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

Kiesling, Columbus Bar Assn. v.
125 Ohio St.3d 36, 2010-Ohio-1555. Decided 4/12/2010.
Case Summaries- 158
Respondent neglected an estate, refused to return business records, failed to advise a client to file city
taxes, was convicted of unlawful accounting practices, comingled, neglected and misused trust funds,
defalcated company funds, failed to pay clients‘s business payrolls and taxes, abandoned his law
practice, and failed to cooperate, including failing to answer relator‘s complaints. The Board adopted the
master commissioner‘s findings, conclusions, and recommended sanction. In Count 1, client #1 was the
administrator of her mother‘s estate and retained the respondent to represent the estate. Respondent
filed the application to probate the will in November 2002, but failed to respond to the client inquiries
over the next two years. In January 2005, he informed the client that the estate owed $9817.97 to the state
in estate taxes. The client promptly gave the respondent a check for the taxes and an additional $950 for
the lawyer‘s fee. Respondent waited six months to file the return. The Ohio Department of Taxation
notified respondent of penalties and interest, and offered the opportunity for him to demonstrate
reasonable cause for late filing, but he did not respond and he did not notify the client. The client
eventually learned of the late fees and penalties in November 2006 and paid a $2,45,49 penalty and
$3,785.72 interest charge. In December 2006, the client entrusted to respondent documents from the
bank regarding the decedent‘s brokerage account, but respondent failed to respond to the bank or to
client‘s phone calls about the tax and bank matters. Client filed a complaint in small claims against
respondent and was awarded a default judgment of $3000, which respondent never paid. Board found
violations of DR 1-102(A)(6), 6-101(A)(3), 7-101(A)(1) and (3). In Count 2, respondent prepared tax
returns for client # 1 and her late husband and for his business for several years and maintained the
returns and worksheets. In 2007, despite numerous requests from the client and her attorneys for the tax
records, respondent provided only several years of the most recent returns. Board found violations of DR
1-102(A)(6), 2-110(A)(2), 7-101(A)(3), 9-102(B)(4) and Prof.Cond.R. 1.4(a)(2), 1.4(a)(4) and 1.15(d).
In Count 3, respondent prepared personal tax returns for client # 1 and her husband and advised them that
they owed no city taxes in 1998 and 1999. In 2005, the city sued them for failing to pay taxes during
those years. They owed incurred interest charges on the unpaid taxes. Board found violations of DR 6-
101(A)(3) and 7-101(A)(3). In Count 4, the Accounting Board of Ohio revoked respondent‘s CPA
certificate in 2004 for conducting an audit while his license was expired. In 2007, respondent was found
guilty of unlawful accounting practices, in violation of R.C. 4701.14(G) a first degree misdemeanor for
acquiring an unrelated public accounting firm and doing business under that name using an expired CPA
license. Board found violations of DR 1-102(A)(3) and (6) and Prof.Cond.R. 8.4(b) and (h). The Court
did not find clear and convincing evidence to support this finding. The court noted that the judgment
entry of his conviction did not state the facts supporting his conviction or the facts leading to the
revocation of his certificate. Respondent testified that after he lost his CPA certificate, he neglected to
remove signage from a branch accounting office which resulted in the unlawful accounting practices
charge to which he pleaded no contest. Although normally the Court would have remanded this count to
the Board for further proceedings, they did not, since they were already imposing disbarment on
respondent. In Count 5, respondent received $80,000 in trust from a business deal of client #2 whom he
represented for years and who engaged in business. In early 2008, respondent asked the client if he could
borrow $30,000 from the trust. When the client said he would think about it, the respondent told the
client that he had already taken the money without authorization and used it for personal benefit.
Respondent promised to pay it back by February but only repaid $9,000 from May to August 2008.
When the client pressed for the remainder, respondent wrote him a check for $25,853.82 which was
returned for insufficient funds. The client called the police after respondent ignored his letter demanding
he make good on the check. Respondent provided client with no written evidence of the ―loan‖ and
failed to advise the client of the conflict of interest or to seek independent counsel. At the time of
relator‘s filing of the complaint, respondent had not personally repaid any of the remaining balance,
though an unknown associate of the respondent did repay a substantial portion of the money. Board
found violations of Prof.Cond.R. 1.4(a)(2), 1.7(b), 1.8(a), 1.15(a) and (d), and 8.4(b), (c), and (h). In
Count 6, respondent represented a trucking company owned by client #3‘s family and held payroll and