[Cite as Cincinnati Bar Assn. v. Mezher and Espohl, 134 Ohio St.3d 319, 2012-Ohio-5527.]




              CINCINNATI BAR ASSOCIATION v. MEZHER AND ESPOHL.
   [Cite as Cincinnati Bar Assn. v. Mezher and Espohl, 134 Ohio St.3d 319,
                                   2012-Ohio-5527.]
Attorneys—Misconduct—Failure to communicate basis of a fee and misleading
        communication regarding fee—Public reprimand.
  (No. 2012-0684—Submitted August 22, 2012—Decided December 3, 2012.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 11-078.
                                 __________________
        LANZINGER, J.
        {¶ 1} Respondent, Kathleen D. Mezher of Cincinnati, Ohio, Attorney
Registration No. 0016982, was admitted to the practice of law in Ohio in 1984.
Respondent, Frank Eric Espohl of Cincinnati, Ohio, Attorney Registration No.
0065957, was admitted to the Ohio bar in 1996. Mezher and Espohl practice
together in the Law Offices of Kathleen Mezher & Associates, L.L.C. (“Mezher
& Associates”).
        {¶ 2} On December 12, 2011, relator, the Cincinnati Bar Association,
filed an amended complaint with the Board of Commissioners on Grievances and
Discipline.    The complaint alleged that Mezher and Espohl had committed
professional misconduct when they charged a client for an initial consultation
advertised as free on the firm’s website and failed to communicate to the client
the basis for the fee. Relator asserted that their conduct violated Prof.Cond.R.
1.5(b) (requiring an attorney to communicate the basis or rate of the fee) and 7.1
(a lawyer shall not make or use a false or misleading communication about the
lawyer’s services).
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       {¶ 3} After conducting a hearing, a panel of the Board of Commissioners
on Grievances and Discipline found that Mezher had violated Prof.Cond.R. 7.1
and that Espohl had violated Prof.Cond.R. 1.5(b). The panel recommended that
both respondents be publicly reprimanded.           The board adopted the panel’s
findings of fact, conclusions of law, and recommended sanction. Both Mezher
and Espohl filed objections to the board’s findings and recommendation, and
relator filed a response to those objections. After reviewing the record, we adopt
the board’s findings of fact and misconduct, and we agree that a public reprimand
is the appropriate sanction for both respondents.
                                   Misconduct
       {¶ 4} To establish a lawyer’s professional misconduct, relator must
prove a violation of the Rules of Professional Conduct by clear and convincing
evidence. Gov.Bar R. V(6)(I); Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327,
708 N.E.2d 193 (1999), paragraph two of the syllabus.


       “Clear and convincing evidence” has been defined as “that
       measure or degree of proof which is more than a mere
       ‘preponderance of the evidence,’ but not to the extent of such
       certainty as is required ‘beyond a reasonable doubt’ in criminal
       cases, and which will produce in the mind of the trier of facts a
       firm belief or conviction as to the facts sought to be established.”


Id. at 331, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
       {¶ 5} The evidence at the hearing established that Stephanie Burns
Mahaffey contacted Mezher & Associates to set up an appointment to talk about
her mother’s estate and a trust that Mezher had prepared. Stephanie was aware




