Dayton Bar Assn. v. Parisi

[Cite as Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879.]

DAYTON BAR ASSOCIATION v. PARISI.

[Cite as Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879.]

Attorneys at law—Misconduct—Six-month stayed license suspension.

(No. 2011-0340—Submitted June 7, 2011—Decided March 8, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-064.

__________________

Per Curiam.

{¶ 1} Respondent, Georgianna I. Parisi of Dayton, Ohio, Attorney

Registration No. 0022538, was admitted to the practice of law in Ohio in 1982. In

August 2009, relator, Dayton Bar Association, filed a complaint alleging that

Parisi had violated the Code of Professional Responsibility and Rules of

Professional Conduct by representing both the proposed guardian and ward in a

guardianship proceeding, collecting legal fees from her client’s account without

court approval while the application for guardianship was pending, and collecting

a clearly excessive fee from an elderly client with diminished mental capacity.1

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

Discipline conducted a hearing, at which it received the parties’ stipulations of

fact, witness testimony, and numerous exhibits. Having considered the evidence,

the panel found that Parisi had engaged in a conflict of interest and conduct

prejudicial to the administration of justice and had charged a clearly excessive

fee. The board adopted the panel’s findings of fact and misconduct and its

recommendation that Parisi be suspended from the practice of law for six months,

1. Relator charged Parisi with misconduct under applicable rules for acts occurring before and

after February 1, 2007, the effective date of the Rules of Professional Conduct, which supersede

the Code of Professional Responsibility. When both the former and current rules are cited for the

same act, the allegation constitutes a single ethical violation. Disciplinary Counsel v. Freeman,

119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.

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with the entire suspension stayed on the condition that she commit no further

misconduct.

{¶ 3} Both parties have objected to the board’s report. Parisi challenges

the sufficiency of the evidence, raises constitutional challenges to several of the

ethical rules that she has been found to have violated, and seeks dismissal of

relator’s complaint. Relator argues that the clearly excessive fee charged by

Parisi is tantamount to misappropriation and therefore warrants a period of actual

suspension.

{¶ 4} For the reasons that follow, we overrule the objections of both

parties and adopt the board’s findings of fact and misconduct, as well as its

recommended sanction.

Misconduct

The Demming Guardianship

{¶ 5} The board found that Parisi began to provide legal services for

Sylvia Demming, a 93-year-old woman who claimed that she was being held

against her will in a nursing home. Concerned about Demming’s financial

welfare and having observed her confusion and disorientation, on November 8,

2007, Parisi applied for guardianship in the Warren County Probate Court. In her

guardianship application, Parisi alleged that Demming was incompetent as a

result of Alzheimer’s-related memory loss, and Parisi submitted an evaluation

from a licensed physician diagnosing Demming with dementia. Seven weeks

later, Parisi had Demming sign a durable power of attorney designating Parisi as

her attorney-in-fact. The next month, Parisi withdrew her own application and

filed a separate application for guardianship on behalf of Demming’s niece.

{¶ 6} Believing that the court no longer had jurisdiction after Demming

informed the court that she had left the county and intended to move out of state,

Parisi sent her bill to Demming’s niece for review. The guardianship proceeding

was not dismissed as Parisi had anticipated; but acting as Demming’s attorney-in-

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fact, Parisi paid her own fees of more than $18,000 without first obtaining the

court’s approval. The probate court later removed Parisi as counsel for both

women, and Parisi returned the money to Demming’s account.

