Lorain Cty. Bar Assn. v. Vagotis (Slip Opinion)

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

Lorain Cty. Bar Assn. v. Vagotis, Slip Opinion No. 2021-Ohio-806.]

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. 2021-OHIO-806

LORAIN COUNTY BAR ASSOCIATION v. VAGOTIS.

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

may be cited as Lorain Cty. Bar Assn. v. Vagotis, Slip Opinion No.

2021-Ohio-806.]

Attorneys—Misconduct—Failure to advise a client in writing that client may be

entitled to refund of fee denominated as “earned upon receipt” if the

lawyer does not complete representation—Failure to disclose to client

attorney’s failure to carry professional-liability insurance—Failure to

hold client’s property in an interest-bearing client trust account—Failure

to hold legal fees paid in advance in a client trust account—Public

reprimand.

(No. 2020-1193—Submitted January 27, 2021—Decided March 18, 2021.)

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

Court, No. 2020-016.

______________

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, Christina Nicole Vagotis, of Elyria, Ohio, Attorney

Registration No. 0096246, was admitted to the practice of law in Ohio in 2017.

{¶ 2} In a March 26, 2020 complaint, relator, Lorain County Bar

Association, alleged that Vagotis violated multiple ethical rules while handling a

single probate matter. The parties submitted stipulations of fact, including

misconduct, and aggravating and mitigating factors, and relator agreed to dismiss

several alleged rule violations. The parties agreed that a six-month stayed

suspension was the appropriate sanction for Vagotis’s misconduct.

{¶ 3} After a hearing, a three-member panel of the Board of Professional

Conduct issued a report in which it found that Vagotis committed four of the

seven stipulated rule violations, unanimously dismissed three others based on the

insufficiency of the evidence, and recommended that Vagotis be publicly

reprimanded for her misconduct. The board adopted the panel’s report in its

entirety. Although relator initially objected to the board’s dismissal of two of the

alleged rule violations, it later moved to withdraw those objections and we

granted that motion.

{¶ 4} After reviewing the record in this case, we adopt the board’s

findings of misconduct and recommended sanction and publicly reprimand

Vagotis for the misconduct described herein.

Stipulated Facts and Misconduct

{¶ 5} In March 2018, ten months after Vagotis was admitted to the

practice of law, Troy Hill retained her to probate his late father’s estate. Vagotis

proposed a flat fee of $2,500, with a down payment of $500 and five monthly

payments of $400. The engagement letter that Vagotis presented to Hill did not

inform him that Vagotis considered the fee to be earned upon receipt or that he

could be entitled to a full or partial refund if she did not complete the work. Hill

signed the engagement letter and returned it to Vagotis with a $500 check, but

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January Term, 2021

Vagotis never negotiated that check. Hill later made three $400 payments, and

Vagotis deposited those checks into her operating account. Although Vagotis’s

professional-liability-insurance coverage lapsed during the representation, she did

not inform Hill of that fact.

{¶ 6} Vagotis communicated with Hill on multiple occasions and

performed some work on the estate. She and Hill discussed the best course of

action for disposing of the decedent’s home and vehicles, and Vagotis offered to

assist Hill with the foreclosure proceeding against the decedent’s home. Vagotis

reviewed documents pertaining to the estate and prepared several rough drafts of

the probate forms—though she did not file the documents with the court, because

she was waiting for Hill’s sisters to return signed waivers of their right to

administer the estate. On April 19, 2019, Vagotis wrote to Hill to inform him that

she would terminate the representation if she did not receive the documents by

May 1, but at Vagotis’s disciplinary hearing, Hill testified that he did not receive

the letter. After Vagotis failed to respond to a couple of his text messages, Hill

filed a grievance with relator.

{¶ 7} The board found that Vagotis’s conduct violated Prof.Cond.R.

1.5(d)(3) (prohibiting a lawyer from charging a fee denominated as “earned upon

receipt,” or “nonrefundable,” or in any similar terms without simultaneously

advising the client in writing that the client may be entitled to a refund of all or

part of the fee if the lawyer does not complete the representation), 1.4(c)

(requiring a lawyer to inform the client if the lawyer does not maintain

professional-liability insurance and obtain a signed acknowledgment of that

notice from the client), 1.15(a) (requiring a lawyer to hold the property of clients

in an interest-bearing client trust account, separate from the lawyer’s own

property), and 1.15(c) (requiring a lawyer to deposit into a client trust account

legal fees and expenses that have been paid in advance). We adopt these findings

of misconduct.

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SUPREME COURT OF OHIO

Sanction

{¶ 8} 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.

{¶ 9} The parties stipulated and the board found that the sole aggravating

factor present in this case is that Vagotis committed multiple offenses, Gov.Bar R.

V(13)(B)(4), though they all arose from a single undertaking. As for mitigating

factors, the parties stipulated and the board found that Vagotis had no prior

discipline, did not act with a dishonest or selfish motive, voluntarily made

restitution of the entire fee notwithstanding the fact that she had performed a

significant amount of work for the client, and exhibited a cooperative attitude

toward the disciplinary proceedings. Gov.Bar R. V(13)(C)(1) through (4). In

addition, the panel was strongly influenced by Vagotis’s testimony regarding her

sincere effort to pursue Hill’s legal matter, despite her lack of probate experience.

{¶ 10} The parties stipulated that a conditionally stayed six-month

suspension was the appropriate sanction for Vagotis’s misconduct. The board,

however, determined that a public reprimand was more appropriate, given its

unanimous dismissal of multiple alleged rule violations.

{¶ 11} In support of that sanction, the board cites four cases in which we

publicly reprimanded attorneys for misconduct comparable to that of Vagotis.

See Warren Cty. Bar Assn. v. Ernst, 154 Ohio St.3d 131, 2018-Ohio-3900, 111

N.E.3d 1179 (attorney failed to act with reasonable diligence, failed to reasonably

communicate with the client, and failed to deposit the retainer into his client trust

account); Lorain Cty. Bar Assn. v. Smith, 147 Ohio St.3d 419, 2016-Ohio-7469,

66 N.E.3d 731 (attorney failed to advise the client in writing that he could be

entitled to a refund of all or part of his flat fee if the attorney did not complete the

representation, failed to deposit the unearned fee into his client trust account, and

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January Term, 2021

failed to maintain required records regarding the funds held in that account);

Akron Bar Assn. v. Harsey, 142 Ohio St.3d 97, 2015-Ohio-965, 28 N.E.3d 86

(attorney neglected a criminal appeal and failed to reasonably communicate with

the client, failed to communicate the nature and scope of his representation and

the basis or rate of the fee to another client, and failed to deposit unearned fees

into his client trust account); Trumbull Cty. Bar Assn. v. Rucker, 134 Ohio St.3d

282, 2012-Ohio-5642, 981 N.E.2d 866 (attorney failed to act with reasonable

diligence, improperly charged a nonrefundable fee, and failed to deposit unearned

client funds into a client trust account).

{¶ 12} Having thoroughly reviewed the board’s findings of fact and

conclusions of law, the applicable aggravating and mitigating factors, and the

sanctions we have imposed for comparable misconduct, we agree that a public

reprimand is the appropriate sanction in this case.

Conclusion

{¶ 13} Accordingly, Christina Nicole Vagotis is publicly reprimanded for

her misconduct. Costs are taxed to Vagotis.

Judgment accordingly.

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

and BRUNNER, JJ., concur.

_________________

O’Toole, McLaughlin, Dooley & Pecora Co., L.P.A., Matthew A. Dooley,

and Michael R. Briach, for relator.

Christina Nicole Vagotis, pro se.

_________________

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