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that on its website, the firm advertised free consultations. The website does not
disclose any limitation on the free consultation.
       {¶ 6} On February 3, 2011, Stephanie, her husband, and her sister,
Jessica Burns, met with Espohl. Espohl asked Mezher’s husband, who worked at
the firm as a nonattorney and who had a business background, to attend the
meeting because of the nature of some of the trust and estate assets. What
transpired at the February 3, 2011 consultation is disputed by the participants.
The panel and board, however, found that Espohl, as corroborated by Mezher’s
husband, offered the most reasonable explanation. While this court is not bound
by the findings of fact made by the panel and the board, see Ohio State Bar Assn.
v. Reid, 85 Ohio St.3d 327, 708 N.E.2d 193 (1999), paragraph one of the syllabus,
we give those findings some deference because the panel observed the witnesses
firsthand. Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 191, 198, 754 N.E.2d 235
(2001). However, if the panel or board’s findings weigh heavily against the
record, we will disregard those findings. Findlay/Hancock Cty. Bar Assn. v.
Filkins, 90 Ohio St.3d 1, 10, 734 N.E.2d 764 (2000). Because this is not such a
case, we defer to the board’s findings.
       {¶ 7} According to Espohl, the initial portion of the meeting lasted about
30 minutes. He reviewed the will and trust, explained the probate process and the
Clermont County Probate Court fee guidelines, and answered the sisters’
questions. The sisters agreed to hire Mezher & Associates, and Jessica signed the
fee agreement because she had been named executor in her mother’s will.
       {¶ 8} Espohl testified that the sisters wanted to get started immediately
after the fee agreement was signed. He left the conference room to review the
will and trust and to research the deeds of two pieces of real estate. After 20 to 25
minutes, he returned to the conference room and continued talking with the sisters
for a half hour. Espohl testified that after the meeting, he spent another 15
minutes on the matter to make sure he had not missed anything.



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       {¶ 9} Approximately three weeks later, Jessica called Mezher &
Associates and informed a receptionist that she wanted to retrieve the original
documents, which the sisters had left with the firm, because the family no longer
wished to retain the firm. Jessica arranged to come to the office the next day.
Mezher’s husband asked Espohl to prepare a bill.          Espohl had not kept
contemporaneous time records but provided Mezher’s husband with a statement
of time spent on the matter, from which the invoice was generated. The invoice
was for $375; it included a $250 charge for an “ATTY–CONFERENCE” on
February 3, which Jessica questioned. Ultimately, the bill was paid in full that
day.
Prof.Cond.R. 7.1—False or Misleading Communication
       {¶ 10} The Mezher & Associates website advertised a free consultation; it
did not include any limitations. The panel found that Mezher had approved the
information for the website. Prof.Cond.R. 7.1 provides


               A lawyer shall not make or use a false, misleading, or
       nonverifiable communication about the lawyer or the lawyer’s
       services. A communication is false or misleading if it contains a
       material misrepresentation of fact or law or omits a fact necessary
       to make the statement considered as a whole not materially
       misleading.


       {¶ 11} The panel also found that Mezher, as owner of the firm, had
adopted an unwritten policy that while no fees would be charged for a free
consultation, the free consultation ended when the prospective client either left
without engaging the firm or hired the firm by signing a fee agreement. Mezher
conveyed this policy to the associates of the firm.




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       {¶ 12} The panel found that the lack of further explanation of the firm’s
policies on the website regarding the free consultation was inherently misleading.
The board concurred with the panel and concluded that Mezher violated
Prof.Cond.R. 7.1. We also agree that Mezher violated Prof.Cond.R. 7.1 by failing
to include on the website any information explaining when the law firm would
begin to charge for its services.
       {¶ 13} Relator acknowledges that on its face, the term “free consultation”
is not inherently misleading, but argues that advertising a free consultation on the
firm’s website became misleading when the sisters were charged for a
consultation that they reasonably assumed to be free. Relator relies on two cases
in which attorneys were disciplined for failing to disclose that clients would be
liable for costs despite advertising that clients would not be liable for attorney
fees if there was no recovery: Zauderer v. Office of Disciplinary Counsel of
Supreme Court of Ohio, 471 U.S. 626, 652, 105 S.Ct. 2265, 85 L.Ed.2d 652
(1985) (advertising that states “if there is no recovery, no legal fees are owed by
our clients” violated former DR 2-101(A) because it was deceptive to the public)
and Disciplinary Counsel v. Shane, 81 Ohio St.3d 494, 692 N.E.2d 571 (1998)
(television commercials stating “There’s no charge unless we win your case”
violated former DR 2-101(E)(1)(c)).
       {¶ 14} In her objections to the board’s report, Mezher relies on Advisory
Opinion 2005-9 issued by the Board of Commissioners on Grievances and
Discipline on December 2, 2005, syllabus, which states


       Although a lawyer may not use fee coupons, a lawyer may
       advertise information regarding fees and charges as set forth in DR
       2-101(E)(1), if presented in compliance with DR 2-101(B).
       Because DR 2-101(E)(1)(a) permits advertisement of fee




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       information regarding an initial consultation, a lawyer may state in
       an advertisement whether an initial consultation is free.


