From Lemons

The Ohio Supreme Court web page has a summary of a bar case scheduked to be argured tomorrow

Wood County Bar Association v. Robert E. Searfoss III, Case no. 2016-1489
Wood County

In April 2012 James Bodenbender hired attorney Robert E. Searfoss III of Bowling Green to pursue a lemon law claim against a car dealership. The two entered an oral arrangement in which Bodenbender paid a $5,000 retainer and was to be billed $250 per hour. Searfoss didn’t present Bodenbender with a written fee agreement and told him he didn’t anticipate billing him anything more for the representation than the $5,000 because he would be able to recover attorney fees from the opposing party.

Searfoss placed the funds in a required client trust account and withdrew $4,700 from it in May 2012, and the rest in July. Contrary to what he stated in the oral arrangement, he billed Bodenbender for an additional $1,400. Searfoss told Bodenbender he had to conduct substantial research on the issue before filing a lawsuit. In July 2012, Searfoss filed a complaint with the Ohio Attorney General’s Office, which determined the dispute didn’t warrant any action by the office, and the office notified Searfoss of that in January 2013.

Client Seeks to Replace Searfoss
As the attorney general’s investigation was taking place, Bodenbender hired attorney Stephen Snavely to assist him in getting his $5,000 back from Searfoss because he was unhappy with the representation. Snavely told Searfoss that Bodenbender was ending his representation, and asked for an accounting for the legal services provided. Searfoss responded, saying he did 25.6 hours of work on the case, but didn’t have specifics because he was switching from paper to digital records at that time and the details of his work were lost. He also noted that Bodenbender instructed him not to take any action on the case until further notice.

Snavely notified Bodenbender, and his son, Michael Bodenbender, who had power of attorney for his aging father, about Searfoss’s response. Michael Bodenbender, who is also the Henry County sheriff, filed a complaint against Searfoss with the Office of the Disciplinary Counsel in July 2013. The disciplinary counsel declined to investigate, informed Bodenbender that it didn’t have jurisdiction over fee disputes, and directed him to the Wood County Bar Association. The disciplinary counsel informed Michael Bodenbender that the county bar association would handle a fee dispute or send it to a larger nearby county that could take on the matter. The case was referred to the Toledo Bar Association, and the disciplinary counsel noted its case was closed in letters to Bodenbender and Searfoss.

Searfoss refused to participate in fee arbitration, and the Wood County Bar Association reopened its investigation of the Bodenbender complaint. Through further investigation, the bar association discovered it was more than a fee dispute, and concluded Searfoss violated several professional conduct rules when representing Bodenbender. The bar association complained to the Board of Professional Conduct that Searfoss failed to maintain records of the funds he was holding for a client, charged an excessive fee, and violated other rules.

Another Client Complains
The bar association notes it was prompted to reinvestigate Bodenbender’s claims against Searfoss after it received a complaint from Elizabeth Turner, who asked Searfoss to handle two stepparent adoption petitions for her. Based on Turner’s complaint, the bar association suspected a pattern of abuse. Searfoss told Turner he was inexperienced in adoption matters and claimed he offered to refer her to another lawyer, but ultimately agreed to handle the case for a $2,500 flat fee and $1,000 for filing fees. Turner also didn’t receive a written fee agreement, and he deposited $2,500 into his personal checking account rather than a client trust account and put $1,000 in cash in an office safe.

Searfoss testified that he earned the fee the day he accepted Turner’s payment because he already had done hours of research on the case. The payment was made in January 2014, but Searfoss took no action on the case until May 2014. Turner attempted to contact Searfoss several times between February and May inquiring about the status of her case and received an email from him in May saying he was finally getting the adoption going.

Searfoss filed a petition for one of the two children in Wood County probate court. The judge responded to the filing by stating the court needed additional information from Searfoss, which was not immediately provided. The court informed Searfoss and Turner that if it didn’t have the required information by June 13, it would dismiss the case. Turner contacted Searfoss three days before the deadline reminding him to provide more information, and told him if he didn’t follow through by June 12, she would fire him and ask for a $3,500 refund.

