Category Archives: Client with diminished capacity

Ohio lawyer who stole $128,674.30 from mentally ill client, including charging hourly rate for mowing her lawn, indefinitely suspended

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Ohio Supreme Court opinion indefinitely suspending an Ohio lawyer who stole over $128,674.30 from mentally ill client, including charging hourly rate for mowing her lawn, helping find an apartment, and shopping for her.  The case is Disciplinary Counsel v. Buttars, Slip Opinion No. 2020-Ohio-1511.  The April 21, 2020 opinion is here:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-1511.pdf

According to the opinion, the lawyer first began working for the client, who suffered from mental illness, alcoholism, and depression, in 2015. His law firm agreed to represent the client for $20 per month but the lawyer entered into a separate written fee agreement to represent her “in any capacity” at an hourly billable rate of $250.00.  The client told the lawyer that she could not pay him immediately; however, she was going to receive “a substantial inheritance” from her mother’s estate when the mother passed away.

After the client’s mother died in 2015, the lawyer, who had his own law firm at that time, assisted with the administration of the client’s mother’s estate and also performed nonlegal, personal jobs for her, including assisting her with a new apartment, mowing her lawn, and shopping for her. He charged either his hourly rate of $250.00 or the paralegal rate of $150.00 per hour.

The lawyer transferred $10,000.00 from one of the client’s bank accounts in May 2016 for personal and business expenses.  He told her that he made a mistake and advised her to sign a promissory note saying that it was a loan; however, he did not advise her that she could seek independent counsel on the issue.

The lawyer was convicted of fourth-degree felony theft from the client in May 2019 and was temporarily suspended based upon that conviction.  A disciplinary complaint was subsequently filed against the lawyer for violating rules prohibiting collecting illegal or clearly excessive fees; entering into a business transaction with a client without complying with the requirements of the disciplinary rules; and fraud.

According to the opinion, “(t)he parties stipulated—and the board agreed—that although (the lawyer) transferred $147,710.85 from E.H.’s accounts, he and his law firm had earned only $19,036.55, leaving $128,674.30 as the total amount that he had either stolen or overcharged. (The lawyer) repaid to E.H. $12,500 in January 2017 and $50,000 during his criminal proceeding. Therefore, at the time of his disciplinary hearing, he owed E.H. restitution in the amount of $66,174.30, which included the $29,450 that he had been ordered to make as part of his criminal sentence. Because the criminal case did not account for the amounts that (the lawyer) had overcharged E.H., the restitution amount in this disciplinary matter is substantially greater than that ordered in (the lawyer’s) criminal case.”

The lawyer paid $12,500.00 back in January 2017 and $50,000.00 during the criminal proceedings, which left a balance of more than $66,000.00 owed, including $29,450.00 that the lawyer had been ordered to make as part of his criminal sentence.  The opinion found aggravating factors of acting with a dishonest and selfish motive, engaging in a pattern of misconduct, and committing multiple offenses while representing a “particularly vulnerable client”.

According to the opinion, “(t)he presumptive sanction for an attorney’s misappropriation of client funds is disbarment, but that presumption may be tempered with sufficient evidence of mitigating or extenuating circumstances…(t)he board accepted the parties’ proposed sanction and recommends that we indefinitely suspend (the lawyer)—rather than disbar him—based on his acceptance of responsibility, sincere remorse, and commitment to make things right with E.H. To support its recommendation, the board cited two cases in which we indefinitely suspended attorneys who similarly misappropriated funds while serving in positions of trust.”

The opinion imposed an indefinite suspension, with no credit for the time that he was suspended under the interim felony suspension and his reinstatement was conditioned upon proof of the lawyer’s payment of the remaining $66,000.00 owed his client.

Bottom line:  This lawyer admitted stealing or “overcharging” $128,674.30 from the client; however, he was indefinitely suspended and not disbarred.  This most likely would not happened in Florida (or most other jurisdictions).

Be careful out there.

 

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

Leave a comment

Filed under and fraud, Attorney discipline, Attorney Ethics, Client with diminished capacity, deceit, dishonesty, Excessive fee, fraud, joe corsmeier, Joseph Corsmeier, Lawyer conduct adversely affecting fitness to practice, Lawyer conflict of interest, Lawyer discipline, Lawyer discipline false client billings, Lawyer discipline for criminalconviction, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer excessive fee, Lawyer excessive fees, lawyer false billing, lawyer felony suspension, Lawyer improper fees, Lawyer misrepresentation, Lawyer sanctions, Lawyer unreasonable fee, Lawyers false billings discipline, misrepresentations, Ohio felony suspension, Ohio indefinite suspension theft from client, Uncategorized

Louisiana Disciplinary Board recommends 2 year suspension for lawyer who,inter alia, charged excessive fees to a diminished capacity client for non-legal tasks

            Hello and welcome to this Ethics Alert blog which will discuss the recent recommendation of the Louisiana Attorney Disciplinary Board that a Louisiana lawyer be suspended for 2 years for charging an excessive fee to a client with diminished capacity for performing non-legal tasks, failing to refund a portion of the fees after agreeing to the refund, and making misrepresentations, and failing to communicate with a second client, failing to account for trust funds, failing to place trust funds into a trust account, and failing to properly terminate the representation.  The case is Louisiana Attorney Disciplinary Board In Re: Katherine M. Guste, Board No. 10DB-046 (June 25, 2012).

According to the Board recommendation, the lawyer represented a client with Huntington’s disease, a genetic disorder that can cause cognitive impairment, and charged the client $125.00/ hour for running errands, packing the client’s household goods, taking him to a telephone company office, and taking him to Wal-Mart.  The Board found that the lawyer charged excessive fees in the amount of $30,000.00 and agreed to refund $11,000.00 of the fees but failed to make the refund, and also made misrepresentations in her testimony about her actions.  The Board rejected the hearing panel’s finding that the lawyer violated Louisiana Bar Rule 1.14 by failing to maintain a normal attorney/client relationship when a client has diminished capacity.  In a second matter, the Board found that the lawyer failed to properly communicate with another client, failed to account for and place trust funds into a trust account, and failed to properly terminate the representation.

After considering the facts and finding that “job stress” was not a mitigating factor, the Disciplinary Board rejected a hearing panel’s recommendation that the lawyer be disbarred and instead recommended a two-year suspension.  The Board’s recommendation will now be sent to the Louisiana Supreme Court for a final disciplinary order.

Bottom line:  This lawyer was representing a client who apparently had diminished capacity and was found to have charged the client $30,000.00 in excessive fees, including $125.00/ hour for time spent on non-legal errands and other tasks (among other misconduct) and may be suspended for 2 years.  As lawyers, we have a fiduciary duty to treat our clients fairly, even if they are under a disability.  Florida Bar Rule 4-1.14(a) states that “(w)hen a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

Disclaimer:  this blog does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Client with diminished capacity, Communication with clients, Excessive fee, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer trust accounts