplinary offense, as

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demonstrated by approximately 50 letters from attorneys, judges, family

members, and others.

{¶ 35} Citing Summers’s conduct toward the Bells and his attitude

throughout the disciplinary proceedings, the panel recommended that Summers

serve an actual six-month suspension from the practice of law and that the issue of

restitution be left to a fee arbitration or court proceeding initiated by the Bells.

The board agreed that Summers should be suspended for six months but

recommends that he be required to return the entire $15,000 fee to the Bells.

{¶ 36} Summers objects to the recommended sanction, arguing that it is

excessive and punitive in light of relator’s failure to submit any expert testimony

or other evidence to establish a reasonable fee for the services he provided and the

mitigating factors in this case.

{¶ 37} To be sure, the record here is replete with letters from judges,

lawyers,4 and family members who have experienced positive interactions with

Summers and who cite the contributions Summers has made to the bar and

community and discuss his good reputation.

{¶ 38} Here, there is no dispute that Summers has been highly successful

around the state and the country in defending those charged with sensational and

news-garnering crimes, and in what Summers boasts as “high profile, high-line

cases.” There is no suggestion that he has not served all of those clients quite

well. But this case is about the services he rendered in a far less public case, with

a far less public client.

{¶ 39} As Summers knew, Anthony suffered from a social-anxiety

disorder, and he and his family were very troubled by the charges against him,

which carried with them the specter of imprisonment. Neither he nor his family

4. One of the character letters was written by an attorney whom this court has publicly

reprimanded for improper billing practices. Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103,

2006-Ohio-6510, 858 N.E.2d 368.

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was experienced with the law generally or the criminal-justice system

specifically. They had never before retained an attorney. As characterized by the

board, Anthony and his family were vulnerable and were “unsophisticated,

working class people” who had to borrow the $15,000 flat-fee retainer from Mr.

Bell’s employer to continue Summers’s representation. The board found that

after Summers was paid, “there was simply no more money to be had for legal

fees and other defense costs. Respondent knowingly left Tony Bell destitute

* * *.” Summers left his client without representation and then added the insult of

charging his client for the time spent preparing to withdraw from representation.

{¶ 40} When confronted with the fact that the fee agreement violated

Ohio law, Summers refused to admit any wrongdoing. Instead, he averred that

when meeting with the client and his family, he was simply confused and

mistakenly accessed a flat-fee agreement that is authorized under the laws of

Kentucky, where he also practices. Summers begrudgingly admitted that the

agreement violated Prof.Cond.R. 1.5(d)(3) but maintained that his error was a

mere oversight. He persists in this position even when confronted with the

language of the agreement, which repeatedly referred to Ohio law rather than

Kentucky law.

{¶ 41} In short, rather than accepting any responsibility in this matter,

Summers has blamed his clients and others. The record amply demonstrates that

he has been condescending to disciplinary counsel, that he only grudgingly

cooperated with the disciplinary process, that he has shown “an attitude of

righteous indignation,” and that his testimony was laced with “lies and

evasiveness.” On these points alone, the cases in which we decided to stay the

suspensions of those who have previously appeared before us are clearly

distinguishable.

{¶ 42} In Dayton Bar Assn. v. Schram, 98 Ohio St.3d 512, 2003-Ohio-

2063, 787 N.E.2d 1184, we publicly reprimanded the respondent for charging an

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illegal fee in violation of former DR 2-106(A) and for failing to promptly pay

client funds the client was entitled to receive in violation of former DR 9-

102(B)(4). In that case, however, the respondent did not act with indignation and

evasiveness in the disciplinary process. To the contrary, she cooperated with the

relator, agreed to participate in a fee-arbitration program, and after her client

declined to participate in that program, made full reimbursement to her client

approximately nine months before the deadline set for doing so. Id. at ¶ 5. And

there was no suggestion that she had been disrespectful to her client, abandoned

him without counsel, acted with a selfish or dishonest motive, or refused to

acknowledge her wrongful conduct. In light of those circumstances, the relator

and the respondent entered a discipline-by-consent agreement, which this court

adopted.

{¶ 43} In Columbus Bar Assn. v. Mills, 109 Ohio St.3d 245, 2006-Ohio-

2290, 846 N.E.2d 1253, we again confronted a lawyer who charged an excessive

fee and committed other violations of the disciplinary rules. But she, like the

respondent in Schram, fully cooperated with the process and promptly remedied

at least some of the billing errors she had made. Id. at ¶ 10, 18. In those

circumstances, we adopted the parties’ stipulations and agreed sanction, which

included a one-year stayed suspension, the appointment of an attorney to monitor

the respondent’s practice, and participation in a fee-dispute program. Id. at ¶ 21.

{¶ 44} Two justices disagreed with the sanction imposed in Mills. The

dissenting judges believed that rather than forcing the respondent’s client to

arbitrate the fee issue, the court should have ordered repayment. “We have

already found that respondent collected an excessive fee. Why should we require

[the client] to obtain new counsel and go through further legal hassles to collect

an overcharged fee? We should conclude this matter now.” Id. at ¶ 23 (Stratton,

J., dissenting). So, too, in this case.

