The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Heller, Slip Opinion No. 2021-Ohio-2211.]
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-2211
CLEVELAND METROPOLITAN BAR ASSOCIATION v. HELLER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Heller, Slip Opinion No.
2021-Ohio-2211.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—One-
year suspension, with six months stayed on conditions.
(No. 2020-0742—Submitted January 27, 2021—Decided July 1, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2019-041.
______________
Per Curiam.
{¶ 1} Respondent, Michael Aaron Heller, of Euclid, Ohio, Attorney
Registration No. 0073376, was admitted to the practice of law in Ohio in 2001.
{¶ 2} In a January 14, 2020 amended complaint, relator, Cleveland
Metropolitan Bar Association, alleged that Heller committed multiple ethical
violations related mostly to his handling of a single client’s bankruptcy matter and
to his supervisory and financial relationship with a nonlawyer who worked in his
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office. Heller stipulated to most of the alleged facts and misconduct. After a
hearing, a panel of the Board of Professional Conduct found by clear and
convincing evidence that Heller had committed 11 of the charged rule violations.
The panel unanimously dismissed three other alleged rule violations for insufficient
evidence.
{¶ 3} The panel recommended that Heller be suspended from the practice
of law for one year with the final six months stayed on conditions, including that
upon his reinstatement, he be required to serve a period of monitored probation.
The board adopted the panel’s findings of fact, conclusions of law, and
recommended sanction, with some modifications to the conditions of the stay.
Heller objects to the board’s findings of misconduct and its recommended sanction.
{¶ 4} For the reasons that follow, we overrule Heller’s objections, adopt the
board’s findings of misconduct and aggravating and mitigating factors, and suspend
Heller from the practice of law for one year with six months stayed on the
conditions recommended by the board.
Misconduct
Lax Supervision and Improper Fee Sharing with a Nonlawyer
{¶ 5} Sometime in 2016, Heller, a sole practitioner, hired T.F.1 to work as
an assistant in his law office. In addition to performing general office duties, T.F.
met with Heller’s clients, prepared bankruptcy petitions and related documents
under Heller’s supervision, and accepted client payments on Heller’s behalf. He
also rented a room in Heller’s home.
{¶ 6} Heller charged a standard fee of $650 to represent clients from their
initial consultation through discharge or final adjudication of their Chapter 7
bankruptcy proceedings, though he often reduced that fee to $599. He typically
1. We identify T.F. only by his initials because, although Heller claims that T.F. has committed a
crime, it does not appear that he has ever been charged with any offense related to Heller’s
allegations.
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paid T.F. $100 or $150 in cash for each bankruptcy petition that T.F. prepared. He
compensated T.F. for his general office work in cash or credit toward T.F.’s rent.
However, Heller kept very poor records regarding moneys owed or paid to T.F.
{¶ 7} In December 2016, Heller discovered that T.F. was collecting cash
payments from clients but was not keeping accurate records or remitting all of the
funds to Heller. Nevertheless, Heller allowed T.F. to continue working as his office
assistant, believing that T.F. would repay to the firm any money that he had not
properly remitted. By early to mid-2017, however, Heller came to believe that T.F.
was stealing money from the law firm. After some internal investigation, Heller
estimated that T.F. had embezzled approximately $19,000 from the firm—some of
which Heller claimed had been stored in an office safe—but Heller’s financial
records proved insufficient to establish the exact amount of the loss.
{¶ 8} In November 2017, Heller reported the alleged theft to the Euclid
police department. According to Heller, T.F. eventually admitted that he stole some
client payments—albeit substantially less than Heller had alleged. There is no
evidence that criminal charges were ever brought against T.F., and the Euclid police
report states that the case is closed.
{¶ 9} Heller now admits that he exercised extremely poor supervision over
T.F. even after he discovered serious irregularities in T.F.’s recordkeeping and
handling of client payments.
