[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Zoller and Mamone, Slip Opinion No. 2016-Ohio-7639.]
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 Decisions, 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.
SLIP OPINION NO. 2016-OHIO-7639
CLEVELAND METROPOLITAN BAR ASSOCIATION v. ZOLLER AND MAMONE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Zoller and Mamone, Slip
Opinion No. 2016-Ohio-7639.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—One-
year suspensions.
(No. 2014-1389—Submitted June 1, 2016—Decided November 8, 2016.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2013-060.
_______________________
Per Curiam.
{¶ 1} Respondents, Nancy Anne Zoller of Lyndhurst, Ohio, Attorney
Registration No. 0037933, and Edward James Mamone of Cleveland, Ohio,
Attorney Registration No. 0039310, were both admitted to the practice of law in
Ohio in 1987. Both were associates in the Cleveland law firm of Gurney, Miller &
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Mamone (“GM&M”) in which their father, Joseph Anthony Mamone, was a
partner.
{¶ 2} In November 2013, relator, Cleveland Metropolitan Bar Association,
charged Zoller and the Mamones with multiple ethical violations related to services
they had performed over a number of years for their client, Eleanor Locher, who
had passed away in 2010. We accepted Joseph Mamone’s resignation from the
practice of law in Ohio with disciplinary action pending, effective April 18, 2014.
In re Resignation of Mamone, 139 Ohio St.3d 1206, 2014-Ohio-1630, 10 N.E.3d
721.
{¶ 3} In an August 11, 2014 report, the Board of Commissioners on
Grievances and Discipline (now known as the Board of Professional Conduct)
found that Zoller had charged Locher excessive legal fees and that Zoller and
Edward Mamone had committed other ethical violations in administering an
account that the law firm had established to manage Locher’s funds. The board
recommended that Zoller be suspended from the practice of law for one year and
that Mamone be suspended for six months, with both suspensions fully stayed on
the condition that they engage in no further misconduct. But the board rejected the
hearing panel’s recommendation that Zoller be required to make restitution to
Locher’s estate.
{¶ 4} The matter was first submitted to this court on January 14, 2015. In
an October 21, 2015 opinion, we summarized the board’s findings of fact,
conclusions of law, and recommendations, but we did not adopt them at that time.
Instead, we remanded the matter for further proceedings because we disagreed with
the board’s recommendation that neither Zoller nor Mamone should be required to
make restitution to Locher’s estate. Cleveland Metro. Bar Assn. v. Zoller and
Mamone, 144 Ohio St.3d 142, 2015-Ohio-4307, 41 N.E.3d 407.
{¶ 5} On remand, the panel conducted additional proceedings, and the
parties ultimately entered into stipulations, in which Zoller agreed to make
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restitution of $30,466 and Mamone agreed to make $11,116 in restitution to
Locher’s estate.
{¶ 6} There are no objections to any of the board’s findings or
recommendations.
{¶ 7} We now adopt the board’s findings of fact and misconduct, its
aggravating and mitigating factors, and its recommendation regarding restitution,
but for the reasons that follow, we reject the board’s recommended sanctions and
suspend both Zoller and Mamone from the practice of law for one year.
Misconduct1
{¶ 8} Locher retained GM&M in June 2004 to administer the estate of her
late husband, Ralph S. Locher, a former mayor of Cleveland and a former justice
of the Supreme Court of Ohio. Having come to increasingly rely on Joseph
Mamone, on Zoller, and to a lesser extent on Edward Mamone, after the
administration of the estate was complete, Mrs. Locher later engaged GM&M to
manage her money, to pay her bills, and to handle other aspects of her financial and
personal life. Mrs. Locher sought to be able to live independently in her own home,
to afford around-the-clock care, and to make generous gifts to her family members
and charitable causes.
