Probation Or Suspension? Ohio Supreme Court Considers The Issue

A summary of a discipline case scheduled for argument this week from the web page of the Ohio Supreme Court

Disciplinary Counsel v. Andrew R. Schuman, Case no. 2016-1834
Wood County

The Board of Professional Conduct recommends a one-year suspension, with six months stayed, for Bowling Green attorney Andrew R. Schuman. The board determined that Schuman charged an excessive fee as a guardian ad litem, improperly started garnishment proceedings against one of the parents, altered documents submitted to the court, and misrepresented to the court the amount he was owed.

Lawyer Claims Parents Owe Thousands More Than Billed
Schuman, a solo practitioner and former prosecutor, was appointed in December 2010 as guardian ad litem in a Hancock County Juvenile Court case. Parents Heidi Walter and Derek Smith shared the cost of a $500 deposit. In July 2011, Schuman submitted a bill to the juvenile court at an $80-an-hour rate for a total of $3,416, which the court approved and divided between the parents with credit for the deposit.

By February 2013, the lawyer had received only $200 more in payment. He filed a complaint in Findlay Municipal Court demanding payment of $6,405; however, he was only owed a balance of $2,716. In a subsequent court filing, Schuman claimed his hourly rate was $150, and he altered a time record he provided to the court by deleting the earlier bill total of $3,416 and the reference to the juvenile court case name.

The municipal court ruled in Schuman’s favor, ordering payment of $6,405 plus interest and costs. About six months later, after receiving no payments, Schuman asked the court to garnish the wages of the parents. He was unable to garnish Walter’s wages because she no longer was working at her last known employer, but he was able to garnish Smith’s income. After paying for about a year, Smith requested a court hearing in January 2015 disputing the outstanding amount and said he had paid more than $7,000. Before the judge, Schuman didn’t correct the amount he was actually owed and continued to seek additional payment.

In November 2015, Smith filed a complaint of ethical misconduct against Schuman with the Office of Disciplinary Counsel. Once he received the grievance, Schuman hired a lawyer and refunded $2,989 to Smith and later refunded additional amounts to each of the parents.

Parties Seek Different Penalties
Schuman testified at the disciplinary hearing that he works too much, he was resentful when he wasn’t paid, and he acted out of greed and retaliation, but that his actions were out of character.

The disciplinary counsel and Schuman agreed to the facts of the case, that Schuman has paid Walter and Smith what they were overcharged, and that Schuman violated four professional conduct rules. The parties disagree, though, about the recommended sanction for Schuman’s misconduct. The disciplinary counsel recommended an actual six-month suspension to the Board of Professional Conduct, while Schuman argued for a suspension of any length, but fully stayed.

Noting that Schuman’s misconduct was an isolated incident in his nearly two-decade career and that he was remorseful at the disciplinary hearing, the board explained, however, that misrepresenting facts to a court is a serious offense. The board recommends a one-year suspension with six months stayed if Schuman meets certain conditions, including that he take two continuing legal education courses on law office management, take steps to ensure that the case against the parents is dismissed, and agree to be monitored for one year if he is reinstated to the legal profession.

Attorney Wants to Continue His Practice
Schuman contends that a stayed suspension would permit him to continue to provide much-needed and high-quality legal services in the Bowling Green area. His brief to the Court states that in his criminal practice he “by all accounts performs exemplary work for unpopular clients with unpopular cases.” He notes in his objections to the recommended sanction that the purpose of a disciplinary sanction is to protect the public rather than punish the attorney. This “public interest test” has support in Disciplinary Counsel v. Carroll, a 2005 Ohio Supreme Court decision, he asserts.

Pointing out that the board stated it believes he won’t commit this type of misconduct again, Schuman argues that an actual suspension then “serves no useful purpose.” In asking the Court for a stayed suspension, Schuman accepts the recommended conditions for his suspension and reinstatement.

Disciplinary Body Advocates Actual Suspension
The disciplinary counsel responds that the board found the mitigating factors in Schuman’s case didn’t overcome the presumption that this type of misconduct warrants an actual suspension from the practice of law. Contrary to the board’s description of Schuman’s misconduct as an isolated incident, the disciplinary counsel argues that he instead engaged in multiple dishonest acts during a two-year timeframe.

“It was a series of willful and deliberate actions committed over an extended period of time that were designed to exact retaliation and retribution on a vulnerable litigant,” the office’s brief states.

In supporting the board’s recommended suspension, the disciplinary counsel maintains that the sanction will convey to the state’s lawyers that such misconduct isn’t acceptable when responsibility is accepted only after a disciplinary grievance is filed.

– Kathleen Maloney

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

(Mike Frisch)