[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Columbus Bar Assn. v. Rieser, Slip Opinion No. 2018-Ohio-3860.]




                                        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. 2018-OHIO-3860
                     COLUMBUS BAR ASSOCIATION v. RIESER.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Columbus Bar Assn. v. Rieser, Slip Opinion No.
                                   2018-Ohio-3860.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
        year suspension, with second year stayed on conditions.
   (No. 2017-1741—Submitted April 10, 2018—Decided September 26, 2018.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2017-006.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, David Paul Rieser, of Columbus, Ohio, Attorney
Registration No. 0025247, was admitted to the practice of law in Ohio in 1980. On
May 3, 1995, we publicly reprimanded him for neglecting two client matters.
Disciplinary Counsel v. Rieser, 72 Ohio St.3d 130, 647 N.E.2d 1366 (1995). And
on August 15, 2001, we suspended him for two years with 18 months of the
                             SUPREME COURT OF OHIO




suspension stayed on conditions for neglecting two additional client matters.
Columbus Bar Assn. v. Rieser, 93 Ohio St.3d 143, 753 N.E.2d 177 (2001),
reinstatement granted, 95 Ohio St.3d 1211, 766 N.E.2d 992 (2002).
       {¶ 2} In a February 8, 2017 complaint, relator, Columbus Bar Association,
alleged that Rieser violated six professional-conduct rules in conjunction with his
representation of a single client in a criminal matter.
       {¶ 3} The parties submitted stipulations of fact, misconduct, and
aggravating and mitigating factors and jointly recommended that Rieser be
suspended from the practice of law for two years with one year of the suspension
stayed on conditions. The matter proceeded to a hearing before a panel of the Board
of Professional Conduct. The panel adopted the parties’ stipulations of fact,
misconduct, aggravating and mitigating factors, but recommended that Rieser be
indefinitely suspended from the practice of law. The board adopted the panel’s
report in its entirety.   Rieser objects, arguing that the board’s recommended
sanction is not supported by the law or facts, and relator agrees.
       {¶ 4} Having independently reviewed the record and our precedent, we
adopt the board’s findings of fact and misconduct, sustain Rieser’s objection, and
suspend him from the practice of law for two years, with one year of the suspension
conditionally stayed.
                                    Misconduct
       {¶ 5} In March 2012, Rieser was retained by a psychiatrist who had been
indicted on felony counts of workers’-compensation fraud, theft, and tampering
with records. Although they had agreed upon an initial payment of $30,000 for
attorney fees, they did not execute a written fee agreement or discuss the rate, basis,
or total amount of Rieser’s fee. Rieser did not keep contemporaneous time records
for the work that he performed on the client’s behalf, nor did he send the client any
billing statements. He also failed to inform the client that he did not maintain
professional-liability insurance.




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                                     January Term, 2018




        {¶ 6} After Rieser had received the client’s initial payment of $30,000, he
did not request any additional fees. Nonetheless, from June 25, 2012, to December
10, 2012, the client sent him eight checks, bringing Rieser’s total compensation to
$107,998.79. Rieser deposited $50,000 of the payments into his client trust
account, deposited approximately $23,000 into his business account, and endorsed
two checks totaling nearly $25,000 to a local art gallery. He did not maintain a
client ledger or conduct monthly reconciliations of the funds held in his client trust
account.
        {¶ 7} Rieser understood that one of his client’s primary goals was to
maintain his medical license. With the client’s consent, Rieser sought advice from
another attorney, who stated that the client would have a better chance of achieving
that goal if the client were convicted of a misdemeanor instead of a felony offense.
In December of 2012, the client pleaded guilty to one misdemeanor count of
workers’-compensation fraud, and the remaining charges were dismissed. The
client reimbursed the Bureau of Workers’ Compensation the $257.40 he was found
to have overbilled the bureau plus the $70,497.68 cost of the resulting
investigation.1 No other sanctions were imposed.
        {¶ 8} The client filed a grievance against Rieser in April 2015. Rieser failed
to respond to relator’s initial request for the client’s file and twice failed to appear
for deposition.
        {¶ 9} On these facts, the parties stipulated and the board found that Rieser
violated Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the lawyer
does not maintain professional-liability insurance), 1.5(a) (prohibiting a lawyer
from making an agreement for, charging, or collecting an illegal or clearly
excessive fee), 1.5(b) (requiring an attorney to communicate the nature and scope
of the representation, and the basis or rate of the fee and expenses within a

1
 The presiding judge ordered the client to pay restitution to the Bureau of Workers’ Compensation,
but also noted that the restitution had been paid by the date of the sentencing hearing.




