Court News Ohio
Court News Ohio
Court News Ohio

Two Attorneys Receive Suspensions With Partial Stays

The Ohio Supreme Court has suspended from the practice of law an attorney from Columbus and one from Dayton for misconduct in separate cases. Each has received a two-year suspension with one year stayed if they meet certain conditions.

Dayton attorney inflated hours for court-appointed work
In a 4-3 decision, the Supreme Court suspended Ben M. Swift for two years with the second year stayed on specific conditions. Swift was found to have overbilled for work he did as a court-appointed attorney in the juvenile and general courts of four counties – Montgomery, Warren, Clark, and Greene – during a period of 22 months.

The court, in a per curiam opinion, agreed to stay the second year of Swift’s suspension if he submits to one year of monitored probation focusing on law office management and commits no more misconduct. Before he can apply to be reinstated, he must also pay back $50,000 to the state and the four counties. The court ordered that $20,000 be paid to the state, $21,900 to Montgomery County, $5,100 to Warren County, $2,700 to Greene County, and $300 to Clark County.

Swift submitted bills on numerous occasions that claimed he worked at least 14 hours and up to 30 hours per day.

Swift submitted bills on numerous occasions that claimed he worked at least 14 hours and up to 30 hours per day.

The Dayton Bar Association launched an investigation into Swift’s billing practices after a 2010 newspaper article stated that he had received the most money for court-appointed legal work in the state. Between September 2007 and July 2009, Swift submitted bills on numerous occasions that claimed he worked at least 14 hours and up to 30 hours per day. In 2008, Swift billed 2,967 hours total to the four counties, earning $131,890. That number of hours breaks down to 8.12 hours per day for each of the 365 days in a year.

Swift did not provide documentation to support the hours he billed, and he admitted that he kept no records of his hours.

Because of a lack of evidence, the court dismissed an alleged violation of a professional conduct rule that prohibits lawyers from committing illegal acts, but it agreed that Swift violated five other conduct rules.

Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French made up the court’s majority.

Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger and William M. O’Neill would have indefinitely suspended Swift.

2013-1987. Dayton Bar Assn. v. Swift, Slip Opinion No. 2014-Ohio-4835.

Columbus attorney disbursed settlement before fee dispute resolved
Kimberly Tyus contacted Columbus attorney Joy L. Marshall about taking over a personal injury case involving Tyus’ mother from their current attorney, William P. Campbell. The Tyus family then decided to retain Marshall as their new attorney and sent a letter to Campbell terminating his representation.

Campbell’s fee contract entitled him to 40 percent of any recovery made in the lawsuit. Campbell sent Marshall a letter stating that he planned to place a lien on any settlement agreement for his contingent fee or would make a claim for the value of the legal services he provided between November 2004 and February 2006, when his representation ended.

The court will stay the second year of Marshall’s suspension if she makes restitution to [her client’s] former counsel.

The court will stay the second year of Marshall’s suspension if she makes restitution to [her client’s] former counsel.

In March 2006, Marshall settled the Tyus lawsuit for $150,000. Because of the fee dispute, the settlement check was given to Cuyahoga County Judge Nancy M. Russo, who was assigned to the case. After a hearing, Russo gave the check to Marshall ordering her to disburse $85,000 to the client and hold the balance until the fee issue was resolved.

Marshall took multiple legal steps to prevent the lien, but was unsuccessful. She then interpreted a June 2006 entry by the judge as permission to distribute the rest of the funds to herself and her client. She also asked the Ohio Supreme Court’s chief justice to disqualify Russo, alleging a pattern of biased conduct, but her request was denied.

Before another hearing about the fee dispute, Marshall withdrew as counsel and Russo told her to leave the courtroom. Russo then awarded Tyus’ former counsel $50,443 for his services in the matter and instructed Marshall to transfer the money from her account. Marshall did not comply with the court’s order.

At hearings in August 2006, September 2006, and January 2008, Russo directed Marshall to explain why she had not transferred the funds and to provide copies of her client trust account records. For the August hearing, Marshall was late and was arrested when she arrived for failing to appear. At the second hearing, Marshall would not answer Russo’s questions and was found in contempt of court. Marshall was found in contempt again in January 2008 and sentenced to three days in jail. Marshall appealed the second contempt order and claimed that the judge’s rulings were driven by racial and gender bias.

In January 2012, the Disciplinary Counsel submitted a complaint alleging misconduct by Marshall. The Board of Commissioners on Grievances & Discipline recommended a two-year suspension with the second year stayed on certain conditions. Marshall objected to some of the board’s findings as well as the recommended sanction.

In a per curiam opinion, the Supreme Court agreed with the board’s findings that Marshall had violated professional conduct rules by withdrawing the remainder of Tyus’ settlement funds in violation of a court order, giving incomplete and misleading answers to Russo’s questions regarding her actions, failing to comply with court orders to produce her client trust account records, and making unreasonable and unsubstantiated allegations of racial and gender bias against the judge.

The court will stay the second year of Marshall’s suspension if she makes restitution to Tyus’ former counsel. The court suggested, however, that Russo’s judgment regarding the value of the services provided by both attorneys is not final because Marshall was not party to the action and she was ordered to leave the courtroom before the hearing began. The court stated that restitution amount should be determined in the separate but related action still pending in the Cuyahoga County Court of Common Pleas.

The court’s majority included Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, and Sharon L. Kennedy. Justice Judith Ann Lanzinger concurred only in the court’s judgment.

Justices Judith L. French and William M. O’Neill dissented. They would have imposed a two-year suspension with 18 months stayed.

2013-0924. Disciplinary Counsel v. Marshall, Slip Opinion No. 2014-Ohio-4815.

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