(1131 Respondei7t's misconduct can be summarized as engaging in a practice of

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1 BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF. THE SUPREME COURT OF OHIO In re: Complaint against Ben Musa Swift Attorney Reg. No Dayton Bar Association.,^. t.,s>.. `,., ^. r^i1.., j.. 3 Case No Findings of Fact, Conclusions of Law, and :Reeoxnmendation of the Boarof Commissioners on Griev nces and Discipline of the Suiureme Court of Ohio.....^_.ilfts^ '}" ^t f.l.ii^^3, 1,)t^ 0 %^^i OVERVIEW { 1} This matter was heard on September 16, 2013, in Columbus before a panel consisting of Judge John'Nise, John A. Polito, and Willia.m J. Novak, chair. None of the panel members resides in the district from which the complaint arose or served as a member of a probable cause panel that reviewed the complaint pursuant to Gov. Bar R. V, Section 6(D)(1). { 2} Respondent was represented by Gary J. Leppla. Mark R. Chilson appeared on behalf of Relator, (1131 Respondei7t's misconduct can be summarized as engaging in a practice of overbilling while acting as court-appointed counsel for the juvenile and general divisions in Montgomery County, Greene County, Clark County, and Warren County. For a one-year period commencing March 2008 and ending in February 2009, Respondent collected $142,945 through the public defender system for court appointed work, billing a grand total of 3,315.5 hours. {^4} Following the filing of the complaint, Respondent filed an answer on April 1, 2013.

2 { 5} Evidence was presented by way of stipulations, exhibits which included a spreadsheet of the billable hours of Respondent, the deposition of Gregory Thomas Scott, and the testimony of Respondent, Timothy Young, Director of the Office of the State Public Defender, Judge Anthony Capizzi, Montgomery County Juvenile Court Judge, and Dionne Swift, wife of Respondent. All of the exhibits were admitted into evidence. { 6} In addition, Respondent stipulated to the following violations as charged in the complaint: Prof. Cond. R. 4.1(a) [false statement of material fact or law to a third person]; Prof Cond. R. 8.4(c) [conduct involving dishonesty, fraud, deceit, or misrepresentation]; Prof. Cond. R. 8.4(d) [conduct that is prejudicial to the administration of justice]; and Prof. Cond. R, 8.4(h) [any other conduct that adversely reflects on the lawyer's fitness to practice law]. { 7} Respondent did not stiptalate to any specific aggravating or mitigating factors pursuant to BCGD Proc. Reg. 10(B)(l) and (B)(2). {^8} The panel accepts all stipulations of the parties with the exception of'[i^25 and 26 of the agreed stipulations. { 9} At the conclusion of the hearing, Relator and Respondent were asked to provide the panel with briefs outlining their respective positions on sanctions. Relator reconunended that Respondent be suspended from the practice of law for two years, with one year stayed on the condition that he submit to a one-year monitored probation, commit no further ethical violations, and that he enter into a restitution repaymeiat plan of $50,000. Respondent, on the other hand, recommended a fully stayed suspension or a public reprimand as well as a restitution plan similar to Relator. This panel accepts the recommendation of Relator that Respondent be suspended from the practice of law for two years, with one year stayed, that he be monitored in the area of law office management, and that Respondent commits no further ethical violations. 1-lowever, this panel does 2

3 not accept the payment plan recommended by both parties. Instead, th.is panel requires that Respondent make full restitution in the stipulated amount of $50,000. FINDINGS OF FACT AND CONCLUSIONS OF LAW { 10} Respondent Ben M. Swift was admitted to the practice of law in the State of Ohio on November 6, Respondent is the subject to the Rules of Professional Conduct and the Rules for the Government of the Bar of Ohio. { l l.} Respondent is a solo practitioner in Dayton and maintains a private practice that includes court-appointed client representation in the juvenile and general divisions of the court of common pleas primarily in Montgomery County. 11^112} Respondent was born in Erie, Pennsylvania and moved to Winston-Salem, North Carolina when he was eight years old. Respondent graduated from Pine Forge Academy, which is outside Philadelphia, and went to Oakwood College in Huntsville, Alabama. Upon graduation from law school, he was hired by the Montgomeiy County Prosecutor's Office and worked there from 1995 through Respondent then worked at the Montgomery County Public Defender's Office from 1998 through In 2001, Respondent went into private practice. Respondent has been married to Dionne for 18 years. { 13} In affidavits provided by Judge Michael Tucker, the Court of Common Pleas, Montgomery County, Ohio; Judge Michael T. Hall, Second District Court of Appeals; Judge James L. Flannery, Warren County Court of Common Pleas; and Judge Nick Kuntz, the Montgomery County Juvenile Court, Respondent is described as an extremely competent and caring lawyer who provides a valuable service in the community, particularly as one of the few African-American attorneys who can be appointed to represent or who privately represents F-I and F-2 defendants.