{¶ 10} On these facts, the parties stipulated and the board found that Heller
violated Prof.Cond.R. 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), 5.3(c)(2) (providing that a lawyer shall be responsible
for the conduct of a person over whom the lawyer has direct supervisory authority
if that person’s conduct would be a violation of the Ohio Rules of Professional
Conduct if engaged in by a lawyer, and the lawyer knew of the conduct at a time
when its consequences could have been avoided or mitigated but failed to take
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reasonable remedial action), and 5.4(a) (prohibiting a lawyer or law firm from
sharing legal fees with a nonlawyer, except in certain enumerated circumstances
not applicable here). We adopt these findings of misconduct.
The VanEyk Bankruptcy
{¶ 11} On March 4, 2017, Melissa VanEyk retained Heller to represent her
in a Chapter 7 bankruptcy. She agreed to pay a flat fee of $599 plus court filing
fees of $335. Instead of informing her that she may be entitled to a refund of all or
part of Heller’s fee if he did not complete the representation for any reason, the
written fee agreement stated that any refund would be at Heller’s sole discretion.
By March 17, 2017, VanEyk had made payments totaling $950 to Heller’s firm,
but Heller did not deposit these payments into his client trust account. Nor did he
maintain adequate records regarding the funds that VanEyk (or his other clients)
had entrusted to him.
{¶ 12} VanEyk had little or no substantive communication with Heller
about her bankruptcy petition. Instead, she spoke with T.F. by telephone and in
person regarding the preparation of the petition. She told T.F. that she was in the
process of purchasing a Ford Escape from a car dealership owned by her landlord,
for which she had made a down payment of $3,000 to $3,500, and she made it clear
to T.F. that one of her primary goals in the bankruptcy proceedings was to keep that
vehicle. On March 10, 2017, VanEyk purchased and took possession of the vehicle
for an agreed purchase price of $4,499.97, plus taxes and fees, and the seller
retained a $1,335.72 lien on the vehicle. When VanEyk met with T.F. following
her purchase of the vehicle, she explained that she had made a down payment but
still owed a balance and reiterated the importance of keeping the vehicle. T.F. told
her that he did not think it would be a problem.
{¶ 13} On March 17, 2017, Heller electronically filed VanEyk’s Chapter 7
bankruptcy petition without first giving her the opportunity to review it. Even
though VanEyk had already paid Heller’s $599 attorney fee plus $335 for the
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January Term, 2021
court’s filing fee, the bankruptcy petition falsely stated that Heller had received
only $300 of his attorney fee and sought the court’s permission for VanEyk to pay
the filing fee in installments on the ground that she was unable to pay the full filing
fee at once. By filing the petition electronically, Heller certified that to the best of
his knowledge, the information in the petition and other papers had evidentiary
support—and there is no evidence that he ever corrected the misrepresentations
contained therein. See Fed.R.Bankr.P. 9011(b).
{¶ 14} On March 31, 2017, Heller filed a property schedule in VanEyk’s
case that identified the Ford Escape as an asset but valued it at approximately
$1,200 less than what VanEyk had paid for the vehicle just three weeks earlier. He
also failed to identify the seller as a secured creditor on another bankruptcy
schedule. Another document filed with the bankruptcy court contained a signature
that VanEyk testified was not hers, though Heller presented some circumstantial
evidence that T.F. had been the one who forged it.
{¶ 15} Although VanEyk appeared for the first meeting of creditors in late
April 2017, the meeting had to be rescheduled because Heller failed to attend.
Heller had his first substantive communication with VanEyk regarding her
bankruptcy immediately before the second meeting of creditors. At that time, he
asked VanEyk whether her landlord was holding $3,000 for her. VanEyk informed
him that the $3,000 was the down payment for a vehicle that she had purchased
from her landlord’s car dealership and that she had already disclosed the purchase
to T.F. Heller became angry and told VanEyk that there was no way she would be
able to keep the vehicle and if that was her primary goal, they should skip the
creditors’ meeting, let the bankruptcy court dismiss her case, and then refile the
petition. VanEyk accepted Heller’s recommendation, and they left without
attending the meeting. After they failed to attend a third creditors’ meeting, the
court dismissed the case for failure to pay the $335 filing fee and ordered VanEyk
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to pay the outstanding fee within ten days. However, VanEyk had no knowledge
of that order until after she had filed a grievance against Heller.