{¶ 7} The board found that by representing both Demming and her niece

in the guardianship proceeding, Parisi violated Prof.Cond.R. 1.7(a)(2) (providing

that a lawyer’s continued representation of a client creates a conflict of interest if

there is a substantial risk that the lawyer’s ability to represent the client will be

materially limited by the lawyer’s responsibilities to another client, a former

client, or a third person or by the lawyer’s own personal interests). The panel also

found that by obtaining a power of attorney over her client’s affairs while her

guardianship application was pending and using it to pay $18,820 of her own

legal fees, Parisi violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from

engaging in conduct that is prejudicial to the administration of justice). Citing the

duplication of other claimed violations and the insufficiency of the evidence, the

board recommended the dismissal of alleged violations of Prof.Cond.R. 8.4(a)

(prohibiting a lawyer from violating or attempting to violate the Ohio Rules of

Professional Conduct) and (b) (prohibiting a lawyer from committing an illegal

act that reflects adversely on the lawyer’s honesty or trustworthiness).

{¶ 8} Parisi challenges the board’s findings of fact and misconduct with

respect to her representation of Demming. First, she argues that this court has

held as a matter of law that simultaneous representation of a proposed ward and

an applicant for guardianship does not present a conflict of interest that requires

disqualification. In support of this argument, Parisi cites In re Guardianship of

Love (1969), 19 Ohio St.2d 111, 48 O.O.2d 107, 249 N.E.2d 794; In re

Clendenning (1945), 145 Ohio St. 82, 30 O.O. 301, 60 N.E.2d 676; and In re

Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683.

{¶ 9} None of the cases, however, stands for the proposition that an

applicant for guardianship has no interest in the determination of the proposed

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ward’s competence or incompetence or that an applicant cannot have an interest

that is adverse to that of the proposed ward. Indeed, the far-reaching and life-

altering consequences of an incompetency determination—involving a judicial

determination that a mental or physical illness or disability has left a person so

mentally impaired that the person is incapable of taking proper care of the

person’s self or property—create an inherent conflict between the proposed ward

and the applicant for guardianship, even if guardianship is ultimately in the

proposed ward’s best interest. Nevertheless, Parisi contends that Prof.Cond.R.

1.14(b) and 1.7(b) and the comments thereto permit attorneys to simultaneously

represent both the proposed ward and the applicant for guardianship and that any

contrary interpretation of those rules cannot constitutionally be applied to her

because she had no notice that her conduct was unethical.

{¶ 10} Prof.Cond.R. 1.14(b) provides: “When the lawyer reasonably

believes that the client has diminished capacity, is at risk of substantial physical,

financial, or other harm unless action is taken, and cannot adequately act in the

client’s own interest, the lawyer may take reasonably necessary protective action,

including consulting with individuals or entities that have the ability to take action

to protect the client and, in appropriate cases, seeking the appointment of a

guardian ad litem, conservator, or guardian.”

{¶ 11} Prof.Cond.R. 1.14(a) directs that “the lawyer shall, as far as

reasonably possible, maintain a normal client-lawyer relationship with the client,”

and comment 92 to the rule emphasizes, “A lawyer who undertakes to represent a

2. Comment 9 to Prof.Cond.R. 1.14 provides, “In an emergency where the health, safety, or a

financial interest of a person with seriously diminished capacity is threatened with imminent and

irreparable harm, a lawyer may take legal action on behalf of such a person even though the

person is unable to establish a client-lawyer relationship or to make or express considered

judgments about the matter, when the person or another acting in good faith on that person’s

behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not

act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other

representative available. The lawyer should take legal action on behalf of the person only to the

extent reasonably necessary to maintain the status quo or otherwise avoid imminent and

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person in such an exigent situation has the same duties under these rules as the

lawyer would with respect to a client.” Thus, the emergency provisions of

Prof.Cond.R. 1.14 do not entirely abrogate a lawyer’s duties to the client under

the Rules of Professional Conduct. Therefore, when taking actions authorized by

Prof.Cond.R. 1.14, the lawyer must still determine whether the representation of

one client will be directly adverse to the other and whether there is a substantial

risk that the lawyer’s ability to consider, recommend, or carry out an appropriate

course of action for one client will be materially limited by the lawyer’s

responsibilities to another client. Prof.Cond.R. 1.7(a).3

{¶ 12} The American Bar Association (“ABA”) Standing Committee on

Ethics and Professional Responsibility has addressed this situation. ABA

Committee on Ethics & Professionalism, Formal Ops. No. 96-404 (1996)

(discussing clients under disability). The ABA recognizes that Model Rule of

Professional Conduct 1.14 (1983, as amended), which is identical to our

Prof.Cond.R. 1.14 in all material respects, permits a lawyer to file a petition for

irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has

the same duties under these rules as the lawyer would with respect to a client.”

