Inaccurate Appointed-Counsel Fee Certifications: Strong Mitigation Can Justify a Fully Stayed Suspension

Introduction

In Disciplinary Counsel v. Robertson, the Supreme Court of Ohio addressed the disciplinary consequences of inflated court-appointed-counsel fee applications caused by inaccurate timekeeping and mistaken billing practices. The court held that Deanna Robertson violated Prof.Cond.R. 8.4(c) by certifying inaccurate applications that included evidence-download time and work performed by support staff. Nevertheless, substantial mitigation justified a one-year suspension stayed entirely on the condition of no further misconduct.

The decision reinforces two complementary principles: inaccurate fee certifications can constitute professional misrepresentation even when the disciplinary factfinder does not find intentional overbilling, and the usual presumption favoring an actual suspension for dishonest conduct can yield to compelling evidence of rehabilitation and low future risk. It applies an existing line of appointed-counsel billing decisions rather than announcing an entirely new disciplinary framework.

The parties were Ohio’s disciplinary counsel, acting as relator, and Robertson, a Cleveland criminal-defense attorney admitted to practice in 1991. The central questions were whether her billing practices violated the professional-conduct rules and whether public protection required an interruption of her practice.

Background and Procedural History

The appointed-counsel billing system

From 2018 through 2023, approximately 97 percent of Robertson’s practice involved representing indigent criminal defendants by appointment in the Cuyahoga County Court of Common Pleas. To obtain payment, she submitted the Ohio Public Defender’s standard fee-application form, itemizing services in six-minute increments.

Each application required certifications that the claimed fees were not duplicated elsewhere, that Robertson or an attorney under her supervision had performed the listed legal services, and that the itemized time had been spent representing the identified client. Under R.C. 120.33, counties may pay court-approved appointed-counsel fees and seek reimbursement from the Ohio Public Defender (“OPD”). Accuracy therefore mattered both to judicial approval and to the expenditure of public funds.

The audit and billing discrepancies

An OPD audit conducted in 2023 examined applications submitted by Robertson between March 2021 and April 2023. Although the audit concerned reimbursement submissions within OPD’s 2022 fiscal-year process, the applications covered work and submissions extending beyond a single year. Aggregating the applications exposed the following daily billing totals:

• More than 24 hours on seven days, including four days with totals between 30.1 and 31.6 hours;
• Between 20 and 24 hours on 20 days;
• Between 16 and 19.9 hours on 46 days; and
• Numerous unusually high multiday totals, including 50.7 hours within a 48-hour period.

Robertson also certified between 10.5 and 12.1 hours of in-court work on three occasions, although she stipulated that the courthouse was open to the public for only eight hours daily.

How the errors arose

Robertson kept handwritten records rather than using an integrated timekeeping system. She relied on court calendars, a personal scheduling journal, and notes on client files. Because fee applications were submitted at the conclusion of cases—sometimes more than a year later—she occasionally reconstructed missing time from memory and other records. Her system did not allow her readily to determine the combined hours billed across all clients on a particular date.

She also billed for lengthy evidence downloads while simultaneously performing other client work, charging for both activities. In addition, she included support-staff work such as compiling evidence, arranging meetings, and making telephone calls. OPD’s reimbursement standards expressly excluded support-staff time, and her certifications represented that the services had been performed by her or another supervised attorney.

Disciplinary proceedings and corrective measures

Following OPD’s grievance, Robertson cooperated with disciplinary counsel and acknowledged the improper practices. She stopped including evidence-download and support-staff time, paid $16,324 in restitution, and began using OPD’s Court Appointed Billing System (“CABS”) after completing its training webinar.

The parties stipulated to the facts, a violation of Prof.Cond.R. 8.4(c), and an entirely stayed 18-month suspension. A hearing panel accepted that proposed sanction. The Board of Professional Conduct adopted the misconduct findings but recommended a shorter, fully stayed one-year suspension. The parties jointly waived objections, and the Supreme Court independently reviewed the record and adopted the board’s recommendation.

Summary of the Opinion

The court found clear and convincing evidence that Robertson violated Prof.Cond.R. 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. Her signed certifications were inaccurate because her applications included inflated time arising from unreliable recordkeeping, evidence downloads, and support-staff services.

The panel nevertheless found no reason to believe that she had intentionally overbilled the county. It attributed the errors to inefficient records and her mistaken belief that the disputed charges were permissible. Those circumstances did not eliminate the violation, but they were important to the sanction analysis.

The court imposed a one-year suspension, entirely stayed on the condition that Robertson engage in no further misconduct. Noncompliance will result in revocation of the stay and service of the full suspension. Costs were assessed against her.

Four justices joined the per curiam opinion. Chief Justice Kennedy would have imposed an entirely stayed 18-month suspension, relying on Disciplinary Counsel v. Mollica and Disciplinary Counsel v. Collins. Justice Fischer would have stayed only six months of the one-year suspension, requiring an actual period away from practice. Justice Brunner did not participate.

