Dayton Bar Ass'n v. Parisi

• Decision Date: 08 March 2012
• Docket Number: No. 2011–0340.,2011–0340.
• Parties: DAYTON BAR ASSOCIATION v. PARISI.
• Court: Ohio Supreme Court

965 N.E.2d 268

DAYTON BAR ASSOCIATION

v.PARISI.

No. 2011–0340.

Supreme Court of Ohio.

Submitted June 7, 2011.

Decided March 8, 2012.

Gary C. Schaengold and Mark A. Tuss, Dayton, for relator.

Konrad Kuczak, Dayton, and Dianna M. Anelli, Dublin, for respondent.

PER CURIAM.

{¶ 1} Respondent, Georgianna I. Parisi of Dayton, Ohio, Attorney Registration No. 0022538, was admitted to the practice of law in Ohio in 1982. In August 2009, relator, Dayton Bar Association, filed a complaint alleging that Parisi had violated the Code of Professional Responsibility and Rules of Professional Conduct by representing both the proposed guardian and ward in a guardianship proceeding, collecting legal fees from her client's account without court approval while the application for guardianship was pending, and collecting a clearly excessive fee from an elderly client with diminished mental capacity.¹

{¶ 2} A panel of the Board of Commissioners on Grievances and Discipline conducted a hearing, at which it received the parties' stipulations of fact, witness testimony, and numerous exhibits. Having considered the evidence, the panel found that Parisi had engaged in a conflict of interest and conduct prejudicial to the administration of justice and had charged a clearly excessive fee. The board adopted the panel's findings of fact and misconduct and its recommendation that Parisi be suspended from the practice of law for six months, with the entire suspension stayed on the condition that she commit no further misconduct.

{¶ 3} Both parties have objected to the board's report. Parisi challenges the sufficiency of the evidence, raises constitutional challenges to several of the ethical rules that she has been found to have violated, and seeks dismissal of relator's complaint. Relator argues that the clearly excessive fee charged by Parisi is tantamount to misappropriation and therefore warrants a period of actual suspension.

{¶ 4} For the reasons that follow, we overrule the objections of both parties and adopt the board's findings of fact and misconduct, as well as its recommended sanction.

Misconduct

The Demming Guardianship

{¶ 5} The board found that Parisi began to provide legal services for Sylvia Demming, a 93–year–old woman who claimed that she was being held against her will in a nursing home. Concerned about Demming's financial welfare and having observed her confusion and disorientation, on November 8, 2007, Parisi applied for guardianship in the Warren County Probate Court. In her guardianship application, Parisi alleged that Demming was incompetent as a result of Alzheimer's-related memory loss, and Parisi submitted an evaluation from a licensed physician diagnosing Demming with dementia. Seven weeks later, Parisi had Demming sign a durable power of attorney designating Parisi as her attorney-in-fact. The next month, Parisi withdrew her own application and filed a separate application for guardianship on behalf of Demming's niece.

{¶ 6} Believing that the court no longer had jurisdiction after Demming informed the court that she had left the county and intended to move out of state, Parisi sent her bill to Demming's niece for review. The guardianship proceeding was not dismissed as Parisi had anticipated; but acting as Demming's attorney-in-fact, Parisi paid her own fees of more than $18,000 without first obtaining the court's approval. The probate court later removed Parisi as counsel for both women, and Parisi returned the money to Demming's account.

{¶ 7} The board found that by representing both Demming and her niece in the guardianship proceeding, Parisi violated Prof.Cond.R. 1.7(a)(2) (providing that a lawyer's continued representation of a client creates a conflict of interest if there is a substantial risk that the lawyer's ability to represent the client will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by the lawyer's own personal interests). The panel also found that by obtaining a power of attorney over her client's affairs while her guardianship application was pending and using it to pay $18,820 of her own legal fees, Parisi violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). Citing the duplication of other claimed violations and the insufficiency of the evidence, the board recommended the dismissal of alleged violations of Prof.Cond.R. 8.4(a) (prohibiting a lawyer from violating or attempting to violate the Ohio Rules of Professional Conduct) and (b) (prohibiting a lawyer from committing an illegal act that reflects adversely on the lawyer's honesty or trustworthiness).

