Wednesday, January 27, 2021
State of Ohio v. Abdul S. Azeen, Case no. 2020-0143
Eighth District Court of Appeals (Cuyahoga County)
BST Ohio Corporation, et al. v. Evan Gary Wolgang, et al., Case no. 2020-0015
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Theodis Montgomery, Case no. 2020-0312
Fifth District Court of Appeals (Stark County)
Cleveland Metropolitan Bar Association v. Michael Aaron Heller, Case no. 2020-0742
Did No-Contest Plea Prohibit Prosecutor from Filing Murder Charges after Shooting Victim Died?
State of Ohio v. Abdul S. Azeen,, Case No. 2020-0143
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Does the Ohio Supreme Court’s decision in State v. Carpenter (1993) apply retroactively to pleas entered before Carpenter was decided?
- Does the Carpenter decision apply to unnegotiated no-contest pleas?
BACKGROUND:
In February 1987, Curtis Oats told his cousin Abdul Azeen, who was then known as Lloyd Harris, that he had been punched by Danuell Jackson. Azeen and Oats went out looking for Jackson. They found him playing basketball at a Cleveland elementary school where Azeen shot Jackson and his brother Herman. Both survived, but Jackson was shot in the neck and became paralyzed from the waist down.
Azeen was charged with attempted murder, felonious assault, and having a weapon illegally, along with firearm specifications. In September 1987, Azeen withdrew his initial not guilty plea and pled no contest to the charges. The trial court sentenced him to five to 25 years in prison preceded by a mandatory three-year sentence for the firearm specifications. Azeen was released from prison in late December 1995.
Prosecutor Charges Murder after Victim Dies in 2014
In May 2014, Jackson died. Ruling the death a homicide, the medical examiner determined that it was caused by injuries from the 1987 shooting. In October 2016, the Cuyahoga County prosecutor charged Azeen with aggravated murder.
Azeen asked the trial court to dismiss the case, arguing the prosecutor didn’t reserve the right to file murder charges at a later date at the time of his 1987 plea. The court agreed, dismissing the case. The Eighth District Court of Appeals rejected the prosecutor’s appeal and upheld the trial court’s decision.
The Cuyahoga County Prosecutor’s Office appealed to the Ohio Supreme Court, which accepted the case. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
State Maintains Supreme Court Case Not Applicable, and Plea Wasn’t Negotiated
The Ohio Supreme Court ruled in State v. Carpenter (1993) that “the state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant’s plea.”
The prosecutor’s office acknowledges that in 1987 it didn’t reserve the right to file additional charges later, but it maintains that it didn’t need to. The office argues Azeen pled no contest in 1987, six years before Carpenter was decided, so the Supreme Court ruling didn’t, and couldn’t, apply.
In addition, the Carpenter decision created a new rule, and the only time a new rule about criminal procedure applies retroactively is when it is a substantive or a watershed rule, the prosecutor states. While Carpenter created a new “affirmative obligation” on the state to reserve its rights to future prosecution, this new rule was a procedural rather than a substantive or watershed rule, the prosecutor maintains.
Under Carpenter, the defendant must show that a negotiated plea deal, with all the elements of a contract, existed, the prosecutor notes. The prosecutor contends that the transcripts of the 1987 plea hearing don’t show that a deal was negotiated, and Azeen and the lower courts merely speculated that a negotiation must have taken place.
“[N]o charges were reduced, no counts were dismissed, no promises were made,” the office’s brief states.
Man Contends Court Ruling Applied Existing Law, and Plea Was Negotiated
Azeen counters that Carpenter created neither a new law nor a new substantive or watershed rule. Instead, he maintains, the decision applied existing law, including the due process safeguards and need for finality in the context of plea bargains. The prosecutor cites case law about when new rules apply retroactively, but those cases involved defendant attempts to attack a prior conviction through a new lawsuit, he argues. He states that this case instead challenges the new 2016 charge for murder.
Azeen argues Carpenter applies to this murder case and prevents his prosecution for Jackson’s death nearly 30 years after the original crime.
As for whether the plea was negotiated, Azeen notes that the trial judge began the 1987 plea hearing by saying, “I have indicated to your attorney that you will expect, under the circumstances presented here, I’m going to sentence you to three years actual incarceration and on top of that I’m going to sentence you to five to twenty-five years.”
