Disciplinary Counsel v. Milhoan

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Milhoan, Slip Opinion No. 2014-Ohio-5459.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2014-OHIO-5459

DISCIPLINARY COUNSEL v. MILHOAN.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Milhoan,

Slip Opinion No. 2014-Ohio-5459.]

Attorneys—Misconduct—Excessive fees—Handling a legal matter without

adequate preparation—Conduct adversely reflecting on fitness to practice

law.

(No. 2014-0201—Submitted April 8, 2014—Decided December 17, 2014.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 2012-040.

_______________________

Per Curiam.

{¶ 1} Respondent, Douglas Alan Milhoan of Middlebranch, Ohio,

Attorney Registration No. 0073219, was admitted to the practice of law in Ohio in

2001.

{¶ 2} On May 14, 2012, relator filed a complaint with the Board of

Commissioners on Grievances and Discipline, charging Milhoan with two

violations of the Disciplinary Rules of the Code of Professional Conduct and three

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violations of the Rules of Professional Conduct arising from his conduct in filing

of virtually identical briefs in 31 of 35 criminal appeals that he was appointed to

handle from decisions of the Ashland County Court of Common Pleas from 2006

to 2010. Milhoan waived his right to a probable-cause hearing, and after he filed

his answer, the matter was set for hearing.

{¶ 3} At the January 16, 2013 hearing, a panel of the board received the

parties’ stipulations of fact and 36 stipulated exhibits and heard testimony from

Milhoan. The day before the hearing, Milhoan had disclosed to relator that he had

been abusing alcohol at the time of his misconduct. He testified that he began

drinking excessively during a series of challenges in his personal life including his

responsibilities as the primary caretaker for his mother (who had suffered a stroke

in 1993), juggling his responsibilities for his mother’s care with those of

parenthood following the birth of his first child in 2004, his mother’s declining

health leading up to her death in late 2004, and several other losses of a more

personal nature in subsequent years. He explained that he had not previously

mentioned his drinking problem, because he was ashamed and did not want to use

it as an excuse for his misconduct. He reported that he had stopped drinking in

January 2011 and had attended a couple of Alcoholics Anonymous meetings with

a neighbor but stated that he had never spoken with a professional about his

problem. After hearing Milhoan’s testimony, the panel continued the hearing to

enable him to obtain an evaluation through the Ohio Lawyers Assistance Program

(“OLAP”).

{¶ 4} When the hearing resumed on October 21, 2013, the panel heard

additional testimony from Megan R. Snyder, M.S.W., L.I.S.W., of OLAP, and

Milhoan. Thereafter, the panel issued a report containing findings of fact and

conclusions of law and recommending that we suspend Milhoan for one year but

stay that suspension on the condition that he make restitution of $8,757.50 to the

Ohio Public Defender’s Office and the Ashland County auditor by paying 50

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percent of his disposable income until the debt is paid in full. The board adopted

the panel’s report in its entirety.

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

Milhoan from the practice of law in Ohio for two years, all stayed on the

conditions that he engage in no further misconduct, remain in compliance with his

OLAP contract, and make restitution of $8,757.50, to be apportioned between the

Ohio Public Defender’s Office and the Ashland County auditor according to the

percentage that each office pays toward the fees for court-appointed counsel in

Ashland County.

Misconduct

{¶ 6} Since being admitted to the bar in 2001, respondent has been a solo

practitioner. In recent years, his practice has consisted of court-appointed work,

primarily in juvenile court. But from 2006 to 2010, the Ashland County Court of

Common Pleas appointed Milhoan to handle 35 criminal appeals. Of those 35

cases, 31 involved appeals from guilty pleas. In each of those cases, Milhoan

filed appellate briefs that were identical except for certain “case-specific

modifications such as names, dates, crimes, sentences, and potential mitigation,”

according to the stipulations.

{¶ 7} The parties stipulated and the board found that each brief (1) was ten

pages long, (2) repeated the same grammatical errors, (3) raised the same

assignment of error—“The imposition of a prison sentence in this case imposes an

unnecessary burden on state’s resources”—(4) failed to cite any case law in

support of the assigned error, and (5) failed to include any information regarding

the cost of incarceration or why the appellant’s sentence would burden the state’s

resources. The briefs cited only one case (for the definition of clear and

convincing evidence) and four sections of the Revised Code—three related to

sentencing and one regarding appeal as a matter of right. And although these 31

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briefs were virtually identical, in 29 of these cases, Milhoan requested at least

three extensions of time to file his appellate briefs.