4 { 14} Respondent was charged in the coinplaintwith m.iscoariduct in violation of the following: Prof. Cond. R. 3.3(a)(1) [a lawyer shall not make a false statement of fact or law to a tribunal or failure to correct a false statement of material fact or law previously made to the tribunal by the lawyer];; Prof. Cond. R. 4.1(a); Prof. Cond. R. 8.4(b) [an illegal act that reflects adversely on the lawyer's honesty or trustworthiness]; Prof. Cond. R. 8.4(c); Prof Cond. R. 8.4(d) ; and Prof. Cond. R.8.4(h). {^15} This matter came to the attention of Relator as the result of an article published in the Dayton Daily News on March 7, 2010 titled, "Dayton Attorney Highest-Paid In Ohio For Court Appointments," following release of a statewide list naming dozens of attorneys performing high hours in court-appointed legal work. This article led to an investigation of Respondent by Relator. (1115) In submitting fee bills for court-appointed work, Respondent used a form generated by the Office of the State Public Defender that is produced both online and available hard copy. It includes spaces for all of the inforrnation about a case including, but not limited to, biographical and socio-economic data. 4'here is also a place for time entry in tenns of hours worked on a particular matter and a place for signature for submission to the appropriate court for approval. { 17} T'he courts rely upon the trustworthiness and integrity of the lawyer in providing accurate billing information. { 18} Once the bill. is approved by a judge, the county auditor issues a warrant for payment to the lawyer which is submitted to the State Office of the Public Defender. That office then reimburses all of the counties based upon a percentage that is funded by the General Assembly each year. The State Office of the Public Defender also relies upon the 4

5 trustworthiness and integrity of the lawyer in providing accurate infornnation regarding the time and billing submitted. { 191 As a court-appointed lawyer, Respondent was paid for work performed at the rate of $50 per hour for in-court work and $40 per hour for out-of-court work for Montgomery County, Ohio Juvenile Court. {1(20} An audit of Respondent's billable hours for work he submitted for payment as a court-appointed attorney in juvenile and general division courts resulted in the discovery that Respondent's billings were extraordinarily high, including billings between 14 and 30 hours per day on numerous occasions between September 28, 2007 and July 27, {T21} In 2007, Respondent billed hours for work he certified that he in fact performed as a court-appointed attorney in juvenile and general division courts of Montgomery County, Ohio, earning $20,505. However, Respondent billed 694 hours for work he certified that he in fact performed as a court-appointed attorney in juvenile and general courts of Clark, Greene, Montgomery, and Warren Counties combined earnings of $32,330. { 22} In 2008, Respondent billed 2,555.5 hours for work he certified that he in fact performed as a court-appointed attorney in juvenile and general division courts of Montgomery County, Ohio, resulting in billings of $110,040. However, Respondent billed 2,967 hours for work he certified that he in fact performed as a court-appointed attorney in juvenile and general courts of Clark, Greene,lVlontgomery, and Warren Counties combined earnings of $ { 23} In 2008, Respondent averaged 213 billable hours per month for work he certified that he in fact performed as a court-appointed attorney in juvenile and general division courts of Montgomery County, Ohio, with a one-month high of 274 billable hours in February 2008, and 5

6 323.5 billable hours in juvenile and general courts of Clark, Greene, Montgomery, and Warren counties combined. { 24} In 2008, Respondent averaged seven billable hours per days, for 365 days for work he certified that he in fact performed as a court-appointed attorney in juvenile and general division courts of Montgomery County. Respondent averaged 8.12 billable hours per day, for 365 days, for work he certified that he in fact performed as a court-appointed attorney in juvenile and general division courts of Clark, Greene, Montgomery, and Warren Counties combined. { 25} In 2009, Respondent billed 1,580.5 hours for work he certified that he in fact performed as a court-appointed attorney in juvenile and general division courts of Montgomery County, earning $69,555. Respondent billed 1,883 hours for work he certified that he in fact performed as a court-appointed attorney in juvenile and general division courts of Clark, Greene, Montgomery, and Warren Counties combined earnings of $86,105. { 26} Respondent has failed to maintain independent time records for himself or for attorneys he allegedly supervised. Respondent has failed to provide documentation in support of the subject hours he has billed and acknowledges that the subject time billings he submitted were unsupportable by evidence. {1[27} In fact, Respondent acknowledged that he did not keep any records at all. { 28} Respondent acknowledged wrongdoing in subtnitting inaccurate billing records to the courts and realized that his conduct undermined the confidence in the court-appointed lawyer system because of his wrongful acts. {1[29} Respondent acknowledged it was his responsibility as a licensed attorney in the State of Ohio to submit accurate information to a court and that he failed in his responsibility. 6

