[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Disciplinary Counsel v. Mancino, Slip Opinion No. 2018-Ohio-3017.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2018-OHIO-3017

DISCIPLINARY COUNSEL v. MANCINO.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Disciplinary Counsel v. Mancino, Slip Opinion No. 

2018-Ohio-3017.] 

Attorneys—Misconduct—When a professional-conduct rule found by the Board of 

Professional Conduct to be violated requires that an attorney-client 

relationship exist and no such relationship existed, the finding of a violation 

cannot be accepted—When a panel of the Board of Professional Conduct 

unanimously dismisses a count of a disciplinary complaint for insufficient 

evidence under Gov.Bar R. V(12)(G), the dismissal is not reviewable by the 

board or by the Supreme Court of Ohio—Complaint dismissed.

(No. 2017-1079—Submitted November 21, 2017—Decided August 2, 2018.) 

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme 

Court, No. 2016-074. 

__________________ 

 
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Per Curiam.

{¶ 1} Respondent, Paul Anthony Mancino Jr., of Cleveland, Ohio, Attorney 

Registration No. 0015576, was admitted to the practice of law in Ohio in 1963. 

{¶ 2} On December 6, 2016, relator, disciplinary counsel, filed a complaint 

in which he alleged that Mancino violated eight Rules of Professional Conduct by 

filing and prosecuting an appeal of Raymond Miller’s criminal conviction and 

accepting compensation for that appeal from a third person—all without Miller’s 

knowledge or consent. 

{¶ 3} After conducting a hearing, a three-member panel of the Board of 

Professional Conduct unanimously dismissed five of the alleged rule violations 

based on the insufficiency of the evidence. But the panel found that Mancino’s 

conduct violated Prof.Cond.R. 1.2(a) (requiring a lawyer to abide by the client’s 

decisions concerning the objectives of representation and to consult with the client 

as to the means by which they are to be pursued), 1.4(a)(1) (requiring a lawyer to 

inform the client of any decision or circumstance with respect to which the client’s 

informed consent is required), and 1.8(f) (prohibiting a lawyer from accepting 

compensation for representing a client from someone other than the client without 

the client’s informed consent). After considering the relevant aggravating and 

mitigating factors and the sanctions we have imposed for comparable misconduct, 

the panel recommended that we publicly reprimand Mancino. The board adopted 

the panel’s report in its entirety. 

{¶ 4} Mancino objects and argues that the board’s findings of misconduct 

cannot stand because there can be no violation of Prof.Cond.R. 1.2(a), 1.4(a)(1), 

and 1.8(f) in the absence of an attorney-client relationship. He therefore urges us 

to reject the board’s findings of misconduct, dismiss relator’s complaint, and not 

require him to pay the costs of the proceedings. For the reasons that follow, we 

sustain Mancino’s objection and dismiss relator’s complaint. 
January Term, 2018 

3

{¶ 5} Mancino represented Michael Jirousek in a criminal action. 

Subsequently, Jirousek’s father, Robert, approached Mancino and told him that 

Miller—a man who had been jailed with Michael Jirousek—wanted to appeal his 

criminal conviction and sentence. Robert Jirousek offered to pay Mancino a $1,000 

flat fee and the costs of Miller’s appeal. Relying on Robert Jirousek’s word and his 

offer of payment, Mancino filed a notice of appeal and a brief on Miller’s behalf 

and identified himself on both as “Attorney for Defendant-Appellant.” Mancino 

later orally argued the case in the court of appeals, which affirmed Miller’s 

conviction and sentence. Robert Jirousek paid Mancino for the representation and 

also paid the costs associated with the appeal. 

{¶ 6} Although the board recognized that Miller had testified at the 

disciplinary hearing that “he had not been harmed in any way” by Mancino’s 

actions and it found that Mancino had acted in good faith on Robert Jirousek’s 

representations that Miller wanted to appeal his conviction, it also found that neither 

Mancino nor Robert Jirousek ever received any direct communication from Miller 

of any type. Ultimately, it was Mancino’s admitted failure to communicate with 

Miller that led the board to find that he violated Prof.Cond.R. 1.2(a), 1.4(a)(1), and 

1.8(f). 