His brief maintains that had the judge and the prosecutor not agreed to the plea deal, the judge wouldn’t have started the hearing telling Azeen what his sentence would be before Azeen even entered his changed plea. The state received the benefit of a plea and no trial, and Azeen received the benefit of minimum sentences imposed concurrently, the brief argues. It contends that these factors convinced the trial court in the new case that the 1987 no-contest plea was negotiated in exchange for the sentence.
Azeen adds that the prosecutor ignores the facts and the trial court’s findings in dismissing the 2016 aggravated murder charge. Even if it is unclear whether there was a “meeting of the minds” about the 1987 no-contest plea, that ambiguity must be decided in his favor because of the power imbalance between a defendant and the state in plea negotiations, Azeen concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Katherine Mullin, 216.698.6454
Representing Abdul S. Azeen from the Cuyahoga County Public Defender’s Office: Erika Bloomfield Cunliffe, 216.443.7580
Must Arbitration Award Confirmation Be Stayed if Opponent States Intention to Appeal?
BST Ohio Corporation et al. v. Even G. Wolgang et al., Case No. 2020-0015
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- If a party under R.C. 2711.09 seeks a court motion to confirm an arbitration award, must an opposing party file a motion to vacate the award in order to stay the proceedings for up to three months?
- If a party responds to a motion to confirm an arbitration award by informing the trial court that it intends to file a motion to vacate the arbitration award under R.C. 2711.13, must the trial court stay the proceedings for up to three months?
BACKGROUND:
BST Ohio Corporation and 26 other companies and individuals own Prophecy Massillon, which owns a large commercial, warehouse, and distribution facility in Massillon. Evan Wolgang and a company he owns, Massillon Management, owns 17 percent of Prophecy Massillon. Wolgang was appointed manager of Prophecy and was entrusted with the day-to-day operations of the company’s real estate.
In February 2017, BST and the other owners initiated arbitration proceedings against Wolgang, seeking to remove him as the manager. Arbitration continued over the course of nearly two years. In December 2018, the arbitrator found that Wolgang engaged in conduct that warranted his removal as manager. The arbitrator also found Wolgang, who had been removed from his manager post when the arbitration was initiated, was entitled to $215,000 in back pay.
Under the terms of the Prophecy Massillon’s operating agreement, the arbitration took place in Cuyahoga County. On Dec. 6, 2018, the day the arbitrator issued her final award, BST filed an application under R.C. 2711.09 in Cuyahoga County Common Pleas Court seeking to have the court confirm the award. Wolgang and most of the companies that owned the Massillon real estate are California-based investors. Wolgang filed a motion in a California court on Dec. 7, 2018, seeking to vacate the award that removed him as manager.
On Dec. 22, the Cuyahoga County trial court notified the parties that a hearing was set on Dec. 27 to confirm the award. Attorneys for Wolgang sought a continuance or a stay of the Ohio proceedings while they pursued their California case. They also indicated that under R.C. 2711.13 they had three months to file a motion to vacate the decision in an Ohio court.
The trial court conducted the hearing on Dec. 27, questioning why Wolgang wasn’t prepared to respond to the request for confirmation since he had already prepared his objections when he filed his California case. The trial court denied the request to continue or stay the case, and when Wolgang didn’t file a motion to vacate in Cuyahoga County in the two weeks that followed the hearing, the trial court confirmed the award on Jan. 15, 2019.
Wolgang appealed the trial court’s decision to the Eighth District Court of Appeals, which reversed the trial court’s decision, and ordered the trial court to give Wolgang 50 days to appeal.
BST appealed to the Supreme Court, which agreed to hear the case. Because of the COVID-19 pandemic, the Supreme Court will hear arguments by videoconference, which will be livestreamed.
Trial Court Correctly Confirmed Award
BST explains the case involves the interplay of two provisions of the Ohio Arbitration Act, which are R.C. 2711.09 and R.C. 2711.13. The company states the Ohio law is modeled after the Federal Arbitration Act, and that Ohio public policy favors arbitration because it frees up court resources and provides parties with a speedy and cost-effective alternative to litigation. While arbitration takes place privately, out of court, BST notes it followed the course of many businesses that seek court confirmation of an arbitration award. The court action is taken to secure a judgment that could be enforced by a court if any of the parties fail to abide by the arbitration agreement, BST explains.
BST argues that under R.C. 2711.09 it can seek confirmation “at any time” within one year of the arbitrator’s award by filing an application with the court. The company’s filing required Wolgang to formally respond by filing a motion to vacate. Wolgang’s attorney told the trial court the Ohio law doesn’t call for the response to be a simple pleading that generally outlines his opposition to the award. Instead, the Ohio law requires a thorough response to the motion to vacate, and R.C. 2711.13 gives him three months to make that request. The attorney told the trial court that he needed the time to file a thorough response with a brief.