       {¶ 15} The board’s advisory opinion, however, is informal and
nonbinding on this court. Gov.Bar R. V(2)(C). Also, Mezher’s advertisement of a
free consultation, by itself, is not the problem. The advertisement was misleading
because it omitted a key piece of information—the free consultation ended (and
billing began) with the signing of the fee agreement.              Use of such an
advertisement is similar to the misconduct in Zauderer and Shane, in which
attorneys advertised that there would be no fee if there was no recovery but did
not inform clients that they were still responsible for paying costs. We have also
recently sanctioned another attorney under Prof.Cond.R. 7.1 for failing to provide
a free initial consultation that a bankruptcy referral website had promised. See
Cincinnati Bar Assn. v. Britt, 133 Ohio St.3d 217, 2012-Ohio-4541, 977 N.E.2d
620, ¶ 15.
       {¶ 16} Like the board, we acknowledge that there likely would not have
been a dispute had Mezher & Associates completed the probate case because the
fees would have been governed by the fee agreement, rather than billed on an
hourly basis. The firm’s discharge, however, made the number of hours worked
relevant, but the client was never told during the consultation that it had changed
from a free to a billable event.
       {¶ 17} We therefore adopt the findings and conclusion of the board that
Mezher violated Prof.Cond.R. 7.1.
       {¶ 18} Both the panel and board recommend that the Prof.Cond.R. 7.1
charge against Espohl should be dismissed. We agree that there is no clear and
convincing evidence that Espohl violated Prof.Cond.R. 7.1, because nothing in
the record shows that he had any control over the firm’s advertisement of a free
consultation on the website. Nevertheless, Espohl admitted that he did not advise




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the sisters that their free consultation ended when they signed the fee agreement.
Thus the panel and board concluded that Espohl had violated Prof.Cond.R. 1.5(b).
Prof.Cond.R. 1.5(b)–Communication of the basis or rate of the fee
       {¶ 19} Prof.Cond.R. 1.5(b) provides


               The nature and scope of the representation and the basis or
       rate of the fee and expenses for which the client will be responsible
       shall be communicated to the client, preferably in writing, before
       or within a reasonable time after commencing the representation,
       unless the lawyer will charge a client whom the lawyer has
       regularly represented on the same basis as previously charged.


       {¶ 20} In this case, the sisters alleged that the whole consultation lasted a
half hour and that they left immediately after the fee agreement had been signed.
If this had been the case, then undoubtedly charging a $250 consultation fee
would have been an ethical violation. However, the board found that Espohl’s
version of events was more reasonable. According to him, the meeting was
broken down into two parts: the initial portion of the meeting, which lasted a half
hour and concluded when the fee agreement was signed, and the second portion of
the meeting, which included reviewing the will and trust, researching the real
estate deeds, and answering additional questions. The second portion of the
meeting lasted approximately an hour. Espohl maintains that the sisters were
billed for only the second portion of the meeting, and therefore the sisters did
receive a free consultation—the initial portion of the meeting—before the fee
agreement was signed.
       {¶ 21} For the sisters, however, all of the events of the February 3
meeting constituted one consultation for which they believed they would not be
charged. We consider that most laypersons would also view the meeting on



