Confidentiality Breach Draws Proposed Suspension, Probation

Also up for argument this week before the Ohio Supreme Court

Cleveland Metropolitan Bar Association v. Edward J. Heben Jr., Case no. 2016-1495
Cuyahoga County

The Board of Professional Conduct recommends to the Ohio Supreme Court that Cleveland attorney Edward J. Heben Jr. be suspended from practicing law for one year, with six months stayed, because he disclosed information in an affidavit about his representation of a client without the client’s consent.

The board dismissed several additional charges of attorney misconduct submitted in November 2015 by the Cleveland Metropolitan Bar Association after concluding that the evidence didn’t support those allegations.

Client Disputes Bill in Divorce Matter
Heben was hired in April 2008 to represent Jennifer Cecchini in her divorce. The matter, which involved three children and substantial assets, stalled in a Stark County court for seven years. Cecchini stopped using Heben’s services in 2008 and was represented by five different lawyers over the years.

Cecchini hired Heben for a second time in September 2013 to handle a real estate issue in the divorce. As part of an arbitration agreement, one of the divorcing couple’s properties was sold at auction. Cecchini disputed how that auction was handled and refused to transfer the real estate title. Heben began work on the matter in preparation for a hearing.

Cecchini never signed Heben’s fee agreement, fired him after 16 days, and disputed the bill for his work. While the bar association concluded that Heben did all the work documented in his billing statement, it charged that Heben’s fee was excessive because Cecchini said Heben exceeded the scope of what she authorized. The panel assigned to review the case for the board dismissed the charge, however, after determining that Heben’s work was much more substantial than the bar association and Cecchini indicated.

Lawyer Discloses Alleged Illegal Activity in Court Filing
After Cecchini fired Heben, he filed a motion to withdraw as her lawyer. He attached an affidavit to the request in which he disclosed confidential information Cecchini had told him and stated that Cecchini fired him as retaliation for his advice about actions she had taken that he considered illegal.

The panel determined that Heben’s affidavit violated an ethics rule that prohibits lawyers from revealing information related to their representation of a client without the client’s consent. The panel took issue with Heben’s approach – using an affidavit to share Cecchini’s alleged illegal conduct with the court – and noted that none of the ethical duties lawyers have to report certain activities by clients applied in the circumstances of this case.

Charges Dismissed in Foreclosure Case
The panel dismissed several other rule violations charged by the bar association involving Heben’s representation in another client’s foreclosure case. Based on the evidence, Heben didn’t charge an excessive fee for his work, he didn’t misrepresent what he could accomplish in the case, and he kept the client informed about the matter during the few days he handled the case, the panel concluded.

Lawyer Believes Suggested Sanction Is Too Harsh
Heben objects to the board’s recommended sanction of a six-month actual suspension. He states in his brief that he believed he was required by local court rules to provide “a complete and detailed explanation of his reasons for withdrawing from [Cecchini’s] case.” He notes that he obtained research from the Cleveland Law Library Association for guidance on his ethical obligation related to Cecchini’s alleged fraudulent actions and, based on that information, thought his affidavit was proper.

As the board determined, he acknowledges that he should have disclosed the possibly fraudulent conduct only with enough detail to offset the possible damage to Cecchini’s spouse in the divorce and should have made that disclosure to the court in a way that didn’t make the information public, as happened when he filed the affidavit. (The court removed the affidavit from the record at Cecchini’s request after determining that the contents weren’t relevant or appropriate.) He contends that the evidence doesn’t show he was being vengeful, but instead indicates that he “made a good faith effort to comply with the local rule and his ethical obligations.”

The board’s recommended sanction is based on a 2004 disciplinary case in which the attorney didn’t keep client confidences but also was found to have committed substantial additional misconduct. But Heben notes he has been found to have committed only one rule violation. Pointing to his 41 years of practice with no prior discipline, he argues the suggested six-month actual suspension is too severe for this single rule violation and asks the Court for a sanction with no actual suspension time.

Cleveland Association Argues Suspension Is Warranted
The bar association counters that Heben is only now acknowledging his misconduct when filing the affidavit and adds that he continues to blame the law library for the breach of confidentiality he owed to Cecchini as her lawyer. The simplest inquiry into the rule pertaining to client confidences – which is easily accessed on the Supreme Court’s web site – would’ve made it clear to Heben that his affidavit as submitted was unethical, the bar association asserts. The document he filed contained information that harmed Cecchini in her ongoing divorce litigation, the association stresses, adding that Heben continues to inappropriately disparage his former client in his objections.

The bar association also rejects Heben’s position that he acted in good faith when crafting the affidavit. A veteran attorney’s failure to review attorney conduct rules doesn’t demonstrate good faith, the bar association argues. Heben’s supposed ignorance of his ethical responsibilities doesn’t excuse his misconduct, and he knew disclosing such client information in a public document would be harmful, the bar association maintains. The association agrees with the board that Heben had a vengeful purpose.

Contending that the board cited the 2004 disciplinary case because of that attorney’s similar selfish motivation, the bar association believes the recommended one-year suspension with six months stayed is appropriate.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

(Mike Frisch)