Cuyahoga Cty. Bar Assn. v. Levey - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as Cuyahoga Cty. Bar Assn. v. Levey, 88 Ohio St.3d 146, 2000-Ohio-283.]

CUYAHOGA COUNTY BAR ASSOCIATION v. LEVEY.
[Cite as Cuyahoga Cty. Bar Assn. v. Levey (2000), 88 Ohio St.3d 146.]
Attorneys at law -- Misconduct -- Six-month suspension stayed -- Execution of
contingent-fee agreements resulting in excessive fees.
(No. 99-403 -- Submitted August 25, 1999 -- Decided February 23, 2000.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 97-27.

On October 20, 1997, relator, Cuyahoga County Bar Association, filed a
third amended complaint charging respondent, Harold L. Levey of Cleveland,
Ohio, Attorney Registration No. 0007068, with several Disciplinary Rule
violations. Respondent answered, and the matter was heard by a panel of the
Board of Commissioners on Grievances and Discipline of the Supreme Court
("board").

The panel found that in April 1995, when Casey and Theresa Shandor
retained respondent to represent them in a personal injury matter, they entered into
a contingent-fee agreement which provided for an hourly charge if respondent was
discharged "whether or not successful completion" occurred (emphasis sic). The
panel concluded that by entering into this contract respondent violated DR 2-
106(A) (a lawyer shall not charge a clearly excessive fee). The panel also found
that respondent continued to negotiate a settlement after he was discharged by the
Shandors and refused to return their file, and concluded that he therefore violated
2-110(A)(2) (a lawyer shall not withdraw from employment without taking steps to
avoid prejudice to his client and delivering all papers to the client, to which the
client is entitled) and 2-110(B)(4) (a lawyer shall withdraw from employment if he
is discharged). In addition, the panel concluded that respondent's behavior toward

the Shandors violated DR 1-102(A)(6) (engaging in conduct that adversely reflects
upon the attorney's fitness to practice law).

The panel also examined respondent's advertising, which the Shandors
claimed persuaded them to employ respondent. Finding that respondent "could
offer no data, [or] method to substantiate the truthfulness" of his advertising
claims, the panel concluded that respondent violated DR 2-102(A)(4) (a lawyer
shall not use public communication to make a claim that is not verifiable).

The panel also found that nearly five years earlier, in December 1990,
Deborah Maruschke had entered into a similar contingent-fee contract with
respondent to represent her with respect to personal injuries she received in an auto
accident while a passenger in a car driven by her friend, Christopher Sajka. Sajka
also hired respondent to represent him.

Finding that respondent did not clearly advise Maruschke about the potential
conflict with Sajka, the panel concluded that respondent violated DR 1-102(A)(6).
The panel also found that respondent's fee agreement called for an excessive fee
and that respondent performed work after being discharged, and concluded that
respondent thereby violated DR 2-106(A). In addition, the panel found that
respondent set up an appointment with Maruschke after being discharged in
violation of DR 2-110(B)(4), and that respondent communicated with Maruschke
by letter after being notified that she was represented by successor counsel, in
violation of DR 7-104(A)(2) (giving legal advice, other than advice to secure
counsel, to an unrepresented person with interests that conflict with those of a
client).

The panel found that in March 1996, Fletcher Jernigan hired respondent
under the same contingent-fee contract to represent him with respect to an injury
received as a result of an automobile striking the front porch of his home. The
panel concluded that the execution of the fee agreement violated DR 2-106(A) and

2

that respondent violated DR 2-110(A)(2) because he prejudiced Jernigan's rights
by filing a lawsuit against him after being discharged, even though Jernigan's
successor counsel said that respondent's claims for fees and expenses would be
protected.

Further, the panel found that in March 1996, Michael Ruppel employed
respondent in a personal injury matter pursuant to respondent's standard
contingent-fee contract. When Ruppel later discharged respondent, respondent
turned over Ruppel's file to the new counsel and demanded security for his fees.
Receiving no satisfaction with respect to this demand, respondent sued Ruppel, the
successor counsel, and the insurance company. The panel concluded that by filing
a preemptive lawsuit respondent prejudiced his client's rights and so violated "DR
2-110 [sic]."

The panel took into account evidence presented in mitigation, and
recommended that respondent be suspended from the practice of law for six
months.

