Columbus Bar Ass'n v. Bahan

• Decision Date: 12 February 2020
• Docket Number: No. 2019-0219,2019-0219
• Citation: 2020 Ohio 434,159 Ohio St.3d 479,152 N.E.3d 189
• Parties: COLUMBUS BAR ASSOCIATION v. BAHAN.
• Court: Ohio Supreme Court

159 Ohio St.3d 479

152 N.E.3d 189

2020 Ohio 434

COLUMBUS BAR ASSOCIATION

v.BAHAN.

No. 2019-0219

Supreme Court of Ohio.

Submitted September 11, 2019

Decided February 12, 2020

Briscoe Law Offices, L.P.A., and Colleen Briscoe ; and Kent. R. Markus, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel, for relator.

Dennis W. McNamara, Columbus, for respondent.

Stewart, J. {¶ 1} Respondent, Natalie Jonnelle Bahan, of West Mansfield, Ohio, Attorney Registration No. 0079304, was admitted to the practice of law in Ohio in 2005. She has not previously been disciplined by this court.

{¶ 2} In a complaint certified to the Board of Professional Conduct on June 6, 2018, relator, Columbus Bar Association, charged Bahan with multiple ethical violations relating to her visit to Rosalie Kennedy, who had been arrested and was incarcerated for the murder of her husband. Kennedy did not ask for the visit, nor did anyone ask for it on her behalf. Relator accused Bahan of violating Prof.Cond.R. 7.3(a) (a lawyer shall not, by in-person, live-telephone, or real-time electronic contact, solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain), 8.4(d) (prohibiting conduct prejudicial to the administration of justice), and 8.4(h) (prohibiting conduct that adversely reflects on a lawyer's fitness to practice law). The parties stipulated to the facts of the case but disagreed whether misconduct had occurred. A three-member panel of the board conducted a hearing on the matter. At the hearing, Bahan asserted that her primary motivation for visiting Kennedy in jail was to be sure that Kennedy knew her rights. She also asserted that she wanted to gain the trial experience that would come from working on Kennedy's case and that she did not anticipate pecuniary gain. The panel found, and the board agreed, that there is insufficient evidence that Bahan violated Prof.Cond.R. 8.4(d) and (h) and recommends that we dismiss those charges. However, the panel and the board found that Bahan violated Prof.Cond.R. 7.3(a). The board recommends that we impose a fully stayed six-month suspension. Bahan objects to the board's finding that she violated Prof.Cond.R. 7.3(a) and requests that the complaint be dismissed. She argues in the alternative that even if she did violate the rule, a public reprimand, rather than a stayed suspension, is warranted in her case.

{¶ 3} We adopt the board's findings of fact, its recommended dismissals, and its finding of misconduct. However, because this is a single instance of misconduct involving a single client, and because Bahan has no prior disciplinary violations, we find that a public reprimand is the appropriate sanction in this case. Accordingly, we publicly reprimand Bahan for violating Prof.Cond.R. 7.3(a), and we order her to pay the costs of these proceedings and to refrain from future misconduct.

Misconduct

{¶ 4} Bahan was admitted to the practice of law in Ohio in 2005 and has never been the subject of disciplinary proceedings in this court. She is a solo practitioner and primarily practices criminal defense, juvenile law, and probate law.

{¶ 5} On March 10, 2017, Kennedy was arrested for the murder of her husband and taken to the Logan County jail. Bahan did not know Kennedy but became interested in the case after learning of the arrest and seeing Kennedy's picture on the Internet. Bahan thought that perhaps Kennedy had been a victim of domestic violence and that the entire incident had arisen because Kennedy was trying to protect herself. Bahan contacted attorney Marc Triplett to ask him what he thought about her visiting Kennedy in jail. Triplett is an experienced criminal-defense lawyer who is certified to be court-appointed counsel in murder cases. Bahan had worked with Triplett as co-counsel in previous felony cases. Triplett advised Bahan that he did not see any problem with visiting Kennedy for the purpose of ensuring that Kennedy's rights were protected.

{¶ 6} Bahan visited Kennedy at the jail the day after Kennedy's arrest. Bahan advised Kennedy not to give any statements to the police. She also advised Kennedy that she needed an attorney and that Kennedy needed to consider whether she could afford to retain private counsel. She also explained how Logan County appoints counsel for defendants who cannot afford private counsel. Kennedy told Bahan she was considering hiring Triplett to represent her and asked Bahan to contact Triplett.

