[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Schiff, Slip Opinion No. 2014-Ohio-2573.]




                                        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. 2014-OHIO-2573
          CLEVELAND METROPOLITAN BAR ASSOCIATION v. SCHIFF.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
             it may be cited as Cleveland Metro. Bar Assn. v. Schiff,
                         Slip Opinion No. 2014-Ohio-2573.]
Attorneys—Misconduct—Failure to obtain client consent for division of fees with
        attorney who is not in the same firm and for manner in which fees would
        be divided—Failure to keep client reasonably informed about status of a
        matter—Two-year suspension, stayed on conditions.
     (No. 2013-1251—Submitted October 9, 2013—Decided June 18, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                  Discipline of the Supreme Court, No. 2012-071.
                               ____________________
        Per Curiam.
        {¶ 1} Respondent, Marvin Hermann Schiff of Cleveland, Ohio, Attorney
Registration No. 0000681, was admitted to the practice of law in Ohio in 1984.
        {¶ 2} On October 8, 2012, relator, Cleveland Metropolitan Bar
Association, filed a ten-count complaint charging Schiff with violations of the
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Code of Professional Responsibility and the Rules of Professional Conduct arising
from his representation of multiple clients.1 The majority of the claims related to
significant defects in the contingent-fee contract Schiff used with his clients. The
contract failed to disclose Schiff’s division of fees with an attorney who was not a
member of Schiff’s firm and the manner in which the fees would be divided. In
accordance with BCGD Proc.Reg. 11, the parties submitted a consent-to-
discipline agreement containing stipulations of fact and misconduct and a
recommendation that Schiff be suspended for 12 months with the entire
suspension stayed on the condition that Schiff obtain 12 credit hours of continuing
legal education on the subject of law-office management in addition to meeting
his obligations under Gov.Bar R. X(3).
        {¶ 3} A panel of the Board of Commissioners on Grievances and
Discipline refused to accept the consent-to-discipline agreement and conducted a
hearing at which the parties submitted joint stipulations of fact and misconduct,
stipulated to aggravating and mitigating factors, and jointly recommended a
sanction. Schiff testified briefly as the sole witness. The panel adopted the
parties’ stipulations of fact and misconduct and recommended that Schiff be
suspended from the practice of law for 12 months, with the entire suspension
stayed on the condition that he complete 12 hours of continuing legal education
on the topic of law-firm management. The board adopted the panel’s findings of
fact, conclusions of law, and recommendation, and no objections have been filed.
        {¶ 4} Having thoroughly reviewed the record, we adopt the board’s
findings of fact and all but one of its findings of misconduct and adopt the
conclusions of law, but we find that a two-year suspension from the practice of
law, stayed on conditions, is the appropriate sanction under these circumstances.


1
 Relator charged Schiff with misconduct under applicable rules for acts occurring before and after
February 1, 2007, the effective date of the Rules of Professional Conduct, which superseded the
Disciplinary Rules of the Code of Professional Responsibility.




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                                    January Term, 2014




                                        Misconduct
                                Counts One through Eight
        {¶ 5} Schiff opened his own law firm as a solo practitioner in February
2005 and occasionally would refer cases to attorney Bryan Scott Freeman. In July
2010, Schiff contacted the FBI and disciplinary counsel to raise his concerns
about Freeman’s conduct in handling matters that Schiff had referred to him.2
        {¶ 6} Counts One through Eight of relator’s complaint involve
contingent-fee contracts that Schiff used with eight different clients in 2005 and
2006 that identified Freeman as an attorney with Schiff’s firm who was also
retained by the client. These contracts stated:


                 I (We), the undersigned client(s) ___________________,
        hereby retain and employ SCHIFF LAW OFFICES, L.L.C.
        (Marvin H. Schiff and Bryan Freeman) and its associated counsel
        (hereinafter referred to as “my lawyers”), to represent me (us) in
        my (our) claim for damages and injuries caused by the events of
        ___________, 20__, against any person, firm, or corporation
        which/who is, or may be liable to me (us).


        {¶ 7} The contingent-fee contracts failed to disclose that Freeman was
not a member of Schiff’s firm and did not disclose Schiff’s intent to refer the case
to an attorney (Freeman) outside of Schiff’s law firm. The contracts also did not
disclose that the fees would be divided between Schiff and Freeman, nor did they
identify how the fees would be divided. Accordingly, in each instance the client



2
 We ultimately disbarred Freeman in 2011 for misconduct unrelated to the events at issue in this
case. Cleveland Metro. Bar Assn. v. Freeman, 128 Ohio St.3d 421, 2011-Ohio-1483, 945 N.E.2d
1034.