Searfoss responded the next day informing Turner she needed to file her case in neighboring Lucas County because she and her children had moved to Toledo. Turner noted that she had moved six months earlier and informed Searfoss of that. Searfoss had the Wood County case dismissed and sent Turner a $1,700 check, while Turner hired another attorney who completed both adoptions for $2,300.

Turner was dissatisfied with the refund amount and filed a grievance with the county bar association. Searfoss told Wood County’s investigator that this also was a fee dispute, and Searfoss attempted to resolve the matter by offering Turner another $600. Eventually he agreed to refund the entire amount.

The bar association charged Searfoss with violating several rules including failing to provide competent representation, failing to keep a client informed, and making a misrepresentation to Turner.

Searfoss Fails to Attend Hearing
A three-member panel of the professional conduct board met in July 2016 to consider the complaints against Searfoss, but neither he nor his attorney attended the hearing. The panel’s chair called Searfoss’s attorney prior to the hearing to see if the parties would stipulate to some of the facts of the dispute and to remind him of the hearing. Searfoss’s attorney never responded. The panel went ahead with the hearing without Searfoss or his lawyer, and his lawyer called the panel just as it was concluding to say he had the wrong date noted. He asked for an emergency ruling to delay the hearing, which was overruled after the panel chair indicated Searfoss and his lawyer were notified by mail and email of the date.

The panel concluded that Searfoss committed 10 rule violations and recommended to the board that Searfoss be suspended from the practice of law for two years, with one year stayed on conditions.

Searfoss Disputes Findings
Searfoss suggests that his actions at most warrant two years of monitored probation and that he was being severely punished for an inadvertent mistake that led to him not appearing for the panel hearing on the matter.

Searfoss challenges the board’s right to charge him with violations based on his representation of Bodenbender, indicating that while his timesheets were destroyed, he provided the board with the cases, laws, and regulations he researched before taking the first appropriate step in a lemon law case, which is to file a complaint with the attorney general. He notes that both the disciplinary counsel and the Wood County Bar Association dismissed their investigations of Bodenbender’s complaint by concluding it was a fee dispute and not an incident in which Searfoss committed ethics rule violations.

Searfoss argues that court rules allow an individual to file a grievance with either the disciplinary counsel or a county bar association, but not both. When the disciplinary counsel dismissed his case and sent the matter to fee arbitration, the case was closed and the county wasn’t empowered to instigate a new investigation of him, he concludes. Because the county bar association had no right to investigate the complaint, the board shouldn’t have considered the association’s complaint and the charges against him should be dropped, he asserts.

In response to Turner’s complaint, Searfoss indicates it wasn’t clear to him that Turner relocated to Toledo and that none of the email or documentation exchanges between the two proved she informed him she had moved. He notes that the check she paid him with had a Wood County address.

He also describes his attorney’s failure to appear at the hearing as an inadvertent error caused when the Wood County investigators asked to change the original hearing date. Searfoss and his attorney agreed to a different date, but the attorney’s calendar wasn’t updated to reflect the change. Searfoss asserts that all subsequent references to the hearing from his lawyer had the original date. He notes that he and his attorney weren’t avoiding the hearing, citing several points leading up to the hearing where the parties were exchanging information and Searfoss was responding to motions.

Bar Association Seeks Suspension
The Wood County Bar Association supports the findings of the board and advocates for Searfoss’s suspension. The bar association indicates that on six occasions, Searfoss or his attorney failed to comply with a deadline in the case and that missing the hearing was “inexcusable neglect,” not a one-time scheduling error.

The bar association argues that it had the authority to re-open its case against Searfoss after the disciplinary counsel alerted Searfoss that it was dismissing the case. The bar association notes the reason for the dismissal was a lack of jurisdiction, not that it didn’t believe the charges had merit. It states that the word “dismissed” isn’t a “magical incantation that automatically renders a grievance conclusively decided.”

The bar association also maintains that it sought greater sanctions against Searfoss than after its initial investigation because Turner filed her grievance before the Bodenbender matter concluded. Her charges raised a question of whether Searfoss engaged in a pattern of ethical violations, the bar association suggests, and further investigation led to the additional charges.

– Dan Trevas

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

(Mike Frisch)