ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-59.

Relator, the Toledo Bar Association, charged respondent, Gerald S. Lubitsky, with three counts of misconduct in violation of DR 2-106(A) and (B) (charging a clearly excessive fee) and 9-102 (failure to deposit funds of client in identifiable bank account for client's benefit and to pay to client funds requested which the client is entitled to receive). Respondent filed an answer denying any misconduct. Testimony and other evidence were presented to a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court at a hearing on the matter on July 26, 1991.

On or about February 10, 1989, Samuel Geraldo hired respondent to attempt to terminate a receivership which involved Geraldo. He paid respondent $10,000. The parties dispute whether that payment was a retainer or an agreed fee for services to be rendered. Testimony also indicated that the hourly rate for services was to be $100, with a refund of any unearned amount.

Respondent deposited the $10,000 in his business account, not in an escrow account. Respondent prepared a motion and a brief memorandum in support, and attended a hearing, on the question of termination of the receivership. His efforts were unsuccessful, and on May 15, 1989, he was dismissed by Geraldo, who requested an accounting of the fee and a refund of the unearned amount. On August 31, 1989, respondent submitted his statement for services rendered, but refused to make any refund, and allegedly billed Geraldo for an additional $1,925. This additional billing is disputed by respondent. Geraldo then filed a complaint with the relator's grievance committee contending that he had been charged a clearly excessive fee.

The panel found that the parties had entered into a fee agreement which called for a $10,000 retainer, charges at $100 per hour, and a refund of all unused monies; and that the fee claimed by respondent was clearly excessive based upon the limited nature of the task requested and the minimal services performed. Further, the panel found that respondent had violated DR 2-106 by failing to escrow a retainer fee, accurately account for the fee, or return unused portions thereof, and by charging a clearly excessive fee.

The panel recommended a suspension of six months, with reinstatement contingent upon respondent's return of $8,500 to Geraldo.

The board adopted the panel's findings of fact, conclusions of law and recommendation, and further recommended that the costs of the proceedings be taxed to respondent.