7 {jj30} Respondent has failed to adhere to the Ohio Public Defender Standards and Guidelines for Appointed Counsel Reimbursement, promulgated pursuant to Chapter 120. of the Ohio Revised Code, by his routine practice of billing a minimum of 0.5 hour per task or a combination of whole and half hours, The Ohio Public Defender Standards and Guidelines for Appointed Counsel Reimbursement Section I(F)(1) states, "The itemization of hours spent incourt and out-of-court by the attorney is required on every Motion, Entry, and Certification form submitted. Ilours must be itemized on all forms in tenth of an hour (6 minute) increments," Relator's Ex. 4, [emphasis in original]. {T31} Respondent's conduct, as stated above, violated Section I(F)(I) of the Ohio Public Defender Standards and Guidelines for Appointed Counsel Reimbursement, promulgated pursuant to Chapter 120. of the Ohio Revised Code. IT32} The panel finds by clear and convincing evidence through exhibits, stipulations, and testimony that Respondent violated the following: Prof. Cond. R. 3.3(a)(1); Prof. Cond. R. 4.1 (a); Prof. Cond. R. 8.4(c); Prof. Cond. R. 8,4(d); and Prof. Cond. R. 8.4(h). {l^33} Relator did not prove by clear and convincing evidence that Respondent violated Prof, Cond. R. 8.4(b), therefore that count is dismissed. AGGRAVATION,IVIITIGATIONs AND SANCTION Based upon the stipulations, exhibits and testimony adduced at the hearing, the panel finds the following aggravating factors: (1) Respondent acted with a dishonest or selfish motive; (2) Respondent had a pattem of misconduct; (3) Respondent engaged in multiple offenses; and (4) Respondent failed to make restitution, 35} Based upon the stipulations, exhibits and testimony adduced at the hearing, the panel finds the following mitigating factors: (1) absence of a prior disciplinary record; (2) full and free 7

8 disclosure to disciplinary board or cooperative attitude toward proceedings; and (3) evidence of character and reputation. {' 36} There is no question Respondent engaged in excessive billing to multiple counties in court-appointed cases that undermined the integrity of the court-appointed system. In addition, that conduct reflected adversely on the individuals assigned the responsibility for administering that system. t^-vhile the courts and the State Public Defender's Office relied upon the integrity and trustworthiness of Respondent, he submitted inaccurate billings that caused him to be the highest paid court-appointed lawyer in the State of Ohio for a term {137} In deter.rn.ining whether or not a sanction is appropriate for Respondent's misconduct, all relevant factors must be considered including the duties ofrespondent, the violations incurted, and the sanctions imposed in szmilar cases. ^S'tark Cty. Bar Assn, v. Buttacavola, 96 Ohio St.3d 424, 2002-Ohio We therefore direct our attention to a recent 2010 case involving similar misconduct which took place in Lucas County, Toledo Bar Assn. v. S'tahlbush, 126 Ohio St.3d 366, 2010-Ohio The Court in that case viewed such excessive billing practices as tantamount to misrepresentation and disba.rment as the presumptive sanction. As in SStahlbush, Respondent had a number of days in which he billed in excess of 24 hours. As in S'tahlbush, Respondent had a number of days in which he billed more than 20 hours, but less than 24 hours. As in Stahlbush, Respondent's billings exceeded 3,300 hours for a year. Vilhile the Court in Stahlhush was concerned about overburdening a system designed to aid the poorest members of society, it also recognized Respondent's reputation and lack of a prior disciplinary record as mitigating factors. The sanction rendered was a two-year suspension, with one year stayed on conditions. 8

9 { 38} For the foregoing reasons, and taking into account the aggravating and mitigating factors, the panel recommends that Respondent's license to practice law be suspended for two years, with one year stayed on conditions that: (1) Respondent subm.its to a one-year monitored probation in the area of law office management; (2) that Respondent commits no further ethical violations; and (3) that full restitution be made in the stipulated amount of $50,000 to the following entities in the following percentages stipulated by the parties (Stipulations at 26): State of Ohio 40%; Montgomery County 43.8%; Greene County 5.4%; Clark County 0.6%o; and Warren County 10.2%. BOARD RECOMMENDATION Pursuant to Gov. Bar R. V, Section 6, the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio considered this matter on December 12, T'he Board amended thefindings of fact and conclusions of law to dismiss the alleged violation of Prof. Cond. R. 8.4(h) based on the Board's determination that Respondent's conduct was not sufficiently egregious as to merit the finding of that alleged violation [see Disciplinary Counsel v. Bricker, 2013-Ohio-3998, 21 ], and adopted the amended findings of fact and conclusions of law. The Board further adopted the sanction recommended by the panel and recommends that Respondent,l3en Musa Swift, be suspended from the practice of law in Ohio for two years, with one year stayed on the conditions contained in ^(38 of this report. The Board further recommends that the costs of these proceedings be taxed to Respondent in any disciplinary order entered, so that execution may issue. 9

10 Pursuant to the order of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio, I hereby certify the foregoing Findings of Fact, Conclusions of Law, and Recommendation as those of the Boaa-d..,-.^ IZICHA OVE, Secretary 10