{¶ 7} Despite finding that Mancino committed those ethical violations by 

failing to communicate with his “client,” the board noted that Miller testified at the 

disciplinary hearing that he had been “unaware” of Mancino’s representation of 

him. The board also acknowledged that Miller had signed an affidavit stating that 

Mancino was not his attorney and that Miller had never asked him or anyone else 

to appeal his conviction. Indeed, the board recognized that Miller’s testimony and 

affidavit “could arguably support a dismissal” of two of the violations it found—

those under Prof.Cond.R. 1.2(a) and 1.4(a)(1)—on the ground that no attorneyclient relationship existed. 
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{¶ 8} On these facts, it is obvious that there was no express agreement for 

Mancino to represent Miller. Therefore, if an attorney-client relationship did exist, 

it could have arisen only by implication. We have held that “[a]n attorney-client 

relationship may be created by implication based upon the conduct of the parties 

and the reasonable expectations of the person seeking representation.” Cuyahoga 

Cty. Bar Assn. v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, 

syllabus. 

{¶ 9} In a case in which some of the alleged violations arose in a factual 

context similar to the facts of this case, Disciplinary Counsel v. Mamich, 125 Ohio 

St.3d 369, 2010-Ohio-1044, 928 N.E.2d 691, ¶ 13, we dismissed stipulated 

violations of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.4(a)(3) (requiring a lawyer to 

keep the client reasonably informed about the status of a matter) leveled against an 

attorney who represented a woman in a debt-collection proceeding at the request of 

the woman’s father but without her knowledge or consent. We reasoned that the 

violations of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.4(a)(3) were not established 

because the charges required an attorney-client relationship between the attorney 

and the daughter. Because the daughter was unaware of the case and had no 

reasonable expectation that the attorney was representing her, there was no 

attorney-client relationship, either express or implied, with the daughter. Id. 

{¶ 10} Just as an attorney-client relationship is necessary to establish 

violations of Prof.Cond.R. 1.2(a) and 1.4(a)(1), which require a lawyer to consult 

with a client, abide by the client’s decisions regarding the objectives of the 

representation, and obtain the client’s informed consent, such a relationship is 

necessary to establish a violation of Prof.Cond.R. 1.8(f), which requires a lawyer 

to obtain a client’s informed consent before accepting compensation for the 

representation from someone other than the client. In light of Miller’s testimony 

and averments, however, it is evident that no attorney-client relationship existed 
January Term, 2018 

5

here. Consequently, we reject the board’s findings that Mancino violated 

Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.8(f). 

{¶ 11} We do not condone Mancino’s decision to undertake legal 

representation without making any attempt to communicate with the intended client 

until after the case was decided by the court of appeals. But we are constrained 

from considering whether his conduct violated any other professional-conduct rules 

because the panel unanimously dismissed the balance of the violations alleged in 

relator’s complaint based on the insufficiency of the evidence. See Gov.Bar R. 

V(12)(G); Cincinnati Bar Assn. v. Wiest, 148 Ohio St.3d 683, 2016-Ohio-8166, 72 

N.E.3d 621, ¶ 19, quoting Disciplinary Counsel v. Hale, 141 Ohio St.3d 518, 2014-

Ohio-5053, 26 N.E.3d 785, ¶ 22 (a unanimous dismissal of a count of a complaint 

by a panel of the board “ ‘precludes further review of the dismissal by either the 

board or this court’ ”). 

{¶ 12} Accordingly, we sustain Mancino’s objection and dismiss relator’s 

complaint against him with prejudice. 

Judgment accordingly. 

KENNEDY, FRENCH, PIETRYKOWSKI, and DEWINE, JJ., concur. 

