Cincinnati Bar Association v. Robertson

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

Cincinnati Bar Assn. v. Robertson, Slip Opinion No. 2016-Ohio-654.]

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. 2016-OHIO-654

CINCINNATI BAR ASSOCIATION v. ROBERTSON.

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

may be cited as Cincinnati Bar Assn. v. Robertson, Slip Opinion No.

2016-Ohio-654.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Stayed

six-month suspension.

(No. 2015-1312—Submitted September 15, 2015—Decided February 25, 2016.)

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

Court, No. 2014-068.

_______________________

Per Curiam.

{¶ 1} Respondent, David Franklin Robertson Jr. of Cincinnati, Ohio,

Attorney Registration No. 0074030, was admitted to the practice of law in Ohio in

2001. Relator, Cincinnati Bar Association, has charged him with professional

misconduct arising out of his representation of a client in the probate court of

Hamilton County. Based on the parties’ stipulations and the evidence presented at

SUPREME COURT OF OHIO

the panel hearing of the Board of Professional Conduct, the board recommends that

we sanction him with a stayed six-month suspension. Neither party has filed

objections to the board’s report, and based on our independent review of the record,

we accept the board’s findings of misconduct and agree with the recommended

sanction.

Misconduct

{¶ 2} In July 2012, Deborah Lewallen retained Robertson to represent her

as the executor of her father’s estate. Three of Lewallen’s siblings and seven of the

decedent’s grandchildren—who were also beneficiaries of the estate—thereafter

attempted to remove Lewallen as executor and filed objections to the estate

inventory, arguing that Lewallen and her husband had improperly removed items

from the estate. Upon Lewallen’s request, Robertson also agreed to defend her and

her husband against her family members’ objections and attempt to remove her as

executor.

{¶ 3} Robertson, however, failed to explain to Lewallen that his

representation of her and her husband in their personal capacities created a conflict

of interest. Specifically, the board found that “[t]o the extent the claims of the

Lewallen’s [sic] other family members implicate[d] potential wrongdoing that

would diminish the estate, Respondent [could] not simultaneously discharge his

duty of undivided loyalty to the estate while undertaking a similar duty to the

alleged wrongdoer.” Accordingly, the parties stipulated and the board found that

Robertson’s dual representation of Lewallen in her individual capacity and in her

role as fiduciary of the estate violated Prof.Cond.R. 1.7(b) (prohibiting a lawyer

from accepting or continuing representation of a client if a conflict of interest would

be created, unless the affected client gives informed consent in writing).

{¶ 4} The family members eventually withdrew their request to remove

Lewallen, and due to the extensive litigation, Robertson filed applications with the

probate court for partial payment of attorney fees. A local rule, however, required

2

January Term, 2016

that attorney fees for the administration of an estate be paid at the time of the

fiduciary’s final account and with prior court approval. Accordingly, the judge held

Robertson’s applications in abeyance until the estate was ready to be closed.

{¶ 5} Notwithstanding the local rule and the court’s order, Robertson asked

Lewallen for payment of his fees, with the understanding that the estate would

eventually reimburse her when it was terminated. Between March and July 2013,

she paid $17,820 to Robertson and $5,500 to an attorney who had assisted him.

However, in October 2013, the court awarded Robertson only $14,000 in fees for

activities conducted on behalf of the estate. Prior to filing the final account,

Robertson endorsed an estate check for $14,000 and then delivered those funds to

Lewallen. When he filed the final account, he did not report that Lewallen had paid

$23,320 in attorney fees and, instead, reported only that $14,000 in attorney fees

had been paid.

{¶ 6} The parties stipulated and the board found that by accepting attorney

fees that had not yet been approved by the court, as required by local rule,

Robertson violated Prof.Cond.R. 3.4(c) (prohibiting a lawyer from knowingly

disobeying an obligation under the rules of a tribunal). Similarly, the board found

that by accepting attorney fees without court approval and by filing documentation

in the court that inaccurately reported the amount of attorney fees he had received,

Robertson also violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging

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

{¶ 7} We agree with these findings of misconduct.

Sanction

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

several relevant factors, including the ethical duties that the lawyer violated, the

sanctions imposed in similar cases, and the aggravating and mitigating factors listed

in Gov.Bar R. V(13).

3

SUPREME COURT OF OHIO

{¶ 9} In this case, the board concluded that the following mitigating factors

were applicable: Robertson had no prior discipline; he made restitution by

reimbursing Lewallen the additional $9,320 in fees that she had paid to him and his

associate; and he fully cooperated in the disciplinary process. See Gov.Bar R.

V(13)(C)(1), (3), and (4). In addition, the board acknowledged that despite the

local rule, some of Robertson’s courtroom discussions with the judge created

ambiguity regarding how to bill for his time. The board found no aggravating

factors.

{¶ 10} To support its recommended sanction, the board cites Dayton Bar

Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879, 965 N.E.2d 268. In that case,

we imposed a stayed six-month suspension on an attorney who (1) had a conflict

of interest by representing both a proposed ward and the ward’s niece in a

guardianship proceeding, (2) engaged in conduct that was prejudicial to the

administration of justice by using her power of attorney over the proposed ward’s

affairs to pay her own attorney fees, without first obtaining court approval, and (3)

charged a clearly excessive fee. In sanctioning the attorney, we emphasized that

no matter how well-intentioned an attorney’s motive is, the professional conduct

rules prohibit representation of clients with adverse interests, unless certain

exceptions apply, including informed consent of each affected client. Id. at

¶ 12-13.

{¶ 11} We agree with the board that Parisi is instructive. Similar to the

attorney in that case, Robertson’s dual representation resulted in a conflict of

interest, and he accepted attorney fees without court approval. Therefore, a similar

sanction is warranted here. And as the board noted, no matter how well-intentioned

Robertson was, he should have recognized that he had created a conflict not only

by accepting representation of Lewallen in her individual capacity—after having

already agreed to represent her as fiduciary of the estate—but also by spending a

significant amount of time defending against the allegations asserted by the estate’s

4

January Term, 2016

other beneficiaries. See also Disciplinary Counsel v. Dettinger, 121 Ohio St.3d

400, 2009-Ohio-1429, 904 N.E.2d 890 (imposing a stayed six-month suspension

on 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).

Conclusion

{¶ 12} Having considered the ethical duties violated, the mitigating factors,

the absence of any aggravating factors, and the sanctions imposed in comparable

cases, we accept the board’s recommended sanction. David Franklin Robertson Jr.

is hereby suspended from the practice of law for six months, with the suspension

stayed in its entirety. Costs are taxed to Robertson.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

_________________

Vincent A. Salinas Sr., Howard M. Schwartz, and Edwin W. Patterson III,

General Counsel, for relator.

Kegler, Brown, Hill & Ritter Co., L.P.A., and Jonathan E. Coughlan, for

respondent.

_________________

5