Cleveland Metro. Bar Assn. v. Mariotti (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Mariotti, Slip Opinion No. 2019-Ohio-5191.]
NOTICE
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SLIP OPINION NO. 2019-OHIO-5191
CLEVELAND METROPOLITAN BAR ASSOCIATION v. MARIOTTI.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Mariotti, Slip Opinion No.
2019-Ohio-5191.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Conditionally stayed one-year suspension.
(No. 2018-1579—Submitted September 11, 2019—Decided December 18, 2019.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2018-043.
__________________
Per Curiam.
{¶ 1} Respondent, Mark Mariotti, of Cleveland, Ohio, Attorney
Registration No. 0067608, was admitted to the practice of law in Ohio in 1997.
Mariotti’s license to practice law was suspended from December 5, 2003, through
March 18, 2004, for his failure to comply with continuing-legal-education (“CLE”)
requirements for the 2001-2002 reporting period. In re Continuing Legal Edn.
Suspension of Mariotti, 100 Ohio St. 3d 1516, 2003-Ohio-6494, 800 N.E.2d 34; In
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re Reinstatement of Mariotti, 101 Ohio St. 3d 1479, 2004-Ohio-1240, 805 N.E.2d
102. It was suspended again from December 2, 2005, through January 10, 2006,
for his failure to register for the 2005-2007 attorney-registration biennium. In re
Attorney Registration Suspension of Mariotti, 107 Ohio St. 3d 1431, 2005-Ohio-
6408, 838 N.E.2d 671; In re Reinstatement of Mariotti, 108 Ohio St. 3d 1428, 2006-
Ohio-378, 841 N.E.2d 790.
{¶ 2} In a formal complaint certified to the Board of Professional Conduct
on August 31, 2018, relator, Cleveland Metropolitan Bar Association, charged
Mariotti with multiple ethical violations arising from his representation of clients
in two separate cases—including the neglect of one client’s legal matter, failure to
limit the scope of the other client’s representation, failure to reasonably
communicate with either client, and failure to deposit an unearned fee into his client
trust account—and his failure to cooperate in the ensuing disciplinary investigation.
{¶ 3} Mariotti failed to timely answer relator’s complaint. His default was
certified to this court, and on December 3, 2018, we imposed an interim default
suspension in accordance with Gov.Bar R. V(14)(B)(1). Cleveland Metro. Bar
Assn. v. Mariotti, 154 Ohio St. 3d 1439, 2018-Ohio-4770, 112 N.E.3d 924. Three
days later, Mariotti filed a motion for leave to answer and for termination of the
interim default suspension. We granted Mariotti’s motion and remanded the matter
to the board for further proceedings. Cleveland Metro. Bar Assn. v. Mariotti, 154
Ohio St. 3d 1473, 2019-Ohio-118, 114 N.E.3d 1201. We reinstated Mariotti to the
practice of law on February 19, 2019—after he filed an answer to relator’s
complaint. See 156 Ohio St. 3d 1238, 2019-Ohio-579, 125 N.E.3d 965.
{¶ 4} On remand, the parties entered into stipulations of fact and
misconduct. A panel of the board conducted a hearing and issued a report finding
that Mariotti committed all but two of the alleged rule violations and recommending
that he be suspended from the practice of law for one year, fully stayed on
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conditions. The board adopted the panel’s report and recommendation, and no
objections have been filed.
{¶ 5} We adopt the board’s findings of misconduct and agree that a one-
year suspension, fully stayed on the recommended conditions, is the appropriate
sanction in this case.
Misconduct
Count I: The Borisenko Case
{¶ 6} In early December 2016, Mariotti verbally agreed to assist Sergey
Borisenko in a commercial-eviction action filed against Borisenko in the Parma
Municipal Court. But there was no clear agreement between Mariotti and
Borisenko regarding the scope of the representation or Mariotti’s compensation,
and Mariotti did not inform Borisenko that he did not carry professional-liability
insurance.
{¶ 7} On December 30, the plaintiff in the eviction action filed a motion for
default judgment against Borisenko, which was scheduled to be heard on January
31, 2017. Borisenko sent portions of the motion to Mariotti by text, but Mariotti
did not enter an appearance in the case, file an answer or other responsive pleading,
or appear at the hearing. In response to Borisenko’s repeated text messages asking
whether they had missed a court date, Mariotti responded, “No. You didn’t need
to be there. Everything is fine.”