{¶ 8} Parisi challenges the board's findings of fact and misconduct with respect to her representation of Demming. First, she argues that this court has held as a matter of law that simultaneous representation of a proposed ward and an applicant for guardianship does not present a conflict of interest that requires disqualification. In support of this argument, Parisi cites In re Guardianship of Love (1969), 19 Ohio St.2d 111, 48 O.O.2d 107, 249 N.E.2d 794; In re Clendenning (1945), 145 Ohio St. 82, 30 O.O. 301, 60 N.E.2d 676; and In re Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683.

{¶ 9} None of the cases, however, stands for the proposition that an applicant for guardianship has no interest in the determination of the proposed ward's competence or incompetence or that an applicant cannot have an interest that is adverse to that of the proposed ward. Indeed, the far-reaching and life-altering consequences of an incompetency determination—involving a judicial determination that a mental or physical illness or disability has left a person so mentally impaired that the person is incapable of taking proper care of the person's self or property—create an inherent conflict between the proposed ward and the applicant for guardianship, even if guardianship is ultimately in the proposed ward's best interest. Nevertheless, Parisi contends that Prof.Cond.R. 1.14(b) and 1.7(b) and the comments thereto permit attorneys to simultaneously represent both the proposed ward and the applicant for guardianship and that any contrary interpretation of those rules cannot constitutionally be applied to her because she had no notice that her conduct was unethical.

{¶ 10} Prof.Cond.R. 1.14(b) provides: "When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian."

{¶ 11} Prof.Cond.R. 1.14(a) directs that "the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client," and comment 9² to the rule emphasizes, "A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these rules as the lawyer would with respect to a client." Thus, the emergency provisions of Prof.Cond.R. 1.14 do not entirely abrogate a lawyer's duties to the client under the Rules of Professional Conduct. Therefore, when taking actions authorized by Prof.Cond.R. 1.14, the lawyer must still determine whether the representation of one client will be directly adverse to the other and whether there is a substantial risk that the lawyer's ability to consider, recommend, or carry out an appropriate course of action for one client will be materially limited by the lawyer's responsibilities to another client. Prof.Cond.R. 1.7(a).³

{¶ 12} The American Bar Association ("ABA") Standing Committee on Ethics and Professional Responsibility has addressed this situation. ABA Committee on Ethics & Professionalism, Formal Ops. No. 96–404 (1996) (discussing clients under disability). The ABA recognizes that Model Rule of Professional Conduct 1.14 (1983, as amended), which is identical to our Prof.Cond.R. 1.14 in all material respects, permits a lawyer to file a petition for guardianship of a client when no less-restrictive alternatives are available, but concludes that "a lawyer with a disabled client should not attempt to represent a third party petitioning for a guardianship over the lawyer's client." The ABA observes: "Rule 1.14(b) creates a narrow exception to the normal responsibilities of a lawyer to his client, in permitting the lawyer to take action that by its very nature must be regarded as ‘adverse’ to the client. However, Rule 1.14 does not otherwise derogate from the lawyer's responsibilities to his client, and certainly does not abrogate the lawyer-client relationship. In particular, it does not authorize a lawyer to represent a third party in seeking to have a court appoint a guardian for his client. Such a representation would necessarily have to be regarded as ‘adverse’ to the client and prohibited by Rule 1.7(a), even if the lawyer sincerely and reasonably believes that such representation would be in the client's best interests, unless and until the court makes the necessary determination of incompetence. Even if the court's eventual determination of incompetence would moot the argument that the representation was prohibited by Rule 1.7(a), the lawyer cannot proceed on the assumption that the court will make such a determination. In short, if the lawyer decides to file a guardianship petition, it must be on his own authority under Rule. 1.14 and not on behalf of a third party, however well-intentioned." Id.

{¶ 13} We concur in this analysis and conclude that the guardianship proceeding that Parisi initiated on behalf of Demming's niece, no matter how well-intentioned, was necessarily adverse to Demming. Therefore, Parisi's...