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Court News Ohio

Two Ohio Attorneys Suspended

Two Ohio lawyers were suspended for two years, with 18 months stayed, by the Ohio Supreme Court today for violating rules governing the conduct of Ohio attorneys.

The Supreme Court suspended Kenneth A. Nelson II of Avon Lake and Glen F. Buttacavoli of Massillon.

Nelson Mishandles $10,000 Fee
This is Nelson’s second disciplinary sanction by the Court. In October 2015, the Court publicly reprimanded Nelson for neglecting a client’s personal-injury case, failing to notify the client that he lacked malpractice insurance, and failing to cooperate in the ensuing disciplinary investigation.

The new suspension stems from his representation of Efren Vega, who was charged by the federal government with a drug-related felony. Vega’s girlfriend, Linda Sanchez, paid Nelson $10,000 in cash to represent Vega. Nelson completed some legal work on Vega’s case and visited him in jail twice. But after about two weeks Vega terminated Nelson’s representation.

Nelson stated he considered the $10,000 a flat fee “earned on receipt” and that he placed the funds in a lockbox at his house rather than his client trust account. During his disciplinary proceedings, Nelson admitted that when he collected the fee, he failed to advise Vega or Sanchez that if he did not complete the representation, they may be entitled to a refund of all or part of the fee. He also failed to advise them he lacked malpractice insurance.

After Vega fired him, Nelson advised Vega he would refund the unearned portion of the fee after he completed a bill. Sanchez also contacted Nelson, and he told her he would refund some of the money after he completed a bill, however, after waiting two months without receiving a refund, Sanchez filed a grievance with the Lorain County Bar Association.

The bar association sent Nelson a copy of Sanchez’s grievance in September 2015 with a request to respond within 20 days. He did not, and it was not until early October that Nelson responded by saying he would submit a formal response soon. He then failed to respond on the dates he committed to reply.

County Bar Files Complaint
Having received no response from Nelson by February 2016, the county bar association notified him of its intent to file a disciplinary complaint with the Board of Professional Conduct, and about a month later, Nelson responded.

He submitted an itemized bill, showing that his fee and expenses earned totaled about $6,800. However, to resolve the dispute, he stated he refunded Sanchez $9,000, which is what she requested to settle the grievance, the day before he responded to the bar association.

The bar charged Nelson with mishandling a client’s fee in a criminal matter and failing to cooperate in the disciplinary investigation. Nelson objected to the charges, arguing that he “effectively” gave Vega the required notice that he was charging a “flat fee” or “earned upon receipt fee,” and that he was not required to place the funds in his client trust account.

Court Rejects Attorney’s Arguments
The Court’s per curiam opinion stated that the rule to collect an earned upon receipt fee requires the client to simultaneously advise the client in writing when accepting the fee that if the representation is not completed for any reason, the client may be entitled to a refund. The opinion stated that Nelson did not “effectively” comply because he only verbally informed Vega of the refund potential and did so two weeks after he collected the money.

The Court noted that Nelson admitted that when Vega terminated him, Vega was entitled to a refund, but for nine months, Nelson kept his client’s funds in a lockbox in his house, rather than in an appropriately safeguarded client trust account.

Nelson also argued that he did not fail to cooperate with the disciplinary process because he considered the matter a fee dispute. He said he delayed his responses because he thought he could settle with Sanchez. The opinion stated that the bar association sent Nelson six inquiries about the grievance in September and October 2015, but since Nelson did not formally respond until March 2016, the board had “ample evidence to conclude that Nelson failed to cooperate.”

Sanction Considered for Misconduct
When imposing a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The Court found Nelson had a prior disciplinary record and failed to cooperate with the investigation. It also found that he lacked a selfish motive, and he submitted evidence from three judges acknowledging his good character and reputation. Additionally, the Court noted that Nelson admitted to some of his misconduct and eventually cooperated in the disciplinary process.

Nelson maintained that his sanction should not be an actual suspension from practicing law and that doing so would be punitive and more severe than necessary to protect the public. The Court countered that Nelson has already been disciplined for the same type of misconduct and that he did not make restitution nor did he cooperate with the disciplinary process until the bar association notified him that it was filing a complaint.

“The board noted that Nelson violated the rules relating to fees and client trust accounts because he failed to read and comprehend them, which shows that he does not appreciate his obligations to comply with the professional-conduct rules,” the opinion stated. “An actual suspension is necessary to give Nelson the time to review and understand his ethical obligations and to implement the procedures necessary to ensure compliance with the Rules of Professional Conduct, especially those applicable to solo practitioners.”

The Court agreed to stay 18 months of the suspension with the condition that he not commit any further misconduct. If Nelson applies for reinstatement, the Court required Nelson to prove that he completed at least six hours of continuing legal education related to law office management and serve one year of monitored probation that focuses on trust account and record-keeping requirements.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, William M. O’Neill, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

Justice Terrence O’Donnell dissented in an opinion joined by Justice Judith L. French. Justice O’Donnell wrote that he would consider the grievance a fee dispute, and would issue a 24-month fully stayed suspension because the refund was paid and Nelson eventually cooperated.

2016-1830. Lorain Cty. Bar Assn. v. Nelson, Slip Opinion No. 2017-Ohio-8856.

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Buttacavoli Provides Financial Planning to Elderly
Buttacavoli also received his second disciplinary sanction. The Court in 2002 found he failed to disclose to his clients his financial interest in investment recommendations while acting both as the clients’ lawyer and financial planner. He received a six-month fully stayed suspension.

A significant portion of Buttacavoli’s practice is providing financial planning advice to elderly clients, mostly focused on ensuring they receive Medicaid benefits to pay for long-term care. In 2013 and 2014, he was charged by the Stark County Bar Association with professional misconduct regarding two clients.

Buttacavoli represented Marquerite A. Marchant and assisted her in transferring her assets to family members in order to qualify for Medicaid. During an interview with the Stark County Department of Job and Family Services, he falsely stated that Marchant had not transferred, sold, or given away any resources within the previous five years when he had helped her make transfers in the past two years.

The county discovered the transfers and notified Buttacavoli that his client received $8,640 in benefits she was not entitled to receive, and that as her authorized representative he was obligated to refund the money. He issued the refund after the bar association notified him that a grievance had been filed against him and that his actions were reported to the county prosecutor.

Buttacavoli Criminally Convicted
In September 2015, Buttacavoli pleaded guilty to a first-degree misdemeanor of falsification and was ordered to serve a 180-day jail sentence, which was suspended, and pay a $500 fine.

The county jobs and family services department also discovered another matter in which Buttacavoli made a false statement about an asset transfer to qualify his client for Medicaid. Based on the conduct in the two matters, the professional conduct board found that Buttacavoli violated a number of professional misconduct rules, including committing an illegal act; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and charging a client a nonrefundable fee without notifying the clients that they would be entitled to a refund if he did not complete the representation. Buttacavoli did not object to any of the findings.

When considering a sanction, the board noted that Buttacavoli had a prior disciplinary record, engaged in a pattern of misconduct, committed multiple offenses, and failed to make restitution. It also found that he made full disclosure to the board, had a cooperative attitude during the disciplinary process, presented evidence of good character and reputation, and had been subjected to criminal penalties.

In a unanimous per curiam opinion, the Court levied the suspended sentence with the condition that he not commit further misconduct. If he were to apply for reinstatement, Buttacavoli must pay $6,800 in restitution to Marchant, and $5,500 to the son of a client.

2017-0227. Stark Cty. Bar Assn. v. Buttacavoli, Slip Opinion No. 2017-Ohio-8857.

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