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was not afforded an opportunity to give written consent to the division of fees
between Schiff and Freeman or to the manner in which the fees would be divided.
       {¶ 8} This conduct violated DR 2-107(A) (permitting division of fees by
lawyers who are not in the same firm only with prior consent of the client and if
certain conditions are met), 1-102(A)(4) (prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation), and 2-102(C)
(prohibiting a lawyer from holding himself or herself out as having a partnership
with one or more lawyers unless they are in fact partners). The parties stipulated
to all these violations regarding Counts One through Eight.
       {¶ 9} Count One involves an additional matter regarding Schiff’s client
Ellis Bradley, with whom Schiff used the same contingent-fee contract noted
above. In April 2008, Schiff signed an “Initial Closing Statement,” which was not
signed by Bradley and which did not specify the division of fees between Schiff
and Freeman. Instead, the closing statement listed “The Freeman Law Office,
L.L.C./Marvin H. Schiff, Esq.” as a single line item. The panel and board found
that in addition to the previously noted violations, this conduct violated
Prof.Cond.R. 1.5(c)(2) (requiring a lawyer entitled to compensation under a
contingent-fee agreement to prepare a closing statement to be signed by the
lawyer and the client detailing the calculation of the lawyer’s compensation, any
costs and expenses deducted from the judgment or settlement, and any division of
fees with a lawyer not in the same firm). The parties stipulated to this additional
violation regarding Count One.
                       Count Nine—The Buchanan Matter
       {¶ 10} Kathryn G. Buchanan signed a contingent-fee contract with Schiff
on May 14, 2008. That contract stated that Buchanan was retaining “MARVIN
H. SCHIFF.” After Schiff’s name, the phrase “+ BRYAN FREEMAN” was
handwritten on the contract to indicate Freeman as an attorney Buchanan also
allegedly retained. The contingent-fee contract did not disclose that the fees




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                                      January Term, 2014




would be divided between Schiff and Freeman and did not identify how the fees
would be divided. Because Buchanan was not afforded an opportunity to give
written consent to the division of fees between Schiff and Freeman nor to the
manner in which the fees would be divided, the panel and board found that Schiff
violated Prof.Cond.R. 1.5(e) (permitting attorneys who are not in the same firm to
divide fees only if the division is reasonable and proportional to the work
performed, the client consents to the arrangement in writing after full disclosure,
and a written closing statement is prepared and signed by the client and each
lawyer). The parties stipulated to this violation.3
                                Count Ten—The Tam Matter
         {¶ 11} In December 2009, Shiu Yeung Tam hired Schiff to assist him
with a housing dispute. Tam paid Schiff a $1,500 advance and attempted later to
contact Schiff but was unable to reach him. As of October 2011, Schiff had not
contacted Tam for at least a year and a half and had not filed a complaint in court
on behalf of Tam. The parties stipulated and the panel and board found that
Schiff’s conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with
reasonable diligence and promptness in representing a client) and 1.4(a)(3) and
(4) (requiring a lawyer to keep the client reasonably informed about the status of a
matter and requiring a lawyer to comply as soon as practicable with reasonable
requests for information from the client).
                                            Sanction
         {¶ 12} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the

3
  The parties also stipulated and the panel and board found that Schiff violated Prof.Cond.R.
1.4(c)(2), as charged in Count Nine of the complaint. However, Prof.Cond.R. 1.4(c)(2) pertains to
a lawyer’s duty to inform a client that the lawyer does not maintain professional liability insurance
before asking the client to agree to a division of fees. There are no indications in the record that
Schiff failed to inform his client that he did not maintain professional liability insurance.
Consequently, we do not accept the finding of a violation of Prof.Cond.R. 1.4(c)(2), and we
dismiss the charge alleging that violation based on the insufficiency of the evidence.