FISCHER, J., concurs, with an opinion joined by O’CONNOR, C.J., and 

O’DONNELL, J. 

MARK J. PIETRYKOWSKI, J., of the Sixth District Court of Appeals, sitting 

for O’NEILL, J. 

_________________ 

FISCHER, J., concurring.

{¶ 13} In this case, the hearing panel of the Board of Professional Conduct 

unanimously dismissed five of the eight alleged disciplinary-rule violations—those 

involving Prof.Cond.R. 1.4(a)(3) (requiring a lawyer to keep the client reasonably 

informed about the status of a matter), 3.3(a)(1) (prohibiting a lawyer from 

knowingly making a false statement of fact or law to a tribunal), 8.1(a) (prohibiting 
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6

a lawyer from knowingly making a false statement of material fact in connection 

with a disciplinary matter), 8.4(d) (prohibiting a lawyer from engaging in conduct 

that is prejudicial to the administration of justice), and 8.4(h) (prohibiting a lawyer 

from engaging in conduct that adversely reflects on the lawyer’s fitness to practice 

law)—for lack of sufficient evidence pursuant to Gov.Bar R. V(12)(G). The per 

curiam opinion, relying on this court’s prior caselaw and Gov.Bar R. V(12)(G), 

concludes that we are constrained from considering the dismissed allegations. 

While I join the per curiam opinion and agree that this conclusion is appropriate 

given the current state of the law, I write separately to express my concerns 

regarding unanimous hearing-panel dismissals under Gov.Bar R. V(12)(G). 

I. Unanimous Hearing-Panel Dismissals Pursuant to Gov.Bar R. V(12)(G)

{¶ 14} Pursuant to Gov.Bar R. V(12)(G), a hearing panel may dismiss a 

count or a complaint that the panel unanimously determines is unsupported by 

sufficient evidence. When less than the entire complaint is dismissed, the hearing 

panel need only include the unanimous dismissal of a count in the body of its report 

to effectuate the dismissal. Cincinnati Bar Assn. v. Fernandez, 147 Ohio St.3d 329, 

2016-Ohio-5586, 65 N.E.3d 724, ¶ 15. 

{¶ 15} When a hearing panel unanimously dismisses counts pursuant to 

Gov.Bar R. V(12)(G), the dismissal order is effectively insulated from any type of 

review. See Disciplinary Counsel v. Maciak, ___ Ohio St.3d ___, 2018-Ohio-544, 

___N.E.3d___, ¶ 20. Reading Gov.Bar R. V(12)(G) in conjunction with Gov.Bar 

R. V(11)(D), V(12)(H), and V(17)(B) compels this conclusion. 

{¶ 16} Gov.Bar R. V(12)(G) provides: 

 If, at the end of the evidence presented by the relator or of 

all evidence, a unanimous hearing panel finds that the evidence is 

insufficient to support a charge or count of misconduct, the panel 

may order on the record or in its report that the complaint or count 
January Term, 2018 

7

be dismissed. If a unanimous hearing panel dismisses a complaint 

in its entirety, the director shall send a dismissal entry to the relator, 

respondent, and all counsel of record.

The rule provides no mechanism for the Office of Disciplinary Counsel or a 

certified grievance committee to submit objections or for the board or this court, 

which has the constitutional duty to oversee the practice of law in this state under 

Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio Constitution, to review a 

dismissed count or a dismissed complaint. 

{¶ 17} In contrast, Gov.Bar R. V(11)(D) permits the Office of Disciplinary 

Counsel or a certified grievance committee to appeal to the full board the decision 

of a probable-cause panel to dismiss a complaint in its entirety. Additionally, 

Gov.Bar R. V(17)(B) permits the parties in a disciplinary case in which this court 

has issued a show-cause order under Gov.Bar R. V(17)(A) to “file objections to the 

findings or recommendations of the Board and to the entry of a disciplinary order 

or to the confirmation of the report on which the order to show cause was issued.” 