3. Prof.Cond.R. 1.7 provides:

“(a) A lawyer’s acceptance or continuation of representation of a client creates a

conflict of interest if either of the following applies:

“(1) the representation of that client will be directly adverse to another current client;

“(2) there is a substantial risk that the lawyer’s ability to consider, recommend, or carry

out an appropriate course of action for that client will be materially limited by the

lawyer’s responsibilities to another client, a former client, or a third person or by the

lawyer’s own personal interests.

“(b) “A lawyer shall not accept or continue the representation of a client if a conflict

of interest would be created pursuant to division (a) of this rule, unless all of the

following apply:

“(1) the lawyer will be able to provide competent and diligent representation to each

affected client;

“(2) each affected client gives informed consent, confirmed in writing;

“(3) the representation is not precluded by division (c) of this rule [protecting certain

representations regardless of client consent].”

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guardianship of a client when no less-restrictive alternatives are available, but

concludes that “a lawyer with a disabled client should not attempt to represent a

third party petitioning for a guardianship over the lawyer’s client.” The ABA

observes: “Rule 1.14(b) creates a narrow exception to the normal responsibilities

of a lawyer to his client, in permitting the lawyer to take action that by its very

nature must be regarded as ‘adverse’ to the client. However, Rule 1.14 does not

otherwise derogate from the lawyer’s responsibilities to his client, and certainly

does not abrogate the lawyer-client relationship. In particular, it does not

authorize a lawyer to represent a third party in seeking to have a court appoint a

guardian for his client. Such a representation would necessarily have to be

regarded as ‘adverse’ to the client and prohibited by Rule 1.7(a), even if the

lawyer sincerely and reasonably believes that such representation would be in the

client’s best interests, unless and until the court makes the necessary

determination of incompetence. Even if the court’s eventual determination of

incompetence would moot the argument that the representation was prohibited by

Rule 1.7(a), the lawyer cannot proceed on the assumption that the court will make

such a determination. In short, if the lawyer decides to file a guardianship

petition, it must be on his own authority under Rule. 1.14 and not on behalf of a

third party, however well-intentioned.” Id.

{¶ 13} We concur in this analysis and conclude that the guardianship

proceeding that Parisi initiated on behalf of Demming’s niece, no matter how

well-intentioned, was necessarily adverse to Demming. Therefore, Parisi’s

actions in representing both women in the guardianship proceeding violated

Prof.Cond.R. 1.7, regardless of Demming’s assent or objection to the process.

And in light of Demming’s diminished capacity, as evidenced by Parisi’s own

petition for guardianship, we cannot countenance Parisi’s arguments that

Demming was either competent to execute the durable power of attorney or

capable of giving informed consent to the dual representation. See Disciplinary

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Counsel v. Heiland, 116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 4-6

(finding that an attorney had engaged in conduct adversely reflecting upon his

fitness to practice law by witnessing his mother-in-law execute a power of

attorney just 29 days after filing a complaint in which he had alleged that she was

incompetent).

{¶ 14} Parisi’s constitutional objections to the application of Prof.Cond.R.

