Two northern Ohio attorneys received partially stayed suspensions today after unsuccessfully arguing to the Ohio Supreme Court that they should not be barred from practicing law.

• Richard Barbera of Medina was suspended for 18 months, with 12 months stayed with conditions.
• Michael Heller of Euclid was suspended for one year, with six months stayed with conditions.

Lawyer’s Missteps Contribute to Client Being Jailed
In a unanimous per curiam opinion, the Court noted that Barbera received a one-year stayed suspension in 2017 for mismanaging his client trust account and failing to cooperate in the ensuing disciplinary investigation. He was also required to serve one year of monitored probation.

During his probationary period, Barbera represented Dianna Zanglin, who paid him $2,500 to represent her in a pending child-support case. Zanglin informed Barbera that a hearing was scheduled for Sept. 26, 2017. Ten days later, the court moved up the hearing to July 20.

Barbera did not notify the court that he represented Zanglin until six weeks after accepting her payment, and did not check the court’s docket during that time. Consequently, neither Zanglin or Barbera appeared at the July hearing, and the court issued a notice for Zanglin’s arrest.

Once notified of the error, Barbera sought to have the court recall its arrest order by explaining that Zanglin never received the revised hearing notice. While at the courthouse, Zanglin was taken into custody and spent six hours in jail before being released on bond.

Client’s Case Dismissed
Because Zanglin failed to appear at the July 20 hearing, her child-support modification motion was dismissed. As Barbera sought a hearing on the matter, the trial court ruled that Zanglin was in contempt of court for not paying child support.

An Aug. 1, 2018 hearing was scheduled on Zanglin’s objection to the dismissal of her child-support modification motion. Zanglin appeared, but Barbera did not because he had a hearing for another client’s case scheduled in another county. Barbera stated that he called Zanglin and told her to inform the court he would be late, but he did not directly notify the court. Zanglin testified she had no idea where Barbera was and unsuccessfully attempted to represent herself.

Barbera appealed the dismissal of Zanglin’s case to an appellate court. He knew there was no legal basis for the appeal, but filed it to delay the case until after the November 2018 election. He hoped the current judge would be unseated and that a new judge would issue rulings in Zanglin’s favor. The court of appeals dismissed the case, and Barbera did not inform Zanglin.

In the midst of the appeal, the trial court gave Zanglin the opportunity to purge the contempt order and avoid jail. A February 2019 contempt hearing was set, but neither Barbera or Zanglin appeared. When Zanglin was notified that she was ordered to serve 10 days in jail, she hired a new attorney and asked Barbera to provide a copy of her file to her new attorney, which Barbera did not do. While appearing in court with her new attorney in May 2019, Zanglin was arrested and served the 10-day jail sentence.

Lawyer Resists Disciplinary Proceedings
The Office of Disciplinary Counsel sent Barbera two letters regarding the handling of Barbera’s case, but he did not submit any substantive response until he was issued a subpoena to appear for a deposition.

Disciplinary counsel submitted a complaint against Barbera to the Board of Professional Conduct, which alleged that Barbera violated several rules, including one that prohibits attorneys from filing frivolous appeals and another that requires attorneys to respond to information requests from disciplinary counsel.

Barbera suggested that based on sanctions imposed on other attorneys for similar misconduct, he should receive a one-year fully stayed suspension with conditions. The board found that because Barbera was under probation when his misconduct occurred, harmed his client, and failed to cooperate with the disciplinary proceeding, he should be suspended for 18 months with 12 months stayed.

The Court agreed with the board and suspended Barbera for 18 months, with the final 12 months stayed if he pays $900 in restitution to Zanglin within 90 days of the decision, and engages in no further misconduct. The court also ordered him to pay the costs of the disciplinary proceedings.

2020-1199. Disciplinary Counsel v. Barbera, Slip Opinion No. 2021-Ohio-2209.
View oral argument video of this case.

Lawyer Fails to Supervise Employee Who Stole Firm Funds
In 5-2 per curiam opinion, the Court found Michael Heller committed multiple ethical violations related mostly to his handling of a client’s bankruptcy case and his supervisory relationship with a nonlawyer who worked in his office and rented a room in Heller’s home.