Citing the Tenth District Court of Appeals 1992 Amanda Scott Pub. v. Legacy Mtg. Grp. Inc. decision, BST argues that once it filed for confirmation, Wolgang was obligated to promptly respond. The company maintains that the trial court isn’t obligated to wait three months to see if Wolgang would actually file a motion to vacate before it could proceed on ruling in the case. BST argues that if the legislature intended to give those participating in arbitration an automatic three-month stay, the law would state that a party couldn’t seek confirmation until three months after the award.
BST argues the law favors carrying out arbitration awards and protects those who assert their rights to have the decisions of the award take immediate effect. BST maintains that giving Wolgang three months to contest the decision offers him to time to “forum shop” for a court that may give him a more favorable ruling. BST also states allowing Wolgang to remain in control of the property while contesting the arbitration “would have left him free to continue his transgressions” in operating the property.
BST concludes that R.C. 2711.09 and R.C. 2711.13 both act as statutes of limitations to initiate a proceeding. R.C. 2711.09 gives parties the longer one-year period to enforce arbitration, and R.C. 2711.13 offer a shorter three-month period to vacate, correct, or modify an award. But R.C. 2711.13 doesn’t act as an automatic stay if the party seeking to confirm initiates court action before the party opposing the award does so. The company’s brief states it’s “an irreconcilable contradiction to imagine” lawmakers created a law favoring speedy, final binding arbitration in one statute, then provided an absolute, automatic three-month stay in a companion statute.
Manager Maintains Additional Time Allotted to Contest Award
Wolgang explains the trial court was provided ample notice that he was unable to move forward in late December 2019 with a thorough presentation of facts that would warrant vacating the award. Wolgang’s attorney told the court he intended to file a motion to vacate and that under R.C. 2111.13 he was required to file a brief stating the reasons for overturning the arbitrator’s award.
Wolgang notes that under California court rules, he filed only a simple pleading indicating he intended to submit further information to support his case. He argues the rules in Ohio are different. At the time a party moves to vacate, it must provide a thorough case, he asserts. He maintains the law gives him three months to make that motion and BST can’t deprive him of that time by filing for confirmation. He argues the two laws act independently and that lawmakers didn’t state that filing an application to confirm an arbitration award precludes a party from seeking to vacate the award.
Wolgang maintains that the Amanda Scott decision doesn’t apply because in that case a non-attorney, company executive appeared in court to contest the arbitration award. Because the executive wasn’t an attorney, he couldn’t file a motion or take any legal action to question the award. In contrast, Wolgang’s attorney requested that the trial court stay the confirmation proceedings so he could prepare and file a thorough motion to vacate within the allotted three-month time frame.
Wolgang’s brief cites the Ohio Supreme Court’s 1985 Warren Edn. Assn. v. Warren City Bd. of Edn. decision, which stated a court must confirm an arbitration award “unless a timely motion for modification or vacation has been made and cause to modify and vacate is shown.” Wolgang argues “timely” means within the three months allowed by R.C. 2711.13.
Wolgang explains the Warren decision doesn’t mean all attempts to confirm an award must be made after three months. If a party moves to confirm an award anytime in the first three months after it was made and no one objects, then the trial court can authorize it. He argues the Eighth District was correct in noting that once the trial court knew there was opposition, the court had to wait to see if a “timely” motion to vacate was filed. He argues R.C. 2711.13 isn’t an automatic stay that is meant to thwart to implementation of arbitration awards, but must be granted when a party indicates it will move to vacate the award.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing BST Ohio Corporation et al.: Michael Ungar, 216.583.7000
Representing Evan Gary Wolgang et al.: Colleen O’Neil, 216.622.8200
Did Marsy’s Law Give Victim Right to Sit with Prosecutor during Accused Rapist’s Trial?
State of Ohio v. Theodis Montgomery Case No. 2020-0312
Fifth District Court of Appeals (Stark County)
ISSUE: Were the constitutional rights of a man charged with kidnapping and rape violated when the trial court permitted the alleged victim to sit with the prosecutor at the counsel’s table during the entire jury trial?
BACKGROUND:
A woman identified in court records as A.B. had known Theodis Montgomery for about 10 years. Their families became intertwined when A.B.’s father married Montgomery’s sister. Montgomery and A.B.’s father became friends, and Montgomery lived in the basement of A.B.’s father’s house in Canton.
