Disciplinary Counsel v. Henderson - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Disciplinary Counsel v. Henderson, 95 Ohio St.3d 129, 2002-Ohio-1756.]

OFFICE OF DISCIPLINARY COUNSEL v. HENDERSON.
[Cite as Disciplinary Counsel v. Henderson, 95 Ohio St.3d 129, 2002-Ohio-
1756.]
Attorneys at law -- Misconduct -- Six-month suspension with entire six months
stayed -- Engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation -- Engaging in conduct prejudicial to the
administration of justice -- Engaging in conduct adversely reflecting on
fitness to practice law -- Concealing or knowingly failing to disclose
that which attorney is required by law to reveal while representing a
client -- Knowingly making a false statement of law or fact -- Using
letterhead implying partnership with another attorney.
(No. 2001-1650 -- Submitted January 9, 2002 -- Decided May 1, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-31.
__________________

Per Curiam.
{¶1} On September 27, 2000, relator, Office of Disciplinary Counsel,
filed a four-count amended complaint charging that respondent, Ronald R.
Henderson of Toledo, Ohio, Attorney Registration No. 0023880, violated several
provisions of the Code of Professional Responsibility, primarily relating to his
representation of Kyle and Katia Kisseberth from 1994 through 1999.

Respondent answered, and on November 6, 2000, the matter was heard by a panel
of the Board of Commissioners on Grievances and Discipline of the Supreme
Court ("board").
{¶2} The parties stipulated that in 1993, Kyle and Katia Kisseberth filed
a lawsuit against Eagle American Insurance, which had refused to pay a claim

