Summary
In Berger, the court found that two attorneys charged an excessive fee, denied a client access to settlement proceeds, failed to accept any ethical responsibility for their conduct, and attempted to suppress the bar association's investigation.
Summary of this case from Cincinnati Bar Ass'n v. DearfieldOpinion
Nos. 92-905 and 92-906
Submitted June 17, 1992 —
Decided September 2, 1992.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 90-61.
By amended complaint filed January 17, 1991, relator, Cuyahoga County Bar Association, charged respondents, Sanford J. Berger (Attorney Registration No. 0008346) and Robert M. Fertel (Attorney Registration No. 0022109) with misconduct, in five counts: violations of DR 2-106(A) (charging a clearly excessive fee); 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 9-102(B)(4) (refusing to promptly pay funds to a client which client is entitled to receive); Gov.Bar R. V(5)(a) (neglecting or refusing to assist the grievance committee's investigation); DR 1-102(A)(2), (5), (6) and 1-103(A) (circumventing a Disciplinary Rule through actions of another; engaging in conduct prejudicial to the administration of justice; engaging in conduct adversely reflecting on one's fitness to practice law; and failing to report unprivileged knowledge of a violation of DR 1-102 to a tribunal or other investigative authority).
Respondents' answer to the amended complaint, filed April 11, 1991, denied the allegations of misconduct and raised affirmative defenses. Respondents alleged that the board lacked subject-matter jurisdiction and that the charges were not proper because of federal preemption and the Supremacy Clause of Clause 2, Article VI of the United States Constitution.
Testimony and other evidence was presented at a hearing before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court. The record reflects that the charges of misconduct arose from respondents' representation of Daniel Gurish in connection with his claim for wrongful discharge as a Cuyahoga County deputy sheriff arising under Section 1983, Title 42, U.S.Code. Respondents obtained a judgment in favor of Gurish and against Cuyahoga County Sheriff McFaul in the amount of $100,000. Thereafter, pursuant to Section 1988, Title 42, U.S. Code, the court awarded $30,000 as reasonable attorney fees. At Gurish's urging, respondents accepted a total settlement "package" of $130,000.
The Board of Commissioners of Cuyahoga County authorized preparation of a voucher payable to Gurish, Berger and Fertel for $100,000 and an additional voucher payable to only Berger and Fertel for $30,000. These checks were delivered to respondents and the $30,000 check was cashed by respondents. A disagreement resulted over the division of the $100,000 check. Respondents contended they were entitled to the $30,000 in attorney fees and, in addition, fifty percent of the $100,000 award, based upon a contingency fee agreement between the parties. Gurish wanted fifty percent of the $130,000 "package." As a result of the dispute, Gurish filed an action in the Court of Common Pleas of Cuyahoga County for declaratory judgment as to the proper division of the $100,000 check. Respondents filed a separate action seeking damages against Gurish and his new attorney in the amount of $2,500,000.
The two actions were settled on May 30, 1990, on the basis of a split of the $130,000 package, with Gurish receiving $65,000 and respondents receiving $35,000 (in addition to the $30,000 attorney-fee check). The agreement required strict confidentiality as to the terms of the settlement and, in the event of inquiries by any bar association, an agreement that the response would be limited to: "the matters have been resolved."
The hearing panel reviewed the complaint against respondents and made findings of fact, conclusions of law and a recommendation. Asserting that respondents' conduct struck at the heart of the disciplinary system and ethical rules established by the Ohio Supreme Court, the panel noted that respondents refused to accept any ethical responsibility for their conduct.
Moreover, the panel concluded that respondents charged an excessive fee, denied a client access to settlement proceeds, and attempted to suppress the bar association's investigation, thus violating DR 2-106(A), 9-102(B)(4), Gov. Bar R. V(5)(a), and DR 1-102(A)(2), (5), and (6). However, the panel found no violation of DR 1-102(A)(4).
The panel recommended that respondents be suspended from the practice of law for one year. The board adopted the findings, conclusions and recommendation of the panel and further recommended that costs be taxed to respondents.
Laurence A. Turbow, Ellen S. Mandell and Marshall J. Wolf, for relator.
Sanford J. Berger, for respondent Robert M. Fertel.
Robert M. Fertel, for respondent Sanford J. Berger.
Based upon our review of the record, including the exhibits, we concur in the findings and recommendations of the board. Respondents, Sanford J. Berger and Robert M. Fertel, are each hereby suspended from the practice of law in Ohio for one year. Costs taxed to respondents.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.