Dayton Bar Ass'n v. Rogers

116 Ohio St. 3d 99
CourtOhio Supreme Court
DecidedOctober 24, 2007
DocketNo. 2007-0746
StatusPublished
Cited by4 cases

This text of 116 Ohio St. 3d 99 (Dayton Bar Ass'n v. Rogers) 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
Dayton Bar Ass'n v. Rogers, 116 Ohio St. 3d 99 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} Respondent, Richard Hunter Rogers of Dayton, Ohio, Attorney Registration No. 0017858, was admitted to the Ohio bar in 1974. In 1994, we publicly reprimanded him for violating the following Disciplinary Rules: DR 1-102(A)(3) (prohibiting a lawyer from engaging in illegal conduct involving moral turpitude) and 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Dayton Bar Assn. v. Rogers (1994), 71 Ohio St.3d 283, 643 N.E.2d 539. In 1999, we imposed a one-year stayed suspension on him for his violation of DR 9-102(A) (requiring a lawyer to maintain client funds in a separate, identifiable bank account). Dayton Bar Assn. v. Rogers (1999), 86 Ohio St.3d 25, 711 N.E.2d 222. For the reasons that follow, we conclude that respondent’s license to practice law in Ohio should now be suspended for two years as a result of the additional misconduct described below.

{¶ 2} On April 18, 2005, relator, Dayton Bar Association, filed a complaint charging respondent with professional misconduct. Respondent filed an answer to the complaint, and a panel of the Board of Commissioners on Grievances and Discipline held hearings on the complaint in April 2006 and January 2007. The panel then prepared written findings of fact and conclusions of law, which the board adopted, as well as a recommendation, which the board rejected.

Misconduct

{¶ 3} In July 2000, Roy K. Smith and his wife, Dagmar Smith, of Yellow Springs, Ohio, retained respondent to pursue legal action against the architects and the contractor who had designed and built the Smiths’ home. The exterior of that home was covered with a synthetic stucco siding that allowed moisture to enter the home but did not allow it to escape. The trapped moisture had caused the wood under the stucco to rot to the point that it generated a noticeable odor.

[100]*100{¶ 4} Respondent told the Smiths that he had experience with construction litigation and was familiar with the problems associated with synthetic stucco. The Smiths agreed to pay respondent an hourly rate of $175 for his services. During the three years that respondent worked on the Smiths’ case, from 2000 to 2003, he billed them more than $69,000 for his and another attorney’s work.

{¶ 5} Respondent filed a lawsuit for the Smiths in the Greene County Court of Common Pleas in March 2001. For work done between April and mid-August of 2001, respondent billed the Smiths more than 20 hours for discovery-related work on the case. In August 2001, respondent engaged the services of attorney Ronald Kozar to assist him with the preparation of discovery demands and responses. The Smiths agreed to pay for Kozar’s services at the same $175-per-hour rate that they were paying respondent, and the attorneys agreed that Kozar would send his bills to respondent, who would in turn incorporate them into his own before sending the combined bills to the Smiths for payment.

{¶ 6} In his initial letter to Kozar in August 2001, respondent provided little explanation about the case and none of the discovery-related work product for which the Smiths had already been billed over $3,500. Kozar testified that he “started from scratch” when it came time to respond to the defendants’ discovery demands because respondent had no draft responses to give him. Kozar’s time records indicate that he spent one hour preparing interrogatory responses in October 2001 and an additional two hours in November 2001. Kozar testified at the disciplinary hearing that respondent did not prepare the interrogatory responses or change the responses that Kozar had drafted. Yet respondent billed the Smiths for at least 12 hours of work that he had allegedly done from August through December 2001 drafting and revising interrogatory responses.

{¶ 7} Respondent acknowledged at the disciplinary hearing that no documents or other records support his claim that he provided drafts of discovery responses to Kozar when Kozar joined the Smiths’ litigation team in August 2001. Respondent also testified that he “did not make real substantial changes” to the interrogatory responses that Kozar prepared. In addition, he admitted that he had no evidence to show that he had made any changes at all to those documents even though he had billed the Smiths for working on the interrogatory responses.

{¶ 8} Kozar’s time records further indicate that he spent five hours in February 2002 preparing discovery requests that were to be served on the defendants. He testified at the disciplinary hearing that those requests were sent to the defendants just as he had prepared them with no changes by respondent. Respondent nonetheless billed the Smiths for 2.2 hours of his own work, which he described on a client bill as “Finalize and send interrogatories and document requests to all defendants.”

[101]*101{¶ 9} Kozar also testified at the disciplinary hearing that respondent wanted to hire and did hire an expert witness to assist with the Smiths’ case. After the defendants took the expert’s deposition in May 2002, however, Kozar and respondent agreed that the expert’s testimony was not necessary, and Kozar stated at the disciplinary hearing that there was no basis for billing the Smiths after the expert’s deposition for any further expert-related expenses. Respondent nonetheless billed the Smiths for 5.5 hours in June and July 2002 for “review” of the deposition and for further discussions with the expert and another person employed by the same company. Kozar testified at the disciplinary hearing that those charges were “unnecessary” and “made absolutely no sense” because “we had already decided we were not going to use” any experts.

{¶ 10} Kozar did not know how much respondent was billing the Smiths for the attorneys’ work on the case because Kozar simply sent his time records to respondent, who then incorporated Kozar’s time into the bills that respondent sent to the Smiths. Kozar testified at the disciplinary hearing that when he asked to see the bills, respondent was “miffed” and did not want to show them to him. Once Kozar saw the bills, he concluded that respondent had billed for work that Kozar knew respondent had not performed.

{¶ 11} After Kozar questioned the amount that respondent had billed the Smiths, respondent refunded $6,650 to them in 2003. Respondent refunded an additional $11,750 to the Smiths after they retained a new lawyer who accused him of committing fraud, breach of fiduciary duty, and legal malpractice.

{¶ 12} The board found that respondent’s actions violated DR 1 — 102(A)(3), 1-102(A)(4), and 2-106(A) (prohibiting a lawyer from charging or collecting a clearly excessive fee).

Sanction

{¶ 13} The panel recommended to the board that respondent be suspended for two years, with 12 months stayed. But the board recommends to this court that respondent be suspended for two years with none of the suspension stayed. Respondent filed objections to the board’s findings and its recommendation, arguing that relator failed to prove by clear and convincing evidence that any disciplinary violations had occurred, and urging the court to stay any suspension imposed on him.

{¶ 14} We have reviewed the board’s report and the record, and we have fully considered respondent’s objections and his oral argument.

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Cite This Page — Counsel Stack

Bluebook (online)
116 Ohio St. 3d 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dayton-bar-assn-v-rogers-ohio-2007.