[Cite as Lake Cty. Bar Assn. v. Kubyn, 121 Ohio St.3d 321, 2009-Ohio-1154.]

LAKE COUNTY BAR ASSOCIATION v. KUBYN. 

[Cite as Lake Cty. Bar Assn. v. Kubyn, 121 Ohio St.3d 321, 2009-Ohio-1154.]

Attorney misconduct, including failing to promptly refund unearned fees upon 

discharge — Public reprimand. 

(No. 2008-2431 — Submitted January 14, 2009 — Decided March 19, 2009.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 08-003. 

__________________ 

Per Curiam. 

{¶1} Respondent, R. Russell Kubyn of Painesville, Ohio, Attorney 

Registration No. 0029510, was admitted to the practice of law in Ohio in 1984. 

The Board of Commissioners on Grievances and Discipline recommends that we 

publicly reprimand respondent, based on findings that he failed upon discharge 

from employment to promptly refund unearned fees and to take reasonably 

practicable steps to protect his client’s interests. We agree that respondent 

committed professional misconduct in violation of the Rules of Professional 

Conduct and that a public reprimand is appropriate. 

{¶2} Relator, Lake County Bar Association, charged respondent with 

professional misconduct in a one-count complaint. A panel appointed by the 

board considered the case upon the parties’ consent-to-discipline agreement, filed 

pursuant to Section 11 of the Rules and Regulations Governing Procedure on 

Complaints and Hearings Before the Board of Commissioners on Grievances and 

Discipline (“BCGD Proc.Reg.”). The panel accepted the agreement, found 

respondent in violation of ethical standards, and recommended the public 

reprimand. The board adopted the panel’s findings of misconduct and 

recommendation. 
SUPREME COURT OF OHIO

2 

Misconduct 

{¶3} Respondent admitted to having violated Prof.Cond.R. 1.16(d) and 

(e). Prof.Cond.R. 1.16(d) requires lawyers, upon withdrawal or termination, to 

take reasonably practicable steps to protect the client’s interests, including 

delivering client papers and property to which the client is entitled. With an 

exception not relevant here, Prof.Cond.R. 1.16(e) requires lawyers, upon 

withdrawal or termination, to promptly return any part of a fee that has not been 

earned. 

{¶4} Respondent violated these rules in the course of his attorney-client 

relationship with Michael J. Butz, who hired respondent to represent him in his 

divorce and other matters. Butz signed a fee agreement in late December 2006 

and pursuant to that contract, paid respondent $5,000. Butz soon became 

dissatisfied with respondent’s services and discharged him on January 31, 2007. 

{¶5} Upon discharging respondent, Butz advised him that he had 

retained new counsel and asked respondent for an itemized billing and to return 

any unearned fees. In late February 2007, Butz’s brother, another attorney, asked 

respondent again for an itemized billing and the return of unearned fees. Butz’s 

brother wrote a second letter to the same effect early in March. Respondent did 

not comply with these requests, and Butz’s new attorney had to recreate his file. 

{¶6} Respondent did reply, however, to a February 2007 request from 

his client’s new attorney for the Butz case file. He claimed to have no duty to 

produce it because he had sent Butz copies of all the paperwork as it was 

generated or received, so Butz already had the complete file. Respondent offered 

the same justification during the investigation of Butz’s grievance. 

{¶7} In March 2007, respondent sent an itemized bill to his client and 

refunded $1,032.50 in legal fees. Because the itemized statement assessed 

charges for work done after Butz discharged him, respondent later repaid an 

additional $362.50. 
January Term, 2009 

3 

{¶8} We accept respondent’s admissions to the charged violations of 

Prof.Cond.R. 1.16(d) and (e). 

Sanction 

{¶9} In recommending a sanction for this misconduct, the panel and 

board weighed the aggravating and mitigating factors of respondent’s case. See 

BCGD Proc.Reg. 10(B). According to the consent-to-discipline agreement, no 

aggravating factors are present. Mitigating factors include that respondent has no 

prior disciplinary record, did not have a dishonest or selfish motive, has made a 

timely good-faith effort to rectify the consequences of his misconduct, and has 

cooperated in the disciplinary proceedings. See BCGD Proc.Reg. 10(B)(2)(a), 

(b), (c), and (d). The parties also agree that respondent’s good character and 

professional competence weigh in his favor, as does the fact that a mental 

disability contributed to cause his misconduct and has since been successfully 

treated. See BCGD Proc.Reg. 10(B)(2)(e) and (g). 

{¶10} The parties have stipulated to and the panel and board 

recommended that respondent be publicly reprimanded for his misconduct. We 

accept this recommendation. Respondent is hereby publicly reprimanded for his 

violations of Prof.Cond.R. 1.16(d) and (e). 

{¶11} Costs are taxed to respondent.

Judgment accordingly. 

 MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

__________________ 

James P. Koerner, for relator. 

Murman & Associates and Michael E. Murman, for respondent. 

______________________