Disciplinary Counsel v. Reinheimer, No. 2019-1742

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM.
• Citation: 165 N.E.3d 235,162 Ohio St.3d 219
• Parties: DISCIPLINARY COUNSEL v. REINHEIMER.
• Docket Number: No. 2019-1742
• Decision Date: 06 August 2020

162 Ohio St.3d 219
165 N.E.3d 235

DISCIPLINARY COUNSEL
v.
REINHEIMER.

No. 2019-1742

Supreme Court of Ohio.

Submitted April 28, 2020
Decided August 6, 2020

Joseph M. Caligiuri, Disciplinary Counsel, and Audrey E. Varwig, Assistant Disciplinary Counsel, for relator.

Coughlan Law Firm, L.L.C., and Jonathan E. Coughlan, for respondent.

Per Curiam.

162 Ohio St.3d 220

{¶ 1} Respondent, James Louis Reinheimer, of Port Clinton, Ohio, Attorney Registration No. 0059231, was admitted to the practice of law in Ohio in 1992. The Board of Professional Conduct recommends that we publicly reprimand him for violations of two divisions of an ethical rule that were not charged in the disciplinary complaint against him. For the reasons explained below, we conclude that Reinheimer did not have fair notice of those charges, and we therefore dismiss this case.

Procedural history

{¶ 2} In a May 2019 complaint, relator, disciplinary counsel, alleged that while representing a client in a civil defamation action, Reinheimer violated three professional-conduct rules: Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation to a client), 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), and 1.4(a)(3) (requiring a lawyer to keep a client reasonably informed about the status of a matter). Reinheimer denied the charges, and the matter proceeded to a hearing before a three-member panel of the board. After the close of the evidence, the panel unanimously dismissed the alleged violations of Prof.Cond.R. 1.1 and 1.3 for lack of sufficient evidence.

{¶ 3} During closing arguments, relator suggested that the panel was not limited to finding a violation of Prof.Cond.R. 1.4(a)(3)—the sole remaining charge—and that the panel could find a violation of any division of Prof.Cond.R. 1.4.¹ Relator, however,

165 N.E.3d 237

mentioned only one other division—Prof.Cond.R. 1.4(a)(1) (requiring a lawyer to inform a client of any decision or circumstance requiring the client's informed consent).

{¶ 4} After the hearing, Reinheimer moved to dismiss the case, arguing that relator had failed to prove the charged violation of Prof.Cond.R. 1.4(a)(3) and that any finding that he violated Prof.Cond.R. 1.4(a)(1) would infringe on his due-process rights. In the alternative, Reinheimer requested an opportunity to submit a written summation on the facts and law concerning a violation of Prof.Cond.R.

162 Ohio St.3d 221

1.4(a)(1) or any other division of Prof.Cond.R. 1.4. The panel denied Reinheimer's motion to dismiss and ordered briefing on three issues: (1) the sufficiency of the evidence to support the charged Prof.Cond.R. 1.4(a)(3) violation, (2) the panel's authority to "grant Relator's oral motion to amend the complaint to conform to the evidence presented at the hearing," and (3) the sufficiency of the evidence to establish violations of Prof.Cond.R. 1.4(a)(1) and 1.4(b) (requiring a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation). Relator had neither alleged a violation of Prof.Cond.R. 1.4(b) in the complaint nor mentioned that particular division at Reinheimer's disciplinary hearing.

{¶ 5} Upon consideration of the parties' briefs, the panel unanimously dismissed the charged violation of Prof.Cond.R. 1.4(a)(3) for lack of sufficient evidence. The panel, however, granted relator's purported motion to amend the complaint, found that Reinheimer violated Prof.Cond.R. 1.4(a)(1) and 1.4(b), and recommended that he be publicly reprimanded for those violations. The board issued a report adopting the panel's findings of misconduct and recommended sanction.

{¶ 6} Reinheimer has filed two objections to the board's report. First, he asserts that the board denied him due process by finding that he violated ethical rules that were neither charged in the complaint nor mentioned until after the close of the evidence. Second, he argues that the evidence fails to establish a violation of Prof.Cond.R. 1.4(a)(1) or 1.4(b). Relator has filed an answer brief arguing that Reinheimer had a meaningful opportunity to present evidence in his defense and that the evidence supports the board's misconduct findings.

