[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Lorain Cty. Bar Assn. v. Berta , Slip Opinion No. 2021-Ohio-1264.]

NOTICE This slip opinion is subject to formal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are req uested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographic al or other formal errors in the opini on, in order that corrections m ay be made before the opi nion is published.

S LIP O PINION N O
. 2021-O HIO -1264
L ORAIN C OUNTY B AR A SSOCIATION v. B ERTA
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Lorain Cty. Bar Assn. v. Berta , Slip Opinion No. 2021-Ohio-1264.] Attorney misconduct—Failure to adequately co mmunicate basis or rate of hourly fees—Public reprimand. (No. 2020-1521—Submitted Janua ry 27, 2021—Decided April 15, 202 1.)
O N C ERTIFIED R EPORT by the Board of Professiona l Conduct of the Supreme Court, No. 2020-027.

_______________________ Per Curiam. {¶ 1} Respondent, David James Berta, of Elyria, Ohio, Attorney Registration No. 0063775, was admitte d to the practice of law i n Ohio in 1994. In a June 29, 2020 amended complaint, relator, Lorain County Bar A ssociation, alleged that Berta had committed two ethical violations related to his fees in a single domestic-relations case.S UPREME C OURT OF O HIO

2 {¶ 2} A three-member panel of the Board of Professional Conduct accepted the parties’ stipulations of fact and heard testimony from five witnesses, including Berta. After relator rested its case, Berta moved th e panel to dismiss both of the alleged rule violati ons; the panel unanimously gran ted that motion with respect to one of the allege d violations. The panel later issued a report finding that Berta had failed to adequately communicate to his client the basis or rate of the fees and expenses that would be charged for the rep resentation, and it recommended that he be publicly r eprimanded and ordered to make restitution of $850. The board adopted the panel’s findings of fact, conclusi ons of law, and recommended sanction. The parties have filed a joint waiver of objections and request that the court adopt the board’s report in its entirety

. {¶ 3} We adopt the board’s findings of misconduct and recommended
sanction.
Facts and Misconduct {¶ 4} The sole issue in this case is whether Berta adequately communicated to his client the basis or rate of the fee and exp enses she would be responsible for. {¶ 5} Prof.Cond.R. 1.5(b) provides:

The nature and scope of the rep resentation and the basis or rate of the fee and expenses for which the client will be respo nsible shall be communicated to the client, preferably in writing, bef ore or within a reasonable time after commencing the representation * * *. Any change in the basis or rate of the fee or expenses is subject to division (a) of this rule [which prohibits excessive fees] and shall promptly be communicated to the client, preferably in writing.January Term, 2021

3 {¶ 6} In July 2017, Kerri Johnson consulted with Berta about terminat ing her marriage. Berta did not pre sent Johnson with a written fee agreement. Instead, he wrote “$2,500 flat” on one of his business cards an d gave it to her. Johnson was not ready to proceed at that time, and she paid $20 0 for the
consultation. She met with Ber ta a second time, in August 2017 , and paid $1,500 toward the quoted flat fee. {¶ 7} Although Berta drafted a petition for dissolution, discussions with Johnson’s husband soon broke down. Consequently, Berta filed a complaint for divorce on October 12, 2017. On December 15, 2017, Johnson pai d the balance of the quoted flat fee plus the $280 filing fee. {¶ 8} From November 2017 through December 2018, Berta’s employer, the Spike & Meckler Law Firm, L.L.P., sent Johnson monthly bill ing statements itemizing the time that Berta and his secretary had spent on he r case. Those
statements stated that the case was a dissolution with a flat f ee of $2,500 plus court costs of $280 and showe d that no balance was due. {¶ 9} While Johnson’s divorce was pending, the proceeds from the sale of marital real property and other marital funds, to taling approxi mately $180,000, were deposited into Berta’s law-firm trust account. The court granted Johnson’s divorce on December 10, 2018, and awarded her a property divisi on that included approximately $98,500 of the marita l funds held in the trust ac count. In January 2019, Johnson e-mailed Berta to inqui re about the distribution of those funds. {¶ 10} On January 24, the law firm’s bookkeeper e-mailed Johnson a proposed distribution statement identifying the amounts due to each party. The statement deducted $7,730 from Johnson’s share for additional a ttorney fees, which had already been transferred out of the firm’s trust acco unt. In response, Johnson sent the bookkeeper and Berta an e-mail identifying sev eral errors or
inconsistencies in the proposed distribution statement and stat ing the amount she believed was due to each party—w ith no deduction for the additi onal attorneyS UPREME C OURT OF O HIO