{¶ 18} If this court were to deem that a unanimous dismissal of some counts 

pursuant to Gov.Bar R. V(12)(G) could be reviewed by this court, despite the rules 

providing no mechanism for doing so, the explicitly provided mechanisms for the 

filing of appeals and objections pursuant to Gov.Bar R. V(11)(D) and V(17)(B) 

would be rendered superfluous. Thus, Gov.Bar R. V(12)(G)’s lack of a mechanism 

for review demonstrates that appeals and objections from a unanimous hearing 

panel’s dismissal order are not permitted under the rule. See, e.g., Fernandez, 147 

Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724, at ¶ 15 (court declined to entertain 

objections to counts that hearing panel unanimously dismissed in body of its 

report); see also Cuyahoga Cty. Bar Assn. v. Marosan, 109 Ohio St.3d 439, 2006-

Ohio-2816, 848 N.E.2d 837, ¶ 13. 
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{¶ 19} Furthermore, Gov.Bar R. V(12)(H) provides that as an alternative to 

a unanimous dismissal, a hearing panel can refer its findings of fact and 

recommendations for dismissal to the board for review. To permit review by the 

board of unanimous Gov.Bar R. V(12)(G) dismissals would render Gov.Bar R. 

V(12)(H) superfluous. For these reasons, I agree with the conclusion stated in the 

per curiam opinion that a count that is unanimously dismissed by a hearing panel 

is currently precluded from review by the board or by this court. See also Maciak, 

___ Ohio St.3d ___, 2018-Ohio-544, ___N.E.3d___, at ¶ 20; Fernandez at ¶ 14-15; 

Cincinnati Bar Assn. v. Wiest, 148 Ohio St.3d 683, 2016-Ohio-8166, 72 N.E.3d 

621, ¶ 19; Disciplinary Counsel v. Hale, 141 Ohio St.3d 518, 2014-Ohio-5053, 26 

N.E.3d 785, ¶ 22; Disciplinary Counsel v. Doellman, 127 Ohio St.3d 411, 2010-

Ohio-5990, 940 N.E.2d 928, ¶ 31; Marosan at ¶ 13; Columbus Bar Assn. v. 

Dougherty, 105 Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094, ¶ 9. 

II. Issues for this Court

{¶ 20} Under Gov.Bar R. V(12)(G), we are precluded from reviewing 

counts that are unanimously dismissed by hearing panels. The practical 

consequences of this preclusion, however, present at least three serious obstacles to 

this court’s performance of its duties. 

{¶ 21} First, this court is constitutionally required to regulate all matters 

related to the practice of law. Article IV, Section 2(B)(1)(g), Ohio Constitution. 

Although this court has original jurisdiction in such matters, Gov.Bar R. V(12)(G) 

precludes this court from acting as the final arbiter of these matters related to 

attorney discipline despite our caselaw making clear that the responsibility is 

uniquely ours. See Cincinnati Bar Assn. v. Heitzler, 32 Ohio St.2d 214, 220, 291 

N.E.2d 477 (1972) (this court makes the ultimate conclusion “as to the facts and as 

to the action, if any, that should be taken” in disciplinary cases); Lorain Cty. Bar 

Assn. v. Johnson, 151 Ohio St.3d 448, 2017-Ohio-6869, 90 N.E.3d 837, ¶ 19 (this 

court is the final arbiter of misconduct in disciplinary cases even though we 
January Term, 2018 

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ordinarily defer to the expertise of the board and the panel and their first-hand 

observation of witness testimony); Gov.Bar R. V(2)(B) (the board’s hearing 

authority is that it shall “submit recommendations” to this court). 

{¶ 22} Second, the primary purpose of the disciplinary process is to protect 

the public from lawyers who are unworthy of the trust and confidence essential to 

the attorney-client relationship. Disciplinary Counsel v. Agopian, 112 Ohio St.3d 

103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10. But when a count is unanimously 

dismissed by a hearing panel for insufficient evidence under Gov.Bar R. V(12)(G), 

this court’s hands are tied and we are unable to exercise our constitutional authority. 