At a second visit with Kennedy, Bahan brought a proposed fee agreement listing only her name as counsel and also discussed legal strategy with Kennedy. Kennedy was then indicted for murder; her arraignment was scheduled for March 17. Bahan met Kennedy's daughters and examined the crime scene. At that meeting, Bahan discussed her legal fees and requested a down payment. She also asked Kennedy's daughters whether they had access to Kennedy's bank accounts and credit cards and discussed the possibility of selling assets and livestock, but the parties agree that Bahan asked these questions in part to determine whether Kennedy was eligible for court-appointed counsel.

{¶ 7} When Bahan contacted Triplett as Kennedy had requested, Triplett told Bahan that he could not represent Kennedy. Nonetheless, Bahan filed a notice of appearance in Kennedy's case as well as a request for a bill of particulars, a motion to preserve evidence, and a demand for discovery. Bahan also visited Kennedy at the jail a final time and there learned that Kennedy knew that Triplett could not represent her. Kennedy told Bahan that she had retained other counsel. Bahan contacted Kennedy's new counsel to confirm that Kennedy would have representation at her arraignment and withdrew from Kennedy's case. In a text to the daughters, Bahan indicated that she hoped she would be paid for the work she had performed on Kennedy's behalf. On April 14, Bahan sent Kennedy an itemized bill in the amount of $1,400; this amount included charges of $300 for the first jail visit and $400 for the second jail visit. Kennedy did not pay the bill, and Bahan did not pursue Kennedy for payment.

{¶ 8} The board adopted the panel's finding that Bahan's motivation in visiting Kennedy was pecuniary gain and the panel's conclusion that she violated Prof.Cond.R. 7.3(a). Bahan objects to the board's conclusion. She asserts that empathy and compassion, not pecuniary gain, were the initial motivation for her unsolicited visit to Kennedy on March 11. She argues that the letter submitted to the panel by Triplett contains evidence that she was not motivated by pecuniary gain. She points to unrebutted testimony that after Kennedy told Bahan that she would not be hiring her, Kennedy thanked her for her assistance and asked that she send a bill for her time. In addition, she points out that the grievance in this matter was not filed by Kennedy or Kennedy's counsel. She admits that she wanted to work on Kennedy's case with Triplett in order to gain the experience necessary to become certified for court appointments in murder cases and asserts that because her motivation was to gain experience and improve her trial skills, she did not violate Prof.Cond.R. 7.3(a).

{¶ 9} Prof.Cond.R. 7.3(a) provides:

A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless either of the following applies:

(1) the person contacted is a lawyer;

(2) the person contacted has a family, close personal, or prior professional relationship with the lawyer.

{¶ 10} The United States Supreme Court has explained that the objective of the rule is to prevent harmful attorney solicitation.

Ohralik v. Ohio State Bar Assn. , 436 U.S. 447, 464, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978)¹ (affirming this court's decision that an attorney's unsolicited legal advice to accident victims and acceptance of employment as a result of that unsolicited legal advice constituted a violation of DR 2-104(A), a predecessor to Prof.Cond.R. 7.3(a)); see also Official Comment, Prof.Cond.R. 7.3(a). Because attorneys are trained to be persuasive, there is a heightened potential for overreach and undue influence in an attorney's in-person solicitation. Ohralik at 465, 98 S.Ct. 1912. This is particularly true when the person is under adverse circumstances. Id. When in-person overtures are made to a person under adverse circumstances, the attorney may further distress the person and may invade his or her privacy. Id. Because of the high potential for abuse, and because reliable proof of in-person solicitation is difficult to obtain, proof of harm to the potential client was not required to sustain a violation of the rule. Id. at 468, 98 S.Ct. 1912. The former rule did not prohibit an attorney from providing in-person unsolicited legal advice or apprising an individual in distress of his or her rights, but it did proscribe using in-person unsolicited advice in order to obtain employment for a fee. Id. at 459, 98 S.Ct. 1912. The same is true of the current rule. Prof.Cond.R. 7.3(a) proscribes an attorney from providing unsolicited in-person legal advice in order to obtain employment for a fee unless an exception applies.

{¶ 11} Accordingly, we agree with the board's conclusion that Bahan violated Prof.Cond.R. 7.3(a). Although Bahan claims that gaining trial experience and improving her trial skills were the motivating factors for contacting Kennedy, because Bahan expressed her desire to be compensated for the time she had spent on the case and sent a bill for her services, she nonetheless committed a violation. Prof.Cond.R. 7.3(a) is violated when an attorney attempts to represent a person for a fee, that person is not an attorney and is unknown to the attorney, and the representation arises from in-person and unsolicited legal advice. We also disagree with Bahan that Triplett's letter provides evidence that she did not...