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{¶ 45} The Bells have suffered enough. The board has determined that

Summers violated Ohio law, charged an excessive and illegal fee, and fabricated

mistruths about his clients. And he has shown disdain for the disciplinary process.

{¶ 46} Having considered Summers’s misconduct and weighed the

aggravating and mitigating factors as well as the sanctions imposed in comparable

cases, we conclude that a six-month suspension and repayment of the $15,000 to

the Bell family are the appropriate sanctions for the misconduct in this case.

{¶ 47} In rendering our decision, we note that in Disciplinary Counsel v.

Jackson, 127 Ohio St.3d 250, 2010-Ohio-5709, 938 N.E.2d 1021, we were

presented with an attorney who had charged an excessive fee, refused to refund

the unearned amount, and was dishonest during the disciplinary investigation,

among other violations. We emphasized the fact that although the respondent had

offered limited cooperation in the disciplinary proceedings, his continued

misconduct throughout the investigation and panel hearing outweighed his

cooperation. Id. at ¶ 26. We imposed a two-year suspension of his license, and

stayed only six months of that suspension. Id. at ¶ 2. Similar, continued

misconduct is present in this case. Although the underlying charges in this case

are not as severe as those in Jackson, Summers’s continued misconduct

throughout the disciplinary proceedings is a significant aggravating factor that

must be weighed heavily.

{¶ 48} In Disciplinary Counsel v. Johnson, 113 Ohio St.3d 344, 2007-

Ohio-2074, 865 N.E.2d 873, the attorney charged excessive fees to his elderly and

vulnerable clients. We found that by “exploiting his incompetent wards * * * [the

attorney] lessened public confidence in the legal profession and compromised its

integrity.” Id. at ¶ 88. We imposed a one-year suspension of the attorney’s

license to practice law, with the last six months of the suspension stayed. Johnson

is instructive here because Summers similarly exploited a vulnerable client. The

Bells had no experience with the criminal-justice system, were not from

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Cleveland, and had limited financial means to pay large retainers. In addition,

Anthony suffers from an anxiety disorder. Summers nevertheless charged the

Bells a clearly excessive fee and then treated them in such a manner that they felt

he regarded them as “low life.”

{¶ 49} In light of the misconduct and aggravating and mitigating factors

in this case, William Lawrence Summers is suspended from the practice of law in

Ohio for six months. Any application for reinstatement must include proof that

Summers has made restitution of $15,000 to the Bell family. Costs are taxed to

Summers.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP,

and MCGEE BROWN, JJ., concur.

O’DONNELL, J., dissents.

__________________

O’DONNELL, J., dissenting.

{¶ 50} I respectfully dissent from the majority’s finding that Summers’s

conduct warrants an actual suspension from the practice of law in Ohio.

{¶ 51} In accord with the board’s recommendation, the majority has

ordered that Summers serve an actual six-month suspension from the practice of

law and that he be required to return the entire $15,000 fee to the Bells. In

determining the appropriate sanction for attorney misconduct, we have explained

that “ ‘the primary purpose of disciplinary sanctions is not to punish the offender,

but to protect the public.’ ” Disciplinary Counsel v. Fumich, 116 Ohio St.3d 257,

2007-Ohio-6040, 878 N.E.2d 6, ¶ 17, quoting Disciplinary Counsel v. O’Neill,

103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53.

{¶ 52} I offer no excuses for Summers’s conduct, which arose out of a fee

dispute, but in sanctioning that conduct, I would accord greater weight to

Summers’s long and distinguished career. He has submitted letters from 6 current

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and former judges from Ohio municipal (Judge Connally), common pleas (Judges

Burnside and Sutula), and appellate (Judge Rogers) courts, the Kentucky Supreme

Court (Justice Keller), and the United States District Court for the Northern

District of Ohio (Judge Lambros), from 30 attorneys, and from 13 lay people who

attest to his integrity, his high moral values, and his excellent reputation in the

legal community. They speak of his strong commitment to the legal profession,

his participation in a number of professional organizations, and his pro bono

work, as well as his hard work and dedication to his clients.

{¶ 53} Based upon these attestations and the facts in this case, I conclude

that Summers’s conduct is an isolated incident in an otherwise unblemished 42-

year legal career. In my view, an actual suspension from the practice of law is

unnecessary to protect the public from future harm, but rather is excessive and

punitive in light of the mitigating factors in this case. Therefore, I would impose

a six-month suspension, all stayed, on the conditions that Summers commit no

further misconduct and submit to fee arbitration to determine the amount of

refund, if any, owed to the Bell family.

__________________

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

Assistant Disciplinary Counsel, for relator.

Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., Michael L. Close,

and Dale D. Cook, for respondent.

______________________

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