{¶ 8} Milhoan challenged relator’s allegation that he did not provide good

service for the criminal defendants he was appointed to represent, explaining that

the majority of the appeals were taken from convictions upon guilty pleas and did

not present any appealable issues. Although he acknowledged that his briefs were

sloppy, he testified that when he filed them, he believed that they were better than

Anders briefs. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967) (permitting an attorney who, after conscientious examination

of the record, concludes that a criminal appeal is wholly frivolous to so advise the

court and request permission to withdraw, provided that his request is

accompanied with a brief identifying anything in the record that could arguably

support the client’s appeal). He now recognizes that it would have been more

appropriate to file Anders briefs in many of these cases.

{¶ 9} Milhoan fully acknowledged that he did not keep proper track of the

time he spent on his appellate cases, testifying that he would “go back and

recreate [his] time” when he completed his fee applications. He submitted fee

applications to the Fifth District Court of Appeals in 28 of the 31 cases involving

appeals of guilty pleas, billing an average of 18.49 hours ($924.50) per case. And

he admitted that in three instances he billed two separate clients for the same drive

to the Ashland County clerk of courts to file briefs (approximately 3.0 hours

round trip). Relator calculated that Milhoan double-billed for 8.5 hours of travel

time, for a total of $425, and Milhoan did not object to this calculation. After

relator notified him of the investigation, Milhoan elected not to submit fee

applications for approximately 12 pending appellate matters that he had been

appointed to handle.

{¶ 10} The parties stipulated and the panel and board found that Milhoan

violated DR 6-101(A)(2) (prohibiting a lawyer from handling a legal matter

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without adequate preparation) and Prof.Cond.R. 1.1 (requiring a lawyer to provide

competent representation to a client) by submitting nearly identical briefs in 31

separate cases without providing any case law to support his sole assignment of

error. He also violated Prof.Cond.R. 1.5(a) (prohibiting a lawyer from making an

agreement for, charging, or collecting an illegal or clearly excessive fee) by

failing to properly track the hours he spent working on each case and submitting

fee applications with inflated hours. Lastly, the board found that Milhoan’s

practice of filing of nearly identical briefs for each of his indigent clients’

criminal appeals provided those clients with substandard representation, the

egregiousness of which was further compounded by his continuous pattern of

overbilling the appointed-counsel system for this substandard work. Therefore,

the board made the additional finding that his conduct adversely reflected on his

fitness to practice law in violation of DR 1-102(A)(6) and Prof.Cond.R. 8.4(h)

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

lawyer’s fitness to practice law).

{¶ 11} Having determined that they are supported by clear and convincing

evidence, we adopt the board’s findings of fact and misconduct.

Sanction

{¶ 12} 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).

{¶ 13} The board found that just two aggravating factors are present.

First, Milhoan engaged in a pattern of misconduct, submitting what was

essentially the same brief in 31 separate cases and billing an average of 18.49

hours ($924.50) for what was in effect the same work. See BCGD Proc.Reg.

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10(B)(1)(c). And while noting that there was no evidence that any of Milhoan’s

clients suffered harm as a result of his conduct, the board found that the judicial

system and the public were harmed by his overbilling for indigent representation.

See BCGD Proc.Reg. 10(B)(1)(h); Disciplinary Counsel v. Holland, 106 Ohio

St.3d 372, 2005-Ohio-5322, 835 N.E.2d 361, ¶ 22 (overbilling the state for

providing representation to indigent clients causes “serious harm * * * to the

taxpaying public, the judicial system, and the legal profession”).

{¶ 14} As mitigating factors, the board found that Milhoan has no prior

disciplinary record, has accepted full responsibility for his misconduct, has

provided full and free disclosure to the board, has maintained a cooperative

attitude toward the disciplinary proceedings, and has a positive reputation in the

legal community apart from the charged misconduct. See BCGD Proc.Reg.

10(B)(2)(a), (d), and (e). He has also been diagnosed with a chemical dependency

on alcohol that contributed to his misconduct, has entered into a three-year

contract with OLAP requiring him, among other things, to attend at least two

Alcoholics Anonymous (“AA”) meetings per week, has achieved a sustained

period of full remission, and has received a prognosis from a qualified healthcare

professional that he is capable of practicing law in a competent, ethical, and

professional manner. When the hearing reconvened on October 21, 2013, Megan

Snyder testified that as part of Milhoan’s OLAP contract, he had been attending at

least three AA meetings per week, had obtained a sponsor, had been calling to

check in with OLAP three times per week, and had begun individual counseling

to deal with low-level depression. Therefore, the board concluded that his alcohol

dependency qualified as a mitigating factor pursuant to BCGD Proc.Reg.

