Columbus Bar Association v. Midian.

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

Columbus Bar Assn. v. Midian, Slip Opinion No. 2018-Ohio-3908.]

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. 2018-OHIO-3908

COLUMBUS BAR ASSOCIATION v. MIDIAN.

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

may be cited as Columbus Bar Assn. v. Midian, Slip Opinion No.

2018-Ohio-3908.]

Attorneys—Misconduct—Violations of the Rules of Professional conduct, including

charging excessive fee—Public reprimand.

(No. 2018-0541—Submitted May 8, 2018—Decided September 27, 2018.)

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

Court, No. 2017-044.

__________________

Per Curiam.

{¶ 1} Respondent, William Martin Midian, of Columbus, Ohio, Attorney

Registration No. 0080941, was admitted to the practice of law in Ohio in 2006.

{¶ 2} In a formal complaint certified to the Board of Professional Conduct

on October 5, 2017, relator, Columbus Bar Association, charged Midian with four

violations of the Rules of Professional Conduct arising from his representation of a

SUPREME COURT OF OHIO

single client. A panel of the board considered the cause on the parties’ consent-to-

discipline agreement. See Gov.Bar R. V(16).

{¶ 3} In September 2013, after pleading guilty to a misdemeanor count of

workers’ compensation fraud, a doctor retained Midian to take legal action to

change the effect of the doctor’s conviction and stay the pending misconduct

charges of the state medical board. Midian discussed his fees with the client, but

he never established a specific fee amount or provided the client with a written fee

agreement. Midian did, however, accept a check for $25,000 from the doctor and

deposit it into his client trust account. In October 2013, Midian sent $12,500 of

that fee to Eric A. Jones, an attorney retained by the client to defend against related

professional misconduct charges that were pending before the medical board. The

following month, Jones paid Midian $5,000 from the funds that Jones had received

from the client. Although Midian and Jones are not members of the same firm, they

did not enter into a fee-sharing arrangement.

{¶ 4} Unbeknownst to the client, Midian asked another attorney with little

criminal law experience to draft a motion in the doctor’s case. Although Midian

reviewed and approved the motion, he did not sign it—though he accepted a

$17,500 fee for the work. The motion as drafted was fundamentally flawed because

it did not invoke Crim.R. 32.1 or address manifest injustice—the only basis for a

court to permit a defendant to withdraw a guilty plea after sentencing.

Consequently, the court overruled the motion.

{¶ 5} The parties agree that Midian’s conduct violated Prof.Cond.R. 1.5(a)

(prohibiting a lawyer from making an agreement for, charging, or collecting an

illegal or clearly excessive fee), 1.5(b) (requiring an attorney to communicate the

nature and scope of the representation, and the basis or rate of the fee and expenses

within a reasonable time after commencing the representation unless the lawyer

regularly represented the client and will charge the client on the same basis as

previously charged), and 1.5(e) (permitting attorneys who are not in the same firm

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January Term, 2018

to divide fees only if the fees 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). They also agree that one additional alleged violation should be dismissed.

{¶ 6} The parties stipulated that no aggravating factors are present and that

mitigating factors include the absence of prior discipline, the absence of a selfish

or dishonest motive, a cooperative attitude toward the disciplinary proceedings,

evidence of Midian’s good character and reputation, his refund of the entire

$17,500 fee to his client on June 1, 2016, and his current use of written fee

agreements for all client matters. See Gov.Bar R. V(13)(B) and (C)(1), (2), (3), (4),

and (5).

{¶ 7} The board recommends that we adopt the parties’ consent-to-

discipline agreement and publicly reprimand Midian for his misconduct. In support

of that recommendation, the board notes that we have imposed public reprimands

for similar misconduct involving clearly excessive fees in Columbus Bar Assn. v.

Adusei, 136 Ohio St.3d 155, 2013-Ohio-3125, 991 N.E.2d 1142, and Geauga Cty.

Bar Assn. v. Martorana, 137 Ohio St.3d 19, 2013-Ohio-1686, 997 N.E.2d 486.

{¶ 8} Based on the foregoing, we agree that Midian’s conduct violated

Prof.Cond.R. 1.5(a), 1.5(b), and 1.5(e) and that a public reprimand is the

appropriate sanction for that misconduct. We therefore adopt the parties’ consent-

to-discipline agreement.

{¶ 9} Accordingly, William Martin Midian is publicly reprimanded. Costs

are taxed to Midian.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and

DEGENARO, JJ., concur.

DEWINE, J., not participating.

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SUPREME COURT OF OHIO

George M. Romanello; Lori J. Brown, Bar Counsel, and A. Alysha Clous,

Assistant Bar Counsel, for relator.

Isaac, Wiles, Burkholder, & Teetor, L.L.C., and Michael L. Close, for

respondent.

_________________

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