Montgomery expressed interest in having a romantic relationship with A.B., but A.B. indicated she only wanted to remain friends. A.B. was engaged to a man who was in prison. In March 2018, A.B.’s father called A.B. late in the evening to ask her to bring him some marijuana. He told A.B. he and his family were leaving early the next morning for Florida.
A.B. arrived at her father’s home and smoked marijuana with him. She decided to spend the night and set up a space on a floor in a back room to sleep. The family left for vacation around 4 a.m. the next morning. A few hours later, Montgomery came up from the basement and discovered A.B. He yelled at her and punched her in the face. He later forced her to have sex. He then felt remorseful for how he treated her and tried to make up with her. He allowed her to leave the house later that day.
A.B. called her fiancé in prison, which was recorded, and then her sister. Her sister told her to call the police, and a dispatcher advised her to go to the hospital. At Mercy Medical Center, she was examined by a sexual assault nurse, who completed a sexual assault kit. A Canton Police Department detective received permission by phone from A.B.’s father to search his home. Police discovered a blood-covered tissue in a waste basket that A.B. had said she used to wipe the blood from her nose after Montgomery punched her.
Montgomery was indicted by a Stark County grand jury on one count of kidnapping and one count of rape.
Defendant Objects to Victim’s Seating at Trial
On the day of Montgomery’s trial in November 2018, A.B. was seated at the counsel’s table next to the assistant county prosecutor. The prosecutor informed the trial court A.B. was designated as the state’s representative and would be sitting at the table for the entire proceedings.
Montgomery’s attorney objected to A.B.’s presence at the counsel’s table, stating her presence would be highly prejudicial to Montgomery. The trial court cited the passage of Marsy’s Law, a constitutional amendment adopted by Ohio voters that went into effect in February 2018. Marsy’s Law expands the rights of crime victims, and the trial judge determined that A.B. was permitted to sit at the table.
The jury convicted Montgomery on both counts, and he was sentenced to 10 years in prison for each, which were to run concurrently. Montgomery appealed his sentence to the Fifth District Court of Appeals, arguing, among other things, that he was denied a fair trial under the Sixth and Fourteenth Amendments to the U.S. Constitution because A.B. sat at the prosecutor’s table. The Fifth District affirmed the trial court’s decision.
Montgomery appealed to the Ohio Supreme Court, which agreed to hear the case. Because of the COVID-19 pandemic, the Supreme Court will hear arguments by videoconference, which will be livestreamed.
Appearance at Table Manipulates Trial, Defendant Asserts
Montgomery explains that witnesses in criminal trials are separated and removed from the courtroom to ensure each one’s testimony isn’t influenced by the others. There are exceptions to the rule, and a representative of the law enforcement agency handling the prosecution may sit at the prosecutor’s table and assist with the trial even if the representative is a witness. In this case, A.B. isn’t a law enforcement officer nor an employee of the government agency that assisted in prosecuting the crime, he notes. A.B. isn’t able to assist the prosecutor in the case and shouldn’t be at the table, Montgomery asserts. Under Marsy’s Law, and court rules, the trial court has the discretion to allow the alleged victim to remain in the courtroom for the entire proceeding, even if the victim is a witness, but that doesn’t allow the victim to sit at the prosecutor’s table, he argues.
By seating A.B. at the table, the prosecutor gives the jury the impression the state is vouching for the witness and assuring the jury that her testimony is credible, Montgomery asserts. He notes that the lower courts didn’t agree with this point because the prosecutor made no verbal statements during the trial that indicated A.B. was more believable than Montgomery or any of his witnesses.
He indicates the issue of sitting at the table hasn’t been addressed by the Ohio Supreme Court. Montgomery’s brief cites the 1993 Arkansas Supreme Court’s Mask v. State decision in which the court found seating a victim at the table “can emphasize the testimony of certain witnesses over others” and is “tantamount to the trial court expressing an opinion on the credibility of certain witnesses over others.”
Montgomery concludes that having A.B. at the table puts the victim on display and conveys to the jury that her testimony has been accepted as credible by the state suggesting he isn’t credible. Because the accused has a constitutional right to a fair trial, and A.B. has no constitutional right to be seated at the table, he argues that a new trial is justified.