10(B)(2)(g).

{¶ 15} Relator recommended that Milhoan be suspended from the practice

of law in Ohio for at least one year but that the suspension be fully stayed.

Relator stated that neither the Ohio Public Defender’s Office nor the Ashland

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County auditor offered any estimate on the amount of restitution that should be

ordered. And acknowledging the difficulty of determining the value of the

services Milhoan had provided, relator suggested that Milhoan be required to pay

restitution of $8,757.50—representing 50 percent of the fees charged in the cases

at issue, plus the $425 he overbilled for trips he made to the Ashland County clerk

of court, with a credit of $5,400 representing one-half of the fees he agreed to

forgo in 12 additional appellate cases.

{¶ 16} In support of its recommended sanction, the board relies on our

decisions in Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-

6510, 858 N.E.2d 368, and Disciplinary Counsel v. Holland, 106 Ohio St.3d 372,

2005-Ohio-5322, 835 N.E.2d 361.

{¶ 17} Agopian submitted inaccurate fee applications for court-appointed

work, some of which gave the appearance that he had performed more than 24

hours of work on a given day. We found, however, that while he did not

accurately record the specific number of hours that he spent on each case or the

exact days on which he had performed the work, he had actually performed all of

the work for which he had billed. Indeed, the evidence demonstrated that he

routinely performed services far exceeding the time for which he submitted

payment requests. Acknowledging that Agopian did not have a prior disciplinary

record or possess any exploitative motive, and crediting him for his full

cooperation in the disciplinary process, his acceptance of responsibility for his

conduct, and the more than 40 letters attesting to his integrity, reputation, and

professionalism, we rejected the recommended sanction of a one-year suspension

and concluded that a public reprimand was the appropriate sanction for Agopian’s

misconduct.

{¶ 18} Holland, in contrast, did not apportion the per-hour charges for his

services in court on a given day among his court-appointed cases. If he

represented three separate clients in a single three-hour court session, he would

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claim three hours for each client, regardless of the amount of time he spent on the

individual case. Holland’s in-court billing sometimes exceeded the number of

hours that the juvenile court in which he practiced was open each day. This

billing practice resulted in outrageous fees, although the overcharges were not

readily apparent, because each case was billed on a separate form and filed at a

separate time. Finding that Holland’s pattern and practice of double billing was

dishonest and deceptive and that its impropriety should have been obvious to him,

we rejected the board’s recommended sanction of a one-year suspension with six

months stayed on conditions and imposed a one-year actual suspension from the

practice of law and conditioned his reinstatement on the payment of full

restitution.

{¶ 19} The board determined that Milhoan’s conduct, when considered

with the relevant aggravating and mitigating factors, falls somewhere between

that of Agopian and Holland. Therefore, the board recommends that we suspend

Milhoan for one year but stay the entire suspension on the conditions that he

engage in no further misconduct and remain in compliance with his OLAP

contract. The board further recommends that Milhoan be required to make

restitution of $8,757.50, but noting that his income in 2012 was just $12,919, the

board recommends that he be required to pay 50 percent of his disposable income

until the obligation is paid in full.

{¶ 20} We believe that a two-year suspension stayed on conditions is the

appropriate sanction for Milhoan’s misconduct. We agree that he should be

required to make restitution of $8,757.50 to be apportioned between the Ohio

Public Defender’s Office and the Ashland County auditor according to the

percentage that each office pays toward the fees for court-appointed counsel in

Ashland County.

{¶ 21} Accordingly, Douglas Alan Milhoan is suspended from the practice

of law in Ohio for two years and ordered to make restitution of $8,757.50 to be

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apportioned between the Ohio Public Defender’s Office and the Ashland County

auditor according to the percentage that each office pays toward the fees for

court-appointed counsel in Ashland County. The entire suspension shall be

stayed on the conditions that he engage in no further misconduct, remain in

compliance with his OLAP contract, and make full restitution to the Ohio Public

Defender’s Office and the Ashland County auditor. If Milhoan fails to comply

with the conditions of the stay, the stay will be lifted and he will serve the full

two-year suspension. Costs are taxed to Milhoan.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

_________________________

Scott J. Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Senior

Assistant Disciplinary Counsel, for relator.

Douglas Alan Milhoan, pro se.

_________________________

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