1.7 and 1.14 to her conduct are also without merit. “ ‘It is a basic principle of due

process that an enactment is void for vagueness if its prohibitions are not clearly

defined. Vague laws offend several important values. First, because we assume

man is free to steer between lawful and unlawful conduct, we insist that laws give

the person of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.’ ” In re Complaint Against Harper

(1996), 77 Ohio St.3d 211, 221, 673 N.E.2d 1253, quoting Grayned v. Rockford

(1972), 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222. In this case,

Prof.Cond.R. 1.14 expressly permits the attorney to consult with persons who

may take action to protect the client, to seek the appointment of a guardian in

some circumstances, and to reveal client confidences otherwise protected by

Prof.Cond.R. 1.6 to the extent reasonably necessary to protect the client’s

interests. It does not, however, authorize the attorney to represent third parties in

guardianship proceedings against a client or otherwise permit any departure from

Prof.Cond.R. 1.7, which generally prohibits attorneys from representing multiple

clients who have conflicting interests. Because Prof.Cond.R. 1.14 clearly

delineates the conduct permitted when an attorney represents a client with

diminished capacity and does not purport to alter the prohibition against engaging

in conflicts of interest set forth in Prof.Cond.R. 1.7, we reject Parisi’s argument

that those rules are void for vagueness and cannot constitutionally be applied to

her.

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{¶ 15} We also reject Parisi’s claims that she was entitled to an

evidentiary hearing prior to her disqualification in the probate matter. We have

held that a court must hold an evidentiary hearing and issue findings of fact in

ruling on a motion for disqualification of an individual or of an entire firm when

an attorney has left a law firm that represents one party to an action and has joined

a firm that represents an opposing party. Kala v. Aluminum Smelting & Refining

Co., Inc. (1998), 81 Ohio St.3d 1, 688 N.E.2d 258, syllabus. But we have never

held that a court must hold an evidentiary hearing before ruling on every motion

for disqualification. Nor are we willing to impose such a requirement when an

attorney has admitted that she represents two clients, it is apparent that those

clients have inherently conflicting interests, and the entire basis of the legal action

is to determine that one of those clients is incompetent to handle his or her

personal affairs—incompetence that would presumably render the client unable to

give informed consent to the conflict.

{¶ 16} Parisi’s claim that her use of Demming’s power of attorney to pay

her legal fees during the pendency of the guardianship proceeding was not

prejudicial to the administration of justice is likewise without merit. Regardless

of Parisi’s claims that the probate court no longer had jurisdiction over the

guardianship proceeding due to Demming’s purported departure from the county

and her expressed intent to move to Florida, the action remained pending at the

time she paid her own fees. And as the board found, the very power of attorney

that Parisi used to make the unauthorized payment was obtained at a time when

she had reason to believe that Demming was incompetent. Therefore, we have no

difficulty concluding that Parisi’s conduct violated Prof.Cond.R. 8.4(d).

{¶ 17} Having rejected Parisi’s factual and constitutional objections, we

adopt the board’s findings of fact and misconduct with respect to count one of

relator’s complaint.

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The Royal John Greene Matter

{¶ 18} In August 2004, Royal John Greene, a widower in his mid-70s

whose extended family was either unwilling or unable to assist in his care,

appointed Parisi his attorney-in-fact. At that time, it was apparently understood

that Parisi would be paid at her usual attorney hourly rate for legal and nonlegal

services, but this agreement was not reduced to writing. While Greene was

competent at the time that he retained Parisi, his physical and mental health

declined significantly during the course of her representation. As early as

November 2005, Parisi’s records indicate that Greene was “sometimes forgetful.”

Billing records express concern about his increased memory loss in January 2006,

profound cerebral atrophy and small strokes in August, and confusion in

December.

{¶ 19} Parisi provided some traditional legal services for Greene,

including the preparation of estate-planning documents and the administration of

his wife’s estate. She also advised him about several annuities that he had

purchased. The bulk of her time, however, was devoted to the nonlegal tasks of

managing Greene’s life—overseeing his living arrangements, supervising his

medical care, transporting him to doctors’ appointments and dialysis treatments,

reconciling his bank and brokerage statements, and delivering spending money

and an occasional meal to him. The board found that Parisi had done a good job

taking care of Greene and indicated that without her assistance, he probably

would not have been able to achieve his goal of avoiding a nursing home.

