[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 De cisions, 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.

S LIP O PINION N O . 2018-O HIO -3017
D ISCIPLINARY C OUNSEL v . M ANCINO . [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 relations hip existed, the finding of a violation cannot be accepted—When a panel of the Board of Professional Conduct unanimously dismisses a count of a di sciplinary 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.)
O N C ERTIFIED R EPORT by the Board of Professi onal Conduct of the Supreme Court, No. 2016-074.

__________________S UPREME C OURT OF O HIO

2 Per Curiam. {¶ 1} Respondent, Paul Anthony Mancino Jr ., of Cleveland, Ohio, Attorney Registration No. 0015576, was admitted to th e practice of law in Ohio in 1963. {¶ 2} On December 6, 2016, relator, discip linary counsel, filed a complaint in which he alleged that Mancino violat ed eight Rules of Pr ofessional Conduct by filing and prosecuting an appeal of Raymond Miller’s criminal conviction and accepting compensation for that appeal fr om 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 eviden ce. But the panel found that Mancino’s conduct violated Prof.Cond.R. 1.2(a) (requiri ng a lawyer to abide by the client’s decisions concerning the objectives of repr esentation 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 ha ve 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 th e board’s findings of misconduct
cannot stand because there can be no vi olation of Prof.Cond.R. 1.2(a), 1.4(a)(1), and 1.8(f) in the absence of an attorney-clie nt relationship. He therefore urges us to reject the board’s findings of misconduc t, 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 Ji rousek 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 “Attorn ey 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 th at 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 act ed in good faith on Robert Jirousek’s representations that Miller wanted to appe al 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 dismi ssal” 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.S UPREME C OURT OF O HIO

4 {¶ 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 implica tion based upon the conduc t 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 a lleged 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 knowledg e 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 ex press 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 requi re a lawyer to consult with a client, abide by the client’s decisions regarding the objectives of the representation, and obtain the client’s info rmed 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 existedJanuary Term, 2018

5 here. Consequently, we reject the bo ard’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 violat ed 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 furthe r 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.
K ENNEDY , F RENCH , P IETRYKOWSKI , and D E W INE , JJ., concur.
F ISCHER , J., concurs, with an opinion joined by O’C ONNOR , C.J., and
O’D ONNELL , J.
M ARK J. P IETRYKOWSKI , J., of the Sixth District Court of Appeals, sitting
for O’N EILL , J.

_________________ F ISCHER , 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 matte r), 3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal), 8.1(a) (prohibitingS UPREME C OURT OF O HIO

6 a lawyer from knowingly making a false stat ement 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 refl ects on the lawyer’s fitness to practice law)—for lack of sufficient evidence pursu ant to Gov.Bar R. V(12)(G). The per curiam opinion, relying on this court’s pr ior 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 Dismissa ls 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 dismis sal 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 countJanuary Term, 2018

7 be dismissed. If a unanimous h earing 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 th e 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 re viewed by this court, despite the rules providing no mechanism for doing so, the explicitly provided mechanisms for the filing of appeals and objections pursuan t 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.S UPREME C OURT OF O HIO

8 {¶ 19} Furthermore, Gov.Bar R. V(12)(H) provides that as an alternative to a unanimous dismissal, a hearing pane l 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 ag ree 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, pr esent 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 jurisdic tion 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 C incinnati Bar Assn. v. Heitzler , 32 Ohio St.2d 214, 220, 291 N.E.2d 477 (1972) (this court makes the ultima te conclusion “as to the facts and as to the action, if any, that should be taken” in di sciplinary 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 weJanuary Term, 2018

9 ordinarily defer to the expertise of th e board and the panel and their first-hand
observation of witness tes timony); 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 di sciplinary 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 errone ously applies the professionalconduct rules to the facts or errs in interp reting the elements of a disciplinary rule that the attorney has allegedly violated and unanimously dismisses some counts based on that misinterpretati on, we cannot revive the dismissed counts even though
the dismissals would not have oc curred but for the legal error. {¶ 24} Here, we are presented with a situa tion in which an attorney who did

not represent an individual file d, on behalf of that indivi dual, a brief stating to a
court that he was in fact the indivi dual’s attorney. The hearing panel found
violations that were based on the existen ce of an attorney-client relationship and unanimously dismissed some other counts th at 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 recommendingthat 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 pa rticular professional-conduct rules.S UPREME C OURT OF O HIO

10 {¶ 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 pa nel, and the board and this court are precluded from reviewing them. Had the h earing panel properly discerned the lack of an attorney-client relationship, it ma y not have unanimously dismissed those counts for lack of sufficient evidence. Regrettably, we cannot revive or review those dismissed counts, and our responsib ility to protect the public from the attorney’s possible misbehavior has been thwarted.
III. Conclusion {¶ 26} The practice of hearing panels una nimously 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 suffi cient evidence, especially in cases in which the complexities make it difficult to determine exactly which rules an attorney may have violated, as inherently s hown by the situation in this case. I also encourage this court to review Gov.B ar 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 er roneous, but unanimous, hearing-panel
dismissal of some counts of a complaint under Gov.Bar R. V(12)(G). Under theJanuary Term, 2018

11 current rules and our precedents, which we created, an attorney may go unpunished for his misconduct—and the public will re main unprotected—in a situation in which the panel, the board, and this court ag ree that an attorney has violated one or more of the professional-c onduct rules but disagree on wh ich specific rule or rules the attorney has violated.
O’C ONNOR , C.J., and O’D ONNELL , 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.

_________________