Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Sept. 10, 2019

City of Cleveland v. Ohio Bureau of Workers Compensation et al., Case no. 2018-0572
Eighth District Court of Appeals (Cuyahoga County)

Phoenix Lighting Group LLC et al. v. Genlyte Thomas Group LLC et al., Case no. 2018-1076
Ninth District Court of Appeals (Summit County)

Columbus City Schools Board of Education v. Franklin County Board of Revision, Franklin County auditor, and Ohio tax commissioner, and Palmer House Borrower LLC, Case no. 2018-1299
Ohio Board of Tax Appeals

Lorain County Bar Association v. James L. Lindon, Case no. 2019-0216
Lorain County

Akron Bar Association v. Matthew Fortado, Case no. 2019-0805
Summit County

Could Common Pleas Court Hear Cleveland’s Workers’ Compensation Overbilling Lawsuit?

City of Cleveland v. Ohio Bureau of Workers Compensation et al., Case no. 2018-0572
Eighth District Court of Appeals (Cuyahoga County)


  • Does a common pleas court have jurisdiction to a consider a lawsuit against the Ohio Bureau of Workers’ Compensation (BWC) for unjust enrichment based on premium rates charged, or must the suit be filed in the Ohio Court of Claims?
  • Does Ohio law permit the filing of a lawsuit against the BWC based on a claim of unjust enrichment without a party first attempting to address the matter through an administrative procedure?
  • Does the statute of limitations regarding workers’ compensation premium disputes limit recovery to two years’ worth of premiums?

State lawmakers approved the use of “group rating” programs by the Ohio Bureau of Workers’ Compensation (BWC) in the late 1980s, and they were implemented in the early 1990s. For nearly two decades the programs underbilled the group-rated employers and overbilled public and private employers who chose not to be in the group programs.

The non-group rated employers filed a lawsuit against the BWC, which resulted in a 2012 trial court verdict awarding the non-group employers $859 million judgment against the BWC. Rather than appeal, the bureau settled the matter (San Allen v. Buehrer) in 2014 for $420 million. That settlement applied to more than 270,000 Ohio employers. Public employers were excluded from the settlement.

The city of Cleveland filed its own lawsuit against the bureau, which resulted in a $4.5 million judgment. The BWC is contesting that decision in this case before the Ohio Supreme Court.

The parties note that another pending case, City of Parma v. Ohio Bureau of Workers Compensation, is a class-action lawsuit with more than 2,100 local governments seeking repayment from the BWC for alleged overbilling. The trial court placed that case on hold in part because the Supreme Court’s resolution of this case will impact the other local governments. Several items of evidence used in the Cleveland case were produced during the proceedings in San Allen and Parma.

State lawmakers authorized the BWC to implement group rating for small Ohio employers in the early 1990s, and the plan allowed groups of smaller employers to band together their collective workplace injury claim experiences to qualify for premium discounts enjoyed by larger employers. The BWC has two separate insurance funds, a “private fund” paid by private employers and a “public fund,” paid by government agencies. More than 3,800 governmental agencies pay into the public fund.

BWC audits of the funds from the early 1990s through 2009 revealed problems with adequately pricing premiums for employers, noting that group-rated employers were historically being charged less premiums than they owed for the claims they experienced. The audits indicated the bureau was making up the money by overcharging non-group-rated employers. The studies revealed the larger discrepancies occurred in the private fund, but that, to a lesser extent, the public fund experienced the same issue.

In 2007, a class-action lawsuit was filed by non-group rated employers against the BWC for overcharging the employers. The suit resulted in a 2014 settlement that excluded public employers. Cleveland filed its own lawsuit against the BWC in 2013, alleging that between 1997 and 2009 it was overbilled $4.5 million by the bureau. The bureau contested the city’s right to sue in Cuyahoga County Common Pleas Court and challenged the assertion that the city was overcharged.

The trial court ruled the BWC owed Cleveland $4.5 million, and the bureau appealed to the Eighth District Court of Appeals, which affirmed the lower court’s decision. The bureau then appealed to the Supreme Court, which agreed to hear the case.