{¶ 20} The board found that most of the work that Parisi and her staff

performed did not require legal skill and that in many instances, the client’s

demands for services resulted in costs that were not proportionate to the monetary

importance of the matters involved.

{¶ 21} Having reviewed Parisi’s voluminous and detailed records

regarding the services provided to Greene, the board found that her conduct

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violated Prof.Cond.R. 1.5(a) and DR 2-106(A) (both prohibiting a lawyer from

making an agreement for, charging, or collecting an illegal or clearly excessive

fee). But citing the insufficiency of the evidence, the board recommends that we

dismiss alleged violations of Prof.Cond.R. 8.4(a) and DR 1-102(A)(1)

(prohibiting a lawyer from violating or attempting to violate the Ohio Rules of

Professional Conduct or a Disciplinary Rule), Prof.Cond.R. 8.4(c) and DR 1-

102(A)(4) (each prohibiting a lawyer from engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation), and Prof.Cond.R. 8.4(d) and DR

1-102(A)(5) (prohibiting a lawyer from engaging in conduct that is prejudicial to

the administration of justice).

{¶ 22} Parisi objects to the board’s finding that she charged a clearly

excessive fee, arguing that among other things, (1) such a finding impairs her

constitutional rights to contract, (2) Prof.Cond.R. 1.5(a) and DR 2-106(A) are

void for vagueness and therefore cannot be constitutionally applied to her, (3)

because relator did not offer any expert testimony regarding the reasonableness of

her fees, there is insufficient evidence to support a finding that her fee was clearly

excessive, and (4) Prof.Cond.R. 1.2 (“Scope of Representation and Allocation of

Authority Between Client and Lawyer”), 1.4 (“Communication”), and 5.7

(“Responsibilities Regarding Law-Related Services”) required her to abide by

Greene’s decisions concerning the objectives of her representation and the means

of pursuing those objectives.

{¶ 23} This court possesses the inherent, original, and exclusive

jurisdiction to regulate all matters relating to the practice of law. Section

2(B)(1)(g), Article IV of the Ohio Constitution. Nonetheless, rules adopted by

this court must comply with the state and federal constitutions. Shimko v. Lobe,

103 Ohio St.3d 59, 2004-Ohio-4202, 813 N.E.2d 669, ¶ 27, quoting Christensen

v. Bd. of Commrs. on Grievances & Discipline (1991), 61 Ohio St.3d 534, 537,

575 N.E.2d 790. While the Fourteenth Amendment to the United States

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Constitution and Section 1, Article I of the Ohio Constitution protect the freedom

of contract, we have long recognized that that freedom is not absolute, but is

subservient to the public welfare. See, e.g., Pittsburgh, Cincinnati, Chicago & St.

Louis Ry. Co. v. Kinney (1916), 95 Ohio St. 64, 115 N.E. 505, paragraph one of

the syllabus. And “compensation for advocacy has never been treated as an

ordinary debt or contractual right, but has since antiquity been regulated by the

prevailing governmental authority possessing the power to control the practice of

law.” Shimko at ¶ 47.

{¶ 24} Prof.Cond.R. 1.5 and DR 2-106(A) prohibit a lawyer from

charging or collecting an illegal or clearly excessive fee and set forth a number of

factors to aid attorneys in determining whether their fees are reasonable. Those

factors include the time, labor, and skill involved in the representation; the

likelihood that the acceptance of the employment will preclude other employment

by the lawyer; the fee customarily charged in the locality for similar services; the

amount involved and the results obtained; the nature and length of the

professional relationship; the experience, reputation, and ability of the lawyer; and

whether the fee is fixed or contingent. Prof.Cond.R. 1.5(a)(1) through (8). The

prohibition against clearly excessive fees is a reasonable restriction of the

freedom of contract that permits attorneys to charge a fee for their services, while

also preserving the integrity of the legal profession. See Shimko, 103 Ohio St.3d

59, 2004-Ohio-4202, 813 N.E.2d 669, ¶ 55 (“virtually all aspects of the practice

of law in general, and remuneration in particular, have always been considered to

lie within the regulatory jurisdiction of the granting or admitting authority and to

be distinct from other types of contractual arrangements”).