{¶ 16} Although Heller offered to refile VanEyk’s bankruptcy petition, he
informed her that she would have to pay the outstanding filing fee plus a new filing
fee and that they would need to discuss whether he would require additional
attorney fees. VanEyk later requested a refund, which Heller ultimately provided.
At the time of Heller’s disciplinary hearing, she had not refiled her bankruptcy
petition.
{¶ 17} At Heller’s disciplinary hearing, relator presented the expert
testimony of Robert Barr, an experienced bankruptcy attorney and trustee. Barr
testified that he had reviewed VanEyk’s bankruptcy filings and found that they
contained numerous deficiencies and inaccuracies. He opined that Heller did not
properly review the documents that VanEyk had given him or properly advise her
regarding the bankruptcy proceeding or the likely disposition of the Ford Escape,
which could likely have been protected. Based on Barr’s testimony and the other
evidence admitted at the hearing, the board found that the VanEyk bankruptcy
filings were deficient and inaccurate.
{¶ 18} The parties stipulated and the board found that Heller’s conduct
violated Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation
to a client), 1.3 (requiring a lawyer to act with reasonable diligence in representing
a client), 1.5(d)(3) (prohibiting a lawyer from charging a fee denominated as
“earned upon receipt,” “nonrefundable,” or any similar terms, without
simultaneously advising the client in writing that if the lawyer does not complete
the representation for any reason, the client may be entitled to a refund of all or part
of the fee based on the value of the representation), 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), 1.15(a)(2) (requiring a lawyer to maintain a record for
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each client on whose behalf funds are held), and 3.3(a)(1) (prohibiting a lawyer
from knowingly making a false statement of fact or law to a tribunal).
{¶ 19} The board also found that Heller’s conduct violated Prof.Cond.R.
1.4(a)(2) (requiring a lawyer to reasonably consult with the client about the means
by which the client’s objectives are to be accomplished) and 1.4(b) (requiring a
lawyer to explain a matter to the extent reasonably necessary to permit the client to
make informed decisions about the representation), as charged in the amended
complaint.
Heller’s Objections to the Board’s Findings of Misconduct
{¶ 20} Heller objects to three of the board’s findings of misconduct, arguing
that the offenses have not been proven by clear and convincing evidence. For the
reasons that follow, we find that these objections are without merit.
{¶ 21} First, Heller argues that relator failed to prove that he knowingly
made false statements to the bankruptcy court in violation of Prof.Cond.R.
3.3(a)(1). But before his disciplinary hearing, Heller stipulated that (1) VanEyk
paid $950 to his law firm, including the $335 filing fee, by March 17, 2017, (2) he
stated on VanEyk’s bankruptcy petition that he had received only $300 in fees, and
(3) he requested permission to pay VanEyk’s filing fee in installments because she
was unable to pay the fee in full, and that, “[b]y his actions, Heller knowingly made
false statements to the Bankruptcy Court in violation of [Prof.Cond.R.] 3.3(a)(1).”
(Emphasis added.)
{¶ 22} At his disciplinary hearing, Heller sought leave to withdraw his
stipulation to a violation of Prof.Cond.R. 3.3(a)(1) on the grounds that he did not
have adequate time to review the stipulations and that his misrepresentations to the
bankruptcy court were not knowingly made. However, the panel chair denied that
motion and declined to hear evidence that contradicted Heller’s stipulation, finding
that (1) Heller had ample time to review the stipulations, (2) the stipulation was
quite clear, and (3) allowing Heller to withdraw the stipulation after relator had
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rested its case would be unfair to relator. Because Heller was in the best position
to know when he acquired the information about VanEyk’s payments and waited
until after relator rested its case to attempt withdrawal of his stipulation to that fact,
we conclude that Heller is bound by his own stipulation that he knowingly made
false statements to the bankruptcy court in violation of Prof.Cond.R. 3.3(a)(1).
