The Ohio Supreme Court today dismissed rule violation charges against a Cleveland attorney who filed and lost the criminal conviction appeal of man he never met or spoke to until after the case ended.

In a per curiam opinion, the Court ruled it could not find Paul A. Mancino Jr. of Cleveland violated three professional conduct rules. Those rules pertain to instances where there is attorney-client relationship. The Court found Mancino never had an attorney-client relationship with an imprisoned man.

While agreeing to dismiss the case, three justices, in a concurring opinion written by Justice Patrick F. Fischer, take issue with the current rules process. They note that five rule violations were dropped early in the proceedings against Mancino and could not be reviewed by the Supreme Court. The justices question whether a rule change is necessary.

Father of Fellow Inmate Pays for Appeal
Mancino represented Michael Jirousek who was jailed with Raymond Miller. Jirousek told his father, Robert Jirousek, that Miller wanted to appeal his criminal conviction. Robert Jirousek paid Mancino a $1,000 flat fee and the costs to appeal Miller’s conviction. Relying on the payment and his client’s father’s word, Mancino filed an appeal in March 2014, and did not correspond with Miller at that time. Mancino sent Miller a copy of the notice of the oral argument date, and sent him the appellate court’s decision affirming Miller’s conviction and sentence in December 2014.

When the Geauga County judge who originally sentenced Miller became aware of Mancino’s actions, he filed a grievance with the Office of the Disciplinary Counsel. In December 2016, the disciplinary counsel filed a complaint with the Board of Professional Conduct, charging Mancino with eight violations of the rules governing the conduct of Ohio attorneys.

Hearing Panel Dismisses Violations
A three-member board hearing panel dismissed five of the alleged rule violations based on the “insufficiency of evidence.” The panel did find Mancino violated the rules requiring a lawyer consult with a client, inform the client of any decision or circumstance in which client consent is required, and the rule prohibiting a lawyer from accepting compensation to represent a client from someone else without the client’s consent.

The panel recommended that Mancino be publicly reprimanded, and the board agreed.

Mancino objected to the conclusions, arguing the rules could not be violated if there was no attorney-client relationship.

Inmate Claims No Harm
During the disciplinary hearing, Miller testified he was unaware that Mancino represented him, and Miller signed an affidavit stating that Mancino was not his attorney and he never asked Mancino nor anyone to appeal his conviction. He also testified that he was not harmed in any way by Mancino’s actions.

The board found Mancino acted in good faith based on Robert Jirousek’s word that Miller wanted to appeal his case, and noted that neither Mancino nor Robert Jirousek ever directly communicated with Miller. The board found Mancino’s admitted lack of communication led to the rules violation.

Court Examines Relationship
The Court’s opinion stated there was obviously no express agreement for Mancino to represent Miller. However, the Court has held that attorney-client relationships can be created by “implication” based on the conduct of the parties. The Court concluded that based on Miller’s statements, that there was no implied attorney-client relationship.

Because all three charges brought to the Court require an attorney-client relationship, the Court could not conclude that Mancino broke the rules. It stated that under Gov.Bar R. V(12)(G), any count of a disciplinary complaint that is unanimously dismissed by a board panel cannot be reviewed by the board or the Court.

“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,” the justices wrote. “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.”

Concurrence Concerned by Process
In his concurring opinion, Justice Fischer expressed concerns with the Court’s inability to review unanimous hearing-panel dismissals under the rules. Chief Justice Maureen O’Connor and Justice Terrence O’Donnell joined Justice Fischer’s opinion.

Gov.Bar R. V(12)(G) does not permit the Supreme Court or the professional conduct board to review rule violations that were unanimously dismissed by hearing panels for a lack of sufficient evidence. The concurrence recognized that the rule has no mechanism for disciplinary counsel or any county bar association grievance committee to submit objections to the hearing panel’s unanimous dismissals.

The concurrence noted that there are other professional conduct rules that specifically allow for other types of disciplinary decisions to be appealed. The lack of a review mechanism in Gov.Bar R. V(12)(G) means that unanimous hearing-panel dismissals are effectively shielded from review, the justices stated.

Justice Fischer explained that Article IV, Section 2(B)(1)(g) of the Ohio Constitution requires the Supreme Court to regulate all matters related to the practice of law. The concurrence indicated that the dismissal rule in Gov.Bar R. V(12)(G) prevents the Court from acting as the final decision maker in attorney discipline cases.

If a hearing panel mistakenly applies the professional conduct rules and unanimously dismisses rule violations, the attorney’s actions, as related to the dismissed counts, are insulated from the Court’s review, the concurrence asserted.

While Mancino did not violate any rules that required an attorney-client relationship, the concurring justices assured, Mancino arguably violated several other professional-conduct rules.

“Had the hearing panel properly discerned that lack of an attorney-client relationship, it may not have unanimously dismissed those counts for lack of sufficient evidence. Regrettably, we cannot revive or review those dismissed counts, and our responsibility to protect the public from the attorney’s possible misbehavior has been thwarted,” Justice Fischer stated.

The concurrence cautioned future hearing panels against unanimously dismissing rule violations based on insufficient evidence, especially in complex cases, and urged the Court to determine whether Gov.Bar R. V(12)(G) should be amended.

2017-1079. Disciplinary Counsel v. Mancino, Slip Opinion No. 2018-Ohio-3017.

View oral argument video of this case.

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