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February 3 as one continuous consultation, rather than a free consultation
followed immediately by a billable attorney conference. Although Espohl viewed
the signing of the fee agreement as the line of demarcation, nothing in the fee
agreement itself expressly alerted the sisters that their free consultation was over.1
Nor did Espohl advise them that the free consultation was over. Prof.Cond.R.
1.5(b) requires that an attorney communicate to a client the nature and scope of
the representation and the basis or rate of the fee. Thus, an attorney must inform
the client when the representation and chargeable events commence.                           We
therefore adopt the findings and conclusion of the board that Espohl violated
Prof.Cond.R. 1.5(b).
        {¶ 22} As for Mezher, we agree with the panel and board’s
recommendation that the charge of violating Prof.Cond.R. 1.5(b) be dismissed.
Mezher had no contact with the sisters, nor did she participate in the preparation
of their invoice.
                                           Sanction
        {¶ 23} When imposing appropriate sanctions, we consider the mitigating
and aggravating factors listed in BCGD Proc.Reg. 10(B). See Columbus Bar
Assn. v. Dugan, 113 Ohio St.3d 370, 2007-Ohio-2077, 865 N.E.2d 895, ¶ 13. In
mitigation, the board noted that both Mezher and Espohl had no prior disciplinary
record and that there was an absence of any dishonest or selfish motive. See
BCGD Proc.Reg. 10(B)(2)(a) and (b). The board also found that respondents
exhibited a cooperative attitude toward the proceedings and demonstrated their
good character. See BCGD Proc.Reg. 10(B)(2)(d) and (e). In regard to Mezher,
the board added that she had taken steps to attempt to rectify the problems
associated with her website and had modified her fee agreements.                         As for


1. The fee agreement does not refer to the free consultation. Although Espohl relies on the
language in the fee agreement that it “shall become effective upon receipt of the signed Fee
Agreement,” this does not relate to the disputed fact of when the free consultation was concluded.




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aggravating factors, the board noted that both Mezher and Espohl failed to make
timely restitution. See BCGD Proc.Reg. 10(B)(1)(i).
       {¶ 24} Relator requested, and both the panel and the board recommend,
that Mezher and Espohl be publicly reprimanded. Upon our independent review
of the record and the aggravating and mitigating factors, we agree that a public
reprimand is the appropriate sanction for respondents’ violations.
       {¶ 25} Kathleen Mezher and Frank Espohl are publicly reprimanded.
Costs of these proceedings are assessed jointly against them.
                                                              Judgment accordingly.
       O’CONNOR, C.J., and O’DONNELL, CUPP, and MCGEE BROWN, JJ., concur.
       PFEIFER and LUNDBERG STRATTON, JJ., dissent.
                               __________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 26} I dissent because I would dismiss the charges. Because the rules
for advertising a free consultation have never been made clear, I would still issue
the opinion in this case, but I would find that the standards that it provides should
apply prospectively only, to give clear notice to the bar of the requirements for
this type of advertising.
       {¶ 27} Here, respondents were entitled to begin earning their fee once
they were retained, and they did in fact perform the work that they billed. Their
only error was to fail to advise their client that billable time had started. That is a
communication error, not an ethical violation. If we are to make it a violation, we
should do so only with fair notice to the bar of what is expected in the future
when advertising a free consultation that may become billable time after the
attorney is retained.
       {¶ 28} I would dismiss these charges against these respondents. They
promptly changed their practices after this case, and I believe that they exercised
good faith in dealing with their client. The fact that their client thought that she



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would get more free work after agreeing to retain the attorneys was not a
reasonable assumption.     As the majority pointed out, this would have never
become an issue if the client had not decided to terminate the representation.
Therefore, I respectfully dissent.
        PFEIFER, J., concurs in the foregoing opinion.
                               __________________
        Lindhorst & Dreidame and James F. Brockman; and Katherine C. Morgan,
for relator.
        Thomas W. Condit; and Michael B. Mezher Jr., for respondent Kathleen
Mezher.
        Frank E. Espohl, pro se.
                            ______________________




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