By Samson Habte
• Lawyer suspended after taking farmland worth $135,000 as payment for work that would have netted $9,000 under hourly fee arrangement
• Disciplinary sanction adds to woes of Ohio attorney, who incurred felony conviction for same conduct
• Lawyer does escape civil liability, defeating client’s prior malpractice case on statute of limitations grounds
A lawyer who convinced a client facing drug charges to transfer ownership of land worth $135,000 as payment for representing her in a case that ultimately required just 40 hours of work was indefinitely suspended by the Ohio Supreme Court Nov. 29.
The decision highlights the risks of accepting property in lieu of money when negotiating fee arrangements with prospective clients who are land-rich, cash-poor, and in dire straits (Disciplinary Counsel v. Bucio, 2017 BL 425430, Ohio, No. 2017-0800, 11/29/17).
The respondent, Christopher R. Bucio, was charged with violating Ohio’s version of Model Rule 1.8(a), which requires lawyers to make a series of disclosures before entering into a business transaction with a client.
Ethics rules don’t forbid lawyers from accepting property in lieu of cash. But the per curiam order adds to a long line of cases in which courts have found that such arrangements typically constitute business transactions with clients—and are therefore subject to the exacting requirements of Rule 1.8(a).
The disciplinary proceeding was triggered by a bitter dispute that spanned seven years and also generated a malpractice lawsuit and criminal charges against Bucio.
Bucio escaped liability in the malpractice action, which was dismissed on statute of limitations grounds—but was convicted of a fourth-degree felony, “unauthorized use of property,” Ohio Rev. Code § 2913.04(A), in the parallel criminal case.
The ruling here saddled Bucio with yet another sanction: an indefinite suspension from practice, coupled with a prohibition on petitioning for reinstatement until he completes a “five-year community-control sanction” imposed as part of his criminal sentence.
Ohio’s Short SOL for Legal Malpractice
Bucio’s ability to defeat the parallel malpractice case that his client filed was attributable, in part, to the fact that Ohio has one of the shortest statutes of limitations for legal malpractice claims.
In 2015, the Primerus Defense Institute published A Survey of the Law of Legal Malpractice, highlighting state-by-state variations in the treatment of professional negligence claims against attorneys.
That compendium indicates that Ohio is just one of a handful of states where legal malpractice claims must be filed within one year after the cause of action accrues. Other states with one-year limitations periods include California, Kentucky, Louisiana, and Tennessee.
Bucio’s travails were tied to a fee arrangement he worked out in 2010 with Linda Heuker, who needed a lawyer after authorities discovered a marijuana-growing operation in her basement.
When Bucio visited Heuker in jail, she told him she didn’t have enough cash to cover his fee but would be willing to sell a 22-acre parcel of farmland to pay for the representation.
Bucio then “suggested that she transfer the property to him” and said that “he would take care of the details,” the court said.
The retainer the parties executed, which was detailed in an opinion dismissing Heuker’s parallel legal malpractice suit, made it clear that Bucio was acquiring full title to the land, which his law firm ultimately sold for $135,000—a sum that far exceeded the $9,000 that Bucio conceded he would have been paid if Heuker had paid him on an hourly basis.
Heuker believed she “was putting my land up for like a lien … it would pay for my legal fees, and whatever was left I would get back.”
Bucio pointed to the clear language in the retainer in defending himself against the grievance, but his clever draftsmanship didn’t insulate him from disciplinary liability.
The Ohio Supreme Court, applying a fairly well-settled principle, deemed the land-for-fee arrangement a business transaction with a client and concluded that Bucio failed to comply with an ethics rules that requires lawyers to make a series of disclosures before entering into such transactions.
Client Protective Rule
“Before entering into the transaction, Bucio failed to comply with the professional-conduct rule designed to protect a client against his or her attorney’s potential overreaching when the attorney enters into a business transaction with the client,” the court said, referencing Ohio’s version of Model Rule 1.8(a).
“For example, Bucio failed to fully disclose in writing the terms on which he was acquiring an interest in Heuker’s property, he failed to advise her of the desirability of seeking independent legal counsel before entering into the transaction or give her a reasonable opportunity to seek such advice, and he failed to obtain her informed consent to the essential terms of the transaction and his role in it,” the court said.
After the representation, Heuker repeatedly attempted to contact Bucio to inquire about the remaining proceeds from the sale that she believed she was entitled to, the court said.
But Bucio dodged Heuker’s phone calls and “cancelled appointments that she had made with his staff,” the court said. By doing so, Bucio violated Rule 1.4(a)(3), which requires lawyers to keep clients apprised about the status of a matter.
‘Clearly Excessive Fee’
When Heuker finally connected with Bucio, the lawyer “informed [her] of his position that she was not entitled to any portion of the farmland’s sale proceeds because he had accepted the land as a flat fee for representing her in the criminal case.”
“Bucio later acknowledged, however, that he spent only about 40 hours working on Heuker’s case and that if he had charged his hourly rate of $225, he would have received $9,000 for the representation,” the court said.
After making that concession Bucio agreed to stipulate that he “collected a clearly excessive fee” in violation of Rule 1.5(a), the court said.
Restitution and Mitigation
Bucio ultimately agreed to pay Heuker $97,767 in restitution, according to the opinion.
That decision—along with other mitigating factors, such as the fact that Bucio suffered other penalties in his criminal case—weighed “against the presumptive sanction of disbarment,” the court said.
Disciplinary Counsel Scott J. Drexel, Chief Assistant Disciplinary Counsel Joseph M. Caligiuri, and Assistant Disciplinary Counsel Karen H. Osmond, Columbus, Ohio, represented their office.
Bucio was represented by Charles J. Kettlewell, Columbus, and David Carr Greer of Bieser Greer & Landis LLP, Dayton, Ohio.
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