See Maciak, ___ Ohio St.3d ___, 2018-Ohio-544, ___N.E.3d___, at ¶ 20 (“Review 

of the dismissed counts, for any reason, is not permitted”). 

{¶ 23} Third, if a hearing panel erroneously applies the professionalconduct rules to the facts or errs in interpreting the elements of a disciplinary rule 

that the attorney has allegedly violated and unanimously dismisses some counts 

based on that misinterpretation, we cannot revive the dismissed counts even though 

the dismissals would not have occurred but for the legal error. 

{¶ 24} Here, we are presented with a situation in which an attorney who did 

not represent an individual filed, on behalf of that individual, a brief stating to a 

court that he was in fact the individual’s attorney. The hearing panel found 

violations that were based on the existence of an attorney-client relationship and 

unanimously dismissed some other counts that were arguably supported by the facts 

of this case regardless of whether an attorney-client relationship existed. On 

review, we recognize that the hearing panel and the board erred in recommending 

that we find that the attorney committed violations that were based on an attorneyclient relationship, because it is evident that the attorney did not have an attorneyclient relationship with the individual. Therefore, we cannot agree with the board 

that the attorney violated those particular professional-conduct rules. 
SUPREME COURT OF OHIO

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{¶ 25} But the attorney’s conduct, despite the lack of an attorney-client 

relationship, arguably violated several professional-conduct rules, most notably 

Prof.Cond.R. 3.3(a) and 8.4(h); the counts concerning those rules, however, were 

unanimously dismissed by the hearing panel, and the board and this court are 

precluded from reviewing them. Had the hearing panel properly discerned the lack 

of an attorney-client relationship, it may not have unanimously dismissed those 

counts for lack of sufficient evidence. Regrettably, we cannot revive or review 

those dismissed counts, and our responsibility to protect the public from the 

attorney’s possible misbehavior has been thwarted. 

III. Conclusion

{¶ 26} The practice of hearing panels unanimously dismissing counts based 

on insufficient evidence—which most often occurs after a hearing is already over—

may, on some occasions, expedite the disciplinary process, but the practice allows 

for legal mistakes to sometimes be made that this court is never able to correct. A 

hearing panel should not have the power to totally insulate its own possible errors 

from review; rather, this court should and constitutionally must be in a position to 

bear the burden as the ultimate arbiter of attorney discipline. Given the restraints 

that have been placed on this court’s ability to review Gov.Bar R. V(12)(G) 

unanimous dismissals, I caution hearing panels against easily and unanimously 

dismissing counts based on a lack of sufficient evidence, especially in cases in 

which the complexities make it difficult to determine exactly which rules an 

attorney may have violated, as inherently shown by the situation in this case. I also 

encourage this court to review Gov.Bar R. V(12)(G) and determine whether 

amending the rule would allow us to better protect the public. 

{¶ 27} I agree with the majority on the application of the current law to this 

case, and I therefore join the per curiam opinion. Nonetheless, I feel compelled to 

highlight the consequences of an erroneous, but unanimous, hearing-panel 

dismissal of some counts of a complaint under Gov.Bar R. V(12)(G). Under the 
January Term, 2018 

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current rules and our precedents, which we created, an attorney may go unpunished 

for his misconduct—and the public will remain unprotected—in a situation in 

which the panel, the board, and this court agree that an attorney has violated one or 

more of the professional-conduct rules but disagree on which specific rule or rules 

the attorney has violated. 

 O’CONNOR, C.J., and O’DONNELL, J., concur in the foregoing opinion. 

_________________ 

Scott J. Drexel, Disciplinary Counsel, and Michelle R. Bowman, Assistant 

Disciplinary Counsel, for relator. 

Mancino Co., L.P.A., and Brett M. Mancino, for respondent. 

_________________