Discovery Issues Require Remand
The Ohio Supreme Court has remanded a disciplinary case that involves allegations of billing misconduct.
The allegations involve five billings to three nursing home clients.
Relator alleged that while Smith was employed by a law firm, Weston Hurd, he billed as his own for work that was performed by another attorney at the firm, billed time in excess of the time actually spent on a particular task, billed for work that was never performed by anyone at the firm, and billed time to multiple cases and clients for identical services and time on the same day. A probable-cause panel of the Board of Commissioners on Grievances and Discipline certified relator’s complaint to the full board.
Smith answered the complaint. As his primary affirmative defense, he alleged that his clients had requested and approved generic billing narratives that could be assigned to one of seven litigation phases and deducted from a preapproved budget without disclosing the specific action that he took on his client’s behalf. He claimed that this billing method was necessary to protect his clients against punitive-damages awards that might arise from violations of the Ohio Nursing Home Patients Bill of Rights, codified at R.C. 3721.10 et seq. He further alleged that he was unable to fully defend himself against relator’s complaint because much of the evidence he needed to do so was protected by attorney-client privilege, which the affected clients had not fully waived, and also because his former firm had prevented him from accessing documentary evidence essential to his defense.
The court expressed concern about discovery issues
Given the nature of Smith’s longstanding and consistent defense of the charges against him, we are alarmed by the conspicuous absence of documentary or testimonial evidence regarding the actual content of the online databases with respect to the five cases at issue—evidence that in all probability would serve to either confirm or discredit Smith’s claims. While the record shows that the affected clients or their third-party administrators used online databases to transmit and store pleadings, correspondence, billing, and other documents related to the clients’ underlying actions, the testimony of the witnesses with access to those databases suggests only that the content of those databases should, theoretically, mirror the content of Weston Hurd’s hard file. Therefore, in the interest of justice, we remand this cause for further discovery and hearing.
(Mike Frisch)