SUPREME COURT OF OHIO
made by the Kisseberths for the destruction of their jewelry store by fire. Martin
Mohler of Toledo and Robert Rutter of Cleveland represented the Kisseberths in
the case. After the jury found for Eagle American in March 1994, the Kisseberths
met with respondent, who shared office space with Attorney Mohler, to discuss
filing for bankruptcy protection. Respondent and Mohler were not partners, but
their letterhead read, "Law Offices [of] Mohler, Bingle & Henderson."
{¶3} The Kisseberths agreed to pay respondent a retainer of $1,500 plus
$100 per hour for the bankruptcy. In the meantime, in April 1994, the
Kisseberths appealed the trial court's decision in favor of Eagle American. Three
persons, Bonnie Kisseberth, Kyle's mother, Christine Heatherly, his grandmother,
and Nina Mull, a relative of Katia, advanced $4,500, $700, and $996,
respectively, to pay for the transcript in the case. The money was given to
respondent, and he used it to pay for the transcript.
{¶4} In May 1994, respondent filed the bankruptcy petition for the
Kisseberths in the United States Bankruptcy Court for the Northern District of
Ohio, Western Division. With the bankruptcy petition, respondent, as bankrupts'
counsel, filed the compensation statement required by Fed.R.Bankr.P. 2016(b). In
that statement, respondent represented that his fee to the Kisseberths was $1,500
plus $100 an hour, that he had so far received only $1,500, and that a source of
other compensation would be "payment by relatives."
{¶5} In February 1995, the bankruptcy trustee appointed Rutter and
Mohler as appellate counsel in the appeal against Eagle American. In July 1995,
the appeal was settled and in November 1995, Eagle American paid $45,000 to
the bankruptcy trustee. Rutter, as court-appointed appellate counsel, applied to
the bankruptcy court for compensation, and the trustee paid him an amount that
included reimbursement for the cost of the trial transcript.
{¶6} Rutter then sent respondent $7,619.03 to cover the charges for the
transcript, UPS fees, and $1,575.96 in court costs. Respondent paid half the court
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January Term, 2002
costs and applied the balance to the $15,100 in fees that he said the Kisseberths
owed him for the bankruptcy and several other matters. Those matters included
representation in the bankruptcy, services rendered in collection actions for the
Kisseberths, services rendered in a subrogation suit against the Kisseberths by
State Farm Insurance, services rendered in a matter involving Mid American
Bank, and services in the Eagle American case. There was no issue as to whether
respondent rendered the services.
{¶7} When the bankruptcy case was closed in August 1996, respondent
had been paid $11,887 of the $15,100 that he claimed was owed, in December
1997, he filed a collection suit in Lucas County against the Kisseberths for the
balance.
{¶8} The Kisseberths hired attorney Elliot Feit, who, in September
1998, filed a motion to reopen the bankruptcy case. The motion was granted, and
the case was reopened. Respondent then filed an application for fees in the
bankruptcy court, and the Kisseberths filed a motion to require respondent to
disgorge fees. Respondent's collection action was removed to the bankruptcy
court.
{¶9} After a hearing, Chief Bankruptcy Judge Richard L. Speer
disallowed $12,812.02 of respondent's claim for fees, awarded him $2,287.98 as
fees for the bankruptcy, ordered him to disgorge $9,600 in attorney fees, and
dismissed his collection claim against the Kisseberths. On appeal, the United
States District Court affirmed the order of the bankruptcy court.
{¶10} The panel concluded that with respect to Count I of the complaint
(failure to reimburse his client's relatives for the cost of the trial transcript),
respondent's conduct violated DR 1-102(A)(4) (a lawyer shall not engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5) (a
lawyer shall not engage in conduct prejudicial to the administration of justice), 1-
102(A)(6) (a lawyer shall not engage in conduct adversely reflecting on the
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SUPREME COURT OF OHIO
lawyer's fitness to practice law), and 7-102(A)(3) (in representing a client, a
lawyer shall not conceal or knowingly fail to disclose that which he is required by
law to reveal). With respect to Count II, the panel found that relator had not
proved by clear and convincing evidence that respondent had charged a clearly
excessive fee. The panel further concluded that clear and convincing evidence
established the charge in Count III, that respondent had misrepresented to the
bankruptcy court the amount of fees he intended to charge the Kisseberths, and
thus respondent violated DR 7-102(A)(3) and 7-102(A)(5) (in representing a
client, a lawyer shall not knowingly make a false statement of law or fact). The
panel finally concluded with respect to Count IV that respondent's use of a
letterhead that implied that he was a partner with Mohler violated DR 2-102(B) (a
lawyer shall not practice under a name that is misleading or a firm name
containing names other than those of one or more lawyers in the firm except as
otherwise provided) and 2-102(C) (a lawyer shall not hold himself out as being in
partnership with other lawyers unless they are in fact partners).
{¶11} The panel found in mitigation that respondent was a well-respected
attorney and had no prior disciplinary offenses. It recommended that respondent
be suspended from the practice of law for one year with six months stayed. The
board adopted the findings, conclusions and recommendation of the panel.
{¶12} On review of the record, we adopt the findings and conclusions but
not the recommendation of the board. There is no indication in the record that
anyone disputes that respondent expended the hours he claims to have worked.
The record also indicates that while the bankruptcy court ordered respondent to
disgorge some of his fees, it found that respondent did not affirmatively act to
conceal his fees. Since this was a first violation, respondent is suspended from
the practice of law for six months with the entire six months stayed. Costs are
taxed to respondent.
Judgment accordingly.
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January Term, 2002
DOUGLAS, LAZARUS, F.E. SWEENEY and PFEIFER, JJ., concur.
LUNDBERG STRATTON, J., concurs in judgment.
MOYER, C.J., and COOK, J., dissent.
CYNTHIA A. LAZARUS, J., of the Tenth Appellate District, sitting for
RESNICK, J.
__________________
COOK, J., dissenting.
{¶13} The majority's imposition of a six-month suspension with the six
months stayed insufficiently sanctions respondent for his misconduct. I would
adopt the sanction recommended by both the panel and the board and would
suspend respondent for one year with six months stayed.

MOYER, C.J., concurs in the foregoing dissenting opinion.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Dianna M. Anelli,
Assistant Disciplinary Counsel, for relator.
James D. Caruso, for respondent.
__________________
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