Suit Filed in Wrong Place, at Wrong Time, Bureau Asserts
The BWC argues the city filed its lawsuit in the wrong court, at the wrong time, based on a legal theory that cannot be asserted for a premium dispute. Citing the Ohio Supreme Court’s recent Cirino v. Ohio Bureau of Workers’ Comp. (2018)decision, the bureau maintains that because the city is seeking repayment as damages, the case must be filed in the Ohio Court of Claims. Common pleas courts have a right to hear cases against the bureau only for “equitable” claims, and while the city argues its case is about equity and “unjust enrichment,” the legal arguments it is making are, in reality, a claim for damages, the bureau maintains. Because the city filed its case in the wrong court, it should be dismissed, the BWC concludes.

While Cleveland is pursuing its case through the common law theory of unjust enrichment, the bureau argues the city is claiming the bureau violated its statutory duties. When the bureau is charged with violating a state law regarding premiums, the challenge must be brought through an administrative procedure outlined in R.C. 4123.291. BWC maintains that R.C. 4123.291(B)(5) requires that any “decision relating to any other risk premium matter” must be brought before a bureau adjudicating committee, which decides the matter. That decision then can be appealed to the BWC administrator. If the challenger receives an unfavorable ruling, the administrator’s ruling then can be challenged in court. Because the city didn’t follow the administrative procedure, its lawsuit couldn’t be initiated, the bureau maintains.

The administrative procedure also notes that a claim regarding premiums contains a two-year statute of limitations and the claim is limited to only two years’ worth of premiums. Cleveland is seeking 12 years’ worth of premiums. The bureau argues not only is Cleveland not allowed to seek compensation for such a long period, but also, if the entire period is examined, it reveals that in some years Cleveland was undercharged for premiums. The bureau concludes that Cleveland has failed to prove any harm from the unpredictability of BWC premium setting.

While the bureau agreed to settle the San Allen decision, the bureau in this case maintains the Eighth District and the trial court wrongly decided San Allen. BWC also asserts the findings in San Allen don’t apply to the public employers’ cases because the legal theories used by the public and private employers are distinctly different.

City Says It Was Victimized by Same Flaw as Private Employers
Cleveland argues the audits, reports, and testimony provided in both cases involving public and private employers reveal that Cleveland suffered the same billing issues as the non-group-rated private employers. The city maintains that testimony given by BWC staff in the pending Parma case supports the city’s contention that for years the bureau has known it was overcharging non-group-rated public employers to cover the costs of group-rated employers.

The city maintains it has right to sue for unjust enrichment in common pleas court because the bureau has benefitted by collecting billions of dollars in surplus funds and has distributed more than $8 billion in premium rebates to employers. The city argues this is an “equity” case because it is only requesting the bureau return the money it unjustly collected from the city and that money sits in a state fund with billions of dollars in reserves to pay claims.

The city argues that, just as in San Allen, the courts have found Cleveland wasn’t obligated to follow the administrative complaint procedure before it could file a lawsuit. The city asserts the administrative procedure is for disputes challenging how a premium rate for a particular year was calculated. The city isn’t complaining about how much it was charged based on its claim experience, but rather is challenging the entire scheme to set rates, which is based on an illegal use of formulas that the bureau knowingly used to overcharge non-group-rated employers. Such a claim isn’t within the authority of a BWC adjudicating committee to decide, the city concludes.

Cleveland responds to BWC’s statute of limitations argument by maintaining that its lawsuit carries a six-year statute of limitations and that time limit is based on the last premium payment it was overcharged. The last challenged payment was made in 2009 and the city brought its lawsuit within six years, it notes, adding that the law allows the city to seek for all overcharges made under the same scheme.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting Cleveland’s position has been submitted by the Ohio Municipal League, which maintains that the BWC never explained why public employers were excluded from the San Allen settlement. It notes the rights of many municipalities to challenge the group-rating plan will be impacted by the outcome of this case.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the City of Cleveland: Maura Hughes, 216.662.8335

Representing the Ohio Bureau of Workers’ Compensation from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Should Ohio Courts Alter How Attorney Fees Are Calculated?