{¶ 9} Zoller established an account titled “Gurney, Miller & Mamone,
Special Account Locher” (the “special account”) as the primary vehicle for
managing Mrs. Locher’s money. This “partnership type” account did not bear
interest and was not identified as a fiduciary account, an Interest on Lawyer Trust
Account, or a client trust account. Mrs. Locher and respondents were the only
signatories on the account. Ralph Locher’s monthly pension benefits and income
from other accounts continually flowed into the special account, which was used to
pay most of Mrs. Locher’s bills (including her household expenses, substantial
1
The facts of Zoller’s and Mamone’s misconduct are more fully set forth in Zoller and Mamone,
144 Ohio St.3d 142, 2015-Ohio-4307, 41 N.E.3d 407.
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payments to live-in health aids, and medications). Mrs. Locher also made constant
cash withdrawals from the account and gave away between $300,000 and $400,000
to relatives and thousands more to her church and other causes.
{¶ 10} Zoller wrote most of the checks drawn on the special account, but
Edward Mamone wrote some of them. Joseph Mamone was not a designated
signatory on the special account, but he wrote and signed a number of checks drawn
on the account. He also exercised primary control of the firm’s attorney-client
relationship with Mrs. Locher. Although the parties stipulated that Joseph Mamone
bore the primary responsibility of accounting for the funds in the special account,
Edward Mamone and Zoller also shared the responsibility to account for those
funds by virtue of their role as signatories. Yet, respondents did not maintain
complete records or perform monthly reconciliations of the account, and the records
that they did maintain were often inaccurate. As a consequence, the special account
was overdrawn on 34 occasions, causing more than $1,000 in overdraft fees.
{¶ 11} To compensate GM&M for managing her money, paying her bills,
and arranging for her care and household needs, Mrs. Locher agreed to pay the firm
a $500 monthly maintenance fee beginning in November 2004. The fee was raised
to $750 a month in February 2008, lowered to $250 a month in February 2009, and
eliminated in March 2010. All told, Mrs. Locher paid $30,900 in maintenance fees
to GM&M from the special account.
{¶ 12} GM&M also charged Mrs. Locher more than $329,000 in separate
attorney fees, many of which have never been fully documented or explained. More
than $258,000 of those fees were paid to the firm or directly to Joseph Mamone
over a period of just less than two years, and many nonlegal tasks were billed at
$300 per hour. Most of those fees were paid with checks signed by Mrs. Locher—
apparently at Joseph Mamone’s behest—from accounts other than the special
account managed by respondents. The parties stipulated that respondents were not
aware of the fees that Mrs. Locher paid directly to their father until the disciplinary
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January Term, 2016
investigation commenced. But they also acknowledged that some of the attorney
fees paid through the special account should have been covered by the monthly
maintenance fee and that consequently, Mrs. Locher was charged twice for the
same work.
{¶ 13} Consistent with the parties’ stipulations, the board found that both
Zoller and Mamone violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold a
client’s funds in an interest-bearing account with a clearly identifiable fiduciary
title), 1.15(a)(2) (requiring a lawyer to maintain a complete record of an account
held by the lawyer containing a client’s funds), and 1.15(a)(5) (requiring a lawyer
to perform and retain a monthly reconciliation of an account held by the lawyer
containing a client’s funds) and that Zoller also violated Prof.Cond.R. 1.5(a)
(prohibiting a lawyer from making an agreement for, charging, or collecting a
clearly excessive fee). We adopt the board’s findings of fact and misconduct.
Sanction
{¶ 14} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 15} Based on the stipulations, exhibits, and testimony adduced at the
hearing, the board found that Zoller and Mamone committed multiple offenses and
caused harm to a vulnerable client. See Gov.Bar R. V(13)(B)(4) and (8).
Mitigating factors include the absence of prior disciplinary records, the absence of
dishonest or selfish motives, full cooperation in the disciplinary proceedings, and
evidence of respondents’ good character apart from the charged misconduct. See
Gov.Bar R. V(13)(C)(1), (2), (4), and (5).
{¶ 16} The board recommends that we suspend Zoller from the practice of
law for one year, fully stayed on the condition that she engage in no further
misconduct. In support of this recommendation, the board noted that Zoller was
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actually responsible for overcharging Mrs. Locher and that she prepared improper
post hoc billing statements showing clearly nonlegal services in an effort to justify
retention of the firm’s fees. Recognizing that Edward Mamone failed in his duty
to oversee the special account, that his dereliction of duty facilitated additional
misconduct by his father and sister, and that his violations “were not mere technical
deviations from the rules with no discernible harm to the client,” the board rejected
Mamone’s suggestion that he be publicly reprimanded for his misconduct. But also
recognizing that it was Zoller, not Mamone, who was primarily responsible for the
billing in Mrs. Locher’s case, the board recommended that Mamone be suspended
from the practice of law for six months, fully stayed on the condition that he engage
in no further misconduct.
