Cincinnati Bar Assn. v. Moore (Slip Opinion)

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

Cincinnati Bar Assn. v. Moore, Slip Opinion No. 2019-Ohio-2063.]

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. 2019-OHIO-2063

CINCINNATI BAR ASSOCIATION v. MOORE.

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

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

2019-Ohio-2063.]

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

Permanent disbarment.

(No. 2018-1758—Submitted January 30, 2019—Decided May 30, 2019.)

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

Court, No. 2017-035.

_______________________

Per Curiam.

{¶ 1} Respondent, Rodger William Moore, of Alexandria, Kentucky,

Attorney Registration No. 0074144, was admitted to the practice of law in 2001.

On June 25, 2015, we suspended him from the practice of law for two years, with

the second year stayed on conditions, based on findings that he engaged in illegal

activities that adversely reflected on his honesty and trustworthiness and knowingly

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made false statements of material fact during the ensuing disciplinary investigation.

Cincinnati Bar Assn. v. Moore, 143 Ohio St.3d 252, 2015-Ohio-2488, 36 N.E.3d

171. On October 19, 2016, we found Moore in contempt for continuing to practice

law while his license was under suspension, revoked the stay, and ordered him to

serve the entire two-year suspension. See Cincinnati Bar Assn. v. Moore, 147 Ohio

St.3d 1405, 2016-Ohio-7371, 60 N.E.3d 1269. In addition, on January 25, 2019,

we imposed an interim default suspension on Moore after the Board of Professional

Conduct certified that he failed to answer a separate disciplinary complaint alleging

that he continued to practice law while his license was under suspension.

Cincinnati Bar Assn. v. Moore, __ Ohio St.3d __, 2019-Ohio-215, __ N.E.3d __.

Both of these suspensions remain in effect.

{¶ 2} In August 2017, relator, Cincinnati Bar Association, charged Moore

with multiple violations of the Rules of Professional Conduct arising from his

efforts to charge and collect a clearly excessive fee after he told his client that he

would represent her free of charge. Although Moore answered relator’s complaint

and was deposed, he did not appear at his disciplinary hearing before a panel of the

board. Approximately six months after that hearing—but before the board issued

its report and recommendation—Moore applied to retire or resign from the practice

of law, but we denied his application. In re Resignation of Moore, 153 Ohio St.3d

1498, 2018-Ohio-4159, 108 N.E.3d 1106.

{¶ 3} After considering the testimony of the affected client and two

additional witnesses, as well as 31 exhibits propounded by relator, the panel found

that Moore charged a clearly excessive fee, engaged in dishonest conduct in his

efforts to collect that fee, and engaged in conduct that was prejudicial to the

administration of justice. Citing Moore’s history of dishonest conduct and his

willingness to engage in fraud and deception to obtain a personal financial

advantage at the expense of a vulnerable client, the panel recommended that we

permanently disbar him from the practice of law in Ohio. The board adopted the

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panel’s findings of fact, conclusions of law, and recommended sanction, and no

objections have been filed.

{¶ 4} Based on our review of the record, we adopt the board’s findings of

misconduct and permanently disbar Moore from the practice of law in Ohio.

Misconduct

{¶ 5} In late 2014, Shannon Marshall was a party to a divorce proceeding.

Marshall qualified for legal aid, and an attorney was assigned to represent her.

After Marshall expressed concerns about that attorney’s ability to handle her case,

a friend suggested that she speak with Moore and indicated that Moore would

handle the case for free. Marshall contacted Moore.

{¶ 6} On December 8, 2014, Moore sent Marshall an e-mail stating that he

would file a substitution of counsel in her divorce proceeding. He instructed

Marshall to let her legal-aid attorney know that another attorney to whom her friend

had referred her had “volunteered to take [her] case at no charge.” Moore also sent

a separate e-mail directly to the legal-aid attorney and Marshall, stating, “I am a

friend and counsel to a close friend of Shannon’s, and I have agreed to represent

her at no charge.” During the disciplinary hearing, Marshall testified that she was

aware that if she retained a private attorney, legal aid would not continue to

represent her. She stated that she would not have switched attorneys if Moore had

not agreed to represent her for free.

{¶ 7} Apart from Moore’s e-mails stating that he would represent Marshall

at no charge, he did not provide her with a fee agreement or any other documents

indicating whether he intended to charge her fees for his services. But less than

four weeks after Moore commenced the representation, Marshall received an

invoice for $9,500. Marshall testified that Moore explained to her that while he did

not expect her to pay the invoice, he intended to seek an award of legal fees from

her husband in the divorce proceedings. However, Moore never submitted any

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invoices to the court or requested that his fees be assessed against Marshall’s

husband.

{¶ 8} According to Marshall, Moore began to complain that her case “was

a lot of work.” On April 20, 2015, he e-mailed her an $11,000 promissory note and

requested that she sign it. Destitute and desperate to maintain Moore’s

representation, Marshall agreed that she would pay Moore over time in accordance

with the promissory note—though she could not recall whether she signed it or just

verbally agreed to its terms. She testified that with the divorce still pending, she

would have done anything to protect herself and her young son.

{¶ 9} On June 26, 2015—just one day after we suspended Moore from the

practice of law—Moore went to the courthouse for a hearing in Marshall’s case.

According to Marshall, as she and Moore were riding the elevator at the courthouse,

he informed her that he had just been suspended and that he did not know whether

he would be able to represent her at the hearing and then said, “[B]ut we’re going

to try.” However, at the outset of the hearing, the presiding magistrate noted that

Moore had been suspended and instructed him to leave the courtroom. The

magistrate ultimately continued the hearing to permit Marshall to find alternative

representation.