Phoenix Lighting Group LLC et al. v. Genlyte Thomas Group LLC et al., Case no. 2018-1076
Ninth District Court of Appeals (Summit County)

ISSUE: Should Ohio courts adopt the presumption that the “lodestar” method for calculating attorney fees is sufficient, and that attorneys seeking enhancements must produce objective and specific evidence that justifies a higher amount?

Genlyte Thomas Group, doing business as Day-Brite/Capri/Omega (DCO), manufactures lighting products and competes with other major manufacturers, including Acuity Brands Lighting. DCO sells products through independent sales agencies. Phoenix Lighting Group, owned by Patrick Duffy, sells primarily Acuity lighting in the Akron market. Duffy acquired another agency that sold Acuity lighting in the Cleveland market.

Two Phoenix employees sought to purchase Phoenix, and when the negotiations failed, they opened their own agency and began selling DCO products in competition with Phoenix. Phoenix initially sued the two former employees in 2009, asserting several claims. DCO joined the lawsuit on behalf of the two former employees.

In 2012, the day before the trial was to begin, Phoenix voluntarily dismissed its lawsuit and refiled it two months later. The case eventually went to trial, and Phoenix settled with the two former employees, leaving DCO as the only defendant. A jury found mostly for Phoenix and awarded nearly $1.7 million in compensatory damages for several claims, including DCO stealing Phoenix’s trade secrets and interfering with the company’s relationship with key employees. A jury later awarded Phoenix $7 million in punitive damages and ordered DCO to pay Phoenix’s reasonable attorney fees.

Trial Court Calculates Fee
The trial court conducted a hearing on the attorney fees. Using the “lodestar” method of calculating the numbers of hours worked and the rate charged, which is designed to apply reasonable hours and rates. Phoenix’s attorneys claimed it was owed $1.9 million for the 9,000 hours it billed Phoenix for legal work. Based on the complexity of the work and other factors, Phoenix asked the trial judge to more than double the lodestar amount, and the court agreed, awarding $3.9 million. After other adjustments to the jury verdict, the court issued a final judgment against DCO for $9.5 million.

DCO appealed the decision to the Ninth District Court of Appeals, specifically objecting to the increased attorney fees. The Ninth District affirmed the trial court’s decision. DCO appealed to the Ohio Supreme Court, which agreed to hear the issue regarding the attorney fees.

Attorney Fees Need Not Be Adjusted, DCO Argues
DCO urges the Ohio Supreme Court to follow the U.S. Supreme Court’s attorney-fee guidelines produced in its 2010 Perdue v. Kenny A. ex rel. Winn decision. The company notes the general rule is that parties in a civil lawsuit pay their own attorney fees, regardless of the case’s outcome. However, when a party is found to commit “actual malice,” then a court can direct the losing party to pay the winning side’s attorney fees. DCO notes that the amount awarded is to be considered compensatory damages, which pay the actual amount the opposing attorney should be paid for services and isn’t a bonus or reward.

DCO explains the Ohio Supreme Court adopted the lodestar method in a 1991 case (Bittner v. Tri-County Toyota, Inc., relying on language borrowed from a 1983 U.S. Supreme Court decision. The Bittner decision noted the attorney fee is first calculated using the lodestar method, then adjusted based on a number of factors. The company notes that the Perdue decision clarified the U.S. Supreme Court’s position on adjusting the fees and explains that the amount calculated with lodestar should be presumed to be the correct amount. Any adjustment to the lodestar should be for “rare and exceptional” cases and supported by specific evidence.

In DCO’s case, it argues Phoenix didn’t demonstrate the case was rare or exceptional and didn’t provide any proof that an enhancement was justified. It agreed with Phoenix’s claim that the case could be considered complex, but the fact that Phoenix hired five law firms and billed Phoenix for 9,000 hours reflects the complexity of the case. Phoenix should be awarded the $1.9 million calculated under the lodestar method, but isn’t entitled to any enhancements, DCO concludes.