Analysis: Precedents Cited

1. Public protection as the governing objective

Columbus Bar Assn. v. Kiesling, 2010-Ohio-1555, ¶ 44, quoting the principle supported by Disciplinary Counsel v. Agopian, 2006-Ohio-6510, ¶ 10, supplied the court’s foundational approach: attorney discipline primarily protects the public rather than punishes the lawyer. That principle directed attention to whether Robertson remained trustworthy and whether her corrective measures sufficiently reduced the risk of recurrence.

These authorities supported an individualized assessment rather than a sanction determined solely by the amount overbilled. The court considered the seriousness of the misconduct alongside evidence concerning Robertson’s present ability to practice responsibly.

2. The presumption of actual suspension and its exceptions

Disciplinary Counsel v. Fowerbaugh, 1995-Ohio-261, established that an attorney engaging in a course of conduct violating the prohibition against dishonesty, fraud, deceit, or misrepresentation ordinarily must serve an actual suspension. That rule supplied the starting point, not the outcome.

The opinion also relied on Disciplinary Counsel v. Proctor, 2012-Ohio-684, ¶ 18, and Disciplinary Counsel v. Markijohn, 2003-Ohio-4129, ¶ 8. Those cases recognize that significant or abundant mitigating evidence can justify a lesser sanction. Robertson’s cooperation, restitution, corrective billing practices, lengthy discipline-free career, and strong character evidence brought her within that established exception.

The decision therefore does not displace Fowerbaugh. It illustrates how the presumption operates when substantial mitigation persuades the court that an actual suspension is unnecessary to protect the public.

3. Earlier overbilling cases requiring actual suspension

The panel distinguished five decisions involving actual suspensions:

• Disciplinary Counsel v. Holland, 2005-Ohio-5322: A one-year suspension followed three ethical violations arising from billing each client for the aggregate courtroom time spent on all clients that day, regardless of the time attributable to the individual client.
• Disciplinary Counsel v. Johnson, 2005-Ohio-5323: An inexperienced associate involved in the same misconduct received a one-year suspension with six months conditionally stayed.
• Toledo Bar Assn. v. Stahlbush, 2010-Ohio-3823: Four ethical violations involving inadequate records, deceptive fee inflation, and guessed time produced a two-year suspension with one year conditionally stayed.
• Dayton Bar Assn. v. Swift, 2014-Ohio-4835: Five violations involving an absence of contemporaneous records and half-hour billing increments resulted in a two-year suspension with one year conditionally stayed and $50,000 in restitution.
• Lorain Cty. Bar Assn. v. Robinson, 2021-Ohio-2123: Six violations involving knowing overbilling to cover personal medical expenses resulted in a two-year suspension with one year conditionally stayed and $79,319 in restitution.

These decisions demonstrated that appointed-counsel overbilling can warrant removal from practice. The distinctions were not merely financial: Robertson faced one rule violation, the panel did not find intentional overbilling, and her mitigation was substantial. The number of violated rules informed the comparison but did not establish a mechanical sanction formula.

4. Recent cases permitting fully stayed suspensions

Four more recent decisions provided the closest comparisons. Each involved OPD audit findings, a single violation of Prof.Cond.R. 8.4(c), and overbilling attributed to deficient recordkeeping rather than an intent to deceive.

Disciplinary Counsel v. McCloskey was significant both as a sanction comparator and as support for calculating restitution using hours exceeding 16 per day. McCloskey reconstructed time from case records rather than contemporaneous entries and sometimes charged uniform in-court time across clients.

Disciplinary Counsel v. Paxton similarly involved reconstructed time and substantial mitigation. Because the court resolved that case by an entry adopting a consent-to-discipline agreement, the Robertson opinion drew much of its factual comparison from the Paxton board report rather than a full explanatory opinion.

Disciplinary Counsel v. Mollica showed that software use alone does not ensure accurate billing. Mollica sometimes estimated time and failed to correct dates automatically entered by his software. His case supported focusing on actual recordkeeping reliability rather than the mere presence of technology.

Disciplinary Counsel v. Collins represented the more serious end of the recent fully stayed cases, with substantially more high-hour billing days and greater restitution. Its two-year stayed suspension helped frame the panel’s proposed 18-month sanction for Robertson.

Robertson differed from McCloskey, Mollica, and Collins because she did not employ their practice of charging the same in-court time to numerous clients regardless of actual individual service. Her distinctive problems were overlapping download charges, support-staff billing, and fragmented records.

The majority ultimately rejected strict numerical interpolation between these precedents. Although Robertson’s restitution exceeded that in several one-year cases, her character evidence, repayment, and low likelihood of recurrence justified the same one-year stayed sanction.

Analysis: Legal Reasoning

False certifications remained misconduct despite mistaken beliefs

The court focused on the representations made by signing the applications. Robertson certified that the listed services qualified for payment and had been performed by her or another attorney, yet the applications included support-staff work and inflated time. Those inaccuracies established the stipulated Rule 8.4(c) violation by clear and convincing evidence.

