[Cite as Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-6510.]




                        DISCIPLINARY COUNSEL v. AGOPIAN.
   [Cite as Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-
                                          6510.]
Attorneys at law—Misconduct—Conduct involving dishonesty, fraud, deceit, or
        misrepresentation—Conduct adversely reflecting on fitness to practice
        law—Public reprimand.
 (No. 2006-0779 — Submitted August 8, 2006 — Decided December 27, 2006.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 05-079.
                                 __________________
        O’DONNELL, J.
        {¶ 1} In this case, we are called upon to determine the appropriate
sanction for an attorney who submitted inaccurate fee bills to the Cuyahoga
County Court of Common Pleas for legal services rendered as court-appointed
counsel to indigent criminal defendants.
        {¶ 2} The Board of Commissioners on Grievances and Discipline
adopted the panel’s sanction and recommended that the Supreme Court impose a
one-year stayed suspension of Richard V. Agopian’s license to practice law for
allegedly improperly billing the Cuyahoga County Court of Common Pleas for
court-appointed legal services. After a careful review of the facts in this case, we
reject this recommendation and conclude that the conduct here warrants a public
reprimand.
        {¶ 3} Disciplinary Counsel filed a complaint against Richard Van
Agopian of Cleveland, Attorney Registration No. 0030924, in connection with fee
bills he submitted to the Cuyahoga County Court of Common Pleas for
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representation of indigent defendants charged with criminal conduct. Admitted to
the practice of law in Ohio in 1975, Agopian has primarily represented defendants
in criminal matters in Cuyahoga County since about 1985, and he often served as
appointed counsel for indigent parties. This case involves a series of fee bills he
submitted to the court for approval primarily between the months of October 2002
and April 2003, a period during which he represented between 30 and 40 such
clients. The majority of these cases involved third-, fourth-, and fifth-degree
felonies, for which Loc.R. 33 of the Court of Common Pleas of Cuyahoga
County, General Division, specified an hourly rate of $40 for out-of-court and $50
for in-court representation and set a maximum fee for these felonies at $400.
       {¶ 4} Because his practice necessitated his daily appearance in court,
Agopian would spend his weekends preparing fee bills and would approximate
the amount of time he spent working on a particular case in drafting his fee
requests.
       {¶ 5} In a hearing before a three-member panel of the Board of
Commissioners on Grievances and Discipline, Agopian stipulated that he
submitted bills to the court that did not reflect the day upon which he rendered the
services mentioned. The panel found that his billing records reflected a pattern of
recording the same number of hours to prepare and file motions in a number of
cases regardless of the actual time spent and that he would assign those hours to a
date regardless of whether he actually performed that work on that day. He
admitted that he had approximated his actual time to perform these services but
had nevertheless certified to the court the accuracy of the information.
       {¶ 6} The panel found that Agopian submitted fee bills for work
performed in excess of 24 hours on three days: Saturday, October 12, 2002;
Saturday, November 2, 2002; and Saturday, November 23, 2002. But the reality
is that Agopian spent those weekends in his office preparing fee bills for cases he
had worked on during the previous weeks and months, giving the appearance that




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he had performed more than 24 hours of work on a given day. Despite the
perception, Agopian did all the work on each individual case but failed to
accurately record the exact days of his appearances in court or the specific
number of hours that he spent on each case. Rather, Agopian recorded the same
number of hours spent in motion practice and in opening each of these case files
in an effort to obtain the $400 maximum legal fee authorized by local rule for the
work he performed. Despite this careless and sloppy timekeeping practice, there
is no evidence of deceit or any course of conduct designed to collect fees for work
not performed. The panel found that Agopian “routinely performs services in an
amount far in excess of the time for which he submits payment requests.” One
panel member noted that Agopian “wasn’t taking one hour * * * and turning it
into three. It looks to me like he was taking three hours and turning it into one.”
       {¶ 7} Following the hearing, the panel determined that Agopian had
violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(6) (a lawyer shall
not engage in conduct that adversely reflects on the lawyer’s fitness to practice
law). The panel recommended dismissal of the Disciplinary Counsel’s allegation
of a third rule violation, finding no evidence that Agopian had violated DR 2-106
(a lawyer shall not charge or collect an illegal or clearly excessive fee).
       {¶ 8} The Board of Commissioners on Grievances and Discipline
adopted the panel’s recommendation and recommended a one-year stayed
suspension of Agopian’s license to practice law.
       {¶ 9} Disciplinary Counsel objected to the board’s recommendation that
the alleged violation of DR 2-106 be dismissed.           We overrule Disciplinary
Counsel’s objection and accept the board’s recommendation to dismiss this
allegation.
       {¶ 10} This court has consistently recognized that “in determining the
appropriate length of the suspension and any attendant conditions, we must




