The opinion
[Cite as Cincinnati Bar Assn. v. Stridsberg, 123 Ohio St.3d 69, 2009-Ohio-4182.]
CINCINNATI BAR ASSOCIATION v. STRIDSBERG.
[Cite as Cincinnati Bar Assn. v. Stridsberg,
123 Ohio St.3d 69, 2009-Ohio-4182.]
Attorneys — Misconduct — Wrongful fee taken from workers’ compensation
benefit check respondent knew was overpayment — Excessive fee —
Conduct adversely reflecting on fitness to practice law — Six-month
suspension, stayed on conditions.
(No. 2009-0662 — Submitted June 3, 2009 — Decided August 26, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-061.
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Per Curiam.
{¶ 1} Respondent, Roger C. Stridsberg of Cincinnati, Ohio, Attorney
Registration No. 0021277, was admitted to the practice of law in Ohio in 1949.
The two violations at issue in this case arose out of respondent’s representation of
Dawn Haggard concerning two workers’ compensation claims. The Board of
Commissioners on Grievances and Discipline recommends that we suspend
respondent’s license to practice for six months, conditionally staying the entire
suspension on the condition of restitution to the Bureau of Workers’
Compensation (“BWC”) in the amount of $2,159.96. We agree that respondent
engaged in professional misconduct as found by the board and that a six-month
suspension, conditionally stayed, is appropriate.
{¶ 2} Relator, Cincinnati Bar Association, charged respondent in a three-
count complaint with violations of the Disciplinary Rules of the Code of
Professional Responsibility. The parties filed a stipulation of facts, including a
statement of mitigating and aggravating factors and a recommended sanction, and
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waived a formal hearing. A panel of board members made findings of fact and
conclusions of law and adopted the recommended sanction of the parties, a six-
month suspension stayed on conditions.
{¶ 3} The parties have not objected to the board report.
Misconduct
{¶ 4} In July 2000, respondent filed a motion on Haggard’s behalf
requesting temporary total disability benefits (“TTD”). On September 1, 2000, a
hearing was held on the motion before an Industrial Commission district hearing
officer, which resulted in an order allowing TTD for the period December 23,
1998, to January 31, 2000, as well as from February 11, 2000, to June 1, 2000.
The order was mailed on September 6, 2000.
{¶ 5} Haggard’s employer appealed the September 6, 2000 order. A
staff hearing officer modified the order, changing the commencement date of the
TTD payments from December 23, 1998, to December 23, 1999. The modified
order was mailed on November 3, 2000.
{¶ 6} On October 16, 2000, before the staff hearing officer’s order, the
BWC issued three checks payable to respondent and Haggard totaling $12,820.85,
in the respective amounts of $2,859.52, $8,243.65, and $1,717.68. These checks
were based on the district hearing officer’s September 6 order, which allowed an
extra year of TTD payments.
{¶ 7} Respondent deposited the checks into his trust account, and on
October 24, 2000, respondent and Haggard signed a disbursement agreement for
one of the checks, in the amount of $2,859.52, resulting in respondent issuing a
check for $1,906.35 to Haggard and a check for $953.17 to himself for his
contingent fee. The balance of the award paid in the other two checks seemed too
high, so they left the remaining two checks deposited in respondent’s trust
account.
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January Term, 2009
{¶ 8} On November 4, 2000, respondent received notice of an October
13, 2000 order reducing the compensation previously ordered. Five days later,
the BWC mailed a notice of overpayment to respondent and Haggard
individually. Respondent received his copy on November 10, 2000. The notice
stated that an overpayment of $9,454.44, which represented the extra year of
benefits, would be recovered from future payments unless Haggard sent a check
to the BWC in the overpayment amount.
{¶ 9} The parties stipulated that by November 10, 2000, respondent had
been notified of the overpayment and that he was still in possession of those funds
in his trust account. However, at his client’s insistence, respondent executed a
second disbursement agreement with Haggard for the remaining two checks,
which totaled $9,961.33. Respondent disbursed $6,640.89 to Haggard and paid
himself a contingency fee of $3,320.44. Of that contingency fee, $3,151.48
represented funds resulting from the overpayment.
{¶ 10} Before disbursing these amounts, respondent advised Haggard that
most of the money was the result of an overpayment and that Haggard would be
required to pay that money back to the BWC out of future claim awards, if there
were any. Respondent then filed an appeal of the order declaring an
overpayment, but the order was affirmed. Haggard discharged respondent in
2001 and hired new counsel.
{¶ 11} In the fall of 2007, unable to contact respondent, Haggard
contacted relator, the Cincinnati Bar Association, because the BWC was
withholding 40 percent from each payment she was receiving in order to recoup
the overpayment. Relator contacted respondent regarding the fee he took from
the second disbursement, and in response, respondent issued a check in the
amount of $991.52 as partial reimbursement to Haggard through her new counsel.
He also deposited sufficient funds in the trust account in anticipation of repaying
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his client or the BWC the balance of the fee he took out of the second
disbursement.
{¶ 12} The issue before the panel was the appropriateness of the second
contingency fee that respondent took from the overpayment with knowledge that
it was an overpayment. The board found, by clear and convincing evidence, that
respondent violated both DR 1-102(A)(6) (conduct adversely reflecting on the
lawyer’s fitness to practice law) and 2-106(A) (charging an excessive fee). We
accept these findings of misconduct.
Recommended Sanction
{¶ 13} In determining the recommended sanction for respondent’s
misconduct, the board considered the aggravating and mitigating factors set forth
in BCGD Proc.Reg. 10. The parties stipulated and the board found that
respondent (1) refused to acknowledge the wrongful nature of his conduct and (2)
failed to make timely full reimbursement to his client or to the BWC of the
wrongfully taken fee.
{¶ 14} In addition, the parties stipulated and the board found that
respondent (1) had no prior disciplinary history, (2) had made full and free
disclosure to the board and was cooperative in the investigation process, (3)
issued a check in the amount of $991.52 as partial reimbursement to Haggard
through her new counsel, after being contacted by relator, and (4) when it became
apparent that the check for $991.52 to Haggard had not been cashed, respondent
deposited money into his trust account in anticipation of issuing a check to
Haggard and/or to the BWC to repay his share of the overpayment.
{¶ 15} Both parties and the board recommended that respondent be
suspended from the practice of law for a period of six months with the entire six
months stayed on the conditions that respondent pay the BWC the balance of the
wrongfully taken fee ($2,159.96) and commit no further misconduct. In
recommending the sanction, the panel noted that it had reviewed Akron Bar Assn.
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January Term, 2009
v. Watkins, 120 Ohio St.3d 307, 2008-Ohio-6144, 898 N.E.2d 946. The
respondent in that case charged a clearly excessive fee while acting as the trustee
of a client’s revocable living trust by, for example, charging his client a total of
$15,412.50 over a 20-month period for periodically picking up her mail. He was
suspended by the court for six months, all stayed on the condition that he commit
no further misconduct.
Review
{¶ 16} We accept the findings of the board and adopt its recommended
sanction. Respondent is hereby suspended from the practice of law in Ohio for
six months. The entire suspension is stayed on the conditions that he pay
restitution to the BWC in the amount of $2,159.96 within 30 days and that he
commit no further misconduct. If respondent fails to comply with the terms of the
stay, the stay will be lifted, and respondent will serve the entire six-month
suspension from the practice of law. Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Jarrod M. Mohler and Rosemary D. Welsh, for relator.
Andrew S. Adams, for respondent.
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