disciplinary handbook: volume v - Supreme Court - State of Ohio

Johnston, Disciplinary Counsel v.
121 Ohio St.3d 403, 2009-Ohio-1432. Decided 4/2/2009.
Case Summaries- 147
Respondent commingled personal and client funds by using his client trust account for operating
expenses. Board adopted panel‘s finding but not adopt the panel‘s recommendation of an 18-month
conditionally stayed suspension. After passing the bar, respondent worked for an attorney for a year
and a half and then opened his own law practice, mostly accepting court-appointed juvenile and
criminal cases. As of the panel hearing in November 2008, he had office in three cities and devoted half
of his practice to court-appointed criminal work but also represented clients in domestic-relations disputes
and Social Security claims, and in cases involving contract and business litigation, workers‘
compensation, and personal injury. Soon after opening his practice, he opened a bank account for client
trust funds. Because of financial difficulties he began overdrawing his office account and had large
overdraft charges and other fees. He switched to using the client trust account for both entrusted funds
and as his operating account. From January 2006 through October 2007, he commingled funds—he
deposited client funds, personal funds, earned attorney fees, and unearned retainer fees into the account.
During 2006, he made nine deposits ($3,370.63 total) that had no relation to any client into the trust
account and most of the deposits were from rent money he collected for the landlord from another tenant
in his office building. During 2006, he cashed 37 checks ($12,327.44 total) from the trust account.
During 2007, he cashed 18 checks ($6,455 total) from the trust account. During 2006-2007, he wrote 44
checks to pay personal obligations. He routinely made ATM or debit withdrawals and transferred funds
from the trust account to pay both personal and business creditors. He insists that he earned all the
funds he withdrew and relator did not charge that he misappropriated client funds. During 2006-2007, he
overdrew his client trust account and his bank assessed him for either overdraft or insufficient-fund
charges 22 times. The negative balances triggered the bank to report to relator. Respondent bounced
one check to a client, but quickly covered the check. Paying the client by a certified check, including
associated bank charges. Respondent did not have an acceptable reliable record-keeping system to
allow him to account for client funds. Board found violations of DR 1-102(A)(6) and its counterpart,
Prof.Cond.R. 8.4(h); 9-102(A) and its counterpart, Prof.Cond.R. 1.15(a); and DR 9-102(B)(3). The
Board found his misuse of the client trust account of greater gravity than Newcomer (2008)
(suspended for six months with six months stayed) and less than Vogtsberger (2008) (suspended for
two years with second year stayed). In aggravation, respondent engaged in a pattern of misconduct.
BCGD Proc.Reg. 10(B)(1)(c). In mitigation, he has no prior discipline, incorporated a new accounting
system for his practice, and cooperated fully. BCGD Proc.Reg. 10(B)(2)(a), (c), and (d). No client
suffered financial harm. His good character and reputation and his charitable work on behalf of victims
of Huntington‘s disease, disadvantaged clients, and his church weigh in his favor. The board
recommended a one-year stayed suspension. The Supreme Court of Ohio agreed and so ordered a oneyear
suspension, stayed on condition of a one- year monitored probation, with the monitor appointed by
relator to provide oversight as to respondent‘s business practices, especially as to client trust account
management. And that he complete in addition to other CLE requirements, six hours of CLE in lawoffice
management and accounting.
Rules Violated: Prof.Cond.R. 1.15(a), 8.4(h); DR 1-102(A)(6), 9-102(A), 9-102(B)(3)
Aggravation: (c)
Mitigation: (a), (c), (d)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: One-year suspension, stayed