Disciplinary Counsel v. Mancino
| Decision Date | 02 August 2018 |
| Docket Number | No. 2017-1079,2017-1079 |
| Citation | 154 Ohio St.3d 49,110 N.E.3d 1265,2018 Ohio 3017 |
| Parties | DISCIPLINARY COUNSEL v. MANCINO. |
| Court | Ohio Supreme Court |
Scott J. Drexel, Disciplinary Counsel, and Michelle R. Bowman, Assistant Disciplinary Counsel, for relator.
Mancino Co., L.P.A., and Brett M. Mancino, for respondent.
{¶ 1} Respondent, Paul Anthony Mancino Jr., of Cleveland, Ohio, Attorney Registration No. 0015576, was admitted to the practice of law in Ohio in 1963.
{¶ 2} On December 6, 2016, relator, disciplinary counsel, filed a complaint in which he alleged that Mancino violated eight professional-conduct rules by filing and prosecuting an appeal of Raymond Miller's criminal conviction and accepting compensation for that appeal from a third person—all without Miller's knowledge or consent.
{¶ 3} After conducting a hearing, a three-member panel of the Board of Professional Conduct unanimously dismissed five of the alleged rule violations based on the insufficiency of the evidence. But the panel found that Mancino's conduct violated Prof.Cond.R. 1.2(a) (), 1.4(a)(1) (), and 1.8(f) (). After considering the relevant aggravating and mitigating factors and the sanctions we have imposed for comparable misconduct, the panel recommended that we publicly reprimand Mancino. The board adopted the panel's report in its entirety.
{¶ 4} Mancino objects and argues that the board's findings of misconduct cannot stand because there can be no violation of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.8(f) in the absence of an attorney-client relationship. He therefore urges us to reject the board's findings of misconduct, dismiss relator's complaint, and not require him to pay the costs of the proceedings. For the reasons that follow, we sustain Mancino's objection and dismiss relator's complaint.
{¶ 5} Mancino represented Michael Jirousek in a criminal action. Subsequently, Jirousek's father, Robert, approached Mancino and told him that Miller—a man who had been jailed with Michael Jirousek—wanted to appeal his criminal conviction and sentence. Robert Jirousek offered to pay Mancino a $1,000 flat fee and the costs of Miller's appeal. Relying on Robert Jirousek's word and his offer of payment, Mancino filed a notice of appeal and a brief on Miller's behalf and identified himself on both as "Attorney for Defendant-Appellant." Mancino later orally argued the case in the court of appeals, which affirmed Miller's conviction and sentence. Robert Jirousek paid Mancino for the representation and also paid the costs associated with the appeal.
{¶ 6} Although the board recognized that Miller had testified at the disciplinary hearing that "he had not been harmed in any way" by Mancino's actions and it found that Mancino had acted in good faith on Robert Jirousek's representations that Miller wanted to appeal his conviction, it also found that neither Mancino nor Robert Jirousek ever received any direct communication from Miller of any type. Ultimately, it was Mancino's admitted failure to communicate with Miller that led the board to find that he violated Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.8(f).
{¶ 7} Despite finding that Mancino committed those ethical violations by failing to communicate with his "client," the board noted that Miller testified at the disciplinary hearing that he had been "unaware" of Mancino's representation of him. The board also acknowledged that Miller had signed an affidavit stating that Mancino was not his attorney and that Miller had never asked him or anyone else to appeal his conviction. Indeed, the board recognized that Miller's testimony and affidavit "could arguably support a dismissal" of two of the violations it found—those under Prof.Cond.R. 1.2(a) and 1.4(a)(1)—on the ground that no attorney-client relationship existed.
{¶ 8} On these facts, it is obvious that there was no express agreement for Mancino to represent Miller. Therefore, if an attorney-client relationship did exist, it could have arisen only by implication. We have held that "[a]n attorney-client relationship may be created by implication based upon the conduct of the parties and the reasonable expectations of the person seeking representation." Cuyahoga Cty. Bar Assn. v. Hardiman , 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, syllabus.