{¶ 23} In his second objection, Heller contends that relator did not present
clear and convincing evidence that he “affirmatively” failed to properly deposit
client funds into his client trust account in violation of Prof.Cond.R. 1.15(a).
Specifically, Heller asserts that it was “implausible” for him to deposit VanEyk’s
funds because he did not personally receive them or know that T.F. had received
them on his behalf. Yet, in the joint stipulations, Heller admitted that he “required
that all court filing fees be paid directly to him for subsequent filing with the court,”
and that “[b]y this policy, [he] took control of VanEyk’s fund[s] to be used for this
purpose, but then failed to segregate the funds in [a client trust] account for her
benefit.” He also stipulated that he failed to deposit cash payments from VanEyk
and other clients into his client trust account. Further, he testified that he received
one $100 payment directly from VanEyk, that he recognized his own handwriting
and initials on the receipt, and that he never deposited any funds from VanEyk into
his client trust account. These facts constitute clear and convincing evidence that
Heller violated Prof.Cond.R. 1.15(a).
{¶ 24} In his third objection, Heller asserts that he complied with the notice
requirement of Prof.Cond.R. 1.5(d)(3) because a clause in his written fee agreement
with VanEyk states, “Prepaid but unearned fees and/or filing fees advanced by a
client but not used will be refunded, less any balance owing.” Prof.Cond.R.
1.5(d)(3) prohibits a lawyer from “enter[ing] into an arrangement for, charg[ing],
or collect[ing]” a “fee denominated as ‘earned upon receipt,’ ‘nonrefundable,’ or in
any similar terms, unless the client is simultaneously advised in writing that if the
lawyer does not complete the representation for any reason, the client may be
8
January Term, 2021
entitled to a refund of all or part of the fee based upon the value of the
representation.” (Emphasis sic.)
{¶ 25} Heller’s written fee agreement generally states that “[p]repaid but
unearned fees * * * will be refunded.” But it also provides that Heller has the sole
discretion to determine whether a client is entitled to a refund upon the termination
of his representation in at least one circumstance. Specifically, the fee agreement
states that in the event of termination due to client inactivity for more than 60 days,
“there shall be no right to [a] refund of any prepaid fees,” though the attorney may
“at [the attorney’s] sole discretion, issue a partial refund for the portion of fees
deemed to be unearned or not reasonably related to the firm’s efforts.”
{¶ 26} Similarly, a separate document setting forth Heller’s policies for
bankruptcy matters (and signed by VanEyk the same day that she signed Heller’s
fee agreement) states that in the event of client delays exceeding 60 days, “Attorney
has full discretion as to whether or not a refund of any type will be issued,
determined by the circumstances of the situation.” (Italics sic.) That document
further provides that if the client chooses to terminate the representation, “fees and
monies paid will not be refunded, except by Attorney discretion.” (Italics and
boldface sic.) These statements simply do not comport with the notice requirements
of Prof.Cond.R. 1.5(d)(3).
{¶ 27} On these facts, we overrule Heller’s first three objections and adopt
the board’s findings of misconduct with respect to the VanEyk matter.
Recommended Sanction
{¶ 28} 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.
{¶ 29} The board found that four aggravating factors are present: Heller
acted with a selfish or dishonest motive by collecting the money for and then failing
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to pay VanEyk’s filing fee, engaged in a pattern of misconduct by failing to
properly deposit client funds from VanEyk and other clients into his client trust
account, committed multiple offenses, and caused harm to a vulnerable client. See
Gov.Bar R. V(13)(B)(2), (3), (4), and (8).
