Akron Bar Ass'n v. Catanzarite

119 Ohio St. 3d 313
CourtOhio Supreme Court
DecidedAugust 14, 2008
DocketNo. 2008-0423
StatusPublished
Cited by11 cases

This text of 119 Ohio St. 3d 313 (Akron Bar Ass'n v. Catanzarite) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akron Bar Ass'n v. Catanzarite, 119 Ohio St. 3d 313 (Ohio 2008).

Opinions

Moyer, C.J.

{¶ 1} We must determine in this case the appropriate sanction for a lawyer who, in attempting to collect legal fees from two prospective clients, sued them for an amount he knew he had not earned and then resorted to intimidation tactics in the ensuing disciplinary proceeding. Finding that these acts constituted professional misconduct, the Board of Commissioners on Grievances and Discipline recommends that we suspend the lawyer’s license for one year and stay the last six months on conditions, including one year of probation. We accept the board’s findings of misconduct and recommendation.

{¶ 2} Respondent, Jeffrey A. Catanzarite of Akron, Ohio, Attorney Registration No. 0015203, was admitted to the practice of law in Ohio in 1979. Relator, Akron Bar Association, charged respondent in a multiple-count complaint with violations of the Code of Professional Responsibility and with failing to cooperate in a disciplinary investigation as required by Gov.Bar R. V(4)(G). A three-member panel of the board heard the case in November 2007, found three Disciplinary Rule violations and a failure to cooperate, and recommended the one-year suspension and conditioned six-month stay. The board adopted the panel’s findings of misconduct and recommendation.

{¶ 3} Respondent objects to the board’s report, arguing first that the findings of misconduct are not supported by the requisite degree of proof. The objections, which merely lament that the panel and board did not accept respondent’s version of the underlying events, are overruled. Relator’s witnesses testified to the facts set forth in Part I of this opinion, the panel credited these witnesses over respondent’s testimony, and consistent with our usual practice in disciplinary proceedings, we defer to those credibility determinations. See Cincinnati Bar Assn. v. Statzer, 101 Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶8.

{¶ 4} Respondent also objects to the board’s recommendation, arguing that the sanction is too severe. We disagree. As explained in Part II of our opinion, we find that a one-year suspension with the last six months stayed on conditions, including one year of probation, is appropriate.

I. Misconduct

{¶ 5} To establish a lawyer’s professional misconduct, relator must prove a violation of the Disciplinary Rules with clear and convincing evidence. Gov.Bar R. V(6)(J); Disciplinary Counsel v. Jackson (1998), 81 Ohio St.3d 308, 310, 691 [315]*315N.E.2d 262; Ohio State Bar Assn. v. Reid (1999), 85 Ohio St.3d 327, 708 N.E.2d 193, paragraph two of the syllabus. “ ‘Clear and convincing evidence’ has been defined as ‘that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ ” Id. at 331, 708 N.E.2d 193, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the syllabus. The proof of respondent’s improprieties meets this standard.

A. Respondent Violated DR 2-106(A) by Charging a Clearly Excessive Fee

{¶ 6} Respondent has a master’s degree in business administration in addition to his law degree and has practiced for most of his career in taxation and finance, representing closely held corporations. Sometime in January 2006, David Hirsch called respondent to inquire about retaining his help in resolving difficulties that Hirsch and Robert Joyce, partners in a recruiting firm named Professional Dynamics, were having with a third partner. During their 15- to 20-minute conversation, respondent advised Hirsch that he would not charge for their initial consultation but if hired would require a $1,000 retainer fee and then charge fees as necessary. Respondent, who typically charges $150 per hour, did not specify his hourly rate.

{¶ 7} Hirsch, who admitted his inexperience in dealing with attorneys, and Joyce then met with respondent on January 13, 2006, for one and one-half to two hours. They explained that their third partner had abandoned the business after incurring various debts. Respondent advised Hirsch and Joyce to reconnect with the partner and “bring [him] back as a team player.” Joyce testified that respondent, at some point during the meeting, had also mentioned the $1,000 retainer, adding that he would cap his fees at $5,000. Both Hirsch and Joyce testified that they made no commitment to hire respondent, telling him that they wanted to think more before engaging him and intending to consult with another attorney the following week.

{¶ 8} Some time after their meeting, respondent called Hirsch and asked whether any progress had been made with the third partner. Respondent also inquired about obtaining a check for $1,000. Hirsch replied, according to his testimony, that he and Joyce would forward a check to respondent if they decided to hire him.

{¶ 9} Before Hirsch and Joyce’s meeting with respondent, Joyce had already tried without success to reconcile the partnership’s differences with the third partner. Joyce tried again after the meeting, but the third partner would not meet with him. Joyce testified that he relayed this information to respondent in [316]*316a call on January 15, 2006, during which respondent neither offered another course of action nor revisited the matter of his fee. After this conversation, the partners received the following communiqué to Joyce by facsimile:

{¶ 10} ‘You have already begun implementation of our plan regarding your former partner. We have agreed to my legal fee of $5,000, payable $1,000 immediately and $1,000.00 on the 15th day of February, March, April and May of 2006. I will provide all necessary services to resolve the bank loan issue and the corporate procedures needed to reflect [your third partner’s] resignation. This fee shall govern unless litigation becomes necessary * * *.”

{¶ 11} A few days after their second telephone conversation, respondent again called Hirsch and asked about his retainer. Hirsch again replied that he and Joyce would pay if they decided to hire respondent. At that point, respondent lost his temper and became profane. He demanded his fee and threatened suit if Hirsch and Joyce did not pay. Hirsch testified to the shock and dismay he experienced after this call, and Joyce testified that Hirsch was visibly shaken when he reported respondent’s use of profanity and threats.

{¶ 12} Hirsch never spoke to respondent again. Joyce testified that respondent called him a few more times, offering first to charge a fee of only $1,000 and then of only $300. Joyce did not accept either offer and told respondent that he wanted to consult Hirsch about paying respondent $300. The next day, Hirsch and Joyce were notified that respondent had filed a lawsuit.

{¶ 13} In early February 2006, respondent sued Professional Dynamics in Akron Municipal Court for breach of contract, claiming that Hirsch and Joyce had agreed to pay a $1,000 retainer and a total of $5,000 in fees.

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Bluebook (online)
119 Ohio St. 3d 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akron-bar-assn-v-catanzarite-ohio-2008.