4 fees. Later that day, the bookkeeper sent Johnson an e-mail st ating, “I’m guessing you didn’t know yet about the atty fees we subtracted,” and inf orming Johnson that she had mailed her an itemized billing statement detailing those fees. In addition to billing Berta’s services at $200 an hour, the state ment included charges for secretarial services, which were billed at $50 an h our. Johnson emailed the bookkeeper again stating, “I was not aware I had any additional fees since I agreed to a flat fee upfront and every bill since I hav e paid that in full states my balance is ZERO. I would have thought that if I was getting charged
more I would have been notified i n writing and prior to this.” (Capitalization sic.) {¶ 11} On January 28, Berta sent Johns on an e-mail stating: “As I described at our initial meeting, the flat fee was for a no-fau lt divorce. As I also explained at the initial intake, cases filed as divorces are bi lled hourly.” He explained that he had just l ooked at his billing in her case fo r the first time, and he
noted that the statements she had received did indicate “the ti me that was being billed, but the bookkeeper didn’t code the bill as hourly.” He indicated that the $200-an-hour rate was a discount from his usual hourly rate of $225 or $250 and
instructed Johnson to let him know what she would like to do so that the bookkeeper could cut the checks. {¶ 12} At Berta’s disciplinary hearing, Johnson acknowledged that she had not responded to Berta’s e-ma il explanation of the hourly b illing and had accepted the distribution check that Berta’s bookkeeper prepare d for her. 1 She explained that she did not furth er contest the matter at the ti me, because she
needed access to her share of th e marital funds to complete the purchase of her
new home.

1. The panel noted that it had previously dismissed an alleged violation of Prof.Cond.R. 1.15(e) (requiring a lawyer in possession of funds in which two or more persons claim an interest to hold those funds in the lawyer’s client trust account until the disp ute is resolved) because Johnson had not actively disputed the fee an d accepted her distribution che ck.January Term, 2021

5 {¶ 13} The panel heard conflicting tes timony about whether Berta had
informed Johnson that he would ch arge a different fee if her ca se proceeded as a
divorce rather than a dissolution. Johnson testified that the only thing Berta told her about his fees during their initial consultation was that s he would be charged a $2,500 flat fee plus court costs, and she said that he never me ntioned that she would be charged $200 an hour if the case proceeded as a contes ted divorce. However, she admitted that it was possible that Berta had advised her that his fee structure would change if it was necessary to file a divorce on her behalf and that she simply could not recall that fact due to her emotional stat e when she first met with Berta. According to Johnson, at the time, she was sufferi ng from debilitating anxiety and depression, was having trouble eating and sleeping, and was participating in an intensive, outpatient mental-health-treatme nt program. That said, Johnson maintained that the monthly statements she receiv ed from October 2017 through December 2018 indicating a flat fee of $2,500 and showing a zero balance reinforced her understanding that Berta had agreed to h andle her case for
a flat fee. {¶ 14} In contrast, Berta maintained t hat he had informed Johnson of t he
different fee structures for di ssolution and divorce cases duri ng their initial consultation, and he produced his handwritten notes from that m eeting, which appear to support his position. But Berta also acknowledged th at Johnson was in an emotionally fragile state during that meeting and that that may have affected her ability to recall that part of the conversation. He stipul ated that he had given her his business card with “$2,500 flat” written on the back, a nd he admitted at the hearing that he never informed her in writing that he would charge an hourly fee if the case proceeded as a divorce. Berta also claimed tha t in a telephone call he had had with Johnson before he filed her divorce complaint, he reminded her that his fee had converted to an hourly rate. But he never que stioned Johnson about that alleged conversati on during her hearing testimony.S UPREME C OURT OF O HIO

