[Cite as Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457.]
DISCIPLINARY COUNSEL v. CICERO.
[Cite as Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457.]
Attorney misconduct, including communicating information received from a
prospective client to a third party—One-year suspension.
(No. 2012-0278—Submitted September 11, 2012—Decided November 28, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-055.
__________________
LANZINGER, J.
{¶ 1} Respondent, Christopher T. Cicero of Columbus, Ohio, Attorney
Registration No. 0039882, was admitted to the practice of law in Ohio in 1988.
On June 13, 2011, relator, disciplinary counsel, filed a complaint with the Board
of Commissioners on Grievances and Discipline. The complaint charged Cicero
with professional misconduct based on his communicating information that he
had received from a prospective client to a third party. Relator alleged that
Cicero’s conduct violated Prof.Cond.R. 1.18 (prohibiting a lawyer from using or
revealing information learned during discussions with a prospective client) and
8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on
the lawyer’s fitness to practice law).
{¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline heard testimony, reviewed the evidence, and made findings of fact and
conclusions of law. The panel concluded that Cicero had violated Prof.Cond.R.
1.18 and 8.4(h) and recommended that this court suspend his license to practice
law in Ohio for six months. The board adopted the panel’s findings and
recommended sanction, and further recommended that the costs of the
proceedings be taxed to Cicero.
SUPREME COURT OF OHIO
{¶ 3} Cicero filed objections to the board’s report. For the reasons that
follow, we overrule those objections, accept the board’s findings of fact and
misconduct, and suspend Cicero from the practice of law in Ohio for one year.
Misconduct
Factual Background
{¶ 4} On April 1, 2010, federal law enforcement officials raided Edward
Rife’s house and seized $15,000 to $20,000 worth of Ohio State University
football memorabilia as part of a drug-trafficking investigation. Rife testified that
on April 2, the day after the raid, he and Joseph Epling, a former partner in Rife’s
tattoo business, met with Cicero to discuss his criminal case. Cicero and Epling
testified before the panel and denied that an April 2 meeting occurred, but both
testified that Cicero and Epling had a phone conversation on April 1 during which
they discussed the raid on Rife’s home.
{¶ 5} On the afternoon of April 2, Cicero sent an e-mail to Jim Tressel,
who was then the head coach of the Ohio State University football team. In the e-
mail, Cicero alerted Tressel to a possible association between Rife and team
members and provided general information about Rife’s background and the raid
on Rife’s home.
{¶ 6} Rife retained Stephen Palmer to represent him in the criminal case,
and Palmer discussed a possible plea deal and ten-year prison sentence with Rife.
Rife testified that he became unsatisfied with Palmer and scheduled another
meeting with Cicero to discuss his case. This meeting took place on April 15.
Although Cicero denies giving any legal advice, the panel found that Cicero did
express legal opinions during this meeting. First, the panel found that Cicero
assured Epling, who was also present at the meeting, that he did not need to hire a
lawyer. The panel believes Cicero gave this advice to clear away any potential
conflict so he could represent Rife. Second, Cicero admitted that he advised Rife
that he could not get the Ohio State memorabilia back if the federal government
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believed that Rife had purchased it using drug money. This was advice that the
panel considered to be of a legal nature and within the particular expertise of a
criminal-law attorney. Third, Cicero testified that he told Rife that a person in
Rife’s situation faces two choices: “You either can sit in the county jail for a long
period of time, or you can start cooperating with the federal government and
become a snitch.” Rife testified that although he never specifically asked for the
information he gave at the April 15 meeting to be kept confidential, he assumed
that it would be. He never gave Cicero permission to reveal to Tressel any
information discussed. The panel found that Cicero should have treated the
information from Rife as confidential, but instead, he planned to forward the
information he learned to Tressel, and he did not disclose to Rife this intent.
{¶ 7} On the morning of April 16, Cicero sent a second e-mail to Tressel.
