The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Toledo Bar Assn. v. Berling, Slip Opinion No. 2020-Ohio-2838.]
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. 2020-OHIO-2838
TOLEDO BAR ASSOCIATION v. BERLING.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Toledo Bar Assn. v. Berling, Slip Opinion No.
2020-Ohio-2838.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to act with reasonable diligence in representing a client—
Two-year suspension.
(No. 2019-1743—Submitted January 29, 2020—Decided May 12, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2019-012.
_______________________
Per Curiam.
{¶ 1} Respondent, Mark David Berling, of Toledo, Ohio, Attorney
Registration No. 0002444, was admitted to the practice of law in Ohio in 1983. On
March 26, 2020, in a separate disciplinary case, we entered an interim remedial
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order immediately suspending Berling’s license pursuant to Gov.Bar R. V(19)(B).
Toledo Bar Assn. v. Berling, ___ Ohio St.3d ___, 2020-Ohio-1111, ___ N.E.3d ___.
{¶ 2} In the underlying matter, relator, Toledo Bar Association, charged
Berling with committing professional misconduct in eight client matters. Although
Berling entered into some stipulations of fact and admitted to a few of the
misconduct charges, he mostly denied that his actions violated the Rules of
Professional Conduct. After a hearing, a three-member panel of the Board of
Professional Conduct found that Berling had committed most of the charged
misconduct, dismissed some of the alleged rule violations, and recommended that
we suspend his license for two years and order that he pay restitution to seven
former clients. The board issued a report adopting the panel’s findings of
misconduct and recommended sanction, and neither party has objected to the
board’s report.
{¶ 3} Based on our independent review of the record, we agree with the
board’s findings of misconduct and recommended sanction.
Misconduct
Count one—the Lowder matter
{¶ 4} In August 2014, Pamela Lowder retained Berling to assist her in an
action against a home contractor. Although Berling agreed to represent Lowder on
a contingent-fee basis, he failed to provide her with a written fee agreement. He
also failed to deposit her $1,000 retainer into his client trust account.
{¶ 5} Almost a year later, Lowder met with Berling and discovered that he
had not taken any action in her case. Upon Berling’s request, Lowder gave him
additional money for filing fees, although Berling never negotiated her check.
According to Lowder, she thereafter attempted to meet or speak with Berling but
he canceled appointments or failed to return her phone calls. He never filed a
lawsuit on her behalf.
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{¶ 6} Based on this conduct, the board found that Berling violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(3) (requiring a lawyer to keep a client reasonably
informed about the status of a matter), 1.5(c)(1) (requiring a lawyer to set forth a
contingent-fee agreement in a writing signed by both the client and the lawyer), and
1.15 (requiring a lawyer to hold property of clients in an interest-bearing client trust
account, separate from the lawyer’s own property). The board also determined that
Berling owes Lowder $1,000 in restitution.
Count two—the Wilson matter
{¶ 7} In 2017, Jennifer Wilson retained Berling to represent her in a divorce
case. In early January 2018, she completed and sent him forms necessary to apply
for child support, and over the following three weeks, she sought an update on the
status of the application. For example, on January 11, she sent Berling a text
message asking whether he had filed the child-support forms and he responded that
he would file them later that day. She sent him similar text messages throughout
the following week and received varying responses or no response at all from
Berling. On January 22, Berling sent Wilson a text message stating “All set,” which
she interpreted to mean that he had filed the child-support forms. But on January
30, after several follow-up texts from Wilson, Berling told her that he had given the
forms to his assistant. Berling had not properly trained the assistant, who failed to
file the forms.
{¶ 8} On February 1, Wilson discovered that nothing had been filed in her
case for months. She thereafter sent Berling a text message stating that she was
meeting with another attorney and requesting that he sign a substitution-of-counsel
form. Berling failed to respond to Wilson’s message or to promptly return the form,
despite subsequent requests from Wilson’s new counsel. After Wilson indicated
her intention to report Berling’s conduct to relator, he stated that he would hand-
deliver her file to her new attorney the next day. About two weeks later, Berling
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delivered the file, which contained only documents filed by Wilson’s ex-husband
and a few documents that Berling had prepared but never served or filed.
{¶ 9} Based on this conduct, the board found that Berling violated
Prof.Cond.R. 1.3, 1.4(a)(3), and 5.3(b) (requiring a lawyer to make reasonable
efforts to ensure that a nonlawyer employee’s conduct is compatible with the
professional obligations of the lawyer). The board also determined that Berling
owes Wilson restitution in the amount of $1,000, which was the amount she had
requested in her grievance.
