[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cincinnati Bar Assn. v. Robertson, Slip Opinion No. 2016-Ohio-654.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-654
                 CINCINNATI BAR ASSOCIATION v. ROBERTSON.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as Cincinnati Bar Assn. v. Robertson, Slip Opinion No.
                                    2016-Ohio-654.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Stayed
        six-month suspension.
(No. 2015-1312—Submitted September 15, 2015—Decided February 25, 2016.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2014-068.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, David Franklin Robertson Jr. of Cincinnati, Ohio,
Attorney Registration No. 0074030, was admitted to the practice of law in Ohio in
2001. Relator, Cincinnati Bar Association, has charged him with professional
misconduct arising out of his representation of a client in the probate court of
Hamilton County. Based on the parties’ stipulations and the evidence presented at
                             SUPREME COURT OF OHIO




the panel hearing of the Board of Professional Conduct, the board recommends that
we sanction him with a stayed six-month suspension. Neither party has filed
objections to the board’s report, and based on our independent review of the record,
we accept the board’s findings of misconduct and agree with the recommended
sanction.
                                    Misconduct
       {¶ 2} In July 2012, Deborah Lewallen retained Robertson to represent her
as the executor of her father’s estate. Three of Lewallen’s siblings and seven of the
decedent’s grandchildren—who were also beneficiaries of the estate—thereafter
attempted to remove Lewallen as executor and filed objections to the estate
inventory, arguing that Lewallen and her husband had improperly removed items
from the estate. Upon Lewallen’s request, Robertson also agreed to defend her and
her husband against her family members’ objections and attempt to remove her as
executor.
       {¶ 3} Robertson, however, failed to explain to Lewallen that his
representation of her and her husband in their personal capacities created a conflict
of interest. Specifically, the board found that “[t]o the extent the claims of the
Lewallen’s [sic] other family members implicate[d] potential wrongdoing that
would diminish the estate, Respondent [could] not simultaneously discharge his
duty of undivided loyalty to the estate while undertaking a similar duty to the
alleged wrongdoer.” Accordingly, the parties stipulated and the board found that
Robertson’s dual representation of Lewallen in her individual capacity and in her
role as fiduciary of the estate violated Prof.Cond.R. 1.7(b) (prohibiting a lawyer
from accepting or continuing representation of a client if a conflict of interest would
be created, unless the affected client gives informed consent in writing).
       {¶ 4} The family members eventually withdrew their request to remove
Lewallen, and due to the extensive litigation, Robertson filed applications with the
probate court for partial payment of attorney fees. A local rule, however, required




                                          2
                                 January Term, 2016




that attorney fees for the administration of an estate be paid at the time of the
fiduciary’s final account and with prior court approval. Accordingly, the judge held
Robertson’s applications in abeyance until the estate was ready to be closed.
       {¶ 5} Notwithstanding the local rule and the court’s order, Robertson asked
Lewallen for payment of his fees, with the understanding that the estate would
eventually reimburse her when it was terminated. Between March and July 2013,
she paid $17,820 to Robertson and $5,500 to an attorney who had assisted him.
However, in October 2013, the court awarded Robertson only $14,000 in fees for
activities conducted on behalf of the estate. Prior to filing the final account,
Robertson endorsed an estate check for $14,000 and then delivered those funds to
Lewallen. When he filed the final account, he did not report that Lewallen had paid
$23,320 in attorney fees and, instead, reported only that $14,000 in attorney fees
had been paid.
       {¶ 6} The parties stipulated and the board found that by accepting attorney
fees that had not yet been approved by the court, as required by local rule,
Robertson violated Prof.Cond.R. 3.4(c) (prohibiting a lawyer from knowingly
disobeying an obligation under the rules of a tribunal). Similarly, the board found
that by accepting attorney fees without court approval and by filing documentation
in the court that inaccurately reported the amount of attorney fees he had received,
Robertson also violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging
in conduct that is prejudicial to the administration of justice).
       {¶ 7} We agree with these findings of misconduct.
                                      Sanction
       {¶ 8} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
sanctions imposed in similar cases, and the aggravating and mitigating factors listed
in Gov.Bar R. V(13).




                                           3
                                SUPREME COURT OF OHIO




           {¶ 9} In this case, the board concluded that the following mitigating factors
were applicable:       Robertson had no prior discipline; he made restitution by
reimbursing Lewallen the additional $9,320 in fees that she had paid to him and his
associate; and he fully cooperated in the disciplinary process. See Gov.Bar R.
V(13)(C)(1), (3), and (4). In addition, the board acknowledged that despite the
local rule, some of Robertson’s courtroom discussions with the judge created
ambiguity regarding how to bill for his time. The board found no aggravating
factors.
           {¶ 10} To support its recommended sanction, the board cites Dayton Bar
Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879, 965 N.E.2d 268. In that case,
we imposed a stayed six-month suspension on an attorney who (1) had a conflict
of interest by representing both a proposed ward and the ward’s niece in a
guardianship proceeding, (2) engaged in conduct that was prejudicial to the
administration of justice by using her power of attorney over the proposed ward’s
affairs to pay her own attorney fees, without first obtaining court approval, and (3)
charged a clearly excessive fee. In sanctioning the attorney, we emphasized that
no matter how well-intentioned an attorney’s motive is, the professional conduct
rules prohibit representation of clients with adverse interests, unless certain
exceptions apply, including informed consent of each affected client.             Id. at
¶ 12-13.
           {¶ 11} We agree with the board that Parisi is instructive. Similar to the
attorney in that case, Robertson’s dual representation resulted in a conflict of
interest, and he accepted attorney fees without court approval. Therefore, a similar
sanction is warranted here. And as the board noted, no matter how well-intentioned
Robertson was, he should have recognized that he had created a conflict not only
by accepting representation of Lewallen in her individual capacity—after having
already agreed to represent her as fiduciary of the estate—but also by spending a
significant amount of time defending against the allegations asserted by the estate’s




                                             4
                                January Term, 2016




other beneficiaries. See also Disciplinary Counsel v. Dettinger, 121 Ohio St.3d
400, 2009-Ohio-1429, 904 N.E.2d 890 (imposing a stayed six-month suspension
on an attorney who borrowed money from a client without disclosing the inherent
conflict of interest or advising the client or—upon the client’s death, his executor—
to seek independent counsel).
                                    Conclusion
       {¶ 12} Having considered the ethical duties violated, the mitigating factors,
the absence of any aggravating factors, and the sanctions imposed in comparable
cases, we accept the board’s recommended sanction. David Franklin Robertson Jr.
is hereby suspended from the practice of law for six months, with the suspension
stayed in its entirety. Costs are taxed to Robertson.
                                                             Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                                _________________
       Vincent A. Salinas Sr., Howard M. Schwartz, and Edwin W. Patterson III,
General Counsel, for relator.
       Kegler, Brown, Hill & Ritter Co., L.P.A., and Jonathan E. Coughlan, for
respondent.
                                _________________




                                         5