{¶ 25} We have previously denounced as a clearly excessive fee charging

legal fees for nonlegal services. Disciplinary Counsel v. Hunter, 106 Ohio St.3d

418, 2005-Ohio-5411, 835 N.E.2d 707, ¶ 17, 25 (attorney rates for administrative

tasks, including picking up mail, depositing checks, paying bills, and arranging

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for lawn care, house cleaning, and the delivery of necessities result in a clearly

excessive fee); Cincinnati Bar Assn. v. Alsfelder, 103 Ohio St.3d 375, 2004-Ohio-

5216, 816 N.E.2d 218, ¶ 22-23 (attorney rates for social interaction with a client

constituted a clearly excessive fee). The factors set forth in Prof.Cond.R. 1.5(a)

and the decisions of this court give attorneys a reasonable opportunity to know

what is prohibited and to conduct themselves accordingly. Thus, Parisi’s

freedom-of-contract and void-for-vagueness arguments are without merit.

{¶ 26} Parisi charged over $220,000 for services provided by herself and

her staff and for cost reimbursements during the nearly three years that she

represented Greene. Her billings, however, were replete with charges at her

attorney rate for nonlegal services like arranging and attending Greene’s doctors’

appointments, handling mundane tasks related to Greene’s cable-television and

magazine subscriptions, researching local feline clubs, and arranging for the

replacement of Greene’s watch battery. She billed approximately $13,000 in fees

and expenses for overseeing the partial restoration of Greene’s beloved Jaguar.

{¶ 27} The board found that Parisi’s hourly rates for legal work were

reasonable and that Greene believed that the services Parisi performed were

important, had demanded (for the most part and sometimes irrationally) that she

perform them, and had rejected some services when Parisi sought to have others

provide them. Although relator did not present any expert testimony about the

charges for Parisi’s nonlegal services, it is clear that the bulk of those services

required little, if any, legal skill and that the cost of providing the services was

disproportionate to the benefit that Greene received. There is no question that

those charges specifically addressed by relator and the scores of nonlegal services

billed at attorney rates in Parisi’s 404-page billing record are clearly excessive.

{¶ 28} Parisi’s claims that Prof.Cond.R. 1.2, 1.4, and 5.7 authorized her

conduct must also fail. There is no dispute that these rules require attorneys to

consult with and abide by decisions concerning the objectives of their

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representation and the means by which they are pursued, promptly inform the

client of decisions or circumstances that require the client’s informed consent, and

permit attorneys to perform law-related services on their clients’ behalf. But

nothing in those rules permits attorneys to violate their ethical obligations in

pursuing their clients’ objectives or to charge attorney rates for nonlegal services

at the behest of a client.

{¶ 29} Accordingly, we overrule each of Parisi’s objections, adopt the

board’s findings of fact and misconduct with respect to the Greene representation,

and dismiss the alleged violations of Prof.Cond.R. 8.4(a), (c), and (d) and DR 1-

102(A)(1), (4), and (5) as recommended by the board.

Sanction

{¶ 30} 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 Section 10(B) of the Rules and Regulations Governing Procedure on

Complaints and Hearings Before the Board of Commissioners on Grievances and

Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio

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

{¶ 31} The board found three aggravating factors, including Parisi’s

selfish motive in taking her attorney fees from Demming’s account, her

commission of multiple offenses, and the vulnerability of the clients harmed by

her conduct. See BCGD Proc.Reg. 10(B)(1)(b), (d), and (h).