{¶ 9} In a case in which some of the alleged violations arose in a factual context similar to the facts of this case, Disciplinary Counsel v. Mamich , 125 Ohio St.3d 369, 2010-Ohio-1044, 928 N.E.2d 691, ¶ 13, we dismissed stipulated violations of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.4(a)(3) () leveled against an attorney who represented a woman in a debt-collection proceeding at the request of the woman's father but without her knowledge or consent. We reasoned that the violations of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.4(a)(3) were not established because the charges required an attorney-client relationship between the attorney and the daughter. Because the daughter was unaware of the case and had no reasonable expectation that the attorney was representing her, there was no attorney-client relationship, either express or implied, with the daughter.
{¶ 10} Just as an attorney-client relationship is necessary to establish violations of Prof.Cond.R. 1.2(a) and 1.4(a)(1), which require a lawyer to consult with a client, abide by the client's decisions regarding the objectives of the representation, and obtain the client's informed consent, such a relationship is necessary to establish a violation of Prof.Cond.R. 1.8(f), which requires a lawyer to obtain a client's informed consent before accepting compensation for the representation from someone other than the client. In light of Miller's testimony and averments, however, it is evident that no attorney-client relationship existed here. Consequently, we reject the board's findings that Mancino violated Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.8(f).
{¶ 11} We do not condone Mancino's decision to undertake legal representation without making any attempt to communicate with the intended client until after the case was decided by the court of appeals. But we are constrained from considering whether his conduct violated any other professional-conduct rules because the panel unanimously dismissed the balance of the violations alleged in relator's complaint based on the insufficiency of the evidence. See Gov.Bar R. V(12)(G) ; Cincinnati Bar Assn. v. Wiest , 148 Ohio St.3d 683, 2016-Ohio-8166, 72 N.E.3d 621, ¶ 19, quoting Disciplinary Counsel v. Hale , 141 Ohio St.3d 518, 2014-Ohio-5053, 26 N.E.3d 785, ¶ 22 ().
{¶ 12} Accordingly, we sustain Mancino's objection and dismiss relator's complaint against him with prejudice.
Judgment accordingly.
Mark J. Pietrykowski, J., of the Sixth District Court of Appeals, sitting for O'Neill, J.
{¶ 13} In this case, the hearing panel of the Board of Professional Conduct unanimously dismissed five of the eight alleged disciplinary-rule violations—those involving Prof.Cond.R. 1.4(a)(3) (), 3.3(a)(1) (), 8.1(a) (), 8.4(d) (), and 8.4(h) ()—for lack of sufficient evidence pursuant to Gov.Bar R. V(12)(G). The per curiam opinion, relying on this court's caselaw and Gov.Bar R. V(12)(G), concludes that we are constrained from considering the dismissed allegations. While I join the per curiam opinion and agree that this conclusion is appropriate given the current state of the law, I write separately to express my concerns regarding unanimous hearing-panel dismissals under Gov.Bar R. V(12)(G).
{¶ 14} Pursuant to Gov.Bar R. V(12)(G), a hearing panel may dismiss a count or a complaint that the panel unanimously determines is unsupported by sufficient evidence. When less than the entire complaint is dismissed, the hearing panel need only include the unanimous dismissal of a count in the body of its report to effectuate the dismissal. Cincinnati Bar Assn. v. Fernandez , 147 Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724, ¶ 15.
{¶ 15} When a hearing panel unanimously dismisses counts pursuant to Gov.Bar R. V(12)(G), the dismissal order is effectively insulated from any type of review. See Disciplinary Counsel v. Maciak , 153 Ohio St.3d 185, 2018-Ohio-544, 102 N.E.3d 485, ¶ 20. Reading Gov.Bar R. V(12)(G) in conjunction with Gov.Bar R. V(11)(D), V(12)(H), and V(17)(B) compels this conclusion.
{¶ 16} Gov.Bar R. V(12)(G) provides:
If, at the end of the evidence presented by the relator or of all evidence, a unanimous hearing panel finds that the evidence is insufficient to support a charge or count of misconduct, the panel may order on the record or in its report...
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...pursuant to Gov.Bar R. V(12)(G), the dismissal order is effectively insulated from any type of review. Disciplinary Counsel v. Mancino , 154 Ohio St.3d 49, 2018-Ohio-3017, 110 N.E.3d 1265, ¶ 15 (Fischer, J., concurring). Thus, as the majority opinion recognizes, in order for a panel's dismi......