Count three—the Heaton matter
{¶ 10} In 2013, Brian Heaton paid Berling $5,000 to file a Civ.R. 60(B)
motion to vacate a child-support order in Heaton’s divorce case. Despite e-mails
and text messages from Heaton, Berling did not file the motion until more than two
years later, in August 2015.
{¶ 11} The court scheduled a hearing on the motion for January 14, 2016.
The day before the hearing, Berling moved for a continuance and told Heaton that
he intended to dismiss the Civ.R. 60(B) motion because Berling was involved in
another trial and was not prepared for the hearing. Heaton reluctantly agreed to
Berling’s plan, relying on Berling’s assurances that the dismissal would be without
prejudice and that he would be able to refile the motion. Berling also advised
Heaton that Heaton need not appear for the hearing.
{¶ 12} The court, however, denied Berling’s motion for a continuance and
his oral motion to dismiss without prejudice. Berling did not introduce any
evidence at the hearing, and the court overruled Heaton’s Civ.R. 60(B) motion with
prejudice, in part because it had not been timely filed.
{¶ 13} Earlier in the case, the parties had reached a partial agreement on
several issues, and although Berling was directed to prepare a consent judgment
entry, he failed to do so. In February 2016, Berling advised the court that he was
withdrawing from the representation and that he would file the overdue entry the
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January Term, 2020
next day. But Berling failed to file the entry, resulting in a magistrate’s entering an
order sua sponte. According to Heaton, the magistrate’s order included terms that
he had not previously agreed to.
{¶ 14} Based on this conduct, the board found that Berling violated
Prof.Cond.R. 1.3 and 1.4(a)(3). The board also found that Berling owes Heaton
$5,000 in restitution.
Count four—the Mirra matter
{¶ 15} In early 2017, Kristen Mirra paid Berling a $5,000 retainer to
represent her in a divorce action already pending in Monroe County, Michigan.
Although Berling was not licensed to practice law in Michigan, he advised Mirra
that he would file a pro hac vice motion for temporary admission to that state’s bar
and affiliate himself with a Michigan-licensed attorney. Berling also assured Mirra
he would not charge her for two attorneys. He asked Salvatore Molaro Jr., an
attorney licensed in both Ohio and Michigan, to assist him in Mirra’s divorce.
{¶ 16} In February 2017, Berling sent Mirra a text message indicating that
his pro hac vice motion was “[a]ll done” and would be filed in the Michigan court
the following day. Berling, however, never filed a pro hac vice motion.
{¶ 17} In May and June 2017, Molaro sent Berling two letters identifying
several uncompleted tasks for the scheduled June 29 trial and requesting that Mirra
stop by his office to discuss his fees. Berling failed to send those letters to Mirra.
In mid-June, Molaro sent Berling another letter stressing how unprepared they were
for Mirra’s trial and again noting that she had not yet paid him.
{¶ 18} Berling appeared at a June 14 hearing in Mirra’s case and for a June
22 mediation and final pretrial hearing. After the final pretrial, Molaro advised
Mirra that he would not represent her at trial due to their failure to reach an
agreement on his fees. Because Berling had failed to secure temporary admission
to the Michigan bar, Mirra was forced to obtain new counsel less than one week
before her scheduled trial. After she found a new attorney, she requested that
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Berling deliver her case file to him, but Berling did not do so until three days before
trial. According to Mirra’s new attorney, the file was extremely disorganized.
{¶ 19} In addition, during the representation, Berling sent Mirra multiple
text messages that were sexual in nature, including messages in which he solicited
sexual activity from her.
{¶ 20} Based on this conduct, the board found that Berling violated
Prof.Cond.R. 1.3, 1.4(a)(2) (requiring a lawyer to reasonably consult with a client
about the means by which the client’s objectives are to be accomplished), 1.4(a)(3),
1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a
client unless a consensual sexual relationship existed prior to the client-lawyer
relationship), 5.5(a) (prohibiting a lawyer from practicing law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction), and 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation). In addition, the board concluded that Berling owes Mirra
restitution in the amount of $16,500, which includes the $5,000 retainer she had
paid Berling and her initial payment of $11,500 to the new attorney she hired just
prior to her trial.
Count five—the McBryde matter
{¶ 21} In February 2018, Sylvanus McBryde retained Berling to represent
him in a custody action and advised Berling of an upcoming March 6 hearing.
Berling quoted McBryde a $250 hourly rate, and McBryde paid him $1,000, none
of which Berling deposited into his client trust account.
{¶ 22} Berling subsequently advised McBryde that Berling had to request a
continuance of the March 6 hearing. Berling, however, failed to file a motion, and
McBryde appeared for the hearing on his own to obtain the continuance. When
McBryde later texted Berling to remind him of the rescheduled hearing, Berling
requested an additional $2,500 to proceed with the case. McBryde terminated the
representation and demanded a refund. A fee-dispute arbitrator found that Berling
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January Term, 2020
had not completed any work on the case and ordered him to return McBryde’s
$1,000 retainer, which Berling eventually repaid.