Heller, a solo practitioner focused primarily on bankruptcy cases, hired a man identified as T.F. to work as an assistant in 2016. T.F., who was not a lawyer, met with Heller’s clients, prepared bankruptcy petitions, and accepted client payments on Heller’s behalf.

Heller charged a standard flat fee to represent clients from their initial consultation through the discharge or final ruling in their bankruptcy cases. He typically paid T.F. $100 to $150 in cash for each bankruptcy petition he prepared. In some cases, he credited the money T.F. earned toward T.F.’s rent. Heller kept poor records of the money owed or paid to T.F. and, in general, kept poor financial records of his law practice.

In December 2016, Heller discovered T.F. had collected cash payments from clients and failed to remit all of the funds to Heller. The attorney continued to let T.F. work for the firm, believing T.F. would eventually pay what he owed, but by mid-2017 he was convinced that T.F. was stealing from the office. He estimated T.F. stole $19,000 and reported him to the Euclid police. T.F. admitted taking money, but far less than Heller alleged. It does not appear that any criminal charges were brought against T.F.

Client’s Bankruptcy Botched
One of Heller’s clients in 2017 was Melissa VanEyk, who paid Heller a $599 flat fee to represent her in bankruptcy, along with a $335 filing fee. Heller did not deposit the money in his client trust account. VanEyk spoke almost exclusively to T.F. about the case, and told him that she had hoped to retain the ownership of a vehicle she was in the processing of purchasing. T.F. told her it would be possible.

Heller filed VanEyk’s bankruptcy petition, falsely stating that he had been paid $300 and asked for court permission for VanEyk to pay her filing fee in installments because she was unable to pay, even though he had already received the entire filing fee from her.

Heller did not meet with VanEyk until the two were to meet with her creditors, and then he learned of the details of the vehicle purchase. He told her that she would not be able to keep the vehicle and that their best option was to avoid meeting with the creditors and have the bankruptcy court dismiss her case. He told VanEyk he could refile the case.

The case was dismissed, and the bankruptcy court gave VanEyk 10 days to pay the filing fee. She was unaware that Heller had not used the money she paid him to pay the fee. When she met with Heller to discuss refiling the case, he told her she would have to pay the outstanding fee and a new filing fee.

VanEyk filed a grievance with the Cleveland Metropolitan Bar Association, which filed a complaint with the Board of Professional Conduct based on the handling of VanEyk’s case and Heller’s poor supervision of T.F.

Attorney Claimed Associate Misled Him
The board found Heller violated several rules, including one that prohibits an attorney from making false statements of fact or law to a court, and recommended a one-year suspension with six months stayed. Heller argued that a fully stayed suspension was appropriate, in part because he relied on T.F.’s false representation that VanEyk had not paid her filing fee, and did not knowingly mislead the bankruptcy court.

The Court’s opinion stated that Heller admitted he failed to adequately supervise T.F. and his bookkeeping practices were flawed. But “he placed his own needs and desires above those of his clients by allowing T.F. to continue working in his legal office” without confronting him or implementing any new safeguards to protect his clients’ funds, the majority opinion stated.

The Court stayed the final six months of his suspension with the conditions that he complete six hours of continued legal education in law-office and client-trust-account management, submit to a drug-and-alcohol assessment by the Ohio Lawyers Assistance Program, comply with any recommendations arising from the assessment, pay VanEyk’s outstanding filing fee, and commit no further misconduct. He was also ordered to pay the costs of the disciplinary proceedings. If reinstated, he would be required to work six months under monitored probation.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, and Melody J. Stewart joined the opinion.

Cessation of Practice Unnecessary, Dissent Maintained
In a dissenting opinion, Justice Michael P. Donnelly wrote that all of Heller’s violations are “founded in disorganization, inattention, and mismanagement, rather than fraud or deception.” He suggested that Heller receive a fully stayed suspension and that all the conditions imposed were sufficient to help Heller practice law.

Justice Jennifer Brunner joined Justice Donnelly’s dissent.

2020-0742. Cleveland Metro Bar Assn. v. Heller, Slip Opinion No. 2021-Ohio-2211.
View oral argument video of this case.

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