The board "carefully reviewed the record in this matter given the unethical
and coercive fee contracts at issue," and adopted the panel's findings of fact and
conclusions of law. The board, however, recommended that respondent be
indefinitely suspended from the practice of law in Ohio.
__________________

Michael E. Murman, for relator.

Charles W. Kettlewell, for respondent.
__________________
Per
Curiam. We have carefully reviewed the record in this matter and find
that it does not support many of the findings of the panel that were adopted by the
board.

3

We find no clear and convincing evidence that respondent continued to
negotiate for the Shandors after he was discharged, or that after being discharged
respondent refused to turn over the Shandors' file until his expenses and a fee were
paid, or that respondent engaged in intimidating conduct toward the Shandors.
Therefore, we do not adopt the findings and conclusions of the board on those
matters.

Nor do we concur with the panel's and board's findings that respondent
offered "no data, or method to substantiate the truthfulness" of his advertising
claims. The record indicates that respondent was never asked about the specific
claims which were part of the panel's and board's findings. We therefore reject the
board's finding that respondent violated DR 2-102(A)(4).

In the Maruschke matter, the panel and board should not have made findings
and conclusions about respondent's failure to advise Maruschke about the potential
conflict with Sajka. During the panel hearing counsel for relator requested that
that count be dismissed, and no evidence at all was introduced on it. We further
find that respondent's letter to Maruschke after she discharged him does not appear
to have been written as a matter of continued employment, nor does the letter
contain legal advice. Therefore, we also do not adopt the conclusions of the board
that respondent violated DR 2-110(B)(4) and 7-104(A)(2).

We do not find clear and convincing evidence that respondent's lawsuits
against Jernigan or Ruppel prejudiced those clients and we therefore do not adopt
the board's conclusion that respondent's conduct with respect to Jernigan and
Ruppel violated DR 2-110(A)(2).

The panel and board made findings with respect to fee agreements in the
Shandor, Maruschke, and Jernigan matters. They concluded that because
respondent's contingent-fee agreement with the Shandors provided for an hourly
charge if he was discharged "whether or not, a successful completion" occurred

4

(emphasis sic), respondent violated DR 2-106(A). It also found that the execution
of a similar fee agreement in the Jernigan matter violated DR 2-106(A). The board
relied on our holding in Reid, Johnson, Downes, Andrachik & Webster v.
Lansberry (1994), 68 Ohio St.3d 570, 629 N.E.2d 431, that when an attorney
employed pursuant to a contingent fee is discharged, the attorney's fee recovery is
on the basis of quantum meruit and arises upon the successful occurrence of the
contingency. The board said, "In the instant case, Respondent's fee agreement
called for reimbursement [sic] of a sum certain, whether or not successful
completion" occurred (emphasis sic).

We agree with the conclusion of the panel and the board that the Shandor
and Jernigan fee agreements violated DR 2-106(A). Both contingent-fee
agreements provided for payment of an hourly rate if the respondent was
discharged, and both were executed after our 1994 Reid decision, one in 1995 and
the other in 1996. However, we note that respondent claimed that he adopted the
fee agreement as a result of reading treatises and attending seminars, that he did
not enforce the liquidated damage provision unless there was some recovery by the
client, and that he changed his contract as soon as he was informed that it violated
the Disciplinary Rule.

We note that respondent's fee agreement with Maruschke was executed in
1990, several years before our Reid decision and at a time when legal
commentators may not have condemned such contracts. Since the relator
presented no evidence that respondent's fee agreement with Maruschke was
otherwise excessive or unreasonable, we do not find that it violated the
Disciplinary Rules. Only one item of work appears on respondent's time sheets
after the date he was discharged by Maruschke, and that was a letter to the
insurance company asserting his lien. Respondent said that if he charged

5

Maruschke for this letter, it was in error. We regard the matter as de minimus and
find no clear and convincing violation of the Disciplinary Rules.

Given the circumstances of this case, we adopt the findings and conclusions
of the panel and board with respect only to respondent's contingent-fee contracts
with the Shandors and Jernigan. Respondent is hereby suspended from the practice
of law for six months with the entire six months stayed. Costs are taxed to
respondent.
Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
F.E. SWEENEY, J., dissents and would publicly reprimand respondent.

COOK, J., dissents.
__________________

COOK, J., dissenting. I concur with the findings of the panel and with its
recommended sanction of a six-month suspension.

6