As the e-mail reveals, Cicero revealed specifics of Rife’s case that he had learned
the previous day:
I had Eddie Rife in my office for an hour and a half last
night.
What I tell you is confidential.
He told me [a former player] gave him some type of
MVP trophy—but I dont [sic] know the year.
He told me he has about 15 pairs of cleats (with
signatures), 4-5 jerseys—all signed by players, the 2009 Wisconsin
game ball (whoever that was awarded to).
He told me he has about 9 rings Big Ten Championship
* * *.
***
He will not talk publicly about this.
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If he retains me, and he may, I will try to get these items
back that the government now wants to keep for themselves * * *.
***
Just passing this info on…especially now that I actually
talked to Mr. Rife.
(Emphases added.) Later that day, Cicero sent another e-mail to Tressel in which
he disclosed further information about Rife:
He is in really big trouble. The federal government has
told him that his best offer is to take 10 years in prison. He wanted
my opinion yesterday on his situation.
***
I have to sit tight and wait to see if he retains me, but at
least he came in last night to do a face to face with me.
One correction from my first email to you…he did
confirm to me that he put out on the street the government took
70,000 from his house, but he made that up so other associates of
his would think it; so they wouldnt [sic] do a home invasion on
him and his family. But, he had that much cash just lying around.
***
Take care. I will keep you posted as relevant information
becomes available to me. Just keep our emails confidential.
Thank you.
(Emphases added.) Cicero testified that he did not intend to tell Tressel that Rife
might retain him and that he was not referring to Rife when he said, “If he retains
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me, and he may,” but Cicero did admit that the e-mails are written in a way that
the only person Cicero could be referring to is Rife.
Legal Analysis
{¶ 8} Prof.Cond.R. 1.18 sets forth a lawyer’s duties to a prospective
client. It provides:
(a) A person who discusses with a lawyer the possibility of
forming a client-lawyer relationship with respect to a matter is a
prospective client.
(b) Even when no client-lawyer relationship ensues, a
lawyer who has had discussions with a prospective client shall not
use or reveal information learned in the consultation, except as
Rule 1.9 would permit with respect to information of a former
client.
{¶ 9} We agree with the board that relator has proved by clear and
convincing evidence that Rife was a prospective client of Cicero. As the panel
found, the two discussed the possibility of a client-lawyer relationship; Cicero
admitted this in his e-mails to Tressel, and Rife testified as to the discussion.
Rife’s testimony was corroborated by Palmer, who testified that Rife had told him
soon after the meeting with Cicero that Cicero had quoted him a fee. Rife met
with Cicero on April 15 to discuss his case, and Cicero offered legal advice in
response to Rife’s questions.
{¶ 10} Cicero argues that Epling’s presence during the April 15 meeting
indicates that Epling, rather than Rife, was his client. We find this argument
unpersuasive. While Prof.Cond.R. 2.3 does permit a lawyer to provide an
evaluation of a matter affecting a client for the use of a third party, the record is
clear that Epling was not a client of Cicero during the events in question. Epling
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testified that Cicero told him he did not need a lawyer for representation in
relation to the raid on Rife’s home. Epling stated, “I knew I didn’t need a lawyer
because I wasn’t involved.” Furthermore, Cicero’s e-mails to Tressel clearly
indicate that Cicero believed that Rife was a prospective client.
{¶ 11} Because relator has established that Rife was a prospective client
of Cicero, we must next consider whether Cicero improperly revealed information
learned during his consultation with Rife. Prof.Cond.R. 1.18(b) states that
information that an attorney receives from a prospective client should not be
revealed, except as permitted under Prof.Cond.R. 1.9(c), which states:
A lawyer who has formerly represented a client in a matter
* * * shall not thereafter do either of the following:
(1) use information relating to the representation to the
disadvantage of the former client except as these rules would
permit or require with respect to a client or when the information
has become generally known;
(2) reveal information relating to the representation except
as these rules would permit or require with respect to a client.
