The Ohio Supreme Court today suspended a Columbus attorney based on an unusual fee payment arrangement that resulted in a dispute.

In a unanimous per curiam opinion, the Supreme Court suspended David P. Rieser for two years with one year stayed, and ordered him to pay $50,000 in restitution to his former client.

Lawyer Accepts Voluntarily Paid Excessive Fee
In March 2012, Rieser was retained by a psychiatrist who had been indicted on felony counts of workers’ compensation fraud, theft, and tampering with records. The two agreed to an initial $30,000 attorney fee, but did not put it in writing or discuss the rate or total amount of Rieser’s fee.

Rieser did not keep time records during the doctor’s representation and did not send him any billing statements. He did not request any additional fee payments, but between June and December 2012, the psychiatrist sent him eight checks, bringing the total payment to Rieser to about $108,000.

Rieser deposited $50,000 into his client trust account, put $23,000 into his own business account, and provided $25,000 to a local art gallery. He did not maintain records for the trust account.

Case Resolved, Fee Disputed
Rieser understood the doctor’s goal was to maintain his medical license and was informed by a fellow attorney that the best chance for this was if his client was not convicted of a felony. Rieser orchestrated a plea bargain where the doctor pleaded guilty to one misdemeanor count of workers’ compensation fraud and paid about $71,000 to the Ohio Bureau of Workers’ Compensation.

Nearly three years later, the doctor filed a grievance with the Columbus Bar Association, claiming he was charged an excessive fee.

Rieser and the bar association stipulated to the Board of Professional Conduct that Rieser violated multiple rules, including failing to disclose to the client that he did not maintain professional liability insurance; charging or collecting an excessive fee; not communicating to the client the basis or rate of the fee; and failing to respond to information requests during a disciplinary investigation.

The professional conduct board recommended that the Supreme Court indefinitely suspend Rieser. Rieser objected, arguing a lesser sanction was more appropriate.

Court Examines Attorney’s Behavior
The Court publicly reprimanded Rieser in 1995 for neglecting two client matters. In 2001, he was suspended for two years, with 18 months stayed, for neglecting two other client matters.

When considering a proposed sanction, the Court examines aggravating circumstances that could increase the punishment for a lawyer and mitigating factors, which could lead to a reduced penalty.

The Court noted Rieser had prior violations, committed multiple rule violations, and failed to cooperate with the bar association’s investigation. It also considered letters from judges and lawyers attesting to Rieser’s good character and reputation. Rieser established that he had a mental-health disorder during the time of the doctor’s representation and successfully completed treatment for it.

The Court also considered that Rieser made a good faith effort to resolve the dispute by offering a partial discount to the client, and placed the $50,000 in the trust account into escrow after the offer was rejected.

The opinion stated that parties agreed the fee was excessive, but could not agree on what was a reasonable amount. Various experts testifying in the case placed the range for handling this type of legal matter from $15,000 to $80,000. The board recommended that Rieser return the full $50,000 from the trust account to the doctor.

Rieser argued the doctor repeatedly expressed satisfaction with his work, and that he obtained the best possible result for his client. Rieser also told his client that it was not necessary to keep sending him money beyond the initial $30,000 and that he suggested they wait and see how the case progressed before more payments were made.

“Indeed, Rieser’s misconduct is unusual in that he did not charge a clearly excessive fee, so much as he accepted the client’s voluntary — but excessive — payments,” the opinion stated.

The Court noted that Rieser has reduced his caseload, has worked with a lawyer to improve his office- and trust-account management practices, and has continued his mental health treatment.

The Court suspended him for two years, with one year stayed with the conditions that he pay restitution and not engage in any more misconduct.

2007-1417. Columbus Bar Assn. v. Rieser, Slip Opinion No. 2018-Ohio-3860.

View oral argument video of this case.

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