Disciplinary Counsel v. Conese

812 N.E.2d 944, 102 Ohio St. 3d 439
CourtOhio Supreme Court
DecidedAugust 4, 2004
DocketNo. 2004-0469
StatusPublished
Cited by4 cases

This text of 812 N.E.2d 944 (Disciplinary Counsel v. Conese) 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
Disciplinary Counsel v. Conese, 812 N.E.2d 944, 102 Ohio St. 3d 439 (Ohio 2004).

Opinion

Per Curiam.

{¶ 1} Respondent, Mark A. Conese of Hamilton, Ohio, Attorney Registration No. 0004637, was admitted to the practice of law in Ohio in 1983. On August 7, 2003, relator, Disciplinary Counsel, charged respondent in an amended complaint with six counts of professional misconduct. A panel of the Board of Commissioners on Grievances and Discipline (“board”) heard the cause and, based on stipulations, exhibits, and testimony, made findings of fact, conclusions of law, and a recommendation.

{¶ 2} The charges in Counts One and Two arose from findings of the Ohio Secretary of State and Ohio Elections Commission that respondent, while serving as a member of the Butler County Board of Elections in March 2000, threatened an employee of the board of elections with dismissal if the employee refused to contribute 100 percent of his net salary to the Butler County Democratic Party. On March 20, 2001, the Secretary of State removed respondent from the county board of elections for malfeasance and misfeasance in office. On October 10, 2002, the elections commission fined respondent $1,000 for his violation of R.C. 3517.09(B).1 In State v. Conese, 102 Ohio St.3d. 435, 2004-Ohio-3889, 812 N.E.2d 306, we affirmed respondent’s conviction for having violated R.C. 2921.43(C) (coercive solicitation for a political party), a misdemeanor of the first degree for [440]*440which he was sentenced to 180 days in jail, all of which was suspended, fined $1,000, $750 of which was suspended, and ordered to pay the costs of his prosecution. With this conviction, respondent is disqualified from holding any public office, employment, or position of trust in Ohio for seven years. R.C. 2921.43(E).

{¶ 3} As to Counts One and Two, the parties stipulated and the panel found that respondent had violated DR 1-102(A)(5) (barring conduct prejudicial to the administration of justice) and 1-102(A)(6) (barring conduct that adversely reflects on the lawyer’s fitness to practice law).

{¶ 4} The charges in Count Three arose out of a past business relationship between respondent and his identical twin brother, Michael S. Conese, a former attorney whose law license was suspended for misconduct on October 2, 2002, Disciplinary Counsel v. Conese, 96 Ohio St.3d 458, 2002-Ohio-4797, 776 N.E.2d 13, and whose resignation from the practice of law we accepted on May 7, 2003. In re Resignation of Conese, 99 Ohio St.3d 1203, 2003-Ohio-2588, 788 N.E.2d 1096. Before these orders and beginning around 1999, respondent and his brother shared office space for a few years, and respondent used letterhead suggesting to the public that he and his brother were partners in a law firm. In fact, they were not. As to this count, the parties stipulated and the panel found that respondent had violated DR 2-102(C) (barring a lawyer from misrepresenting that he or she is in partnership with one or more other lawyers or professional corporations).

{¶ 5} The charges in Count Four arose from respondent’s acceptance of a fee for representing a client who had retained respondent’s brother as his attorney. In October 2002, soon after his brother’s license suspension, respondent appeared with his brother at a mediation conference on this client’s behalf. Respondent later accepted fees and expenses for representing this client, even though the client had never consented to respondent’s sharing the fees that the client had paid respondent’s brother. As to this count, the parties stipulated and the panel found that respondent had violated DR 2-107(A) (allowing lawyers to share fees when they are not members of the same law firm only if they obtain a client’s prior consent, divide the fee in proportion to their services or the client agrees in writing that all the lawyers take responsibility for the representation, charge a total fee that is reasonable, and disclose to the client the identity of all lawyers sharing in the fee and the terms of the fee division).

{¶ 6} The charges in Count Five arose because respondent represented a second client who had also retained respondent’s brother. In June 2002, respondent’s brother paid respondent part of the fee that the client had paid him, but respondent did not obtain the client’s express written consent to the fee-sharing [441]*441arrangement beforehand. As to this count, the parties stipulated and the panel found that respondent had committed a second violation of DR 2-107(A).

{¶ 7} The charges in Count Six were based on irregularities in the financial records for respondent and his brother’s law practice. In 2001 and 2002, respondent and his brother deposited client fees into the brother’s office operating account, rather than a client trust account, and during 2002, the brothers repeatedly paid themselves from the same account. As to this count, the parties stipulated and the panel found that respondent had violated DR 2-107(A), 9-102(A) (requiring the deposit of funds paid to a lawyer or law firm, other than advances for costs and expenses, in an identifiable bank account and separate from any account containing funds belonging to the lawyer or law firm), 9-102(B)(3) (requiring a lawyer to maintain complete records and appropriately account for all funds, securities, and other properties of a client in the attorney’s possession), and 9-102(E)(l) (requiring a lawyer to maintain funds of clients or third persons in certain interest-bearing trust accounts).

{¶ 8} In recommending a sanction for this misconduct, the panel considered the parties’ stipulations as to the mitigating features of respondent’s case. See Section 10(B)(2) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). The panel found extenuating the fact that none of the charges against respondent had resulted from a client’s grievance, nor had his misconduct caused any clients harm. Moreover, respondent had no prior record of disciplinary findings against him and had cooperated in a professional manner throughout the disciplinary process. BCGD Proc.Reg. Sections 10(B)(2)(a) and (d). The panel further observed that respondent had already paid a price for the misconduct found under Counts One and Two — the elections commission fined him $1,000 and the Secretary of State removed him from the board of elections, a penalty that also cost him medical and other benefits. BCGD ProaReg. 10(B)(2)(f).

{¶ 9} Respondent, who had formerly served Butler County for 12 years, first as county court judge and then as a common pleas court judge in the domestic relations division, testified to other costs of his misconduct and mitigation. He described how his prosecution and the publicity surrounding it had adversely affected his family and his law practice. He acknowledged that he had engaged in the unauthorized fee-sharing and unethical accounting practices by relying too heavily on his brother’s office staff. During this time, respondent had also been distressed by his brother’s illness, the brother’s subsequent suspension, and, soon afterward, their father’s death.

{¶ 10} Respondent attributed some of his misconduct to his unfamiliarity with ethical requirements for maintaining a law office after leaving the bench. But he [442]

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Cite This Page — Counsel Stack

Bluebook (online)
812 N.E.2d 944, 102 Ohio St. 3d 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-conese-ohio-2004.