{¶ 10} Thereafter, Moore suggested to Marshall that Andrew Green, an

attorney with whom he shared office space, could assume Marshall’s representation

and that Moore could assist him. With no funds to secure other counsel, Marshall

agreed. Green did not provide a fee agreement or discuss fees with Marshall, and

Marshall believed that Moore was paying Green for his services. When deposed,

however, Green testified that he did not expect any fee for his services. He

explained that he undertook the representation at no charge with the understanding

that he would be compensated for his work in several other cases that Moore was

transferring to him. He also suggested that the representation was a way for him to

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help out one of Moore’s friends and to compensate Moore for sharing his office

space.

{¶ 11} Green’s representation ended after the trial of Marshall’s divorce in

September 2015. In September 2016, Green filed a breach-of-contract action

against Marshall on behalf of “Law Offices of Rodger W. Moore, LLC.” Based on

information provided by Moore, the complaint falsely alleged that Marshall had

agreed to Moore’s billing rate of $225 an hour and asserted a claim based on the

promissory note that Moore presented to Marshall—even though the complaint

alleged that Marshall had never signed the note. The complaint also alleged that

Moore had made multiple requests for payment of his fee and that Marshall had

refused to respond, but Marshall testified that she had not received any such

demands. The complaint requested both compensatory and punitive damages, each

in excess of $25,000, without identifying any factual or legal basis to support

Moore’s claims, and Marshall was forced to hire an attorney to defend against the

complaint. The trial court eventually dismissed Moore’s complaint without

prejudice after he filed a pro se motion purporting to substitute himself for the

original plaintiff (“Law Offices of Rodger W. Moore, LLC”) as the real party in

interest.

{¶ 12} The board found that by agreeing to represent Marshall for free and

then demanding that she sign a promissory note obligating her to pay him for his

representation, Moore charged a clearly excessive fee in violation of Prof.Cond.R.

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

an illegal or clearly excessive fee). The board also found that he violated

Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation) by using a “bait and switch” tactic

and by knowingly making false allegations of fact in the complaint he filed against

Marshall. And finally, the board determined that Moore’s conduct violated

Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is

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prejudicial to the administration of justice), noting that the false and frivolous

claims he asserted in his complaint caused Marshall to hire an attorney to defend

herself and wasted court resources.1

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

Sanction

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

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

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

imposed in similar cases.

{¶ 15} As aggravating factors, the board found that Moore has a prior

disciplinary record, acted with a dishonest and selfish motive, engaged in a pattern

of misconduct, committed multiple offenses, and caused harm to his client who was

extremely vulnerable due to her financial status, the loss of her legal-aid attorney,

and the circumstances of her divorce proceeding. See Gov.Bar R. V(13)(B)(1), (2),

(3), (4), and (8). It also determined that no mitigating factors are present. See

Gov.Bar R. V(13)(C).

{¶ 16} The board noted that in his initial disciplinary case, Moore engaged

in criminal conduct involving fraud and misrepresentation and that in this case, he

has demonstrated his willingness to harm a vulnerable client to obtain personal

financial advantage. Indeed, Moore persuaded Marshall to irrevocably terminate

the representation of her legal-aid attorney with the promise that he would represent

her for free. Once she was entirely at his mercy, Moore demanded that she pay him

for the same services he had agreed to provide for free. And after Marshall failed

to remit payment, Moore filed suit and asserted false and frivolous claims against

her. Moore’s failure to attend the hearing in this case and his subsequent attempt

1. The hearing panel unanimously dismissed three other alleged rule violations based on the

insufficiency of the evidence. See Gov.Bar R. V(12)(G).

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to surrender his license convinced the board that he has no intention of correcting

his behavior or returning to the practice of law.

{¶ 17} We have consistently observed that “in determining the appropriate

length of the suspension and any attendant conditions, we must recognize that the

primary purpose of disciplinary sanctions is not to punish the offender, but to

protect the public.” Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-

Ohio-4704, 815 N.E.2d 283, citing Ohio State Bar Assn. v. Weaver, 41 Ohio St.2d

97, 100, 322 N.E.2d 665 (1975). In Columbus Bar Assn. v. Nyce, 152 Ohio St.3d

501, 2018-Ohio-9, 98 N.E.3d 226, we determined that an attorney was “ ‘no longer

fit to practice a profession grounded on trust, integrity, and candor’ and that the

only way to ensure the protection of the public [was] to permanently disbar him,”

id. at ¶ 40, quoting the board’s report. Believing that “[Moore], like Nyce, is

incapable of exhibiting the trust, integrity, and candor upon which the profession is

grounded,” the board recommends that Moore be permanently disbarred for his

misconduct.

{¶ 18} Having considered the predatory nature of Moore’s conduct in this

case, the disturbing escalation of his dishonest conduct since we last disciplined

him, the numerous aggravating factors and complete absence of any mitigating

factors, and Moore’s evident contempt for the disciplinary process, we agree with

the board’s assessment that Moore is no longer fit to practice law in this state and

that permanent disbarment is necessary to protect the public from future

misconduct. We therefore adopt the board’s recommended sanction of permanent

disbarment.

{¶ 19} Accordingly, Rodger William Moore is permanently disbarred from

the practice of law in Ohio. Costs are taxed to Moore.

Judgment accordingly.

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,

and STEWART, JJ., concur.

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_________________

The Abrams Law Firm, L.L.C., and Laura A. Abrams; Dressman,

Benzinger, LaVelle and Kelly Schoening Holden; and Edwin W. Patterson III, Bar

Counsel, for relator.

Rodger William Moore, pro se.

_________________

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