KENTUCKY BAR ASSOCIATION V. BARUCH DAVID FISH
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KENTUCKY BAR ASSOCIATION
V.
IN SUPREME COURT
BARUCH DAVID FISH
RESPONDENT
OPINION AND ORDER
The respondent, Baruch David Fish, was publicly disciplined in Ohio for charging
a clearly excessive fee. Office of Disciplina,ry Counsel v. Fish, 707 N.E.2d 851 (Ohio
1999). Upon motion by the Kentucky Bar Association, this Court issued a show cause
order to show cause, if any, why identical discipline pursuant to SCR 3.435(b) should
not be imposed. In response to the order, Fish argues that a private rather than public
reprimand should be imposed.
SCR 3.435(4) states in pertinent part:
[T]his Court shall impose the identical discipline unless
Respondent proves by substantial evidence:
(a) a lack of jurisdiction or fraud in the out-ofstate disciplinary proceeding, or
(b) that misconduct established warrants
substantially different discipline in this State.
Fish’s argument concerns an interpretation of the language “identical discipline.”
Fish argues that a public reprimand was the minimum sanction that could be
imposed in Ohio. Next, he points out that in Kentucky, a private reprimand is the
minimum sanction that could be imposed. Thus, he argues that, in his case, identical
punishment means the minimum possible punishment as opposed to the same
equivalent
punishment.
While creative, this argument does not withstand scrutiny. Identical discipline
clearly refers to the punishment meted out and not to the level of possible punishment.
Moreover, SCR 3.435(4)(b) gives this Court sufficient discretion to impose a lesser
degree of discipline when and where appropriate. Finally, in Kentuckv Bar Association
v. McChord, Ky., 931 S.W.2d 155 (1996), we concluded that a public reprimand in
Kentucky was equivalent discipline to a public reprimand in Connecticut, where all
discipline imposed under the applicable section of the Connecticut Practice Book was
to be made public record.
The Ohio reprimand states that Fish was guilty of negligently charging excessive
fees and breaching his contract with his client, Jeanne Marie Gieski. Gieski retained
Fish to defend her interests in a partition action arising out of a family dispute. They
entered into a written fee agreement that provided that Fish was to be paid $150 an
hour, a reasonable rate for an attorney with Fish’s experience in the Cincinnati area.
Throughout the two years that Fish worked for Gieski, he maintained time records and
sent her monthly statements. In sum, the time sheets showed that Fish worked 211
hours for Gieski for a total of $31,650 in fees paid by Gieski.
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Gieski disputed the reasonableness of Fish’s fees. The dispute ended when
Gieski obtained a judgment in the amount of $10,978.43 against Fish for negligently
charging excessive fees and breaching his contract with her.
Subsequently, a disciplinary charge arising out of his representation of Gieski
was instituted against Fish. He was ultimately found guilty and publicly reprimanded.
However, in so finding, mitigation was found in that Gieski was a difficult client who
wanted Fish to “fight, fight, fight” in a bitter family feud. The Ohio order of public
reprimand states that Fish was found guilty of violating DR 2-106 (A), which provides
that an attorney shall not charge a clearly excessive fee.
The KBA points out that the conduct proscribed in the above Ohio disciplinary
rule is also proscribed by SCR 3.130-I .5(a), which provides that a lawyer’s fee shall be
reasonable. Accordingly, Baruch David Fish is hereby publicly reprimanded for his
misconduct as set forth above.
All concur.
Entered: October 21, 1999.
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