Analysis

{¶ 7} In attorney-discipline proceedings, a lawyer accused of misconduct is "entitled to procedural due process, which includes fair notice of the charge." In re Ruffalo , 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), citing In re Oliver , 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948). In Ruffalo , an Ohio attorney had no notice that certain conduct would be considered a sanctionable offense until after he and another witness had testified at the attorney's disciplinary hearing, when the board, then known as the Board of Commissioners on Grievances and Discipline, added a new charge based on the testimony. We indefinitely suspended the attorney, and the United States Court of Appeals for the Sixth Circuit

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disbarred him from practice in that court based on our finding of misconduct. The attorney thereafter appealed the Sixth Circuit's decision to the United States Supreme Court, which held that the federal court had erred in relying on our decision because the attorney lacked fair notice of the charge against him. The Supreme Court explained: "The charge must be known before the proceedings commence. [The proceedings] become a trap when, after they are

162 Ohio St.3d 222

underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh." Id. at 551, 88 S.Ct. 1222. The "absence of fair notice" as to the reach of the charges, the court concluded, deprives an attorney of procedural due process. Id. at 552, 88 S.Ct. 1222.

{¶ 8} Applying these principles, we have held that the board's addition of misconduct charges after the record is closed and without providing fair notice to the attorney "fails to pass the test of procedural due process." Disciplinary Counsel v. Simecek , 83 Ohio St.3d 320, 322, 699 N.E.2d 933 (1998), citing Ruffalo . Similarly, the board may not premise a rule violation on an attorney's dishonest conduct during the disciplinary proceedings unless the complaint alleged that misconduct. Cincinnati Bar Assn. v. Sigalov , 133 Ohio St.3d 1, 2012-Ohio-3868, 975 N.E.2d 926, ¶ 47 ("under Ruffalo and Simecek , the requisite notice [is] lacking" in such circumstances). Nor may the board base a rule violation on factual allegations and a theory raised for the first time at the disciplinary hearing. Cincinnati Bar Assn. v. Wiest , 148 Ohio St.3d 683, 2016-Ohio-8166, 72 N.E.3d 621, ¶ 16 (the relator's failure to allege facts that put the respondent on notice that certain conduct would be at issue is "fatal to [the] relator's belated claim"); see also Cuyahoga Cty. Bar Assn. v. Judge , 96 Ohio St.3d 467, 2002-Ohio-4741, 776 N.E.2d 21, ¶ 4 ("imposing punishment for an uncharged violation is untenable").

{¶ 9} Here, the board found that Reinheimer violated two uncharged divisions of Prof.Cond.R. 1.4 based on facts that were not alleged in relator's complaint. Relator's complaint alleged that Reinheimer violated Prof.Cond.R. 1.1, 1.3, and 1.4(a)(3) by refusing to engage in discovery or prepare a defense in his client's defamation case, failing to respond to a motion for summary judgment or to notify his client about the motion, and—after the court awarded summary judgment against his client—failing to notify her about two damages hearings or to appeal the adverse judgment.

{¶ 10} The panel dismissed all three of those alleged rule violations for lack of sufficient evidence. In its report, the panel noted that Reinheimer "testified candidly" about his trial strategy to allow summary judgment to be granted against his client and that several factors had contributed to that tactical decision, including the client's reluctance to testify before a jury and Reinheimer's belief that the judge would award only nominal damages. The panel took "no issue" with Reinheimer's strategy but found that he committed the two uncharged violations because he had failed "to properly discuss the strategy" with his client and to "carefully advise her that such a drastic tactical measure could result in a monetary judgment against her so that she could make a reasonably informed decision on the issue." The panel also concluded that Reinheimer had failed to

162 Ohio St.3d 223

have his client acknowledge in writing that she was aware of his strategy and had consented to it.

{¶ 11} Reinheimer, however, was not charged with failing to discuss his trial

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strategy with, or thoroughly explain that strategy to, his client so that she could give informed consent or make an informed decision about the strategy. He was charged with neglecting his client's case and failing to notify her of the...