6 {¶ 15} In addition, Berta admitted that he had never informed Johnson that she would be charged $50 an hour for secretarial services perfo rmed on her behalf because he had been unaware that his firm charged such fees, ev en though they were listed in the firm’s standard fee agreement. He did not d ispute that Johnson had been charged $850 for such services. Furthermore, he admit ted that he had not reviewed any of Johnson’s monthly bills until the dispute a rose and that as a result, he had had no knowledge tha t for more than one year, hi s firm had sent Johnson monthly bills that showed secretarial time and a zero balance. {¶ 16} Citing Johnson’s emotional state at the time of her initial consultation, the time that elapse d between that consultation a nd the filing of her divorce complaint, and the monthly bills stating that Johnson h ad a zero balance on her account, the board found that it had been reasonable for Johnson, a layperson, to believe that she was being charged a flat fee. T herefore, the board
determined that Berta had not a dequately communicated to Johnso n the basis or rate of the hourly fee for his services and those of the secretarial staff and that his conduct violated Prof.Cond.R. 1.5( b). We adopt this finding of misconduct.
Sanction {¶ 17} When recommending the sanction to be imposed for attorney misconduct, the board considers a ll relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factor s listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases. {¶ 18} In this case, the board found that just one aggravating factor is present—Berta’s conduct har med a vulnerable client. See Gov.Bar R. V(13)(B)(8). As for mitigating factors, the board found that B erta had no record of prior discipline and had l acked a dishonest or selfish motiv e, made full and free
disclosure to the board and exhi bited a cooperative attitude to ward the disciplinary proceedings, and submitted evidence of his good ch aracter and reputation. See Gov.Bar R. V(13)(C)(1), (2), (4), and (5).January Term, 2021

7 {¶ 19} In determining the appropriate sanction in this case, the board
considered four cases in which we publicly reprimanded attorney s who had engaged in misconduct similar to Berta’s. For example, in Cincinnati Bar Assn. v. Mezher and Espohl , 134 Ohio St.3d 319, 2012-Ohio-5527, 982 N.E.2d 657, a
law firm had advertised free consultations but then billed two clients for the
second half of a one-hour meetin g without explaining that the f ree consultation
ended and a billable conference commenced as soon as the client s signed a written fee agreement. Noting that most laypersons would have viewed the meeting as one continuous consultation, we found that the attor ney who met with
the clients had violated Prof. Cond.R. 1.5(b) and publicly repri manded him for his
misconduct. Id. at ¶ 21, 25. And in Disciplinary Counsel v. Goldberger , 158 Ohio St.3d 354, 2019-Ohio-4844, 142 N.E.3d 666, we publicly rep rimanded an attorney who, among other things, had agreed to represent a wom an in a dispute
with her lender but had failed to communicate the nature and sc ope of his representation or the basis or r ate of his fee to the client. {¶ 20} In accord with this precedent, the board recommends that we publicly reprimand Berta for his misconduct and order him to ma ke restitution of $850 to Johnson for the secretarial fees that were neither prop erly nor timely disclosed to her. Having thoroug hly reviewed the record and ap plicable precedent in this case, we agree that a public reprimand with an order of restitution is the appropriate sanction for Berta’s misconduct.
Conclusion {¶ 21} Accordingly, David James Berta is publicly reprimanded for the
conduct described abov e and ordered to make restitution of $850 to Johnson within 90 days of the date of thi s order. Costs are taxed to B erta. Judgment accordingly.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ., concur.S UPREME C OURT OF O HIO

8 _________________ O’Toole, McLaughlin, Dooley & Pecora Co., L.P.A., Matthew A. Do oley, and Michael R. Briach, for relator. Charles J. Kettlewell, L.L.C., a nd Charles J. Kettlewell, for r espondent.

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