{¶ 30} As for mitigating factors, the board found that Heller had no prior
discipline in his 19 years of practice, made full restitution to VanEyk (albeit after
she had filed a grievance against him), made full and free disclosure to the board
and exhibited a cooperative attitude throughout the disciplinary proceedings, and
presented evidence of his good character and reputation. See Gov.Bar R.
V(13)(C)(1), (3), (4), and (5). The board also noted that Heller was remorseful and
for the most part accepted responsibility for his actions.
{¶ 31} At his disciplinary hearing, Heller admitted that he is an alcoholic
and had recently attended Alcoholics Anonymous (“AA”) meetings on a regular
basis. Notwithstanding that fact, he did not present any evidence necessary to
establish that his addiction qualified as a mitigating factor under Gov.Bar R.
V(13)(C)(7).
{¶ 32} After considering these factors and eight cases in which we imposed
one- or two-year partially stayed suspensions for similar acts of misconduct, the
board recommended that we suspend Heller from the practice of law for one year,
with six months stayed on the conditions that he (1) complete additional continuing
legal education (“CLE”) focused on law-office and client-trust-account
management, (2) submit to a drug-and-alcohol assessment conducted by the Ohio
Lawyers Assistance Program (“OLAP”) and comply with any treatment or
counseling recommendations arising from that assessment, (3) pay any additional
filing fees, not already refunded, for which VanEyk is responsible upon the refiling
of her bankruptcy petition, and (4) commit no further misconduct.
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{¶ 33} Additionally, the board recommended that Heller be required to
work with a monitor upon his reinstatement to the practice of law to ensure that he
implements proper law-office and trust-account management procedures.
Heller’s Objections to the Aggravating Factors and the Weight Attributed to
the Aggravating and Mitigating Factors
{¶ 34} In his fourth through eighth objections, Heller argues that the
aggravating factors found by the board are not supported by the evidence and that
the board did not attribute sufficient weight to the mitigating factors in this case.
For the reasons that follow, we overrule these objections.
{¶ 35} In his fourth objection, Heller argues that his failure to pay VanEyk’s
filing fee was neither selfish nor dishonest because he did not personally receive,
retain, or otherwise benefit from those funds, which he claims were received and
embezzled by T.F. But even in this objection, Heller admits that he failed to
adequately supervise T.F. and that his bookkeeping practices were flawed. And
Heller was aware that T.F. was embezzling or, at a minimum, mishandling client
funds as early as December 2016, but he placed his own needs and desires above
those of his clients by allowing T.F. to continue working in his legal office without
confronting him about his conduct, providing additional supervision, or
implementing any additional procedures to protect his clients from such actions
going forward. For these reasons, we find that the record supports the board’s
finding that Heller acted with a selfish or dishonest motive.
{¶ 36} In his fifth and sixth objections, Heller contends that although he was
charged with multiple counts of misconduct, there was no showing that he
committed multiple offenses or engaged in a pattern of misconduct. But Heller has
been found to have committed 11 violations of the Rules of Professional Conduct
arising from his employment of T.F. and his representation of VanEyk. We have
previously found that misconduct that results in two or more rule violations is
sufficient to support a finding that an attorney committed multiple offenses. See,
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e.g., Erie-Huron Cty. Bar Assn. v. Bailey and Bailey, 161 Ohio St.3d 146, 2020-
Ohio-3701, 161 N.E.3d 590, ¶ 40. Moreover, the record plainly demonstrates that
Heller engaged in patterns of misconduct by improperly sharing legal fees from
multiple cases with a nonlawyer and failing to deposit payments for attorney and
filing fees into his client trust account even after this disciplinary case was filed
against him. These facts amply support the board’s findings that Heller committed
multiple violations and engaged in patterns of misconduct.