{¶ 17} Among the cases the board cites in support of these recommended
sanctions, Dayton Bar Assn. v. Parisi, 131 Ohio St.3d 345, 2012-Ohio-879, 965
N.E.2d 268, is instructive. Parisi had been appointed as the attorney-in-fact for a
septuagenarian whose family was either unwilling or unable to assist in his care as
his health declined. She performed some traditional legal services on behalf of the
client, but she devoted the majority of her time to routine tasks like overseeing his
living arrangements, supervising his medical care, transporting him to
appointments, reconciling his bank and brokerage statements, and delivering
spending money and an occasional meal. Over the course of nearly three years, she
charged the client over $220,000 for her services—largely billing for nonlegal
services at her attorney rate. And unlike Zoller and Mamone, Parisi maintained
more than 400 pages of records detailing the services she had provided.
{¶ 18} We determined that Parisi’s billing practice constituted a clearly
excessive fee in violation of Prof.Cond.R. 1.5(a), in part because it rendered the
cost of providing the services disproportionate to the benefit that the client received.
Parisi at ¶ 20-21 and 27. We also determined that Parisi had an inherent conflict
of interest in a separate case in which she represented both an applicant for
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January Term, 2016
guardianship and the proposed ward and engaged in conduct that was prejudicial to
the administration of justice by obtaining a power of attorney over the proposed
ward’s affairs and using that power to pay her own fees without prior court
approval. Id. at ¶ 5-13. As aggravating factors, we found that Parisi committed
multiple offenses, acted with a selfish motive when she took her fees without court
approval, and caused harm to vulnerable clients. But as mitigating factors, she had
no prior disciplinary record, returned the fees that she had collected without court
approval, cooperated in the disciplinary proceedings, and demonstrated her good
character and reputation apart from the charged misconduct. See Gov.Bar R.
V(13)(C)(1), (3), and (5). By the time of her disciplinary hearing, she had also
settled litigation with her client’s heirs in the initially described case with a $21,000
payment from her malpractice carrier and an agreement to forgo approximately
$25,000 in additional billings.
{¶ 19} Here, Zoller and Mamone assumed the responsibilities of operating
and maintaining the special account when they opened the account and agreed to
be authorized signatories. But they failed to ensure that the account was a separate,
interest-bearing trust account for Mrs. Locher’s benefit during the six-year period
in which substantial client assets passed through it. They also failed to maintain
even a modicum of oversight over the account by failing to accurately record each
transaction that affected the account and failing to reconcile the account against the
monthly statements issued by the bank. Their abdication of these most basic duties
to Mrs. Locher resulted in more than 30 overdrafts of the account and $1,000 in
associated bank fees. Respondents’ failures to act also facilitated the misconduct
of their father, Joseph Mamone, who not only wrote and signed checks on the
special account (even though he was not an authorized signatory) but who also
collected excessive and undocumented legal fees from Mrs. Locher—fees that
averaged approximately $55,000 each year for six years, though more than
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$250,000 of those fees was actually collected in just the first two years of the
representation.
{¶ 20} If Zoller and Mamone had properly monitored the special account,
they would have discovered obvious improprieties that would have alerted them to
the fact that their father was taking advantage of Mrs. Locher—an elderly client
who depended on their services to remain in her own home and out of a nursing
home. And if Mamone had exercised proper supervision over the account, he
would have been alerted to the fact that Zoller was charging Mrs. Locher additional
fees for tasks that should have been covered by the agreed-to monthly maintenance
charge.