{¶ 32} As mitigating factors, the board found that Parisi had no prior

disciplinary record in almost 30 years of practice, that she returned the attorney

fees she had collected from Demming’s account before the probate court issued a

formal order for her to do so, that she cooperated in the disciplinary proceedings,

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and that she demonstrated her good reputation and character apart from the

charged misconduct. See BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (e).

Although Parisi denied having committed any ethical violations, the board also

found that she fully acknowledged that she should not have taken her fee from

Demming during the pendency of the guardianship proceeding and that it would

have been a better practice to show Greene her monthly bills, to have him sign

and date them, and to have him personally sign the checks for his legal fees. She

also acknowledged that she should have arranged for someone else to review her

monthly bills before Greene paid them.

{¶ 33} The board recommends that we impose a six-month suspension for

Parisi’s misconduct but, citing the panel’s belief that she will not repeat her

transgressions and the difficult choices Parisi faced in representing these clients as

their mental and physical conditions deteriorated, recommends that we stay the

entire suspension on the condition that she commit no further misconduct. In

support of this recommendation, the board observes that in the absence of fraud or

dishonesty, we have imposed comparable stayed suspensions for attorneys who

have charged or collected a clearly excessive fee. See Akron Bar Assn. v.

Watkins, 120 Ohio St.3d 307, 2008-Ohio-6144, 898 N.E.2d 946, ¶ 6, 15

(imposing a six-month stayed suspension on an attorney who charged his hourly

attorney rate for nonlegal services while serving as the trustee of a revocable

living trust); Cincinnati Bar Assn. v. Alsfelder, 103 Ohio St.3d 375, 2004-Ohio-

5216, 816 N.E.2d 218, ¶ 25, 34 (imposing a one-year stayed suspension for an

attorney who allowed a client to consult him as a friend while charging her for his

time as a lawyer); Disciplinary Counsel v. Dettinger, 121 Ohio St.3d 400, 2009-

Ohio-1429, 904 N.E.2d 890, ¶ 4, 10 (imposing a six-month stayed suspension for

an attorney who borrowed money from a client without disclosing the inherent

conflict of interest or advising the client, or upon the client’s death, his executor,

to seek independent counsel); Disciplinary Counsel v. Jacobs, 109 Ohio St.3d

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252, 2006-Ohio-2292, 846 N.E.2d 1260, ¶ 3-5, 8 (publicly reprimanding an

attorney for representing a husband and wife in their divorce and, while it was

pending, representing each one on other matters without disclosing the conflict of

interest).

{¶ 34} Both parties object to the recommended sanction. Parisi seeks

dismissal of the complaint. Citing Disciplinary Counsel v. Bandman, 125 Ohio

St.3d 503, 2010-Ohio-2115, 929 N.E.2d 442, Toledo Bar Assn. v. Stahlbush, 126

Ohio St.3d 366, 2010-Ohio-3823, 933 N.E.2d 1091, and Disciplinary Counsel v.

Johnson, 113 Ohio St.3d 344, 2007-Ohio-2074, 865 N.E.2d 873, relator argues

that Parisi’s misconduct warrants an actual suspension from the practice of law

with specific conditions imposed upon any stayed portion of that suspension.

{¶ 35} Unlike Parisi’s conduct, however, the misconduct in each of

relator’s cited authorities involved fraud, misrepresentation, or deceit, and two of

the cases involved findings that the attorney had misappropriated client funds.

Bandman withdrew $60,050 from an elderly client’s trust account without the

knowledge or consent of the client or her attorney-in-fact and altered a bank

record and payment records to conceal his misdeeds. Bandman, 125 Ohio St.3d

503, 2010-Ohio-2115, 929 N.E.2d 442, ¶ 7, 10. Because Bandman had

misappropriated client funds, we indefinitely suspended him from the practice of

law and conditioned reinstatement on proof that he has made full restitution. Id.

at ¶ 18-19. And in Stahlbush, we imposed a two-year suspension with the second

year stayed on conditions upon finding that the attorney had deceptively inflated

her billable hours for court-appointed work, billing more than 24 hours per day in

three instances. Stahlbush, 126 Ohio St.3d 366, 2010-Ohio-3823, 933 N.E.2d

1091, ¶ 2-3, 11, 17.