{¶ 37} In his seventh objection, Heller challenges the board’s finding that
he caused harm to a vulnerable client, arguing that because he made full restitution
to VanEyk, any harm that she suffered was the direct result of her choice not to
refile her bankruptcy petition. However, we find that Heller caused VanEyk
significant stress and frustration, deprived her of the protections that she sought
from the bankruptcy court, and left her with the burden of an additional $335 debt
at a time when she was already struggling financially.
{¶ 38} Heller’s eighth objection challenges the weight that the board
assigned to the relevant aggravating and mitigating factors in this case. We
acknowledge that Heller submitted 22 letters, including 4 from fellow attorneys and
15 from satisfied clients, that generally attest to his good character, reputation, and
skill as an attorney. Two of those letters also note that Heller has provided legal
services to people with limited resources who might otherwise have had no access
to counsel. However, we agree with the board’s assessment that those letters and
the other mitigating factors are insufficient to overcome the gravity of Heller’s
misconduct and the significant aggravating factors that are present in this case.
{¶ 39} On these facts, we overrule Heller’s fourth through eighth
objections.
Heller’s Objections to the Recommended Sanction
{¶ 40} In his ninth and tenth objections, Heller challenges the board’s
recommended sanction. In addition to arguing that the cases on which the board
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relied to support its recommended sanction are distinguishable from the facts of
this case and that a fully stayed suspension is the appropriate sanction for his
misconduct, Heller asserts that he should not be required to submit to an OLAP
evaluation because there has been no showing that his alcohol use contributed to
his misconduct or otherwise affected his practice of law.
{¶ 41} In determining the appropriate sanction for Heller’s misconduct, the
board considered cases in which we have imposed one- or two-year suspensions,
with some portion of the suspension conditionally stayed, for comparable acts of
misconduct. In three of those cases, we imposed one-year suspensions with six
months conditionally stayed on attorneys who, among other things, made false
statements to a court. See Toledo Bar Assn. v. Miller, 132 Ohio St.3d 63, 2012-
Ohio-1880, 969 N.E.2d 239 (attorney made false statements on behalf of his
employer in an action seeking to garnish his wages, made false statements regarding
his income in his pending bankruptcy proceeding, and used funds belonging to a
client of his firm to pay a filing fee on behalf of a non-firm pro bono client);
Disciplinary Counsel v. Schuman, 152 Ohio St.3d 47, 2017-Ohio-8800, 92 N.E.2d
850 (attorney made false statements and submitted a fraudulently altered document
in order to collect a clearly excessive guardian-ad-litem fee); Disciplinary Counsel
v. Simonelli, 113 Ohio St.3d 215, 2007-Ohio-1535, 863 N.E.2d 1039 (attorney
made false statements in documents filed in two bankruptcy proceedings,
improperly shared legal fees with nonlawyers in those proceedings, and neglected
two clients’ legal matters).
{¶ 42} Heller attempts to distinguish Miller, Schuman, and Simonelli on the
ground that those attorneys made knowing misrepresentations to a court and that
he did not. But we have already found that Heller is bound by his stipulation that
he knew that his statements to the bankruptcy court were false when he made them.
Furthermore, Heller offers no precedent to support his contention that a fully stayed
suspension is appropriate on the facts of this case.
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{¶ 43} Having independently reviewed the record in this case, we are
convinced that Heller’s misconduct and the relevant aggravating and mitigating
factors are most comparable to those of the cases in which we have imposed one-
year suspensions with six months conditionally stayed and therefore overrule his
objection.