{¶ 21} In Disciplinary Counsel v. Kick, 28 Ohio St.3d 91, 93, 502 N.E.2d
640 (1986), we imposed a one-year suspension on an attorney whose primary
offense was his failure to maintain complete records regarding his client trust
account or review monthly bank statements for the account—failures that
facilitated his secretary’s theft of at least $10,000 from that account. Like Kick,
Zoller and Mamone blatantly disregarded the Rules of Professional Conduct
governing the safeguarding of client funds. And that conduct not only caused direct
harm to a vulnerable client but also exposed that client to additional exploitation at
the hands of their unscrupulous father. Their claims that they were but minor
players—associates in the firm, restrained from acting in the best interest of their
client because of their relationship with their father—are simply not credible given
their power and corresponding obligations as designated signatories on the special
account.
{¶ 22} Given the magnitude of the harm that Zoller and Mamone caused to
Mrs. Locher—both directly and indirectly—we believe that an actual suspension
from the practice of law is necessary to protect the public from future harm. We
therefore reject the board’s recommendation of fully stayed suspensions, and we
suspend Zoller and Mamone from the practice of law in Ohio for one year.
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January Term, 2016
{¶ 23} In our October 21, 2015 decision, we determined that Zoller and
Mamone should not be excused from making partial restitution when it was their
own misconduct that made it difficult to establish the precise amounts of restitution
owed. Zoller and Mamone, 144 Ohio St.3d 142, 2015-Ohio-4307, 41 N.E.3d 407,
at ¶ 24. We therefore remanded the matter to the board for further proceedings to
determine how much restitution would be fair and appropriate for each of them to
pay. Id. at ¶ 26.
{¶ 24} On remand, relator deposed Joseph Mamone and issued a subpoena
ordering him to produce Mrs. Locher’s entire file. The parties separately reviewed
the records and prepared summaries detailing the work performed and billed to the
special account for which Zoller and Edward Mamone were the authorized
signatories. The parties also entered into a series of stipulations identifying the
amounts of restitution believed to be owed by Zoller and Mamone and the rationale
for calculating those amounts. The panel and board ultimately adopted the set of
stipulations filed by the parties in March 2016, in which Zoller agreed to make
restitution of $30,466 and Mamone agreed to make $11,116 in restitution.
{¶ 25} These stipulated restitution amounts were calculated and allocated
as follows:
$505 from each of Zoller and Mamone—representing one-half of the $1,010 in
overdraft charges to the special account;
$455 from each of Zoller and Mamone—representing one-half of the $910 in
special-account checks written and signed by Joseph Mamone;
$10,156 from each of Zoller and Mamone—representing one half of $20,312 in
excessive fees paid from the special account; and
$19,350 from Zoller—representing the fees for 64.5 hours of nonlegal tasks that
were billed at attorney rates as calculated from Zoller’s post hoc billing
statements.
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{¶ 26} We recognize that the calculation of restitution for nonlegal tasks
charged at attorney rates in this case is challenging given Zoller’s failure to
maintain complete and contemporaneous records of the work she performed for and
fees she billed to Mrs. Locher. Given the explanation provided by the parties,
however, we are confident that the firm was paid for at least 64.5 hours of nonlegal
work at attorney rates. Therefore, we adopt the board’s recommendations regarding
restitution.
{¶ 27} Accordingly, Nancy Anne Zoller and Edward James Mamone are
suspended from the practice of law for one year. Before seeking reinstatement to
the practice of law in Ohio, Zoller shall make restitution of $30,466 to Eleanor
Locher’s estate and Mamone shall make restitution of $11,116 to Eleanor Locher’s
estate. Costs of these proceedings are assessed jointly and severally against Zoller
and Mamone.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, and O’NEILL, JJ., concur.
LANZINGER, J., dissents and would suspend respondents for two years.
KENNEDY and FRENCH, JJ., dissent and would suspend respondent Zoller
for one year and suspend respondent Mamone for six months, with both
suspensions fully stayed.
_________________
Tucker Ellis, L.L.P., and Susan M. Audey; Lustig, Evans & Lucas Co.,
L.P.A., and Susan M. Evans; and K. Ann Zimmerman, Bar Counsel, and Heather
M. Zirke, Assistant Bar Counsel, for relator.
Gallagher Sharp, L.L.P., Timothy T. Brick, and Monica A. Sansalone, for
respondent Nancy Anne Zoller.
Brian F. Toohey, for respondent Edward James Mamone.
_________________
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