¶1 dissenting.
¶2 Being unable to agree with the conclusions of the majority, I must respectfully dissent.
¶3 In my view, the threshold issue in this case is whether the rule adopted by the Supreme Court of Ohio requiring arbitration of fee disputes between attorneys from different firms unconstitutionally deprived appellant of his right to a trial by jury. This issue was addressed by the federal district court in Kelley Drye & Warren v. Murray Industries, Inc. (D.N.J.1985), 623 F.Supp. 522. In that case, the district court was asked to determine whether a rule adopted by the New Jersey Supreme Court requiring arbitration.of attorney-client fee disputes unconstitutionally deprived attorneys of their right to a trial by jury. The district court held that the plaintiff-law firm had “voluntarily given up its right to a trial of any kind if a client elects to arbitrate a fee dispute.” Id. at 527. The court explained that, when the law firm sought and obtained admission to the bar, it voluntarily subjected itself to the disciplinary jurisdiction of the New Jersey Supreme Court, which jurisdiction includes the fee arbitration procedures mandated by the court rules. Id. at 525.
¶4 I agree with the reasoning of the federal district court, and I believe that an application of that reasoning in this case leads to the same result.
¶5 Gov.Bar. R. 1(8) states that the Code of Professional Responsibility shall be binding upon all persons admitted to the law of Ohio “as amended.” Furthermore, Gov.Bar. R. 1(8) sets forth the oath taken by the attorneys upon admission to the practice of law in Ohio, as follows:
¶6 “Section 8. Induction to the Bar.
¶7 “(A) Each applicant accepted for admission to the practice of law in Ohio must have his or her name entered on a roll and shall take the following oath of office:
¶8*349 ‘YOUR STATEMENT OF THE FOLLOWING OATH INDICATES THAT YOU EITHER SWEAR OR AFFIRM TO BE BOUND BY THE OATH:
¶9 “I,_, hereby accept my responsibilities as a member of the bar;
¶10 “I will support the Constitution and the laws of the United States and the Constitution and the laws of Ohio[.]” 5
¶11 In this case, given the clear language of the oath taken by appellant upon his admission to the bar, I find that appellant expressly waived his right to a trial by jury of fee disputes with attorneys from other firms. Accordingly, even if appellant had the common-law right to a jury trial of his fee dispute, appellant waived that right when he took his oath upon admission to the bar.
¶12 Given appellant’s waiver of his right to a trial by jury of this fee dispute, his rights under Section 5, Article I of the Ohio Constitution are not implicated by the application of DR 2-107(B) in this case.
¶13 Furthermore, given appellant’s waiver, the issue then becomes whether the Disciplinary Rule unconstitutionally infringes upon any property rights of appellant. On this issue, I agree with the procedural due process and Contracts Clause analysis of the majority opinion. However, I cannot agree that a remand of this case to the trial court to determine the objective “reasonableness” of this rule would serve any useful purpose. Statutes and rules enjoy the presumption of constitutionality, and the burden is on the party who challenged the statute or rule on constitutional grounds to demonstrate unconstitutionality. OPUS III-VII Corp. v. Ohio Bd. of Pharmacy (1996), 109 Ohio App.3d 102, 671 N.E.2d 1087. If the record does not contain evidence on this issue, appellant has not met his burden.
¶14 Moreover, it is beyond debate that the Supreme Court of Ohio had the inherent power to regulate the practice of law in the state of Ohio. It is also beyond undispute that that power includes the authority to regulate the fees charged by attorneys. Indeed, DR 2-106(A) specifically prohibits an attorney from collecting an “illegal or clearly excessive fee.” The reasonableness of DR 2-106 has never been questioned. DR 2-107(A) simply prescribes a method of enforcing this rule in certain special cases.
¶15 For the foregoing reasons, I would affirm the judgment of the Franklin County Court of Common Pleas.