Two Northern Ohio attorneys received a partially suspended suspension today after unsuccessfully arguing in the Ohio Supreme Court that they should not be disqualified from exercising their rights.
- Richard Barbera of Medina was suspended for 18 months, with 12 months conditional.
- Michael Heller from Euclid was suspended for one year, with six months remaining with conditions.
Errors of the lawyer contribute to the detention of the client
In a unanimous opinion sent by Curiam, the court found that Barbera had received a one-year suspension in 2017 due to improper management of its customer escrow account and lack of cooperation in the subsequent disciplinary investigation. He also had to serve a year on probation.
During his probationary period, Barbera represented Dianna Zanglin, who paid him $ 2,500 to represent her in pending child support proceedings. Zanglin told Barbera that a hearing was scheduled for September 26, 2017. Ten days later, the court rescheduled the hearing to July 20.
Barbera did not inform the court that he was representing Zanglin until six weeks after accepting her payment, and did not review the court’s files during that time. As a result, neither Zanglin nor Barbera appeared at the July hearing, and the court issued an arrest warrant for Zanglin.
After being informed of the mistake, Barbera requested that the court recall his warrant, stating that Zanglin never received the revised hearing notice. Zanglin was detained in the courthouse and spent six hours in jail before he was released on bail.
Case rejected by the customer
Because Zanglin failed to appear at the July 20 hearing, her application for a change in child support was denied. When Barbera requested a hearing on the matter, the court ruled that Zanglin was disobeying the court for not paying child support.
A hearing on Zanglin’s appeal against the rejection of her application for a maintenance adjustment was scheduled for August 1, 2018. Zanglin showed up, but Barbera did not, because he had scheduled a hearing in a different district on another client’s case. Barbera stated that he called Zanglin and told her he was going to be late, but he did not notify the court directly. Zanglin testified that she had no idea where Barbera was and tried unsuccessfully to represent herself.
Barbera appealed the dismissal of Zanglin’s case to an appeals court. He knew there was no legal basis for the appeal, but filed it to postpone the case until after the November 2018 election. He hoped that the current judge would be removed from office and that a new judge would render sentences in Zanglin’s favor. The appeals court dismissed the case and Barbera did not inform Zanglin.
In the midst of the appeal, the court of first instance gave Zanglin the opportunity to overturn the disregard and avoid imprisonment. A contempt hearing was scheduled in February 2019, but neither Barbera nor Zanglin showed up. When Zanglin was notified that her 10 days in prison was being served, she hired a new attorney and asked Barbera to give her new attorney a copy of her file, which Barbera did not. When Zanglin appeared in court with her new lawyer in May 2019, she was arrested and serving the 10-day prison term.
Lawyer Resists Disciplinary Proceedings
The Disciplinary Board sent Barbera two letters regarding the handling of Barbera’s case, but did not provide a substantive response until it received a subpoena to testify.
The disciplinary attorney filed a complaint against Barbera with the Board of Professional Conduct alleging that Barbera violated several rules, including one that prohibits attorneys from frivolous appeals and another that requires attorneys to respond to requests for information of disciplinary advisors to respond.
Barbera suggested that he should be given a one-year full, conditional suspension due to sanctions imposed on other lawyers for similar wrongdoing. The board found that Barbera should be suspended for 18 months with 12 months in prison because Barbera was on parole at the time of his misconduct, harming his client and failing to cooperate in the disciplinary process.
The court approved the board and suspended Barbera for 18 months, with the final 12 months on hold, if he repays Zanglin $ 900 within 90 days of the decision and does not commit further wrongdoing. The court also sentenced him to pay the costs of the disciplinary proceedings.
2020-1199. Disciplinary Council against Barbera, Slip Opinion No. 2021-ohio-2209.
Watch the oral argument video on this case.
Attorney fails to oversee employees who stole company funds
In 5-2 per Curiam opinion, the court found that Michael Heller had committed several ethical violations, mainly related to his handling of a client’s bankruptcy case and his supervisory relationship with a non-attorney who worked in his office and had a room in Heller’s house had rented.
