Disciplinary Counsel v. Summers

2012 Ohio 1144, 131 Ohio St. 3d 467
CourtOhio Supreme Court
DecidedMarch 22, 2012
Docket2011-0464
StatusPublished
Cited by5 cases

This text of 2012 Ohio 1144 (Disciplinary Counsel v. Summers) 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. Summers, 2012 Ohio 1144, 131 Ohio St. 3d 467 (Ohio 2012).

Opinions

Per Curiam.

{¶ 1} Respondent, William Lawrence Summers of Cleveland, Ohio, Attorney Registration No. 0013007, was admitted to the practice of law in Ohio in 1969 and is also licensed to practice in Kentucky.

{¶ 2} On April 12, 2010, relator, disciplinary counsel, charged Summers with several violations of the Rules of Professional Conduct arising from his representation of a client who had been charged with multiple felony offenses. A panel of the Board of Commissioners on Grievances and Discipline conducted a hearing and issued a report, finding that Summers had (1) charged a clearly excessive fee, (2) failed to advise his client in writing that if he failed to complete the representation, the client might be entitled to a refund of all or part of the fee, (3) failed to promptly refund the unearned portion of his fee at the time of his withdrawal from the representation, and (4) engaged in conduct that adversely reflects upon his fitness to practice law. The panel recommended that Summers be suspended from the practice of law for six months and that the issue of restitution be resolved in fee arbitration or other court proceedings. The board adopted the panel’s findings of fact and misconduct and its recommended sanction but also recommends that Summers be required to refund the full $15,000 fee to his client.

{¶ 3} Summers objects to the board’s findings of fact and misconduct and argues that the recommended sanction and restitution are excessive and punitive. We overrule Summers’s objections to the board’s findings of fact and misconduct and overrule his objection with regard to the recommended sanction.

[468]*468Misconduct

{¶ 4} The panel and board found that the client, Anthony Bell, was 19 years old when he was charged with multiple felony offenses for allegedly assaulting a police officer during a brawl in the stands at a professional baseball game between the Cleveland Indians and New York Yankees. Anthony, a resident of upstate New York who had no criminal record, insisted he was innocent; he maintains that position today.

{¶ 5} Anthony and his family knew no one in Cleveland. Acting on the referral of a bondsman, and with his family’s financial support, Anthony retained Summers to defend him. From the beginning of the representation, Anthony and his family never equivocated in expressing what they wanted from Summers: exoneration of the charges.

{¶ 6} Summers’s first fee agreement with the Bell family was executed around the time of Anthony’s arraignment in late April 2008. At the initial meeting, Summers secured an advance of $1,000 for expenses and a retainer of $2,500 from the family. And “to do a favor for them, to be kind to them,” Summers agreed to reduce his hourly charge from $350 per hour to $250 per hour. Nonetheless, when Anthony’s family received Summers’s first invoice shortly after July 1, 2008, they discovered that Summers had charged them $350 per hour, the initial $2,500 retainer had been exhausted, they owed Summers an additional $2,500, and they were being charged for work performed by Summers’s associate, Aaron Baker, at the rate of $125 per hour.

{¶ 7} Baker evidently had worked for Summers for years but had only been licensed to practice law for several months when respondent assigned him to this case. Summers avers that Baker’s time was normally billed at $175 per hour but that Summers had also reduced Baker’s rate for this case.

{¶ 8} Upon the Bells’ inquiry, Baker acknowledged the $100 per-hour billing discrepancy and assured them that the bill would be corrected. Rather than adjust the bill himself, Baker asked Anthony’s mother to pay the corrected amount. The Bell family never received an invoice with the correct billing rate and did not pay the erroneous invoice. Summers continued to represent Anthony for the next two months without a word about the nonpayment.

{¶ 9} Less than one week before a pretrial hearing set for September 9, 2008, however, Summers informed Anthony that he was in breach of the fee agreement and threatened to withdraw from his representation unless a new fee agreement was secured. In doing so, Summers did not focus on the billing issue or nonpayment of fees as a reason for the alleged breach. Rather, Summers chastised Anthony’s parents for their “interference” with his representation and [469]*469stated that “there was something standing in the way of him completing the case.”1

{¶ 10} Anthony testified that he was scared out of his mind by Summers’s threat to withdraw. His parents were worried about retaining new counsel; they did not think that they could afford to pay new counsel in addition to paying Summers’s fee. The Bells therefore agreed to a new fee agreement — a flat-fee arrangement — with Summers.

{¶ 11} The flat-fee agreement specified that Anthony and his family would pay $15,000 to Summers “in addition to any and all amounts already paid.”2 The agreement provided that $15,000 was all that Anthony would owe, regardless of the time that Summers would spend on his behalf, including work through the investigation “and, if necessary, through the trial, and if necessary, sentencing, or other disposition of the case.”

{¶ 12} In the fee agreement, Summers characterized the $15,000 fee as nonrefundable and, despite the requirements of Prof.Cond.R. 1.5(d)(3), did not advise the client and his family that they might be entitled to a refund of all or part of the fee if he failed to complete representation. In fact, although Summers initially insisted that he had read each word of the retainer to Anthony and his parents and explained each paragraph to them, he later admitted that he had not read to them the paragraph about the fee not being refundable. And when Anthony’s mother subsequently sent an e-mail to Summers asking reasonable questions about the flat-fee retainer and what it meant, Summers responded with an e-mail that was, at best, impatient and intemperate, and at worst, scathing. In that e-mail, he also stated that the $15,000 flat fee “will cover all of the Attorney fees for the matter to the end, regardless of what time we have to spend which is a benefit to you. If you discharge us, you will however owe us for all of our time spent thus far, less the initial retainer. You will also owe us for bringing the new Lawyer up to speed.” (Underlining sic.)

{¶ 13} Four months after extracting the flat-fee agreement, Summers’s representation abruptly ended. After collecting $17,726.01 in fees, Summers called Anthony in December and told him that “things weren’t looking good, and he was going to try to work out a plea.” The following month, Summers screamed at [470]*470Anthony’s father that he was “done” and “finished.” After nine months of representing Anthony, Summers refused to continue the representation and then moved to withdraw, without securing a plea agreement for his client or otherwise finishing representation.

{¶ 14} The board found by clear and convincing evidence that Summers violated Prof.Cond.R. 1.5(d)(3) (prohibiting a lawyer from charging a flat fee without simultaneously advising the client in writing that the client may be entitled to a refund of all or part of the fee if the lawyer does not complete the representation). We expressly reject Summers’s protestations that his failure to include the language was an honest mistake that arose from his use of a form document intended for use in Kentucky, where, he argues, such notification is not required.

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2012 Ohio 1144, 131 Ohio St. 3d 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-summers-ohio-2012.