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sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. We also weigh evidence of
the aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B).
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21.
                       Aggravating and Mitigating Factors
       {¶ 13} The parties have stipulated as aggravating factors and the panel
and board found that Schiff’s actions constituted a pattern of misconduct,
consisted of multiple offenses committed while representing multiple clients, and
involved vulnerable clients who were harmed when they were referred to an
attorney without a clear explanation in writing as to the division of responsibility
for their matters. See BCDG Proc.Reg. 10(B)(1)(c), (d), and (h).
       {¶ 14} Mitigating factors stipulated by the parties and found by the panel
and board include the absence of a prior disciplinary record, the absence of a
dishonest or selfish motive, and Schiff’s full cooperation in these disciplinary
proceedings.    See BCDG Proc.Reg. 10(B)(2)(a), (b), and (d).            Additional
mitigating factors that the parties stipulated and the panel and board found are
Schiff’s reporting Freeman’s misconduct to the office of disciplinary counsel and
Schiff’s revising his contingent-fee contract so that it is now fully compliant with
the applicable Rules of Professional Conduct. Finally, the panel and board noted
that all the clients from whom Freeman took settlement funds were entirely
reimbursed and also noted Schiff’s good character and reputation. See BCDG
Proc.Reg. 10(B)(2)(c) and (e).
       {¶ 15} The panel and board recommend a 12-month suspension from the
practice of law, with the entire suspension stayed on the condition that Schiff
obtain 12 credit hours of continuing legal education on the subject of law-office
management.




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                                 January Term, 2014




                                Applicable Precedent
           {¶ 16} The board cites three cases in support of its recommended
sanction. In Disciplinary Counsel v. Conese, 102 Ohio St.3d 439, 2004-Ohio-
3888, 812 N.E.2d 944, the lawyer committed a misdemeanor, used letterhead
suggesting that he and another lawyer were partners when they had no
professional affiliation, failed to obtain a client’s written consent for a fee-sharing
arrangement with an attorney from another firm, and failed to segregate client
funds. Id. at ¶ 2-7. We suspended Conese from the practice of law for a period of
two years and stayed his suspension on conditions, based on mitigating factors
that included his admissions of misconduct, his cooperation in the disciplinary
proceedings, his contrition, and his remedial efforts. Id. at ¶ 16.
           {¶ 17} In Toledo Bar Assn. v. Johnson, 121 Ohio St.3d 226, 2009-Ohio-
777, 903 N.E.2d 306, the lawyer shared fees with a lawyer outside his firm
without notice to his clients, charged clearly excessive fees, refused to refund
money to a client, and deposited an unearned fee directly into his law-office
operating account rather than into a client trust account before completing the
work. Id. at ¶ 3-8. We suspended him from the practice of law for six months,
but because he had made restitution, we stayed the suspension on conditions. Id.
at ¶ 11.
           {¶ 18} In Disciplinary Counsel v. Jackson, 127 Ohio St.3d 250, 2010-
Ohio-5709, 938 N.E.2d 1021, the lawyer charged a clearly excessive fee, divided
his fees with other lawyers without disclosing the terms of that division,
intentionally damaged or prejudiced his client during the course of his
representation, and made a knowingly false statement of material fact during the
disciplinary investigation. Id. at ¶ 1.
           {¶ 19} Factors identified as aggravating were that Jackson committed
multiple offenses and made false and inconsistent statements during the
disciplinary process. Id. at ¶ 15. The noted mitigating factors were his lack of a



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prior disciplinary record, his reported good-faith effort to make restitution to one
client, and the submitted evidence of his good character. Id. After reviewing
cases involving similar misconduct, we imposed a two-year suspension, with six
months stayed on conditions. Id. at ¶ 27.
          {¶ 20} We consider Schiff’s misconduct to be most analogous to that at
issue in Disciplinary Counsel v. Conese. Both Conese and Schiff engaged in
conduct suggesting a professional affiliation when none existed and both failed to
obtain their clients’ written consent for a fee-sharing arrangement with an
attorney from another firm. Although Schiff did not commit a misdemeanor or
fail to segregate client funds, he did fail to communicate reasonably with a client
and failed to have a client sign a closing statement that disclosed the division of
his fees with a lawyer not in the same firm.
          {¶ 21} Accordingly, Marvin Hermann Schiff is suspended from the
practice of law in Ohio for two years, with the entire suspension stayed on the
conditions that he commit no further misconduct and that he complete 12 hours of
continuing legal education on the topic of law-firm management within two years
of the date of this order. If Schiff fails to comply with the conditions of the stay,
the stay shall be lifted, and Schiff shall serve the entire two-year suspension.
Costs are taxed to Schiff.
                                                                Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
          O’DONNELL    and   O’NEILL,    JJ.,   dissent   and     would   adopt   the
recommendation of the panel and the board and impose a one-year suspension,
stayed, with condition.
                             ____________________




                                         8
                               January Term, 2014




       Heather M. Zirke, Bar Counsel; and Tucker Ellis, L.L.P., Benjamin E.
Sassé, and Jonathan F. Feczko, for relator.
       Reminger Co., L.P.A., and Clifford C. Masch, for respondent.
                          _________________________




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