Lake County Bar Ass'n v. Kubyn

[Cite as Lake Cty. Bar Assn. v. Kubyn, 121 Ohio St.3d 321, 2009-Ohio-1154.]
LAKE COUNTY BAR ASSOCIATION v. KUBYN.
[Cite as Lake Cty. Bar Assn. v. Kubyn, 121 Ohio St.3d 321, 2009-Ohio-1154.]
Attorney misconduct, including failing to promptly refund unearned fees upon
discharge — Public reprimand.
(No. 2008-2431 — Submitted January 14, 2009 — Decided March 19, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-003.
__________________
Per Curiam.
{¶1} Respondent, R. Russell Kubyn of Painesville, Ohio, Attorney
Registration No. 0029510, was admitted to the practice of law in Ohio in 1984.
The Board of Commissioners on Grievances and Discipline recommends that we
publicly reprimand respondent, based on findings that he failed upon discharge
from employment to promptly refund unearned fees and to take reasonably
practicable steps to protect his client’s interests. We agree that respondent
committed professional misconduct in violation of the Rules of Professional
Conduct and that a public reprimand is appropriate.
{¶2} Relator, Lake County Bar Association, charged respondent with
professional misconduct in a one-count complaint. A panel appointed by the
board considered the case upon the parties’ consent-to-discipline agreement, filed
pursuant to Section 11 of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). The panel accepted the agreement, found
respondent in violation of ethical standards, and recommended the public
reprimand. The board adopted the panel’s findings of misconduct and
recommendation.
SUPREME COURT OF OHIO
Misconduct
{¶3} Respondent admitted to having violated Prof.Cond.R. 1.16(d) and
(e). Prof.Cond.R. 1.16(d) requires lawyers, upon withdrawal or termination, to
take reasonably practicable steps to protect the client’s interests, including
delivering client papers and property to which the client is entitled. With an
exception not relevant here, Prof.Cond.R. 1.16(e) requires lawyers, upon
withdrawal or termination, to promptly return any part of a fee that has not been
earned.
{¶4} Respondent violated these rules in the course of his attorney-client
relationship with Michael J. Butz, who hired respondent to represent him in his
divorce and other matters. Butz signed a fee agreement in late December 2006
and pursuant to that contract, paid respondent $5,000. Butz soon became
dissatisfied with respondent’s services and discharged him on January 31, 2007.
{¶5} Upon discharging respondent, Butz advised him that he had
retained new counsel and asked respondent for an itemized billing and to return
any unearned fees. In late February 2007, Butz’s brother, another attorney, asked
respondent again for an itemized billing and the return of unearned fees. Butz’s
brother wrote a second letter to the same effect early in March. Respondent did
not comply with these requests, and Butz’s new attorney had to recreate his file.
{¶6} Respondent did reply, however, to a February 2007 request from
his client’s new attorney for the Butz case file. He claimed to have no duty to
produce it because he had sent Butz copies of all the paperwork as it was
generated or received, so Butz already had the complete file. Respondent offered
the same justification during the investigation of Butz’s grievance.
{¶7} In March 2007, respondent sent an itemized bill to his client and
refunded $1,032.50 in legal fees. Because the itemized statement assessed
charges for work done after Butz discharged him, respondent later repaid an
additional $362.50.
2
January Term, 2009
{¶8} We accept respondent’s admissions to the charged violations of
Prof.Cond.R. 1.16(d) and (e).
Sanction
{¶9} In recommending a sanction for this misconduct, the panel and
board weighed the aggravating and mitigating factors of respondent’s case. See
BCGD Proc.Reg. 10(B). According to the consent-to-discipline agreement, no
aggravating factors are present. Mitigating factors include that respondent has no
prior disciplinary record, did not have a dishonest or selfish motive, has made a
timely good-faith effort to rectify the consequences of his misconduct, and has
cooperated in the disciplinary proceedings. See BCGD Proc.Reg. 10(B)(2)(a),
(b), (c), and (d). The parties also agree that respondent’s good character and
professional competence weigh in his favor, as does the fact that a mental
disability contributed to cause his misconduct and has since been successfully
treated. See BCGD Proc.Reg. 10(B)(2)(e) and (g).
{¶10} The parties have stipulated to and the panel and board
recommended that respondent be publicly reprimanded for his misconduct. We
accept this recommendation. Respondent is hereby publicly reprimanded for his
violations of Prof.Cond.R. 1.16(d) and (e).
{¶11} Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
James P. Koerner, for relator.
Murman & Associates and Michael E. Murman, for respondent.
______________________
3