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recognize that the primary purpose of disciplinary sanctions is not to punish the
offender, but to protect the public.” Disciplinary Counsel v. O’Neill, 103 Ohio
St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53; see, also, Ohio State Bar Assn.
v. Weaver (1975), 41 Ohio St.2d 97, 100, 70 O.O.2d 175, 322 N.E.2d 665. As we
stated in Weaver, “ ‘In [a] disciplinary matter, the primary purpose is not to
punish an offender; it is to protect the public against members of the bar who are
unworthy of the trust and confidence essential to the relationship of attorney and
client; it is to ascertain whether the conduct of the attorney involved has
demonstrated his unfitness to practice law, and if so to deprive him of his
previously acquired privilege to serve as an officer of the court.’ ” Id., quoting In
re Pennica (1962), 36 N.J. 401, 418-419, 177 A.2d 721.
       {¶ 11} As the panel noted, Agopian’s conduct “did not involve the
exploitative motive found in Disciplinary Counsel v. Holland, 106 Ohio St.3d
372, 2005-Ohio-5322 [835 N.E.2d 361],” in which we suspended an attorney for
one year for double billing, i.e., “ ‘billing of fees and costs to more than one client
for the same work or the same hours.’ ” Holland, ¶ 21, quoting Hopkins, Law
Firms, Technology, and the Double-Billing Dilemma (1998), 12 Geo.J.Legal
Ethics 93, 99. Agopian did not pad his bills or charge for work he did not
perform. Moreover, he took full responsibility for his sloppy record keeping.
       {¶ 12} We have considered similar cases involving fees and determined a
public reprimand to be the appropriate sanction. In Dayton Bar Assn. v. Schram,
98 Ohio St.3d 512, 2003-Ohio-2063, 787 N.E.2d 1184, in which an attorney
violated DR 2-106(A) by charging a nonrefundable fee, we determined that a
public reprimand should be imposed.           We noted Schram’s lack of a prior
disciplinary record, her cooperation in the disciplinary proceedings, and the
panel’s determination that she “had not intended to keep more money than she
earned from her client.” Id., ¶ 7.




                                          4
                                 January Term, 2006




        {¶ 13} In Cincinnati Bar Assn. v. Randolph (1999), 85 Ohio St.3d 325,
708 N.E.2d 192, we publicly reprimanded an attorney who violated DR 2-106(A)
by retaining a portion of a fee he had not earned. In so holding, we noted
Randolph’s lack of a disciplinary record, his character letters attesting to his
honesty and integrity, and his complete acceptance of responsibility. The same
considerations expressed in Schram and Randolph militate against imposing any
sanction other than a public reprimand for Agopian’s conduct. While we do not
condone the billing practices employed in this case, the conduct involves neither a
deliberate effort to deceive in order to generate funds not earned nor an effort to
collect for services not rendered, and it is not a double-billing case.
        {¶ 14} We have also held that “mitigating evidence can justify a lesser
sanction.” Disciplinary Counsel v. Carroll, 106 Ohio St.3d 84, 2005-Ohio-3805,
831 N.E.2d 1000, ¶ 13. In this case, the mitigating evidence demonstrates that
Agopian has no prior disciplinary record, has fully cooperated with the
disciplinary process, and has accepted responsibility for his conduct. The panel
received more than 40 letters attesting to his character, including one from Judge
Janet Burnside (“I have always found him honest and forthright in all my dealings
with him”) and two from former presidents of the Cuyahoga Criminal Defense
Lawyers Association, David L. Grant and James M. Kersey, who attested to his
integrity, reputation, and professionalism. In other letters, colleagues Mark A.
Stanton noted “an unwavering belief that Richard Agopian embodies the highest
standards of professional excellence and integrity,” and William T. Doyle wrote
that Agopian “always conducted himself in a very professional manner.” This
mitigating evidence counsels against imposing the sanction recommended in this
case.
        {¶ 15} Weighing the mitigating factors against the conduct at issue, we
reject the board’s recommendation that a one-year stayed suspension be imposed,
and instead, based on the fact that Agopian has no prior disciplinary record, has




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fully complied with the disciplinary process, and has accepted responsibility for
his conduct, and further considering the character letters attesting to his
reputation, integrity, and professionalism, we issue a public reprimand for the
conduct in this case. Costs are taxed to respondent.
                                                          Judgment accordingly.
       RESNICK, PFEIFER and LUNDBERG STRATTON, JJ., concur.
       MOYER, C.J., O’CONNOR and LANZINGER, JJ., dissent.
                              __________________
       LANZINGER, J., dissenting.
       {¶ 16} I respectfully dissent.        I would impose a one-year stayed
suspension as recommended by the Board of Commissioners on Grievances and
Discipline.
       MOYER, C.J., and O’CONNOR, J., concur in the foregoing opinion.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, for relator.
       Kegler, Brown, Hill & Ritter, Christopher J. Weber, and Geoffrey Stern,
for respondent.
                           ______________________




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