Seating Victim at Table Permitted, Prosecutor Asserts
The prosecutor notes Marsy’s Law was approved overwhelmingly by 1.9 million Ohio voters in November 2017, indicating the public’s interest in granting more rights to crime victims. The law permits the victim to be present during all stages of a criminal trial. The prosecutor explains that, historically, those accused of rape attempt to have the jury not see the victim. In some cases, the defense subpoenas the victim as a witness in order to have the victim removed from the courtroom with the rest of the witnesses, the prosecutor notes.
The prosecutor supports the reasoning of the trial court and Fifth District -- that while Marsy’s Law, which is Article I, Section 10(a) of the Ohio Constitution, doesn’t expressly state a victim can sit with the prosecutor, nothing in the constitution nor the court rules prohibits it. Marsy’s Law states the victim’s rights to due process must preserved in a manner “no less vigorous than the rights afforded to the accused,” the prosecutor’s brief states, and that afforded A.B. the right to assist the assistant county prosecutor by conferring with him at the table.
The prosecutor also rejects the notion that the state “implicitly vouches” for the victim’s credibility by naming the victim as the state’s representative in the courtroom who sits at the table. The office notes that improper vouching occurs when the prosecution places the prestige of the government behind the witness or offers information in court that wasn’t presented to the jury to support the witness’ testimony. The prosecutor asserts no acts were taken to bolster A.B.’s credibility and no explicit or implicit commentary on her testimony was offered.
The prosecutor concludes the trial record indicates there was no unusual, disruptive, or distracting behavior in the courtroom that was prejudicial to Montgomery and that he received a fair trial. The office notes Montgomery made no effort to remove A.B. from the proceedings based on disruptive or prejudicial behavior, but now wants to claim her mere presence at the table resulted in an unfair trial. The prosecutor maintains that without a specific showing of prejudice, the verdict should be affirmed.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting Montgomery’s position has been submitted by the Ohio Association of Criminal Defense Lawyers.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Stark County Prosecutor’s Office: Kristine Beard, 330.451.7897
Representing Theodis Montgomery from the Ohio Public Defender’s Office: Addison Spriggs, 614.466.0702
Suspension Proposed for Attorney Whose Assistant Stole Clients’ Cash Payments
Cleveland Metropolitan Bar Association v. Michael A. Heller, Case No. 2020-0742
Cuyuhoga County
A Cuyahoga County lawyer whose office assistant stole cash from him and his clients faces a proposed one-year suspension with sixth months stayed based on the harm he and the assistant inflicted on a client.
The Board of Professional Conduct recommends that the Ohio Supreme Court suspend Michael Heller of Euclid. Heller stipulated to violating several professional conduct rules, but contests the sanctions, noting he didn’t knowingly harm his client, but rather was duped by his office assistant, who stole from him and made errors that led to the client’s failed bankruptcy petition.
The Cleveland Metropolitan Bar Association, which filed the complaint against Heller with the board, supports the board’s proposed suspension. Because of the COVID-19 pandemic, the Supreme Court will hear arguments by videoconference, which will be livestreamed.
Attorney Hires and House Office Assistant
Heller is a solo practitioner who devotes about one-third of his practice to bankruptcy law. Heller hired Turner Friedman in 2015 or 2016 as an office assistant and paid him $100 to $150 in cash for each bankruptcy petition Friedman assisted in handling. Beginning in 2014 — until his eviction in 2017 — Friedman rented a bedroom in Heller’s house. In some cases, instead of paying Friedman, Heller reduced Friedman’s rent payment.
Friedman met with clients, prepared bankruptcy petitions and related documents, and accepted client payments for attorney fees and filing fees. Heller admittedly kept poor financial records and didn’t provide income tax withholdings for Friedman as either an employee or independent contractor.
In December 2016, Heller became aware that Friedman was collecting cash from clients and withholding some of it, and wasn’t keeping accurate records. Despite the knowledge, he allowed Friedman to keep working as an office assistant. In February 2017, Heller calculated that Friedman had embezzled $19,000 from Heller’s law firm.
Client’s Bankruptcy Payments Misstated
In March 2017, Melissa VanEyk hired Heller to help her file for Chapter 7 bankruptcy, which doesn’t require a repayment plan but requires the client to sell nonexempt assets to pay back creditors. The bar association notes Heller allowed Friedman to be VanEyk’s primary contact person even after he knew Friedman was stealing from him.