Contingency Arrangement Should Be Discarded, DCO Asserts
Part of the reason the trial court doubled the fee was that Phoenix switched from paying its attorneys through hourly billing to paying them through a contingency arrangement. Duffy, Phoenix’s owner, paid the lawyers $1 million through the first filing, and cautioned that he and his other businesses were at risk of financial collapse from the ongoing case with DCO, the company notes. Phoenix attorneys then switched to a contingency fee, based on the outcome of the case. DCO notes that Phoenix added costs when it dismissed and refiled the case, and that the new arrangement with the attorneys shouldn’t be rewarded by enhancing what they could charge. DCO maintains the Perdue decision notes that lawyers taking the risk of working on contingency aren’t entitled to enhancement of the lodestar amount. DCO notes that it recently paid Phoenix nearly $7 million of the trial court’s judgment and those funds provide the company with an ample amount to compensate its attorneys beyond the $1.9 million calculated by the lodestar method. It urges the court to remand the case to the trial court and to lower the attorney-fee award.

Trial Court Best Positioned to Determine Fees, Phoenix Maintains
Phoenix maintains that Ohio courts shouldn’t replace the current fee-setting methods adopted in Bittner and cautioned against replacing it with the ruling in Perdue. Because Perdue dealt with specific language in a federal law allowing the winner of a case to obtain attorney fees, the decision was not binding precedent  on state courts and cases involving private parties such as Phoenix and DCO.

Phoenix argues its entire business was lost to the scheme in which the two employees conspired with DCO to obtain Phoenix’s trade secrets and organize a mass resignation of its employees. Phoenix notes that DCO is a subsidiary of the larger Phillips Electronics, which threatened Phoenix’s attorneys by stating that continuing the case would lead to a protracted and expensive legal battle. The company argues the trial court was best positioned to determine if the enhancement to the lodestar calculation were justified and the trial court sufficiently explained that DCO’s actions warranted the doubling of the award.

Phoenix notes the Bittner decision requires the trial judge to consider the time and labor of the litigation and other factors, including how novel and difficult the legal questions were in the case, the professional skill of the attorneys, the amount customarily charged for legal services for the type of case at issue, and whether a fee is fixed or contingent.

Phoenix’s attorneys recognized the impact the hourly billing was having on Duffy and agreed to a lower-than-market rate fee when it refiled the case and accepted a contingency fee. Phoenix argues it was DCO’s actions that prolonged the case and required Phoenix to hire additional law firms in other states in order to combat the legal strategies DCO was using to win the case. Phoenix maintains the trial judge considered all the evidence, listened to expert witness testimony from both sides regarding the fee, and correctly enhanced the amount based on the practices Ohio courts have used since Bittner. The company argues other states have rejected the Perdue calculations, and it urges the Ohio Supreme Court to maintain the present standards for awarding attorney fees.

Friend-of-the-Court Brief Supports Phoenix
An amicus curiae brief supporting the Phoenix’s position has been submitted by the Ohio Employment Lawyers Association.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Phoenix Lighting Group LLC: Betsy Hartschuh, 330.665.5117

Representing Genlyte Thomas Group LLC: Benjamin Sasse, 216.592.5000

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Did Company Purchase Price Reflect Best Indication of Apartment Complex Value?

Columbus City Schools Board of Education v. Franklin County Board of Revision, Franklin County auditor, and Ohio tax commissioner, and Palmer House Borrower LLC, Case no. 2018-1299
Ohio Board of Tax Appeals


  • Is the purchase of a membership interest in a limited liability company the best indication of a property’s value for tax purposes?
  • Was the use of a financing appraisal report to determine a property’s value appropriate in this case?
  • Is documentation admissible to the Ohio Board of Tax Appeals if it’s not authenticated or certified?
  • If a property’s value is determined by using the price to transfer a business, does that type of valuation result in unfair and inequitable taxes on more than the real estate and violate the Ohio Constitution’s requirement that property be taxed uniformly?

Palmer Square, a limited liability company (LLC), owned a 264-unit apartment complex, built in 2013 on 12.4 acres in Franklin County. In June 2015, Palmer Square agreed to sell the company to Palmer House Borrower, which is owned by PPG Manhattan Real Estate Partners. The apartment complex was part of the transfer of the business, and the transaction closed in October 2015. The county auditor valued the property at $16 million for tax year 2015.

The Columbus City Schools Board of Education filed a complaint with the Franklin County Board of Revision, arguing that the apartment complex’s value should be approximately $34 million for tax purposes. In October 2016, the board of revision, however, declined to increase the property’s value, keeping it at $16 million.