{¶ 8} On February 1, Mariotti filed an answer on Borisenko’s behalf. That
day, the trial court journalized an entry stating that it had entered a $14,000 default
judgment against Borisenko on January 31 and that that judgment was not affected
by the late-filed answer. When Borisenko confronted Mariotti by text message
about the default judgment, Mariotti responded: “There’s more than what the
docket states. The case is still going on and I have been negotiating with [the
plaintiff’s] attorney to settle the money and car issues.”
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{¶ 9} Mariotti was ultimately unable to resolve those issues through
negotiation, so he filed a motion for relief from judgment. The court denied the
motion, and Mariotti failed to inform Borisenko of his right to appeal.
{¶ 10} At his disciplinary hearing, Mariotti acknowledged that he had
agreed to help Borisenko and expressed genuine remorse for his neglect. He also
testified that he had informed Borisenko that he did not have a strong case and that
he was going to have to pay the plaintiff some amount to settle it. Because relator
presented no evidence that Borisenko had any viable counterclaim or defense to the
eviction complaint, the board could not determine whether the outcome would have
been different in the absence of Mariotti’s neglect.
{¶ 11} The parties stipulated and the board found that Mariotti’s conduct
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(b) (requiring a lawyer to explain a matter to the extent
reasonably necessary to permit a client to make informed decisions regarding the
representation), and 1.4(c) (requiring a lawyer to inform the client if the lawyer
does not maintain professional-liability insurance).
{¶ 12} At the hearing, relator sought to withdraw—and requested that the
panel dismiss—three additional alleged violations based on the insufficiency of the
evidence. The panel unanimously granted that request with respect to one alleged
violation, but the panel and board found that relator had presented clear and
convincing evidence that when Mariotti sent Borisenko the text message falsely
stating that “[e]verything is fine,” Mariotti violated Prof.Cond.R. 1.4(a)(3)
(requiring a lawyer to keep a client reasonably informed about the status of a
matter) and 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation).
{¶ 13} We accept these findings of misconduct.
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Count II: The Lyons Case
{¶ 14} In May 2017, Danielle Lyons retained Mariotti to represent her in a
criminal matter that was pending against her in Cuyahoga County. Her family paid
Mariotti an initial retainer of $800, but he did not deposit the money into his client
trust account. He did not reduce the fee agreement to writing or inform Lyons that
he did not carry professional-liability insurance.
{¶ 15} At a later time, Lyons informed Mariotti that she was a defendant in
a related criminal case that was pending in Geauga County. Mariotti acknowledges
(1) that Lyons believed he would represent her in the Geauga County case after
resolving her Cuyahoga County case and (2) that her family attempted to wire him
an additional $400 as payment for that representation—though he testified that he
never retrieved that payment. Mariotti did not attend Lyons’s Geauga County bond
hearing or otherwise appear in that case, and Lyons obtained other representation.
{¶ 16} The parties stipulated and the board found that Mariotti’s conduct
alleged in this count violated Prof.Cond.R. 1.2(c) (permitting a lawyer to limit the
scope of a new or existing representation if the limitation is reasonable under the
circumstances and communicated to the client, preferably in writing), 1.4(c), and
1.15(c) (requiring a lawyer to deposit advance legal fees and expenses into a client
trust account, to be withdrawn by the lawyer only as fees are earned or expenses
incurred).1
{¶ 17} We accept these findings of misconduct.
Count III: Failure to Cooperate
{¶ 18} Mariotti admits that he failed to respond to relator’s requests for
written responses to the grievances filed against him by Borisenko and Lyons and
that he provided documents and other responses to relator only after being
compelled by subpoena to do so. Consequently, the parties stipulated and the board
1. The panel unanimously dismissed one additional alleged violation based on the insufficiency of
the evidence.
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found that he violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) (both requiring
a lawyer to cooperate with a disciplinary investigation).
{¶ 19} We accept these findings of misconduct.
Sanction
{¶ 20} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 21} The parties stipulated that four aggravating factors are present.
Specifically, Mariotti has prior CLE and registration suspensions, engaged in a
pattern of misconduct, committed multiple offenses, and had an interim default
suspension imposed for his initial failure to cooperate in this proceeding. See
Gov.Bar R. V(13)(B)(1), (3), (4), and (5). The board agreed, and based on
Mariotti’s false statement to Borisenko that everything was fine in his case, the
board found that he had also acted with a dishonest or selfish motive. See Gov.Bar
R. V(13)(B)(2). But the board also found that Mariotti’s full and free disclosure to
the panel, cooperative attitude during the hearing, and genuine remorse were
mitigating factors. See Gov.Bar R. V(13)(C)(4).