Heller, a solo practitioner primarily focused on bankruptcy cases, hired a man identified as TF as an assistant in 2016. TF, who was not a lawyer, met with Heller’s clients, prepared bankruptcy filings, and accepted client payments on Heller’s behalf.
Heller calculated a standard flat rate for representing clients from the first consultation to discharge or final decision in their insolvency proceedings. He usually paid TF 100 to $ 150 in cash for every bankruptcy petition he prepared. In some cases, he wrote off the money TF earned toward TF’s rent. Heller kept poor records of funds owed or paid to TF and, in general, kept poor financial records of his legal practice.
In December 2016, Heller discovered that TF had collected cash payments from customers and had not transferred all funds to Heller. The attorney continued to let TF work for the company, believing TF would eventually pay its debt, but in mid-2017 he was convinced TF was stealing from the office. He estimated that TF had stolen $ 19,000 and reported him to the Euclid Police. TF admitted taking money, but far less than Heller claimed. Apparently there were no criminal charges against TF. raised
Bankruptcy botched the customer
One of Heller’s clients in 2017 was Melissa VanEyk, who paid Heller a flat fee of $ 599 to represent her in bankruptcy, along with a filing fee of $ 335. Heller did not deposit the money into his customer escrow account. VanEyk spoke almost entirely to TF about the case, telling him that she was hoping to retain ownership of a vehicle she was just buying. TF told her it was possible.
Heller filed VanEyk’s bankruptcy filing, falsely claiming that he had paid $ 300 and asking for court approval for VanEyk to pay her filing fee in installments as she was unable to pay the filing fee, although he had already received the entire registration fee from her.
Heller didn’t meet with VanEyk until the two met with their creditors, and then learned of the details of the vehicle purchase. He told her that she could not keep the vehicle and that her best option was to avoid meeting the creditors and have the bankruptcy court dismiss her case. He told VanEyk he could resubmit the case.
The case was dismissed and the bankruptcy court gave VanEyk 10 days to pay the filing fee. Little did she know that Heller hadn’t used the money she’d paid him to pay the fee. When she met with Heller to discuss re-filing the case, he told her that she would have to pay the outstanding fee and a new filing fee.
VanEyk filed a complaint with the Cleveland Metropolitan Bar Association, which filed a complaint with the Board of Professional Conduct for handling VanEyk’s case and Heller’s poor oversight of TF. submitted
Attorney alleged associate misled him
The panel found that Heller broke several rules, including one that prohibits a lawyer from making false statements of fact or law in court, and recommended a one-year ban with six months in prison. Heller argued that a full suspension was appropriate, in part because he relied on TF’s misrepresentation that VanEyk failed to pay their filing fee and did not knowingly mislead the bankruptcy court.
The court’s opinion found that Heller admitted that he was not properly overseeing TF and that his accounting practices were flawed. But “he put his own needs and desires above those of his clients by allowing TF to continue working in his law firm” without confronting him or taking new security precautions to protect his clients’ funds, according to the majority.
The court suspended the final six months of his suspension on condition that he completed six hours of legal training in law firms, escrow management, and underwent a drug and alcohol assessment through the Ohio Lawyers Assistance Program. Follow all recommendations resulting from the evaluation, pay the outstanding VanEyk registration fee and do not commit further wrongdoing. He was also ordered to pay the disciplinary costs. If he were reinstated, he would have to work on probation for six months.
Chief Justice Maureen O’Connor and Judges Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, and Melody J. Stewart followed suit.
Cessation of practice unnecessary, dissent maintained
In a dissenting opinion, Judge Michael P. Donnelly wrote that all of Heller’s violations were “due to disorganization, inattention and mismanagement, and not to fraud or deception”. He suggested that Heller receive a complete suspension and that any conditions imposed are sufficient to help Heller become an attorney.
Judge Jennifer Brunner joined Judge Donnelly’s disagreement.
2020-0742. Cleveland Metro Bar Assn. v. Heller, Slip Opinion No. 2021-ohio-2211.
Watch the oral argument video on this case.
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