{¶ 44} We also find that there is ample evidence to support the board’s
recommendation that Heller be required to submit to an OLAP evaluation and
comply with any recommendations arising from that assessment. Heller admitted
that (1) he is an alcoholic, (2) he was convicted of driving under the influence of
alcohol in December 2017,2 and (3) he has continued to drink periodically, despite
having regularly participated in AA for the two and a half years leading up to his
disciplinary proceeding. See, e.g., Mahoning Cty. Bar Assn. v. Yavorcik, 158 Ohio
St.3d 436, 2020-Ohio-123, 144 N.E.3d 413, ¶ 16, 21 (requiring an attorney to
submit to an OLAP evaluation after he testified that he had used alcohol every night
to cope with the stress of his criminal trial); Mahoning Cty. Bar Assn. v. Sciortino,
155 Ohio St.3d 457, 2018-Ohio-4961, 122 N.E.3d 139, ¶ 20-24 (requiring an
attorney, over his objection, to submit to an OLAP evaluation based on his
testimony that he had a problem with alcohol and the absence of sufficient evidence
to corroborate his testimony that he had achieved sobriety). We therefore overrule
Heller’s final objections and adopt the sanction recommended by the board.
Conclusion
{¶ 45} Accordingly, Michael Aaron Heller is suspended from the practice
of law in Ohio for one year, with six months stayed on the conditions that he (1)
complete, within six months of this order, six hours of CLE in law-office and client-
trust-account management in addition to the requirements of Gov.Bar R. X, (2)
2. The hearing panel unanimously dismissed two alleged rule violations related to Heller’s
November 2017 conviction for driving under the influence.
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January Term, 2021
submit to a drug-and-alcohol assessment conducted by OLAP (which shall be
instructed to consider whether his current participation in AA is sufficient to
maintain his sobriety) and comply with any treatment or counseling
recommendations arising from that assessment, (3) pay the outstanding filing fee
for VanEyk’s 2017 bankruptcy filing, and (4) commit no further misconduct. If
Heller fails to comply with any condition of the stay, the stay will be lifted and he
will serve the entire one-year suspension. Upon reinstatement to the practice of
law, Heller shall be required to work with a monitor appointed by relator for a
period of six months to ensure that he implements proper law-office and client-
trust-account management procedures. Costs are taxed to Heller.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, and STEWART, JJ.,
concur.
DONNELLY, J., dissents, with an opinion joined by BRUNNER, J.
_________________
DONNELLY, J., dissenting.
{¶ 46} I respectfully dissent from the majority opinion regarding its
decision to suspend respondent, Michael Heller, from the practice of law for one
year with six months stayed on conditions. I believe that a fully stayed suspension
would be more appropriate in light of the particular circumstances at play in this
case.
{¶ 47} I do not dispute that the case law cited in the majority opinion
indicates that an attorney’s violation of Prof.Cond.R. 3.3(a)(1) for knowingly
making a false statement of law or fact to a tribunal usually merits an actual
suspension from the practice of law. But like any attorney-discipline case, the
severity of the violation or violations of the Rules of Professional Conduct and the
appropriate corresponding sanction lies on a spectrum. A violation of Prof.Cond.R.
3.3(a)(1) does not always require an actual suspension.
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{¶ 48} In the face of mitigating evidence or in certain unique circumstances,
this court has imposed fully stayed suspensions for misconduct that included
violations of Prof.Cond.R. 3.3(a)(1). See Medina Cty. Bar Assn. v. Cameron, 130
Ohio St.3d 299, 2011-Ohio-5200, 958 N.E.2d 138 (imposing a fully stayed one-
year suspension on an attorney who directly contacted an opposing party instead of
contacting the party’s attorney and then falsely averred to a court that he had
reached a settlement with the opposing party; mitigating factors included a lengthy
career with no prior discipline and limited harm ultimately resulting from the
misconduct); Disciplinary Counsel v. Harmon, 158 Ohio St.3d 248, 2019-Ohio-
4171, 141 N.E.3d 142 (imposing a fully stayed two-year suspension on an attorney
who, in addition to six other violations of the Rules of Professional Conduct, falsely
stated to a magistrate that his client had been kidnapped; mitigating factors included
a lengthy career with no prior discipline and numerous letters attesting to the
attorney’s good character).