The distinction between liability and sanction is essential. The panel’s finding that Robertson did not intentionally overbill did not make the certifications accurate. It instead helped explain why the misconduct warranted a stayed rather than actual suspension. The opinion should not be read as a comprehensive ruling on the mental-state requirements of Rule 8.4(c) in every setting; its holding concerns the particular practices and stipulated misconduct before the court.

The governing billing obligations were specific

OPD standards expressly excluded reimbursement for support-staff time. Separately, the certification stated that an attorney had performed the itemized services. Robertson’s mistaken understanding could not reconcile those representations with the work actually performed.

Likewise, the court rejected charging the lengthy passage of time required for downloading evidence while also billing other work performed during that interval. This does not mean that substantive attorney review of downloaded evidence is categorically nonbillable. The misconduct concerned the download time and overlapping charges described in the record.

The opinion also referenced county hourly rates, OPD case-fee caps, and procedures for extraordinary fees. These payment mechanisms did not authorize inaccurate time entries: obtaining additional compensation through an extraordinary-fee motion remains distinct from accurately reporting the services supporting that request.

Aggravation and mitigation required individualized balancing

The sole stipulated aggravating factor was a pattern of misconduct under Gov.Bar R. V(13)(B)(3). Repeated errors across numerous applications made this more serious than an isolated clerical mistake.

The mitigating factors under Gov.Bar R. V(13)(C) were substantial:

• No prior discipline in nearly 35 years of practice;
• A timely, good-faith effort to make restitution and correct the consequences;
• Cooperation with the disciplinary process; and
• Strong evidence of good character and professional reputation.

Robertson submitted 14 character letters and presented three witnesses. Their testimony described her competence, dedication, willingness to accept difficult criminal cases, and value to indigent defendants. The panel found that she posed no risk to clients and that an actual suspension would disserve people needing qualified representation.

Those considerations did not excuse the billing misconduct. They supported the forward-looking conclusion that continued practice, subject to a suspended sanction, adequately protected the public.

Restitution and prevention mattered more than promises alone

Robertson’s $16,324 repayment reflected 282.4 hours above the agreed 16-hour daily threshold: 242.8 hours valued at an average $55 rate and 39.6 hours valued at $75. She placed the funds with counsel before the complaint was filed, and counsel transmitted payment to the county afterward.

The 16-hour threshold was a restitution methodology, not a declaration that every charge below 16 hours was proper. Nor did the opinion establish that this calculation necessarily identified every inaccurate entry.

Her adoption of CABS and abandonment of the improper charges provided concrete evidence of prevention. The court did not, however, impose a universal software mandate or make CABS use an express condition of the stay. The judgment’s stated condition was no further misconduct.

Potential Impact

• Greater attention to aggregate billing: Applications that appear plausible individually may reveal impossible totals when combined across clients and cases.
• Continuing responsibility for accurate records: Delayed payment applications and fragmented handwritten records do not relieve appointed counsel of responsibility for truthful certifications.
• Limits on administrative and overlapping charges: Counsel must distinguish compensable attorney services from excluded staff work and unattended download time.
• A meaningful mitigation pathway: Cooperation, repayment, verified corrective practices, and credible character evidence can overcome the presumption of actual suspension.
• No automatic entitlement to a stayed sanction: The divided court and the more severe precedents demonstrate that future outcomes will depend on intent, repetition, harm, rule violations, and the strength of rehabilitation evidence.

For disciplinary decision-makers, Robertson confirms that comparison tables are useful but not controlling. The sanction reflects an assessment of public risk, not simply a ratio between restitution and suspension length.

Complex Concepts Simplified

Clear and convincing evidence

Evidence strong enough to produce a firm belief that the alleged misconduct occurred; it demands more certainty than the ordinary civil standard but less than proof beyond a reasonable doubt.

Fully stayed suspension

A suspension that is imposed but not put into operation while the lawyer satisfies its conditions. Robertson may continue practicing unless the stay is revoked.

Presumption of actual suspension

The normal starting position that dishonest conduct requires some time away from practice, subject to sufficiently compelling mitigation.

Contemporaneous time records

Records made when work is performed or close to that time, rather than reconstructed much later from memory.

Aggravating and mitigating factors

Circumstances that respectively support a more severe or less severe disciplinary sanction.

Restitution

Repayment intended to restore improperly received money. Repayment can mitigate discipline but does not erase the underlying violation.

Conclusion

Disciplinary Counsel v. Robertson affirms that inaccurate public-payment certifications are serious professional misconduct even when attributed to deficient systems and mistaken billing assumptions rather than intentional overbilling. At the same time, discipline remains protective and individualized.

The fully stayed one-year suspension reflects the combined force of restitution, cooperation, a long unblemished career, exceptional character evidence, and practical safeguards against recurrence. The broader lesson is straightforward: appointed counsel must maintain reliable, nonduplicative billing records, while meaningful remediation can materially affect the sanction after a violation occurs.