School Board Disputes $16 Million Valuation of Apartment Complex
The school board appealed to the Ohio Board of Tax Appeals (BTA). The school board obtained various documents through discovery, including the purchase contract, the settlement statement, and an appraisal report dated in January 2015, to support its position on the property value. Palmer House Borrower offered a separate appraisal, which stated that the apartment complex’s property value was $25 million. The BTA decided in July 2018 that the school board established that a recent arms-length sale placed the property’s value at $34.5 million.

Palmer House appealed to the Tenth District Court of Appeals, then requested that the appeal be transferred to the Ohio Supreme Court. Under R.C. 5717.04, the Supreme Court can accept an appeal directly from the BTA “if the appeal involves a substantial constitutional question or a question of great general or public interest.” The Court granted the request and agreed to have the case heard by the justices, rather than a master commissioner.

New Owner Maintains Purchase Encompassed More than Apartment Complex
Palmer House argues that the BTA’s decision conflicts with two Ohio Supreme Court rulings – Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of Revision (1998) and Gahanna-Jefferson Public Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision (2000).

In Salem, the Court determined that the sale of company stock doesn’t establish the value of the company’s real property for tax purposes, states Palmer House. The Court stated: “The sale price of all of the shares of stock of a company, therefore, does not establish the value of that company’s real property. Other evidence such as appraisal or expert accounting testimony would be necessary to prove the value of the real property separate from the value of the company itself.”

Palmer House contends that it purchased a “membership interest” when it bought the LLC, which is the same as stock in a corporation because both reflect the ownership and the company’s value. No separate appraisal of the apartment complex property supports the $35 million valuation, but a $25 million valuation it presented represents the apartment complex’s value separate from the LLC entity, Palmer House asserts.

The property owner also maintains that in Gahanna-Jefferson the Court found the sale of a partnership interest represents only the sale of personal property and isn’t indicative of the value of included real estate. Because the BTA equated the sale of the business to the real estate transfer, it didn’t act in accordance with Salem and Gahanna-Jefferson, Palmer House argues.

The BTA improperly commingled the business value and the real estate value, Palmer House argues, yet the Ohio Constitution mandates that real property be “taxed by uniform rule according to value.”

“Because the BTA is not determining the value of the real property, but is instead relying upon the transfer of something other than real estate, in this case personal property, as this Court held in Gahanna-Jefferson, supra, a taxpayer is put in the inequitable position of paying tax on more than the real estate when other properties are taxed solely on their real estate value,” Palmer House’s brief states.

School Board Argues Purchase Price Was for Property Only
The Columbus school board points out that the purchase contract states that the buyer could choose to have the title conveyed through a “drop-down LLC transfer” in which PPG Manhattan formed a limited liability company (Palmer House Borrower) wholly owned by the seller Palmer Square. In lieu of Palmer Square selling to PPG Manhattan, Palmer Square instead sold, and PPG Manhattan purchased, the membership interests of the drop-down LLC.

Palmer House didn’t purchase the membership interests in an existing operating entity, but instead structured the sale as a transaction through a drop-down LLC in which a new company was formed for the singular purpose of having the seller convey the property title to the new company, the school board maintains. The BTA noted that “when the record clearly reflects that the transfer of the membership interest was done solely to transfer title to the subject property, this board has found that such a transaction constitutes the sale of the underlying real property for real property valuation purposes.” As a result, the school board argues, the BTA’s ruling was based on circumstances different from Salem and Gahanna-Jefferson, and the full sale price of the drop-down LLC was the best indication of the property’s value.

The property owner’s constitutional argument also fails because the sale of the business was only for the purpose of selling the apartment complex, so there were no separate business and real estate values within the sale, the school board concludes.

Franklin County Government Offices Won’t Argue
Because the Franklin County Board of Revision and the Franklin County auditor didn’t file merit briefs, neither will be permitted to argue the case before the Supreme Court.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Palmer House Borrower LLC: Nicholas Ray, 614.464.5640

Representing Columbus City Schools Board of Education: Mark Gillis, 614.228.5822

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Lorain County Attorney Seeks to Reduce Suspension Time

Lorain County Bar Association v. James L. Lindon, Case no. 2019-0216
Lorain County

A Lorain County lawyer claims a proposed two-year suspension of his law license could potentially be doubled if he isn’t given credit for time served under suspension while he appealed a felony conviction.

