Cleveland Bar Assn. v. Kurtz - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Cleveland Bar Association v. Kurtz.
[Cite as Cleveland Bar Assn. v. Kurtz (1995), Ohio
St.3d .]
Attorneys at law -- Misconduct -- Six-month suspension followed
by two-year monitored probation on condition that full
restitution is made to clients -- Charging an excessive
fee -- Failure to place client's funds in an identifiable
bank account -- Failure to appropriately account to client
-- Failure to promptly deliver client's property.
(No. 94-2651-- Submitted January 24, 1995 -- Decided April
12, 1995.)
On Certified Report by the Board of Commissioners on
Grievances and Discipline of the Supreme Court, No. 94-52.
Relator, Cleveland Bar Association, on June 20, 1994,
charged respondent, John C. Kurtz of Lakewood, Ohio, Attorney
Registration No. 0019012, with one count of misconduct
involving violations of DR 2-106(A)(charging an excessive fee),
9-102(A) (failure to place client's funds in an identifiable
bank account), 9-102(B)(3) (failure to appropriately account to
client), and 9-102(B)(4) (failure to promptly deliver client's
property). The parties waived a hearing and submitted the
matter to a panel of the Board of Commissioners on Grievances
and Discipline of the Supreme Court entirely by stipulation.
Respondent stipulated to the events underlying the charged
misconduct and admitted that his conduct violated DR 2-106(A),
9-102(A), and 9-102(B)(3) and (4). The stipulations state, in
part:
"* * * Jose and Girlie Tuballes (hereinafter the
Tuballeses) retained respondent on November 24, 1991, to
represent them in gaining political asylum status from the
[I]mmigration and Naturalization Service (hereinafter INS) for
Hegino Tuballes (hereinafter Hegino) and Maria Aude Tuballes
(hereinafter Maria). * * * On November 24, 1991, the Tuballeses
entered into a fee contract with Respondent which provided that
the Tuballeses would pay a total of $17,000 to Respondent. * *
* Respondent did not advise the Tuballeses that he could not
perform the requested legal services until Hegino and Maria
were lawfully in the United States. * * * In November and

December, 1991, the Tuballeses paid Respondent $9,000.
"* * * On January 15, 1992, Respondent visited the
Phillipines, and his wife Enaide (hereinafter Mrs. Kurtz)
visited the Phillipines on January 9, 1992. * * * Between
January 15, 1992 and February 1, 1992, Respondent met with
Hegino once in Manila. * * * Respondent claims to have
determined that Hegino did not meet the criteria for asylum as
his problem involved a dispute with a neighbor[,] not
governmental persecution[.] * * * [Respondent also claims] he
informed Hegino that he would attempt to assist him in
obtaining a B-1, B-2 [V]isa for him to enter the United States,
but that Respondent would need certain documents to do so,
including an affidavit of support which Respondent would
prepare. * * * Respondent claims that Hegino never provided any
of the documents or information needed to complete the
affidavit referred to above, so Respondent could not arrange an
interview at the Consulate regarding the issuance of [V]isas.
" * * * From the date of the Respondent's return to the
United States in February, 1992 until May 6, 1992, Repondent
did not report to the Tuballeses concerning the political
asylum applications, or other attempts to secure [V]isas for
Hegino and Maria. * * * On various occasions, the Tuballeses
attempted to contact Respondent at his home and office, but
Repondent was unresponsive to the Tuballeses. * * * In July,
1992, Mrs. Tuballes was able to contact Mrs. Kurtz by
telephone. * * * In that conversation, Mrs. Kurtz requested
three additional weeks to resolve the matter. * * * In that
same conversation, Mrs. Kurtz promised Mrs. Tuballes that
Respondent would refund the $9,000 fee if the Visas had not
been issued by August 15, 1992. * * * The August 15, 1992
deadline passed without any further contact between Respondent
or Mrs. Kurtz and Mr. and Mrs. Tuballes, and Visas were not
issued.
"* * * Respondent eventually promised to make a full
refund to the Tuballeses, in return for the Tuballeses'
agreement not to pursue disciplinary charges or a civil action
against Respondent, which the Tuballeses refused.
"* * * Respondent's usual fee for a political asylum case
is $5,000 per person. * * * In this instance, Respondent
ultimately asked for a fee of $8,500 per person, for a total of
$17,000. * * * Respondent's fee agreement with the Tuballeses
refers to a fee of $7,500 per person (for a total of $15,000).
* * * In addition, Respondent demanded a $2,000 payment in cash
from the Tuballeses, declining a check for that additional
amount.
"* * * Respondent's services, as set forth above, did
not justify the additional fees that Respondent charged the
Tuballeses. * * * The $9,000 paid Respondent by the
Tuballeses represented a portion of a 'flat rate' Respondent
billed the Tuballeses for the political asylum cases. * * * In
this case, the object of the representation cannot be
accomplished and virtually no services have been performed in
the course of the engagement. * * * Respondent withdrew the
$9,000 which the Tuballeses paid to Respondent from his IOLTA
account or never deposited all or a portion of those funds in
his IOLTA account, and is unable to immediately refund this
amount to the Tuballeses."

The panel, in recommending a sanction, found that
respondent committed the admitted misconduct, and considered
respondent's expression of remorse and promise to repay the
Tuballeses. The panel accepted the suggestion submitted by the
parties -- that respondent be issued a six-month suspension
from the practice of law and also a two-year monitored
probation, with the six-month actual suspension to be stayed
upon the conditions that he make restitution to the Tuballeses
and successfully complete the monitored probation. The board
adopted the panel's findings and its recommendation.

Michael J. Garvin and Michael C. Cohan, for relator.
John C. Kurtz, pro se.

Per Curiam. We have reviewed the stipulations and agree
that respondent committed the cited misconduct. However, we
consider a stay of the six-month suspension period too lenient
for respondent's violations of DR 2-106(A), 9-102(A) and
9-102(B)(3) and (4). We, therefore, order that respondent be
suspended from the practice of law in Ohio for a period of six
months, with this suspension to be followed by a two-year
monitored probation under the condition that he make full
restitution with interest at the judgment rate to the
Tuballeses by the end of his probation. Costs taxed to
respondent.
Judgment accordingly.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney,
Pfeifer and Cook, JJ., concur.

FOOTNOTES:

1. Both the complaint and stipulations erroneously refer to
DR 9-103(B)(3) and (4).