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reasonable time after commencing the representation unless the lawyer has
regularly represented the client and will charge the client on the same basis as
previously charged), 1.15(a) (requiring a lawyer to hold the property of clients in
an interest-bearing client trust account, separate from the lawyer’s own property),
1.15(a)(2) (requiring a lawyer to maintain a record for each client that sets forth the
name of the client; the date, amount, and source of all funds received on behalf of
the client; and the current balance for each client), 1.15(c) (requiring a lawyer to
deposit advance legal fees and expenses into a client trust account, to be withdrawn
by the lawyer only as fees are earned or expenses incurred), and 8.1(b) (prohibiting
a lawyer from knowingly failing to respond to a demand for information by a
disciplinary authority during an investigation).
       {¶ 10} No one contests these findings of fact and misconduct, and we adopt
them as our own.
                             Recommended Sanction
       {¶ 11} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, relevant
aggravating and mitigating factors, and the sanctions imposed in similar cases. See
Gov.Bar R. V(13)(A).
       {¶ 12} As aggravating factors, the parties stipulated and board found that
Rieser has been disciplined on two prior occasions and committed multiple offenses
in this case. See Gov.Bar R. V(13)(B)(1) and (4). The board also found that Rieser
failed to cooperate with relator’s investigation and that he has yet to apply for
termination of the monitored probation imposed in his second disciplinary case.
See Gov.Bar R. V(13)(B)(5) and V(21)(D).
       {¶ 13} In mitigation, Rieser submitted six letters from judges and lawyers
who attested to his good character and reputation. See Gov.Bar R. V(13)(C)(5).
Rieser also established the existence of a qualifying mental-health disorder by
submitting evidence that (1) he had been diagnosed with situational anxiety and




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                                       January Term, 2018




depression following his father’s death, (2) those conditions contributed to his
failure to cooperate with relator’s investigation, (3) he successfully completed a
one-year course of treatment, and (4) he received a positive prognosis from a
qualified healthcare professional. See Gov.Bar R. V(13)(C)(7). The board also
attributed mitigating effect to Rieser’s good-faith effort to issue a partial refund to
his client—though the client rejected his offer—and subsequent placement of
$50,000 in escrow pending the outcome of this proceeding. See Gov.Bar R.
V(13)(C)(3).
           {¶ 14} Although the parties agreed that the client had paid excessive fees,
they could not agree on a reasonable fee for Rieser’s services and submitted
conflicting evidence on that issue. Relator’s expert testified that $15,000 would
have been a reasonable fee for Rieser’s services. But relator’s expert also conceded
that a reasonable fee for that type of case could vary among criminal-defense
lawyers in Franklin County, stating, “I can tell you with some certainty that it would
start at [$]5,000, and that I think a reasonable fee would probably go above 20-,
perhaps to 30-.” On the other hand, Rieser’s expert offered that a reasonable “flat
fee” for an experienced criminal practitioner to handle a case of this kind in
Franklin County could range from $40,000 to $80,000. Given the status of this
client and the favorable result that Rieser obtained, he believed that a fee in the
amount of $60,000 would have been entirely reasonable in this case.
           {¶ 15} After considering the experts’ testimony and the factors set forth in
Prof.Cond.R. 1.5(a) for determining the reasonableness of a fee, the board
determined that a reasonable fee for Rieser’s representation in this case lies
somewhere between the $30,000 conceded by relator’s expert and the $60,000
suggested by Rieser’s expert.2 Therefore, the board recommended that Rieser be


2
    Factors to be considered under Prof.Cond.R. 1.5(a) include:




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                                  SUPREME COURT OF OHIO




ordered to remit the $50,000 held in escrow to his client as restitution in this case.


         {¶ 16} Citing Rieser’s acceptance of a fee that was approximately double
what it should have been, his use of those funds for personal expenditures, his
failure to acknowledge the wrongful nature of his conduct, and his “lack of regret,”
the board rejected the parties’ recommendation that Rieser be suspended from the
practice of law for two years with one year stayed on conditions. Instead, citing
Columbus Bar Assn. v. Watson, 144 Ohio St.3d 317, 2015-Ohio-4613, 42 N.E.3d
752, the board, following the panel’s reasoning, recommends that we indefinitely
suspend Rieser from the practice of law and order him to make restitution of
$50,000 to the affected client.
                 Rieser’s Objection to the Recommended Sanction
         {¶ 17} Rieser objects to the board’s recommendation that he be indefinitely
suspended from the practice of law. He argues that the board’s reliance on Watson
is misplaced and that the evidence adduced at the hearing and our decision in Akron
Bar Assn. v. DeLoach, 143 Ohio St.3d 39, 2015-Ohio-494, 34 N.E.3d 88, support
the imposition of the parties’ jointly recommended sanction—a two-year
suspension with the second year stayed on conditions. Relator agrees with Rieser’s




(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.