{¶ 12} In his objections to the board’s report, Cicero argues that the
information he communicated to Tressel was “generally known” and that the
communication was therefore permitted by Prof.Cond.R. 1.9(c)(1). A close
examination of the April 16 e-mails, however, reveals that Cicero disclosed not
only generally known information—for example, that Rife’s home had been
raided by federal agents—but also a number of specific details about Rife’s case
that Cicero could only have learned during his consultation with Rife. This
information does not fall into the “generally known” exception of Prof.Cond.R.
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1.9(c)(1). Cicero violated Prof.Cond.R. 1.18(b) when he disclosed to Tressel
confidential information about Rife’s case learned during the April 15 meeting.
{¶ 13} We note that this is the first case in which we have had the
occasion to determine whether an attorney violated Prof.Cond.R. 1.18 by
revealing the confidences of a prospective client. We also recognize that the
Official Comments to the rule indicate that the protection afforded by the rule is
limited in scope:
[1] Prospective clients, like clients, may disclose
information to a lawyer, place documents or other property in the
lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s
discussions with a prospective client usually are limited in time
and depth and leave both the prospective client and the lawyer free
(and sometimes required) to proceed no further. Hence,
prospective clients should receive some but not all of the
protection afforded clients.
[2] Not all persons who communicate information to a
lawyer are entitled to protection under this rule. A person who
communicates information unilaterally to a lawyer, without any
reasonable expectation that the lawyer is willing to discuss the
possibility of forming a client-lawyer relationship, is not a
“prospective client” within the meaning of division (a).
While we recognize that some limitations on the rule’s protection to prospective
clients may be justified, those limitations do not come into play here. Indeed, this
case goes to the very heart of confidentiality between a prospective client and an
attorney. Before obtaining representation, clients must meet with attorneys, and
attorneys often must obtain sensitive information before they can decide whether
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to represent a client. Prospective clients trust that their confidences will be
protected when they engage in an initial consultation with an attorney. Cicero’s
almost immediate dissemination of the detailed information that Rife provided on
April 15 directly violated that trust. This conduct violates Prof.Cond.R. 1.18, as
well as Prof.Cond.R. 8.4(h), which prohibits a lawyer from engaging in conduct
that adversely reflects on the lawyer’s fitness to practice law.
{¶ 14} Cicero argues that the evidence on the record does not clearly and
convincingly prove the violations found by the board. He asserts that Rife was an
unreliable witness and that the panel did not explain why it accepted Rife’s
testimony over his own. Cicero’s argument is unavailing. “Unless the record
weighs heavily against a hearing panel’s findings, we defer to the panel’s
credibility determinations, inasmuch as the panel members saw and heard the
witnesses firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164,
2006-Ohio-550, 842 N.E.2d 35, ¶ 24, citing Cincinnati Bar Assn. v. Statzer, 101
Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶ 8. The panel did explain
why it chose not to believe Cicero’s testimony, stating, “Respondent’s testimony
at the hearing was at times disingenuous and not credible.” Furthermore, Cicero’s
own testimony and the e-mails he sent to Tressel form a sufficient basis for a
finding that he violated Prof.Cond.R. 1.18(b).
{¶ 15} We therefore hold that relator has proved by clear and convincing
evidence that Cicero violated Prof.Cond.R. 1.18 and 8.4(h).
Sanction
{¶ 16} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. We also weigh evidence of
the aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B).
Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875
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N.E.2d 935, ¶ 21. Because each disciplinary case is unique, we are not limited to
the factors specified in the rule but may take into account “all relevant factors” in
determining what sanction to impose. BCGD Proc.Reg. 10(B).
{¶ 17} The board found as a mitigating factor that Cicero has an excellent
reputation among judges and attorneys for professional integrity and competence.
But the board found five aggravating factors. First, Cicero has a prior disciplinary
offense for which he was suspended from the practice of law in Ohio for one year.
