[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Trumbull Cty. Bar Assn. v. Biviano, Slip Opinion No. 2015-Ohio-4308.]




                                        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. 2015-OHIO-4308
               TRUMBULL COUNTY BAR ASSOCIATION v. BIVIANO.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Trumbull Cty. Bar Assn. v. Biviano, Slip Opinion No.
                                   2015-Ohio-4308.]
Attorneys—Misconduct—Failure to promptly return unearned portion of
        retainer—Public reprimand.
    (No. 2015-0299—Submitted April 14, 2015—Decided October 21, 2015.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2014-044.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, William Richard Biviano of Warren, Ohio, Attorney
Registration No. 0017984, was admitted to the practice of law in Ohio in 1974.
                               SUPREME COURT OF OHIO




        {¶ 2} In a complaint filed with the Board of Commissioners on Grievances
and Discipline1 on June 9, 2014, relator, Trumbull County Bar Association,
alleged that Biviano violated five Rules of Professional Conduct in concluding his
representation in a child-custody matter. The parties entered into stipulations of
fact, agreed that Biviano failed to promptly refund the unearned portion of his
retainer in violation of Prof.Cond.R. 1.16(e), agreed that the remaining alleged
violations should be dismissed, and jointly recommended that Biviano be publicly
reprimanded for his misconduct. Based on the parties’ stipulations and Biviano’s
testimony, the panel made findings of fact, found that Biviano’s conduct violated
Prof.Cond.R. 1.16(e), dismissed four other alleged rule violations, and
recommended that Biviano be publicly reprimand for his misconduct. The board
adopted the panel report in its entirety. We adopt the board’s findings of fact and
misconduct and agree that a public reprimand is the appropriate sanction in this
case.
                                       Misconduct
        {¶ 3} Jamie Smith retained Biviano to represent her in a child-custody
matter in September 2010. On January 10, 2012, Biviano sent Smith a letter
stating that he understood that she had reconciled with the child’s father and
requesting documentation from her so that he could close her file.                    Smith
responded to Biviano’s correspondence in a January 20, 2012 e-mail and
requested that he close her file and return the unearned portion of her retainer.
        {¶ 4} On March 22, 2012, Smith again requested that Biviano close her
file. He responded that day, advising her that he would close her file and that she
would be contacted. Having heard nothing further from Biviano, Smith e-mailed
him on July 24 and August 20, but she did not receive a response to either e-mail.


1
  Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been
renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII.




                                             2
                                January Term, 2015




Consequently, she filed a grievance with relator on September 24, 2012. Biviano
provided an itemized account of his billing in the matter and returned the
unearned portion of Smith’s retainer on October 5, 2012.
        {¶ 5} The parties stipulated and the board found that Biviano violated
Prof.Cond.R. 1.16(e) by failing to promptly refund the unearned portion of his
retainer.
                                     Sanction
        {¶ 6} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties the lawyer violated and the 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 Gov.Bar R. V(13).
        {¶ 7} Here the parties stipulated and the board found that the relevant
mitigating factors include the absence of a prior disciplinary record, the absence
of a dishonest or selfish motive, Biviano’s timely good-faith effort to rectify the
consequences of his misconduct, his full and free disclosure to the board and his
cooperative attitude in the proceedings, and his good character and reputation
apart from the charged misconduct. See Gov.Bar R. V(13)(C)(1), (2), (3), (4), and
(5).
        {¶ 8} In support of the recommended sanction of a public reprimand, the
board cites Lake Cty. Bar Assn. v. Kubyn, 121 Ohio St.3d 321, 2009-Ohio-1154,
903 N.E.2d 1215 (publicly reprimanding an attorney who, on his discharge from
employment, failed to take reasonably practicable steps to protect his client’s
interests and failed to promptly return any unearned portion of his fee).
        {¶ 9} We adopt the board’s findings of fact and misconduct and agree that
a public reprimand is the appropriate sanction for Biviano’s misconduct.
        {¶ 10} Accordingly, William Richard Biviano is publicly reprimanded for
his misconduct. Costs are taxed to Biviano.




                                         3
                           SUPREME COURT OF OHIO




                                                          Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                             _________________
       Flevares Law Firm, L.L.C., and William M. Flevares, for relator.
       Kegler, Brown, Hill & Ritter Co., L.P.A., and Jonathan E. Coughlan, for
respondent.
                             _________________




                                       4
