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

Maley, Disciplinary Counsel v.
119 Ohio St 216, 2008-Ohio-3923. Decided 8/13/2008.
Case Summaries- 190
Respondent gave his secretary broad authority to use the office and credit cards, collect client fee
payments, manage the office checking account and meet with clients. The secretary developed a practice
of preparing and filing bankruptcy petitions without respondent‘s knowledge. From July 2004 to
August 2005the secretary collected filing fees and agreed to file or filed at least 39 bankruptcy
petitions—5 were never filed although payments were made and 34 were filed without respondent‘s
knowledge. Over $11,000 in expenses associated with the bankruptcy filings was paid with respondent‘s
credit card or from his checking account. Respondent claims the secretary pocketed fees amounting to
$25,000 or $30,000. Respondent learned she used his charge card to make over $8,300 in personal
charges in 2004. He terminated her in March 2005, but she continued to file 19 petitions under his
name after being fired, continued to enter his office after business hours, and continued to use his credit
cards, charging over $5,000 to pay bankruptcy court filings. The bankruptcy charges and filings
continued into August 2005. In September 2005 he reported her to the police, contacted the bankruptcy
court to alert them and to terminate his account, and contacted the bar association. Board found
violations of DR 1-102(A)(5), 1-102(A)(6), 3-101(A), 3-102(A), 6-101(A)(3), and 7-101(A)(3). As
to Count II, respondent did not have a trust account during 2005 and part of 2004. He deposited
unearned retainers and lawsuit settlement checks into his business checking account, commingling them
with law firm funds. Board found violations of DR 1-102(A)(5), 1-102(A)(6), 9-102(A), and 9-
102(B)(3). Supreme Court of Ohio adopted the findings. The court stated: ―He either knew or
should have known that she was taking money from clients and performing legal work for them.
Further, once he had actual knowledge of her actions, he failed to promptly act to protect the clients‘
interests.‖ The court also stated that ―if respondent had properly separated his funds form those of his
clients through a trust account and had reconciled the account and his client‘s records properly he could
have discovered the secretary‘s activities and stopped them.‖ Board recommended a suspension for 18
months with six months stayed on condition he takes office management and ethics training. In
aggravation, he had selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge
wrongful nature of conduct, and vulnerability of harm to victims. BCGD Proc.Reg. 10(B)(1). In
mitigation, there was an absence of prior discipline, cooperation, and character and reputation. BCGD
Proc.Reg. 10(B)(2). The court stated: ―Although we recognize an attorney‘s need to delegate, we
have insisted on supervision to ensure that delegated legal duties are completed properly.‖ Citations to
Ball (1993), Noll (2004), Akers (2005), Lavelle (2005). The court ordered a suspension for 18 months
with six months stayed on condition of compliance with Rule 1.15, completion of a CLE course on lawoffice
management, and in addition to the required hours, complete an additional three-hour course on
CLE course in ethics and professionalism.
Rules Violated: DR 1-102(A)(5), 1-102(A)(6), 3-101(A), 3-102(A), 6-101(A)(3), 7-101(A)(3), 9-
102(A), 9-102(B)(3)
Aggravation: (b), (c), (d), (g), (h)
Mitigation: (a), (d), (e)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: 18-month suspension, 6 months stayed