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                                January Term, 2018




objection and urges this court to consider imposing a lesser sanction than the
indefinite suspension recommended by the board.
       {¶ 18} In Watson, an attorney who had previously been disciplined for
failing to deposit client funds into his client trust account was charged with
additional rule violations for engaging in the same type of misconduct in two
additional client matters and charging a clearly excessive fee. In addition to the
charged misconduct, the evidence also showed that Watson filed an objection to the
debtor’s plan in a bankruptcy proceeding based on incorrect information mistakenly
obtained from an unrelated case and failed to appear as counsel for his clients.
       {¶ 19} While Watson made a timely, good-faith effort to make restitution
to one set of clients and exhibited a cooperative attitude toward the disciplinary
proceedings, he also failed to refund any of the other clients’ retainer—despite
having admitted that he charged them an excessive fee—and acted with a selfish
motive. In addition, the board found that Watson’s own testimony raised “serious
doubts about his ability to effectively and ethically practice law.” Watson, 144
Ohio St.3d 317, 2015-Ohio-4613, 42 N.E.3d 752, at ¶ 10.
       {¶ 20} In Watson, the misconduct at issue mirrored the misconduct that we
had sanctioned only two years earlier. In contrast, Rieser’s past misconduct
involved different offenses—mainly the neglect of client matters—and occurred
more than ten years before he accepted the excessive fee at issue in this case.
       {¶ 21} While Watson’s clients became dissatisfied during or immediately
after the course of Watson’s representation, Rieser’s client repeatedly expressed his
satisfaction with Rieser’s work.      Indeed, witnesses for both parties to this
proceeding agreed that Rieser provided quality representation and likely obtained
the best possible result for his client under the circumstances. And when Rieser’s
client filed his grievance, he challenged only the reasonableness of his attorney’s
fee. But Rieser’s uncontroverted testimony shows that after the client made the
agreed $30,000 payment, the client insisted on sending significant monthly




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payments to Rieser—even though Rieser told him that “it wasn’t necessary” and
suggested that they wait to see how the case progressed before assessing the need
for additional fees. Indeed, Rieser’s misconduct is unusual in that he did not charge
a clearly excessive fee, so much as he accepted the client’s voluntary—but
excessive—payments. And unlike Watson, the board made no finding that Rieser
had acted with a selfish or dishonest motive. Moreover, Rieser presented letters
from three judges, two attorneys, and one retired judge attesting to his
professionalism and his commitment to his clients. Watson presented no evidence
to establish his good character.
       {¶ 22} Based on the significant factual differences between this case and
Watson, Rieser argues that an indefinite suspension is not necessary to protect the
public from future harm. On the contrary, Rieser contends that the similarities
between his misconduct and that of DeLoach, his acceptance of full responsibility
for his actions, and his efforts to improve the administrative management of his law
practice weigh in favor of a two-year suspension with the second year conditionally
stayed. We agree.
       {¶ 23} In Akron Bar Assn. v. DeLoach, 143 Ohio St.3d 39, 2015-Ohio-494,
34 N.E.3d 88, we imposed a two-year suspension with the second year
conditionally stayed on a previously disciplined attorney who charged a clearly
excessive fee, failed to deposit a client’s retainer into her client trust account, and
failed to maintain required records regarding those client funds. But in addition to
engaging in misconduct comparable to Rieser’s, DeLoach was also found to have
neglected an incarcerated client’s legal matter. Specifically, nearly two years after
being asked to investigate a client’s murder conviction, DeLoach filed a single,
three-page motion for resentencing and then failed to respond to the state’s
memorandum in opposition. We attributed some aggravating effect to the fact that
DeLoach had engaged in that neglect while her first disciplinary action (for
engaging in dishonest conduct during a disciplinary action) was pending. And




                                          8
                                January Term, 2018




while we recognized that DeLoach did not act with a dishonest or selfish motive
and cooperated in the disciplinary proceedings, we attributed little mitigating effect
to her character-and-reputation evidence.
       {¶ 24} Here, in addition to the mitigating factors found by the board, Rieser
has stipulated that he engaged in the charged misconduct and acknowledged that
the additional fees that his client paid were excessive. He testified that he has
reduced his case load and is now focused on representing clients in municipal
courts. He has also worked with his legal counsel in this case to improve his office-
and trust-account management practices and intends to continue psychological
treatment to help him manage his day-to-day stress.
       {¶ 25} Based on the foregoing, we agree that the facts of this case are more
in line with those of DeLoach than they are with Watson. We therefore sustain
Rieser’s objection and find that a two-year suspension with one year stayed on
conditions is the appropriate sanction for Rieser’s misconduct.
       {¶ 26} Accordingly, David Paul Rieser is suspended from the practice of
law in Ohio for two years, with one year of the suspension stayed on the conditions
that he pay $50,000 in restitution to the affected client within 30 days and that he
engage in no further misconduct. If Rieser fails to comply with the conditions of
the stay, the stay will be lifted and he will serve the full two-year suspension. Costs
are taxed to Rieser.
                                                              Judgment accordingly.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,
and DEGENARO, JJ., concur.
                                _________________
       James E. Arnold & Associates, L.P.A., and David C. Winters; Poling Law
and G. Michael Romanello; Lori J. Brown, Bar Counsel, and A. Alysha Clous,
Assistant Bar Counsel, for relator.




                                          9
                         SUPREME COURT OF OHIO




       Kegler, Brown, Hill & Ritter, L.P.A., and Jonathan E. Coughlan, for
respondent.
                           _________________




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