ethics

Unauthorized Practice of Law

Licensed to practice law in Indiana, Virginia and the District of Columbia, non-Ohio licensed attorney Donald Doheny, Jr. was ordered to cease practicing law in Ohio and fined $25,000 for engaging in the unauthorized practice of law.

Suffering from the effects of a serious auto accident in 1993, Doheny, unable to maintain steady work, moved to St. Louis to live with his mother.  When she passed away, Doheny moved to Ohio to live with close friends.

While living there, Butler County informed Doheny’s friends that they violated a lease for a county airport hanger when they placed signage on the side and the roof.  After researching the matter, Doheny met with County officials, which resulted in the County dropping the demand to remove the signs.

Doheny then attended a County Commissioners’ meeting where he requested that the lease regarding the airport hanger be amended so that his friends could obtain a Small Business Loan and build a new hanger.  Doheny provided legal advice regarding building permits and met with government officials about compliance with the permits.  Doheny later recommended that his friends file suit against the County.

Doheny told the FAA that he represented his friends, using Doheny & Doheny law firm letterhead and listed as his business address property that his clients’ owned.  His friends paid him about $65,000 for Doheny’s legal services.

Doheny also charged his friends a fee for preparing a real estate purchase agreement.  He charged another man to prepare a deed to sell real estate.  He represented to Butler County jail officials that he was the family attorney for a man arrested.  He attempted to obtain the man’s release and was paid $2,000 for his efforts.

In March 2017, the Ohio State Bar Association filed a complaint with the Board on the Unauthorized Practice of Law charging Doheny with 11 counts of practicing law without an Ohio license.  On August 21, 2019, the Supreme Court of Ohio ordered Doheny to cease practicing law in Ohio and fined him $25,0000.

Gov.Bar R. VII permits the Supreme Court of Ohio to fine an individual found to have engaged in the unauthorized practice of law $10,000 for each incident.  The Supreme Court of Ohio could have fined Donehy up to $100,000 for the 10 counts for which it found him to be engaged in the unauthorized practice of law.  However, it deemed a $25,000 fine to be sufficient.

 

ethics

Pay Co-Counsel All They Are Due

On June 27, 2019, Cuyahoga County lawyer Scott A. Rumizen was suspended from the practice of law for two years with 18 months stayed for failing to pay his co-counsel the entirety of the fees co-counsel was entitled to receive.

The misconduct occurred through a series of cases in which Rumizen and his co-counsel represented clients.  Rumizen had been an independent contractor for a law firm.  When he left the firm to open his own practice, the firm and he agreed that he would take about 100 cases, mostly personal injury cases.  Rumizen later misreported the amounts many of the cases settled for resulting in underpayment to his co-counsel.  The resulting shortage in fees paid to co-counsel amounted to nearly $50,000.

In one case, Rumizen settled a personal injury matter for $170,000 for which he received a $62,000 fee award.  He was to pay co-counsel $15,000.  Rumizen, however, reported the settlement as being $60,000, that he received $15,000 in attorney fees and paid co-counsel $3,750.

Co-counsel discovered the misconduct when he received an anonymous letter informing him of Rumizen’s conduct.  While Rumizen initially denied the conduct, he later admitted underpaying the lawyer.  This happened in a number of cases.

The Board found, and the Supreme Court of Ohio agreed, that Rumizen violated Prof.Cond.R. 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).  It further found that the conduct was so egregious that it adversely reflected on Rumizen’s fitness to practice law in violation of Prof.Cond.R. 8.4(h).

The Supreme Court of Ohio has repeatedly stated that a violation of Prof.Cond.R. 8.4(c) will result in an attorney’s actual suspension from the practice of law for a period of time. Although he requested a stayed suspension, Rumizen was actually suspended for 6 months with the balance of 18 months stayed providing he engages in no further misconduct.

Disciplinary Counsel v. RumizenSlip Opinion No. 2019-Ohio-2518.

ethics

Ineffective Assistance Leads to Disciplinary Sanction

On October 2, 2018, the Supreme Court of Ohio suspended Cincinnati attorney Clyde Bennett, II’s license to practice law for one year.  The Board of Professional Conduct, the trial arm of the disciplinary system, recommended a one-year suspension with six months stayed.   The Ohio Supreme Court, however, enhanced the sanction, as is its prerogative under Ohio’s attorney disciplinary process.

Bennett missed the filing deadline for appealing his client’s conviction for attempted murder and felonious assault and 25-year prison sentence.  According to Bennett, he had decided that a direct appeal to the Supreme Court of Ohio and a federal habeas petition was a better course of action than appealing to the 1st District Court of Appeals.  However, he did not inform his client of that decision when the two men met after the Court of Appeals deadline had expired.

The Supreme Court stated that Bennett did not have a sufficient understanding that habeas proceedings first required the exhaustion of all state remedies.  He also failed to inform his client’s mother that he required the entirety of the $5,000 flat fee before he would start work on the case.  Nor did he reduce the fee agreement to writing.  The client’s mother paid Bennett $2,500, which Bennett deemed earned upon receipt and deposited into his general business account.  After receiving another $1,000, Bennett began work on the case by filing a Notice of Appearance and filing a one-page motion for delayed appeal with the Supreme Court of Ohio.  Bennett represented to the Supreme Court that the reason for the delay was that he was not retained until several days after the expiration of the 45-day time period for filing the appeal.

The Supreme Court deemed Bennett’s Affidavit in Support of Jurisdiction misleading in that it omitted relevant information.  It called the omissions significant.  It said it was designed to mislead a subsequent court considering a habeas petition that a good faith effort had been made to avail the client of his state law remedies.  The Supreme Court denied Bennett’s motion for delayed appeal.

Bennett’s client hired another attorney who filed a motion for delayed appeal with the Supreme Court of Ohio on the basis of Bennett’s ineffective assistance of legal counsel. The Supreme Court denied that motion.  The U.S. District Court for the S.D. of Ohio, Western Division, later determined that Bennett’s ineffective assistance excused the client’s failure timely to file the first appeal but denied the habeas petition, nevertheless.

The Supreme Court of Ohio found that Bennett’s conduct failed to give competent representation to his client, failed reasonably to keep his client informed of the status of the matter, violated fees rules of ethics by receiving an “earned upon receipt” retainer without a provision for refunding fees if the representation was not completed and making misrepresentations to the Supreme Court of Ohio.

In issuing sanctions, the Supreme Court noted that the purpose of attorney disciplinary proceedings was to protect the public, not to punish the offender.  However, it also noted its propensity to enhance a sanction where the attorney has previously committed violations of a similar nature.  It noted that Bennett had previously been indefinitely suspended for engaging in dishonest conduct that also resulted in a felony conviction and a two-year prison sentence.  Because the current misconduct also involved misrepresentation, the Supreme Court enhanced Bennett’s sanction and suspended his license to practice law for one year rather than the suggested one year with six months stayed.

Disciplinary Counsel v. Bennett, 2018-Ohio-3973.