{¶ 23} Based on this conduct, the board found that Berling violated
Prof.Cond.R. 1.3, 1.4(a)(3), and 1.15(c) (requiring a lawyer to deposit advance legal
fees and expenses into a client trust account, to be withdrawn by the lawyer only as
fees are earned or expenses are incurred).
Count six—the Sleek matter
{¶ 24} In 2016, Carolyn Sleek retained Berling to represent her in a
domestic-relations dispute and through 2017, paid him more than $5,000, none of
which he deposited into his client trust account.
{¶ 25} In 2017 and 2018, Berling requested continuances of two pretrial
hearings and four scheduled trials due to claimed health problems. Berling,
however, produced medical documentation supporting only one of those requested
continuances. He also canceled a settlement conference at the last moment due to
his grandmother’s health. In August 2018, a magistrate concluded that Berling was
impeding the case’s resolution and removed him as Sleek’s counsel. In January
2019, a fee-dispute arbitrator awarded Sleek a partial refund of $2,500, concluding
that Berling had not presented any billing records or documentation recording the
time he had spent on her case. At the time of Berling’s disciplinary hearing, he had
not yet paid any of Sleek’s arbitration award.
{¶ 26} Based on this conduct, the board found that Berling violated
Prof.Cond.R. 1.3, 1.15(c), 8.4(c), and 8.4(d) (prohibiting a lawyer from engaging
in conduct that is prejudicial to the administration of justice). The board also noted
that Berling continues to owe Sleek $2,500 in restitution.
Count seven—the Saenz matter
{¶ 27} In January 2019, Martha Lemus hired Berling to represent her son,
Cesar Saenz, in a criminal matter. Lemus gave Berling an initial payment of $500,
and he appeared in court on her son’s behalf and obtained his release from jail.
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{¶ 28} About a week later, Saenz paid Berling another $1,000, which
Berling did not deposit into his client trust account. Berling failed to appear at
Saenz’s next two scheduled court hearings, resulting in Saenz’s requesting a refund.
Although Berling initially agreed to return some of the money, he canceled three
meetings with Saenz. Berling also told Lemus that he would mail her the refund,
but he never did so.
{¶ 29} Based on this conduct, the board found that Berling committed
additional violations of Prof.Cond.R. 1.3, 1.15(c), and 8.4(d). The board also
concluded that Berling owes Saenz $1,000 in restitution.
Count eight—the Huth matter
{¶ 30} In 2016, Julie Huth retained Berling to represent her in a divorce
action. She paid him a total of $3,200, none of which he deposited into his client
trust account.
{¶ 31} In March 2017, the parties agreed that Huth would receive a certain
amount from her husband’s retirement account. When the husband’s counsel
presented a draft entry reflecting the parties’ purported agreement, Huth claimed
that her allotted amount had been reduced. Berling assured Huth that he would
address the discrepancy and have her sign a revised entry. Berling, however, failed
to follow through. Instead, opposing counsel revised the draft again, further
reducing Huth’s allotted share of the retirement account. And because Berling
failed to send the draft entry to Huth or to object to it, the court adopted the entry.
Huth requested that Berling rectify the discrepancy, but Berling waited nine and a
half months to file a motion, which the court denied as untimely.
{¶ 32} Based on this conduct, the board found that Berling violated
Prof.Cond.R. 1.3 and 1.15(c). In addition, the board found that because Berling
had performed minimal legal work for Huth, he owes her $3,200 in restitution.
{¶ 33} We agree with the board’s findings of misconduct in counts one
through eight.
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January Term, 2020
Sanction
{¶ 34} 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.
{¶ 35} The board found that six of the nine aggravating factors listed in
Gov.Bar R. V(13)(B) are present: Berling acted with a dishonest or selfish motive,
engaged in a pattern of misconduct, committed multiple offenses (27 ethical-rule
violations in eight client matters), refused to acknowledge the wrongful nature of
his conduct, caused harm to vulnerable clients, and failed to make restitution. See
Gov.Bar R. V(13)(B)(2), (3), (4), (7), (8), and (9). As an additional aggravating
factor, the board noted that Berling admitted that he had failed to properly notify
clients that he lacked malpractice insurance. The board also noted that although
Berling had technically acknowledged that much of his conduct was inappropriate,
he had attempted to minimize some of his behavior or shift blame to his clients and
others. He also had tried to justify his actions by offering certain medical and social
conditions as excuses, which the panel concluded showed a lack of sincerity and
remorse. “Unless the record weighs heavily against a hearing panel’s findings, we
defer to the panel’s credibility determinations, inasmuch as the panel members saw
and heard the witnesses firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio
St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24.