VanEyk signed a written agreement to pay a $599 flat free for Heller’s representation and $335 for court filing fees. Heller’s agreement stated VanEyk was required to pay all fees to him and that he would submit the filing fee with the bankruptcy petition to the court. VanEyk paid in full with installments of cash payments to Friedman, which Heller didn’t put in his client trust account as required by the professional conduct rules.
Heller had limited contact with VanEyk, and Friedman advised her about all the information needed to prepare and file for bankruptcy. VanEyk told Friedman that her primary goal was to retain a Ford Escape she was purchasing to use for transportation to work. She wanted to have the Escape considered an asset that was exempt from being sold to pay her creditors. Friedman told her he didn’t think that would be a problem.
Despite the client having paid the full attorney and filing fees, Heller represented in the petition to the bankruptcy court that VanEyk paid him $299 and owed him $300. Heller didn’t pay the filing fee, but told the court VanEyk would be paying the court in installments.
Immediately before a meeting scheduled with VanEyk’s creditors, Heller learned that Friedman made errors in the listing of the vehicle. Heller became angry and told VanEyk she wouldn’t be able to keep the Escape if she met with the creditors. He suggested the two leave without meeting with the creditors and allow her case to be dismissed. He then assured her he could refile the petition.
The bankruptcy court dismissed the petition and, unbeknownst to VanEyk, ordered her to pay the filing fee within 10 days. In August 2017, Heller wrote to VanEyk, indicating he would help her refile her petition, but that she would have to pay a new filing fee, and pay the unpaid filing fee from the first petition.
VanEyk scheduled a meeting with Heller at his office, but was met by a woman who also worked as a nonlawyer assistant. The assistant told VanEyk that Friedman embezzled money from the office and incorrectly filed her petition. She was told all of the paperwork would have to be redone.
VanEyk left the office and filed a grievance with the bar association. Ultimately, Heller refunded VanEyk her money. The board indicates Heller harmed VanEyk because the dismissed case with an unpaid fee appeared on her financial records, and increased her debt owed to creditors.
Rule Violations Committed
The board found Heller violated several rules, including making false statements to the bankruptcy court regarding the filing fee and amount of attorney fees paid. He also failed to properly maintain VanEyk’s funds in his client trust account; failed to adequately and diligently obtain and review her bankruptcy filing; and failed to consult her to obtain her objectives or let her know she might be entitled to a refund.
The board also found the lawyer didn’t properly supervise Friedman or take any action to mitigate Friedman’s improper behavior once he became aware of it. He also improperly shared legal fees with Friedman. At a board hearing, a bankruptcy expert stated that if Heller had acted competently, the vehicle could have been exempted from the bankruptcy proceedings.
The board notes it didn’t find any prior cases of attorney discipline with fact patterns similar to Heller’s but, based on aspects of other sanctions handed down by the Court, it recommends six months of his one-year suspension be stayed with several conditions, including completion of six hours of continuing legal education in law office management; six months of monitored probation; and a drug and alcohol assessment by the Ohio Lawyers Assistance Program (OLAP).
Attorney Disputes Severity of Charges
Heller disputes some of the charges and claims the board has characterized his behavior in a way that falsely enhances the severity of his actions. He notes many of the prior attorneys sanctioned with suspensions committed far more incidents of misconduct and deliberately misled clients and courts.
Heller argues he didn’t make a false statement to the bankruptcy court when he filed VanEyk’s petition. Friedman embezzled some of the money collected from VanEyk, and at the time he filed the petition, he didn’t know she had paid him in full and paid the filing fee. He argues prior suspensions have been issued to those who “intentionally misrepresented a crucial fact” to a court. He asserts that the inaccuracy of his fee to be paid and the filing fee weren’t crucial to the case, and they are issues that could be resolved if a second petition were filed.
Heller also rejects the board’s contention that he acted with a selfish and dishonest motive. He maintains it was Friedman who was dishonest and stole money from him and the clients. He states that his failures were the inadequate supervision of Friedman and flawed bookkeeping.
Heller suggests that he not be sanctioned at all, or receive a fully stayed suspension. He admits he has abused alcohol, and attends regular Alcoholics Anonymous meetings, and that there is no need for the OLAP assessment or a treatment plan from OLAP.
Bar Association Supports Sanction
The bar association accuses Heller of “exercising extremely poor oversight and judgment” of Friedman, who he knew was stealing from him and wasn’t competent in providing services to clients. The bar association maintains that Heller turned a blind eye to Friedman’s work and VanEyk suffered from the botched bankruptcy.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cleveland Metropolitan Bar Association: Sarah Mancuso, 216.348.5400