{¶ 49} This court has even imposed public reprimands instead of a
suspension for violations of Prof.Cond.R. 3.3(a)(1) in certain exceptional
circumstances. See Warren Cty. Bar Assn. v. Clifton, 147 Ohio St.3d 399, 2016-
Ohio-5587, 66 N.E.3d 713 (publicly reprimanding an attorney who altered a
client’s will before submitting it to probate; mitigating factors included the absence
of prior discipline, cooperation with the disciplinary process, and the fact that the
misconduct did not change the outcome of the probate proceedings); Disciplinary
Counsel v. Wilson, 142 Ohio St.3d 439, 2014-Ohio-5487, 32 N.E.3d 426 (publicly
reprimanding an attorney who forged a client’s signature on an affidavit, notarized
the document, and instructed the client to tell the magistrate that the client had
signed the affidavit; mitigating factors included the absence of prior discipline,
cooperation with the disciplinary process, and evidence of the attorney’s good
character).
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{¶ 50} This case does not involve exceptional circumstances that merit the
absolute minimum sanction, but it does involve circumstances that warrant a fully
stayed suspension, similar to the stayed suspensions imposed in Cleveland Metro.
Bar Assn. v. Thomas, 125 Ohio St.3d 24, 2010-Ohio-1031, 925 N.E.2d 959, and
Disciplinary Counsel v. Henderson, 95 Ohio St.3d 129, 2002-Ohio-1756, 766
N.E.2d 590. In Thomas, the attorney filed a misleading document regarding
attorney fees in a client’s bankruptcy proceeding. Thomas also neglected another
client’s personal-injury proceedings by failing to appear for the final pretrial
conference and the trial and failing to inform the client of the dismissal of her case.
Thomas’s own counsel in the subsequent disciplinary proceedings explained to the
client, months later, that the case had been dismissed and that she could still refile
within the statute-of-limitations period. This court determined that a fully stayed
six-month suspension was warranted after considering Thomas’s mitigating
evidence, including his lack of prior discipline and his cooperation in the
disciplinary process.
{¶ 51} In Henderson, the attorney used letterhead that falsely implied that
he and another attorney were partners in a firm, and he made false statements to a
court regarding the fees he intended to charge two clients in a bankruptcy
proceeding. Henderson also violated four other disciplinary rules by failing to
reimburse his clients’ relatives more than $6,000 for the costs of a trial transcript
after recovering those costs from a settlement award. This court rejected the
board’s recommendation to suspend Henderson from the practice of law for one
year with six months stayed and instead imposed a fully stayed six-month
suspension in light of the fact that he did not conceal the fees that he ultimately
received in the bankruptcy case and had no record of prior discipline.
{¶ 52} As in Thomas and Henderson, Heller should receive a suspension
that is fully stayed. However, because his overall misconduct involves more rule
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SUPREME COURT OF OHIO
violations than the foregoing cases, a one-year—rather than a six-month—stayed
suspension is appropriate.
{¶ 53} Heller’s violations of the Rules of Professional Conduct are all
founded in disorganization, inattention, and mismanagement rather than fraud or
deception. Intervention is necessary here, and both the public and Heller will
benefit from the conditions of his stayed suspension, including involvement with
the Ohio Lawyers Assistance Program and supplemental continuing-legal-
education courses in law-office and client-trust-account management, as well as the
involvement of a monitoring attorney. Such measures will help Heller achieve
greater stability in his law practice while also ensuring that he strictly observes the
standards of professional conduct. We should not include measures that would
serve only to further destabilize Heller and his practice, and I believe that a six-
month actual suspension will do just that.
{¶ 54} Because I would fully stay Heller’s one-year suspension, I dissent.
BRUNNER, J., concurs in the foregoing opinion.
_________________
McDonald Hopkins, L.L.C., R. Jeffrey Pollock, and Sarah M. Mancuso; and
Heather M. Zirke, Bar Counsel, and Kari L. Burns, Assistant Bar Counsel, for
relator.
Michael Aaron Heller, pro se.
_________________
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