Mahoning County Bar Association v. Bauer

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

Mahoning Cty. Bar Assn. v. Bauer, Slip Opinion No. 2015-Ohio-3653.]

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. 2015-OHIO-3653

MAHONING COUNTY BAR ASSOCIATION v. BAUER.

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

may be cited as Mahoning Cty. Bar Assn. v. Bauer, Slip Opinion No.

2015-Ohio-3653.]

Attorney misconduct, including attempting to resolve a fee dispute with another

lawyer through the court system rather than through mediation or

arbitration by a bar association—Public reprimand.

(No. 2015-0282—Submitted April 14, 2015—Decided September 10, 2015.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2014-056.

_______________________

Per Curiam.

{¶ 1} Respondent, Roger Richard Bauer of Warren, Ohio, Attorney

Registration No. 0015998, was admitted to the practice of law in Ohio in 1973.

SUPREME COURT OF OHIO

{¶ 2} On July 7, 2014, a probable-cause panel of the Board of

Commissioners on Grievances and Discipline1 certified to the board a single-

count complaint filed against Bauer by relator, Mahoning County Bar

Association. In that complaint, relator alleged that Bauer had committed multiple

ethical violations in attempting to collect fees from the settlement of a personal-

injury case that he had referred to another lawyer.

{¶ 3} The parties entered into stipulations of fact, misconduct, and

aggravating and mitigating factors and agreed that a one-year suspension, all

stayed on conditions, is the appropriate sanction for Bauer’s violation of three

rules governing the ethical conduct of lawyers in Ohio. The parties agreed that

six additional allegations of rule violations should be dismissed.

{¶ 4} The panel granted the parties’ joint motion to waive the hearing and

adopted their agreed stipulations. However, it rejected their agreed sanction and

recommended that Bauer be publicly reprimanded for his misconduct. The board

adopted the findings of fact, conclusions of law, and recommendation of the

panel. We adopt those findings and publicly reprimand Bauer for his misconduct.

Misconduct

{¶ 5} Sometime in 2000, a friend contacted Bauer to ask him whether he

knew any attorneys who handled medical-malpractice cases. According to Bauer,

after this discussion, he met with his friend’s sister, who was concerned that her

daughter, who was less than a year old, had brain damage caused by medical

negligence during her birth. Bauer recommended that the mother meet with

another attorney, who eventually entered into a written contingent-fee agreement

with the parents and, in 2010, obtained a substantial jury verdict in their favor.

{¶ 6} Although Bauer had not entered into a written fee agreement with

the child’s parents, he filed suit against the attorney who represented them in the

1

Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been

renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII.

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January Term, 2015

malpractice action, claiming that he was entitled to share in the attorney fees

earned in their case. The court dismissed the case, and the matter was ultimately

arbitrated by the Ohio State Bar Association, which ruled against Bauer.

{¶ 7} The parties stipulated and the board found that Bauer’s conduct

violated DR 2-107(A)(2) (requiring a lawyer to disclose in writing to the client

the terms of any division of fees between lawyers who are not in the same firm

and the identity of all lawyers sharing in the fees), Prof.Cond.R. 1.5(c) (requiring

an attorney to set forth a contingent-fee agreement in a writing signed by the

client), 1.5(e) (permitting attorneys who are not in the same firm to divide fees

only if the fee division is reasonable and proportional to the work performed, the

client consents to the arrangement in writing after full disclosure, and a written

closing statement is prepared and signed by the client and each lawyer), and 1.5(f)

(requiring fee disputes regarding the division of fees between lawyers to be

resolved through mediation or arbitration by a local bar association or the Ohio

State Bar Association).2 They also recommend that the remaining charges

alleging rule violations be dismissed. We adopt the board’s findings of fact and

misconduct.

Sanction

{¶ 8} When imposing sanctions for attorney misconduct, we consider

relevant factors, including the ethical duties the lawyer violated and the sanctions

imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424,

2

Relator charged Bauer 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

Disciplinary Rules of the Code of Professional Responsibility. When both the former and current

rules are cited for the same acts, the allegations comprise a single continuing 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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SUPREME COURT OF OHIO

2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. We also weigh evidence of the

aggravating and mitigating factors listed in Gov.Bar R. V(13).

{¶ 9} The parties stipulated and the board found that no aggravating

factors are present. As mitigating factors, they determined that Bauer does not

have a prior disciplinary record, has made full and free disclosure and

demonstrated a cooperative attitude toward the disciplinary proceedings, has

presented evidence of his good character and reputation apart from the charged

misconduct, and acknowledged the wrongfulness of his actions. See Gov.Bar R.

V(13)(C)(1), (4), and (5).

{¶ 10} The parties jointly recommended that Bauer be suspended for one

year, all stayed on conditions. The board considered the sanctions imposed in

three cases involving similar violations: Cleveland Metro. Bar v. Schiff, 139 Ohio

St.3d 456, 2014-Ohio-2573, 12 N.E.3d 1207 (imposing a two-year suspension, all

stayed, for the attorney’s failure to obtain consent from numerous clients to refer

their matters to outside counsel and to split fees with those attorneys, neglect of a

client matter, and failure to reasonably communicate with a client); Columbus

Bar Assn. v. Adusei, 136 Ohio St.3d 155, 2013-Ohio-3125, 991 N.E.2d 1142

(publicly reprimanding an attorney who failed to reduce a contingent-fee

agreement to writing signed by the client and charging an illegal or clearly

excessive fee); and Cincinnati Bar Assn. v. Seibel, 132 Ohio St.3d 411, 2012-

Ohio-3234, 972 N.E.2d 594 (rejecting the parties’ stipulated sanction of a stayed

six-month suspension in favor of publicly reprimanding an attorney who failed to

reduce a contingent-fee agreement to a writing signed by the client, charged a

nonrefundable fee without making required disclosures about that fee, failed to

hold client funds in an interest-bearing client trust account separate from his own

funds, and failed to promptly deliver funds or other property that the client was

entitled to receive).

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January Term, 2015

{¶ 11} The board acknowledged that the parties’ recommended sanction

of a stayed one-year suspension fell within the range of sanctions imposed in

Schiff, Adusei, and Seibel. But the board distinguished Schiff on the ground that it

involved a pattern of misconduct consisting of multiple offenses and harm to

multiple vulnerable clients—aggravating factors that are not present here. See

Schiff at ¶ 13. Because we have recognized that a public reprimand is often the

appropriate sanction when violations of Prof.Cond.R. 1.5 are accompanied by

significant mitigating evidence and the corresponding absence of significant

aggravating factors, see Adusei at ¶ 18-21, the board recommends that we publicly

reprimand Bauer for his misconduct.

{¶ 12} We adopt the board’s analysis and agree that a public reprimand is

the appropriate sanction in this case.

{¶ 13} Accordingly, Roger Richard Bauer is publicly reprimanded for his

misconduct. Costs are taxed to Bauer.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

_________________

Ronald E. Slipski, Bar Counsel, and David C. Comstock Jr., Bar Counsel,

for relator.

Michael D. Rossi, for respondent.

_________________

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