Attorney Accused of Charging Excessive Fees While Acting as Agent Under a POA Receives Two-Year Stayed Suspension

Ohio's highest court stays the two-year suspension of an attorney with a long, unblemished career who acted as his client's agent under a power of attorney while charging the same rate for legal and non-legal services and filed a declaratory judgment action against the client and others, seeking legal fees. Disciplinary Counsel v. Harmon (Ohio, No. 2018-0817, Oct. 15, 2019).

Attorney Phillip Harmon drafted an estate plan for his former diving coach and friend, Donald Harper and his wife. After Mr. Harper was diagnosed with dementia and living in a care facility, he and his wife decided to divorce, and Mr. Harmon represented Mr. Harper despite the possibility of a conflict of interest. Mr. Harper signed a power of attorney naming Mr. Harmon as his agent and then paid Mr. Harmon for performing non-legal and legal matters -- including visiting with Mr. Harper, taking him to the gym, and making sure he took his medications -- at the same rate of $200 an hour. Mr. Harper abruptly left Ohio to move to Colorado where his daughter lived. Mr. Harmon suspected undue influence, but Mr. Harper signed a statement saying he left voluntarily and that he no longer wanted Mr. Harmon to represent him. Despite that notice, Mr. Harmon sought to resolve the divorce and receive attorney's fees for his work. He filed a petition for declaratory judgment against everyone involved, asking for nearly $30,000 in legal fees.

After another attorney filed a grievance against Mr. Harmon, he voluntarily reduced his proposed fees. The disciplinary board found Mr. Harmon violated professional rules of conduct related to representing a client with a conflict of interest, charging an excessive fee, bringing a proceeding that is unsupported by law, among other things. The board recommended a two-year suspension. Mr. Harmon argued that bringing the declaratory judgment action was not a violation of the rules of professional conduct and that his fee was not excessive because he charged a lower rate than his legal rate for both legal and non-legal services.

Ohio Supreme Court finds that Mr. Harmon violated rules of professional misconduct and suspends Mr. Harmon for two years, but the court stays the suspension. The court finds that the declaratory judgment action violated the rules because the action was intended to collect fees and harass Mr. Harper's daughter, not to protect his client. The court also finds Mr. Harmon charged excessive fees because even if he charged a lower rate, he charged the same fee for legal and non-legal services. While the court agrees with the two-year suspension, the court finds that Mr. Harmon had no other disciplinary matters over the course of his 40-year career and his emotional involvement clouded his judgment. The court stays the suspension provided that Mr. Harmon engage in no more misconduct and provide restitution.

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