{¶ 36} In mitigation, the board found that Berling has a clean disciplinary
record, had exhibited a cooperative attitude toward the disciplinary proceedings,
and had submitted evidence of his good reputation and competency as an attorney.
See Gov.Bar R. V(13)(C)(1), (4), and (5). Although Berling had submitted
evidence attempting to show that he suffered from mental and physical disorders,
the board correctly found that none of those conditions qualified as a mitigating
factor under Gov.Bar R. V(13)(C)(7).
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{¶ 37} To support its recommended sanction, the board cited a number of
cases involving attorneys who engaged in similar patterns of misconduct. For
example, the board first reviewed Disciplinary Counsel v. Delay, 157 Ohio St.3d
137, 2019-Ohio-2955, 132 N.E.3d 680, in which an attorney accepted fees from
several clients and then failed to perform the agreed-upon work, failed to respond
to those clients’ efforts to contact him, failed to deposit unearned fees into his client
trust account, and engaged in dishonest conduct. Unlike Berling, however, the
attorney in Delay also failed to cooperate in the ensuing disciplinary investigations
and submitted a fraudulent document to the relator. Eight of the nine aggravating
factors enumerated in Gov.Bar R. V(13)(B) but only one mitigating factor were
present in Delay. Noting that the attorney was “unrepentant and unremorseful”
about his misconduct, we indefinitely suspended him. Id. at ¶ 33, 43.
{¶ 38} The board also considered cases in which we imposed a lesser
sanction of a two-year suspension with a portion stayed, including Cleveland
Metro. Bar Assn. v. Gresley, 127 Ohio St.3d 430, 2010-Ohio-6208, 940 N.E.2d 945
(suspending an attorney for two years, with six months conditionally stayed, for
misconduct that included accepting fees from numerous clients but then failing to
perform the agreed-upon work, failing to respond to his clients’ efforts to contact
him, and failing to cooperate in the disciplinary investigation), Disciplinary
Counsel v. Hall, 131 Ohio St.3d 222, 2012-Ohio-783, 963 N.E.2d 813 (suspending
an attorney for two years, with six months stayed, for misconduct that included
accepting retainers from numerous clients but then failing to perform the agreed-
upon work, failing to respond to his clients’ efforts to reach him, and dishonesty),
and Disciplinary Counsel v. Turner, 154 Ohio St.3d 322, 2018-Ohio-4202, 114
N.E.3d 174 (suspending an attorney for two years, with six months conditionally
stayed, for misconduct that included neglecting two of a client’s matters, engaging
in a sexual relationship with that client, and misusing his client trust account).
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January Term, 2020
{¶ 39} The board concluded that Berling’s misconduct was less egregious
than that in Delay but more concerning than that in Gresley, Hall, and Turner. And
considering that Berling has yet to fully take responsibility for his actions, the board
recommends an actual two-year suspension with conditions on reinstatement as
well as an order requiring Berling to make restitution.
{¶ 40} We accept the board’s recommendation. Berling not only engaged
in a pattern of neglecting client matters and failing to return unearned fees but also
sent improper sexual text messages to a client, attempted to practice law in a
jurisdiction in which he was not admitted, and repeatedly failed to deposit clients’
unearned fees into his trust account. The record, the balance of the aggravating and
mitigating factors, and our applicable precedent all support a two-year suspension,
without any portion stayed.
Conclusion
{¶ 41} Mark David Berling is hereby suspended from the practice of law in
Ohio for two years. Within 90 days of our disciplinary order, Berling shall make
restitution as follows: $1,000 to Pamela Lowder, $1,000 to Jennifer Wilson, $5,000
to Brian Heaton, $16,500 to Kristen Mirra, $2,500 to Carolyn Sleek, $1,000 to
Cesar Saenz, and $3,200 to Julie Huth. In addition to the requirements of Gov.Bar
R. V(24), Berling’s reinstatement is conditioned upon his providing (1) proof that
he submitted to an evaluation by the Ohio Lawyers Assistance Program and
complied with any counseling or treatment recommendations resulting from that
evaluation and (2) an opinion from a qualified healthcare professional that Berling
is able to return to the competent, ethical, and professional practice of law. Costs
are taxed to Berling.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
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Liebenthal and Levine, Ltd., and Margaret Mattimoe Sturgeon; Brady,
Coyle & Schmidt, Ltd., and Margaret G. Beck; and Joseph P. Dawson, Bar Counsel,
for relator.
Martin E. Mohler, for respondent.
_________________
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