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Court News Ohio
Court News Ohio

Three Attorneys Publicly Reprimanded

Two attorneys from Ohio and one from Kentucky were publicly reprimanded by the Ohio Supreme Court today.

In separate unanimous per curiam opinions, the Court sanctioned:

Fernandez’s Use of California Collection Company Questioned
The Cincinnati Bar Association charged Justin E. Fernandez with professional misconduct for allegedly neglecting a client’s legal matter and the improper use of an out-of-state company to provide paralegal and paraprofessional services to his practice.

Fernandez had a business relationship with Morgan Drexen Inc., which described itself as a provider of integrated support systems to attorneys. The firm assisted Fernandez with what it classified as “non-formal debt resolution.” Fernandez represented Madelyn Harvey in the settlement of her outstanding debts, and Harvey received a letter from Morgan Drexen on Fernandez’s letterhead with his signature. Although the letter had Fernandez’s contact information, it directed Harvey to contact Morgan Drexen in California.

In attempts to resolve some of Harvey’s debts, Morgan Drexen sent letters to her creditors noting she was represented by Fernandez and suggested she might file for bankruptcy if debts could not be resolved. Fernandez was unaware whether any bankruptcy petition had been prepared for Harvey, and the letters instructed her creditors to contact Fernandez through Morgan Drexen’s California office.

Harvey communicated only with Morgan Drexen until she sought to terminate Fernandez’s representation and obtain a refund of the fees she had paid. Fernandez arranged for Harvey  to receive a refund of 90 percent, about $1,340, of the fees she had paid. Fernandez testified that he never met with Harvey in person, and while he approved many of the form documents Morgan Drexen used, he had not seen any of the actual letters sent to Harvey’s creditors with his signature.

Under the Morgan Drexen plan, Harvey was to deposit money into a trust account, and when enough accumulated to settle a debt, Fernandez would work to settle the claim. After four months, Harvey had not deposited enough to settle a claim, and Fernandez had not performed any billable work on her behalf or informed her of settlement offers because there was no money in her account to use to pay the creditors. Fernandez claimed Harvey became unhappy with his work too soon.

A Board of Professional Conduct panel found Fernandez violated the rules governing attorneys that require a lawyer to reasonably consult with a client about how the client’s objectives will be accomplished, and to explain a matter to the extent that a client could make an informed decision regarding the representation provided.

The panel dismissed charges brought by the bar association regarding Fernandez’s relationship with Morgan Drexen, including the claims that he failed to exercise independent judgment and render candid advice while representing a client; failed to ensure that a nonlawyer employee’s conduct is compatible with the professional obligations of a lawyer; and assisted another in practicing in a jurisdiction in violation of the regulations of the jurisdiction.

The Court found Fernandez did not fully cooperate with the bar association’s investigation or show remorse for his misconduct. It noted he had no prior disciplinary record. The Court concluded that by failing to have any direct communication with Harvey during the four months he represented her, he violated the professional conduct rules, and a public reprimand was the appropriate sanction.

2015-2001. Cincinnati Bar Assn. v. Fernandez, Slip Opinion No. 2016-Ohio-5586.

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Beranek’s Delay Harmed Clients
Stanley and Janine McAlpin hired Steven B. Beranek in 2009 to represent them in a collection effort related to a business partnership dispute. Beranek filed several lawsuits for the couple, including suits against two companies in which the McAlpins had an ownership interest. In 2013, before the McAlpins cases could be tried, the defendant companies filed for bankruptcy protection. Beranek was to represent the McAlpins in the bankruptcy proceedings, but after meeting with them once in early 2014, he refused to respond to their numerous attempts to contact him.

The bankruptcy proceedings moved forward in Beranek’s absence and the McAlpins received settlement checks from the bankruptcy trustees, but noticed their collection cases had been closed.

While representing the McAlpins, Beranek left the law firm in which he had been practicing and became a solo practitioner. He failed to inform his clients that he did not have professional liability coverage, and did not notify the McAlpins or other clients until five years after he opened his solo practice.

Based on grievances filed by the McAlpins, the Medina County Bar Association brought a complaint to the professional conduct board. The parties and the board stipulated that Beranek violated the rules by failing to comply with the McAlpins’ reasonable request for information and failing to inform them that he did not have liability insurance.

The Court found that Beranek had a prior three-day registration suspension in 2011. The Court also noted he made a full and free disclosure to the board of his behavior, demonstrated a cooperative attitude toward the disciplinary proceedings, and did not act with a dishonest or selfish motive.

The Court agreed with the board that a public reprimand was the appropriate sanction.

2016-0262. Medina Cty. Bar Assn. v. Beranek, Slip Opinion No. 2016-Ohio-5595.

Clifton Alters Client’s Will
Frank Henry had three children, Franklin Henry, Joanna Davis, and Steven Henry. In 2012, Frank and Franklin Henry met with Patrick L. Clifton to discuss estate planning. Clifton prepared a trust-intake sheet, but he inadvertently failed to note on the sheet that Joanna Davis was one of Frank Henry’s children. Clifton used the sheet to prepare a will in which the probate estate was to be distributed in the Frank E. Henry Family Preservation Trust. The will, like the intake sheet, failed to note Davis.

The omission had no effect on any distribution provisions or appointments because Henry’s intent was to leave the entire estate to Franklin Henry. The trust document designated Franklin as the trust’s sole beneficiary, Steven Henry as the contingent beneficiary, and had no mention of Davis.

The father signed the will without noticing the omission of his daughter’s name and no one noticed before he died in 2013. Clifton first noticed the omission when he attempted to probate the estate, and without consulting Franklin, the estate executor, he altered the first page of the will so it identified all three children.

The altered will was attached to the probate application filed in Warren County Probate Court. Davis had a copy of the unaltered will, and her attorney questioned Clifton about the change. Clifton disclosed to the probate court that he added Davis’ name and reported his misconduct to the county bar association. At a disciplinary hearing, he testified he made the change out of “frustration” and “embarrassment” and to attempt to prevent confusion when the will was probated.

The board found Clifton violated the rule that prohibits a lawyer from knowingly making a false statement to a tribunal and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

The Court noted Clifton had no prior disciplinary action, made a good-faith effort to rectify the matter by disclosing it to the probate court, and presented evidence of his good character and reputation to the board. The board indicated the alteration did not change the outcome of the probate matter.

The Court concluded Clifton’s conduct closely aligned with other cases where attorneys received a public reprimand for filing falsely notarized documents in court.

2016-0258. Warren Cty. Bar Assn. v. Clifton, Slip Opinion No. 2016-Ohio-5587.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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