See Disciplinary Counsel v. Cicero, 78 Ohio St.3d 351, 678 N.E.2d 517 (1997).
Second, the board concluded that Cicero acted with a selfish motive, because his
reason for disclosing to Tressel his possible attorney-client relationship with Rife
was self-aggrandizement. Third, the board stated that Cicero’s “testimony at the
hearing was at times disingenuous and not credible.” Fourth, the board stated that
Cicero refused to acknowledge the wrongful nature of his misconduct. Fifth, the
board concluded that the disclosure of the information about the Ohio State
memorabilia caused Rife and his family to be subjected to criticism and
harassment by the news media and others for causing harm to the Ohio State
football program.
{¶ 18} Cicero argues that only his prior disciplinary record should qualify
as an aggravating factor. Recognizing that the panel was in the best position to
evaluate the demeanor and credibility of the witnesses, we accept its findings in
regard to the additional four aggravating factors and consider them in our
determination of the appropriate sanction.
{¶ 19} As noted above, we have not yet addressed a case in which an
attorney has violated Prof.Cond.R. 1.18. Cicero argues for a six-month stayed
suspension, citing Disciplinary Counsel v. Yurich, 78 Ohio St.3d 315, 677 N.E.2d
1190 (1997); Disciplinary Counsel v. Shaver, 121 Ohio St.3d 393, 2009-Ohio-
1385, 904 N.E.2d 883; Geauga Cty. Bar Assn. v. Psenicka, 62 Ohio St.3d 35, 577
N.E.2d 1074 (1991); and Columbus Bar Assn. v. Boggs, 39 Ohio St.3d 601, 529
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N.E.2d 936 (1988). Relator correctly points out, however, that none of these
cases involved any aggravating factors. And in the other case cited by Cicero,
Disciplinary Counsel v. Kimmins, 123 Ohio St.3d 207, 2009-Ohio-4943, 915
N.E.2d 330, ¶ 18, in which the respondent received a one-year stayed suspension,
we found fewer aggravating factors and more mitigating factors and explicitly
noted that there was an absence of a dishonest or selfish motive.
{¶ 20} Relator cites Columbus Bar Assn. v. Dye, 82 Ohio St.3d 64, 694
N.E.2d 440 (1998), in which we imposed a two-year suspension. Dye, however,
involved more than disclosure of confidential client information. The violations
in Dye included collecting an illegal or clearly excessive fee, accepting and
continuing representation of a client when the attorney’s independent professional
judgment regarding another client would be adversely affected, and failing to
return the remainder of a fee. Id. at 66-67. Clearly, the violations in Dye were
more numerous than in the present case.
{¶ 21} Because the facts of this case fall between those in the cases cited
by Cicero and those cited by relator, we hold that a one-year suspension is proper.
This sanction comports with the severity of Cicero’s violations and takes into
account both the mitigating and aggravating factors. Cicero is hereby suspended
from the practice of law in Ohio for one year. Costs are taxed to Cicero.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, CUPP, and MCGEE BROWN, JJ., concur.
LUNDBERG STRATTON and O’DONNELL, JJ., dissent.
__________________
LUNDBERG STRATTON, J., dissenting.
{¶ 22} I dissent only because I disagree with the sanction. While I agree
with the finding of violations, I would impose a six-month suspension, all stayed
upon conditions. I believe that Cicero’s intentions were not for personal
aggrandizement or personal gain, as found by the majority, but were to alert the
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coach about misconduct by his players that could affect the team. His request that
such information be held confidential does not support the notion that he was
trying to seek fame. That conclusion is contrary to the content of the e-mails.
Therefore, I respectfully dissent.
O’DONNELL, J., concurs in the foregoing opinion.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Joseph M. Caligiuri,
Senior Assistant Disciplinary Counsel, for relator.
The Behal Law Group, L.L.C., and John M. Gonzales, for respondent.
______________________
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