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Cleveland Metropolitan Bar Association v. Mariotti

Supreme Court of Ohio

December 18, 2019

Cleveland Metropolitan Bar Association
v.
Mariotti.

          Submitted September 11, 2019

          On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2018-043.

          Brenda M. Johnson and Jordan D. Lebovitz; and Heather M. Zirke, Bar Counsel, and Kari L. Burns, Assistant Bar Counsel, for relator.

          Mark Mariotti, pro se.

          PER CURIAM.

         {¶ 1} Respondent, Mark Mariotti, of Cleveland, Ohio, Attorney Registration No. 0067608, was admitted to the practice of law in Ohio in 1997. Mariotti's license to practice law was suspended from December 5, 2003, through March 18, 2004, for his failure to comply with continuing-legal-education ("CLE") requirements for the 2001-2002 reporting period. In re Continuing Legal Edn. Suspension of Mariotti, 100 Ohio St.3d 1516, 2003-Ohio-6494, 800 N.E.2d 34; In re Reinstatement of Mariotti, 101 Ohio St.3d 1479, 2004-Ohio-1240, 805 N.E.2d 102. It was suspended again from December 2, 2005, through January 10, 2006, for his failure to register for the 2005-2007 attorney-registration biennium. In re Attorney Registration Suspension of Mariotti, 107 Ohio St.3d 1431, 2005-Ohio-6408, 838 N.E.2d 671; In re Reinstatement of Mariotti, 108 Ohio St.3d 1428, 2006-Ohio-378, 841 N.E.2d 790.

         {¶ 2} In a formal complaint certified to the Board of Professional Conduct on August 31, 2018, relator, Cleveland Metropolitan Bar Association, charged Mariotti with multiple ethical violations arising from his representation of clients in two separate cases-including the neglect of one client's legal matter, failure to limit the scope of the other client's representation, failure to reasonably communicate with either client, and failure to deposit an unearned fee into his client trust account-and his failure to cooperate in the ensuing disciplinary investigation.

         {¶ 3} Mariotti failed to timely answer relator's complaint. His default was certified to this court, and on December 3, 2018, we imposed an interim default suspension in accordance with Gov.Bar R. V(14)(B)(1). Cleveland Metro. Bar Assn. v. Mariotti, 154 Ohio St.3d 1439, 2018-Ohio-4770, 112 N.E.3d 924. Three days later, Mariotti filed a motion for leave to answer and for termination of the interim default suspension. We granted Mariotti's motion and remanded the matter to the board for further proceedings. Cleveland Metro. Bar Assn. v. Mariotti, 154 Ohio St.3d 1473, 2019-Ohio-118, 114 N.E.3d 1201. We reinstated Mariotti to the practice of law on February 19, 2019-after he filed an answer to relator's complaint. See 156 Ohio St.3d 1238, 2019-Ohio-579, 125 N.E.3d 965.

         {¶ 4} On remand, the parties entered into stipulations of fact and misconduct. A panel of the board conducted a hearing and issued a report finding that Mariotti committed all but two of the alleged rule violations and recommending that he be suspended from the practice of law for one year, fully stayed on conditions. The board adopted the panel's report and recommendation, and no objections have been filed.

         {¶ 5} We adopt the board's findings of misconduct and agree that a one-year suspension, fully stayed on the recommended conditions, is the appropriate sanction in this case.

         Misconduct

         Count I: The Borisenko Case

         {¶ 6} In early December 2016, Mariotti verbally agreed to assist Sergey Borisenko in a commercial-eviction action filed against Borisenko in the Parma Municipal Court. But there was no clear agreement between Mariotti and Borisenko regarding the scope of the representation or Mariotti's compensation, and Mariotti did not inform Borisenko that he did not carry professional-liability insurance.

         {¶ 7} On December 30, the plaintiff in the eviction action filed a motion for default judgment against Borisenko, which was scheduled to be heard on January 31, 2017. Borisenko sent portions of the motion to Mariotti by text, but Mariotti did not enter an appearance in the case, file an answer or other responsive pleading, or appear at the hearing. In response to Borisenko's repeated text messages asking whether ...


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