{¶ 36} Of the cases cited by relator, Johnson’s conduct is perhaps the

most comparable to Parisi’s. Johnson represented two elderly sisters—initially as

the attorney-in-fact for one sister, and as a court-appointed guardian for the other.

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Johnson, 113 Ohio St.3d 344, 2007-Ohio-2074, 865 N.E.2d 873, ¶ 5. He sought

to recover more than $800,000 that had been misappropriated by his clients’

former attorney-in-fact, but failed to perform a cost-benefit analysis before

pursuing their claims. Id. at ¶ 71. While he charged a reasonable hourly rate for

his time and maintained detailed billing records, he overworked the client’s case,

billing almost $160,000 to collect $197,683.45. Id. at ¶ 24, 26, 71. We rejected

Johnson’s argument that he was acting at the behest of the sister for whom he had

initially served as attorney-in-fact, observing that she became mentally

incompetent during the representation, as evidenced by a June 1999 order

appointing Johnson as her guardian. Id. at ¶ 12, 74. Johnson had also billed the

sisters separately for his services and failed to disclose to the probate court the

fees and expenses that he had collected pursuant to the power of attorney. Id. at

¶ 17. In determining the appropriate sanction for Johnson’s misconduct, we

observed that deliberate efforts to deceive generally warrant an actual suspension

from the practice of law, and we imposed a one-year suspension, with the last six

months stayed on conditions, including the payment of restitution, and a six-

month period of probation. Id. at ¶ 85, 89.

{¶ 37} In this case, Parisi has engaged in a conflict of interest by

representing both Demming and the niece who sought her guardianship, has

engaged in conduct prejudicial to the administration of justice by paying her own

fees during the guardianship proceeding, and has charged a clearly excessive fee

for nonlegal services that she provided to Greene. But unlike the situations cited

by relator, there have been no findings that Parisi has engaged in fraud,

misrepresentation, or deceit. She returned the $18,820 payment to herself in the

Demming matter and has settled litigation with Greene’s heirs with her agreement

to forgo approximately $25,000 in additional billings and with a $21,000 payment

from her malpractice carrier. Furthermore, the panel believes that Parisi will not

repeat her transgressions, and we defer to that credibility determination because

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the panel members saw and heard her testimony firsthand. Cuyahoga Cty. Bar

Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24.

{¶ 38} Having considered Parisi’s misconduct, the aggravating and

mitigating factors present, and the sanctions imposed for comparable offenses, we

overrule the parties’ objections and adopt the board’s recommended sanction of a

six-month suspension, all stayed on the condition that Parisi commit no further

misconduct. Accordingly, we suspend Georgianna I. Parisi from the practice of

law in Ohio for six months, with the entire suspension stayed on the condition that

she commit no further misconduct. If Parisi fails to comply with that condition,

the stay will be lifted, and she will serve the entire six-month suspension. Costs

are taxed to Parisi.

Judgment accordingly.

PFEIFER, LUNDBERG STRATTON, O’DONNELL, and MCGEE BROWN, JJ.,

concur.

CUPP, J., concurs in part and dissents in part.

O’CONNOR, C.J., dissents and would accept the relator’s recommended

sanction of an indefinite suspension.

LANZINGER, J., dissents and would impose a one-year suspension with six

months stayed.

__________________

CUPP, J., concurring in part and dissenting in part.

{¶ 39} Although I concur in the decision of the court, I would also add as

a condition of the stayed suspension that Parisi submit to the monitoring of her

practice by an attorney designated by relator during the entire term of the stayed

six-month suspension.

__________________

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Gary C. Schaengold and Mark A. Tuss, for relator.

Konrad Kuczak and Dianna M. Anelli, for respondent.

______________________

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