James L. Lindon of Avon objects to a recommendation by the Board of Professional Conduct that the Ohio Supreme Court impose a two-year suspension with one year stayed with conditions. Lindon argues he already has served two years under an interim suspension while waiting for his disciplinary proceedings to reach the Supreme Court. He also objects to having to pay fees to participate in a substance abuse recovery program for lawyers, arguing that it’s connected to religion and that he is an atheist.

Lawyer Convicted of Pill Theft
In 2015, Lindon was a licensed pharmacist as well as an attorney. He was working as a pharmacist at the Cleveland Clinic when the hospital began to investigate him for possible prescription drug thefts. A security video observed him removing a bottle of hydrocodone tablets from a basket and dumping the bottle into his pocket. As a security guard approached, he put something from his pocket into his mouth. Lindon’s pockets were searched and three prescription pills were discovered.

Lindon was indicted in 2016 on three felony counts, including theft, drug possession, and tampering with evidence. A jury found him guilty on all three counts, and he was sentenced to two years of community control, mandatory drug testing, counseling, and treatment.

Lindon completed his community control and drug treatment, paid a $750 fine, and entered into a contract with the Ohio Lawyer’s Assistance Program (OLAP). His pharmacist license was permanently suspended in October 2016.

Suspension Begins as Conviction Appeal Starts
Based on his June 2016 conviction, the Supreme Court imposed an interim suspension on Lindon. It was the second time Lindon was sanctioned by the Court. He received a public reprimand in 2010 based on conduct that led the Michigan Supreme Court to reprimand him in 2009.

While under the interim suspension, Lindon appealed his conviction to the Eighth District Court of Appeals, arguing among other things, that the trial judge failed to hold a hearing on his motion to suppress the evidence against him in the drug theft case. In June 2017, a year after his conviction and suspension started, the Eighth District reversed the trial court, and remanded the case to the trial court to conduct the suppression hearing. The trial court scheduled the hearing for 11 months later, and in June 2018, ruled against Lindon’s motion to suppress. He again was found guilty of the crimes.

In the meantime, the Lorain County Bar Association filed a complaint in 2016 against Lindon with the Board of Professional Conduct for his violation of the rules governing the conduct of Ohio lawyers. The violations were in connection with his felony crimes. Following its customary protocol, the board delayed hearing Lindon’s matter until his criminal appeal had been resolved. The board didn’t schedule a disciplinary hearing until December 2018, six months after the trial court concluded the case, and Lindon ended his criminal conviction appeal.

Sanctions Unfair, Attorney Argues
The board found Lindon committed multiple rule violations, including engaging in conduct that adversely reflected on his fitness to practice law, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Based on sanctions imposed on lawyers who committed similar misconduct and had previous discipline, the board recommended a two-year suspension, with one year stayed on conditions.

Lindon and the bar association had proposed that Lindon receive credit for time served under the interim suspension, but the board hasn’t included the credit in its recommended sanction.

Lindon asks the Court to grant him credit for time served, noting that the time for his disciplinary hearing was delayed more than 600 days from September 2016 to June 2018 because the appeal of his conviction was pending.

He asserts had he not contested his conviction, his disciplinary hearing would have taken place about six months after his conviction. Had he received a two-year suspension with no time stayed, his suspension would have started in December 2016 and concluded in December 2018. As it stands, if the Court were to impose the two-year suspension now, he would be under a suspension that essentially began in 2016 and would continue until 2020 at the earliest, with the potential of reaching into 2021.

“This delay is a manifest injustice based on Respondent’s filing of an appeal — and winning the appeal because his constitutional rights were violated by the trial court,” Lindon’s brief stated.

The bar association’s brief also supports Lindon’s position that he be granted credit for time served.

Treatment Obligation Violates Religious Rights
Lindon raises the “establishment clause” of the First Amendment to the U.S. Constitution in his objection to the condition that he re-engage with OLAP and submit to random drug- and alcohol-screening. Based on Lindon’s objections to working with OLAP, the board has proposed that he find counseling from service providers of his choosing and that those counselors report his progress to OLAP.