{¶ 22} The parties suggested that the appropriate sanction for Mariotti’s
stipulated misconduct is a one-year suspension, fully stayed on conditions,
including that he complete six hours of CLE in law-office management and serve a
one-year period of monitored probation.
{¶ 23} But in addition to adopting the parties’ stipulations of misconduct,
the board found that Mariotti had failed to keep Borisenko informed, and had
actually lied to him, about the status of his legal matter in violation of Prof.Cond.R.
1.4(a)(3) and 8.4(c). The board noted that Disciplinary Counsel v. Fowerbaugh,
74 Ohio St. 3d 187, 658 N.E.2d 237 (1995), syllabus, stands for the proposition that
an actual suspension from the practice of law is the presumptive sanction for
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misconduct involving dishonesty, fraud, deceit, or misrepresentation. In that case,
we suspended an attorney from the practice of law for six months based on findings
that he had fabricated court documents and continued to lie to his client for several
months in an attempt to conceal his inaction in the client’s case.
{¶ 24} The board also considered several cases in which the presence of
mitigating factors resulted in the imposition of fully stayed suspensions on
attorneys who engaged in dishonest conduct. For example, in Disciplinary Counsel
v. Fumich, 116 Ohio St. 3d 257, 2007-Ohio-6040, 878 N.E.2d 6, we imposed a fully
stayed one-year suspension on an attorney who falsely told a client that he had
settled a case and paid the “settlement” out of his personal funds rather than inform
the client that the case had been dismissed two years earlier. No aggravating factors
were present in that case, but mitigating factors included a clean disciplinary
history, payment of restitution, cooperation in the disciplinary process, and
evidence of the attorney’s excellent character and reputation.
{¶ 25} And in Toledo Bar Assn. v. Crosser, 147 Ohio St. 3d 499, 2016-Ohio-
8257, 67 N.E.3d 789, we imposed a fully stayed one-year suspension on an attorney
for neglecting a client matter, failing to respond to the client’s requests for
information regarding the status of the matter, and attempting to conceal her neglect
with a series of misrepresentations. The only aggravating factor was Crosser’s prior
attorney-registration suspension, and mitigating factors included her payment of
restitution, cooperation in the disciplinary process, good character and reputation,
and acceptance of responsibility for her actions.
{¶ 26} Noting that Mariotti had fully cooperated in the disciplinary
proceedings on remand and expressed genuine remorse for his misconduct, the
board recommends that he be suspended from the practice of law for one year, with
the entire suspension stayed on the conditions that he complete six hours of CLE
related to law-office management, commit no further misconduct, and serve a one-
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year period of monitored probation focused on client communication and client-
trust-account management.
{¶ 27} Having reviewed the record and considered Mariotti’s misconduct,
the relevant aggravating and mitigating factors, and our precedent, we find that
Mariotti’s isolated false assurances that everything was fine and that the case was
“still going on” as he attempted to negotiate issues related to the default judgment
do not rise to the level of the dishonest and fraudulent course of conduct present in
Fowerbaugh. We do not condone Mariotti’s failure to clearly delineate the scope
of his representation, his neglect of a client matter, his failure to reasonably
communicate with a client, his failure to deposit an unearned fee into his client trust
account, or his false assurances to a client. But in accord with our holdings in
Fumich and Crosser, we believe that a one-year suspension, stayed on the
conditions recommended by the board, will adequately protect the public from
future harm.
{¶ 28} Accordingly, Mark Mariotti is suspended from the practice of law
for one year, fully stayed on the conditions that he (1) complete six hours of CLE
in law-office management in addition to the requirements of Gov.Bar R. X, (2)
complete a one-year period of monitored probation pursuant to Gov.Bar R. V(21),
focused on client communication and the proper management of his client trust
account, and (3) engage in no further misconduct. If Mariotti fails to comply with
any condition of the stay, the stay will be lifted and he will serve the full one-year
suspension. Costs are taxed to Mariotti.
Judgment accordingly.
FRENCH, FISCHER, DEWINE, and STEWART, JJ., concur.
O’CONNOR, C.J., and KENNEDY, J., would suspend respondent from the
practice of law for one year, with six months stayed on conditions.
DONNELLY, J., not participating.
_________________
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Brenda M. Johnson and Jordan D. Lebovitz; and Heather M. Zirke, Bar
Counsel, and Kari L. Burns, Assistant Bar Counsel, for relator.
Mark Mariotti, pro se.
_________________
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