Lindon states that he is an atheist and that OLAP programs are substantially based on Alcoholics Anonymous, and similar programs that have a religious aspect to them. He notes that AA’s 12-step program includes prayers and recitations from the Bible. He notes that while the board will allow him to use alternative counseling, he still will have to pay a $100 per month “administrative fee” to OLAP to comply with his contract. He maintains that it is unconstitutional to have a government body, the Court, in essence, collect a fee from a religious-based program. The bar association didn’t address Lindon’s concerns with his treatment objections.

Oral Argument Waived
The Lorain County Bar Association has waived its right to present oral arguments.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing James L. Lindon, pro se: 440.333.0011

Representing the Lorain County Bar Association: Daniel Cook, 440.695.8000

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Summit County Attorney Contests Proposed Suspension Based on Sexual Relationship with Client

Akron Bar Association v. Matthew Fortado, Case no. 2019-0805
Summit County

A Summit County attorney admits it was wrong to engage in a long-term sexual relationship with a client, but argues a proposed one-year suspension with six months stayed is unreasonable based on sanctions imposed on other attorneys accused of the same misconduct.

The Board of Professional Conduct recommends the Ohio Supreme Court suspend Matthew Fortado for one year with six months stayed for violating the rule prohibiting Ohio lawyers from engaging in sexual activity with their clients unless there was a consensual sexual relationship prior to the attorney-client relationship. Fortado and the Akron Bar Association entered into a “consent to discipline” agreement in which Fortado would receive a one-year, fully stayed suspension. Both parties are asking the Supreme Court to adopt that position.

Long-Term Relationship Sours
Fortado was hired by a woman identified as M.S. in court records in 2011 to represent her in a civil case. Several months later, the two began an intimate relationship. The civil matter ended in 2012, but Fortado and M.S. continued their intimate relationship until August 2014. The romantic relationship ended when M.S. borrowed money from Fortado to transport her mother from North Carolina for a visit.

The two continued a friendship until 2016, and Fortado represented M.S. in two other civil matters. The friendship ended, though, when M.S. discharged Fortado as her attorney and filed a grievance against him with the Akron Bar Association.

Sanction Based on Prior Cases
When considering recommending a sanction to the Court, the board considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The board notes that Fortado was previously suspended for two years with one year stayed in 1996 for rule violations that were not at issue in this case. The board also took into consideration that Fortado was being charged with a single count of misconduct, cooperated with the proceedings, acknowledged his wrongdoing, and established that he didn’t act with a dishonest motive.

Fortado also produced 11 letters confirming his competency as an attorney. Summit County Probate Judge Elinore Marsh Stormer and former Summit County Prosecutor and Common Pleas Court Judge Michael T. Callahan testified on his behalf at his disciplinary hearing.

The board cited 11 other Supreme Court decisions regarding the sanctions imposed on lawyers who had sex with clients and determined that a one-year suspension with six months stayed based on the condition that Fortado commit no further misconduct was appropriate.

Attorney Opposes Sanction
Fortado objects to the sanction, noting that he and the bar association both agree that his conduct warrants a fully stayed suspension. Fortado argues the board relies on cases where attorneys were accused of multiple counts of misconduct that included more than prohibited sexual activity.

Fortado maintains his case is similar to Disciplinary Counsel v. Siewert, a 2011 decision, which the board cited in its list of cases it considered. In Siewert,the attorney received a fully stayed six-month suspension based on having a long-term sexual relationship with a client. The attorney had been disciplined many years before, just like Fortado, but also proved there was no dishonest motive and that he cooperated with the disciplinary proceedings and demonstrated a good reputation.

Fortado argues that he made no advances toward M.S., engaged in no coercion, and didn’t solicit her for sex. It instead was a three-year relationship, followed by a two-year friendship. Unlike many of the other cases cited by the board, M.S. was never confronted with the dilemma of accepting her attorney’s advances or risking having her legal representation compromised, Fortado concludes.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Akron Bar Association: Sara Stratton, 330.327.6608

Representing Matthew Fortado: Sidney Freeman, 330.699.6703

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.