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

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McNerney, Akron Bar Assn. v. 122 Ohio St.3d 40, 2009-Ohio-2374. Decided 5/28/2009. Case Summaries- 208 Respondent failed to preserve the identity of clients‘ funds, failed to keep complete records of his client trust account, failed to give notice to clients that his malpractice insurance had lapsed, and failed to update his attorney registration record. Respondent entered the practice of law as a second career after working in banking, first for a regulatory agent, then for an accounting firm, and later for a bank. He maintained only a single bank account for his law practice from at least January 2006 until at least September 13, 2007 and he deposited both personal funds and client funds. He never reconciled the account, but kept the bank statements, a check book, canceled checks, and copies of clients‘ checks to distinguish his personal funds from those of his clients. Respondent claimed that before being deposed by relator he had no idea that ethical standards prohibited the use of the same bank account for client funds and personal funds or required the keeping of records to document activity in the client account. The Board doubted this professed ignorance because of his banking experience and because after the deposition he took no steps to open a separate personal bank account, to reconcile the trust account, or to inquire about appropriate accounting practices. He simply deposited all his receipts into one account and then withdrew what he believed he earned. He conceded that he may have withdrawn money still belonging to clients from the funds commingled in the solitary bank account, but he explained that his practice mostly involved small flat fees from criminal-defense cases. And he had only two or three clients whose money he had deposited in that account. Board adopted panel‘s findings of violations of DR 9-102(A), DR 9-102(B)(3), Prof.Cond.R. 1.15(a), Prof.Cond.R. 1.15(b). Respondent‘s malpractice insurance lapsed from January 2007 until reinstated in May 2007. Board adopted the panel‘s findings of violations of DR 1-104(A) and (B) and Prof.Cond.R. 1.4(c) for his failure to notify clients or obtain the clients‘ signed acknowledgement of the lack of coverage. At a second deposition by relator in mid-September 2007, relator identified to him that he had not updated his attorneyregistration record in accordance with Gov.Bar R. VI(1)(D). He remained in default until October 23, 2007. Board adopted panel‘s findings as to violations of DR 1-102(A)(6) and Prof.Cond.R. 8.4(h) for respondent‘s failure to properly register, together with the misuse of the trust account and failure to disclose the lapse of malpractice insurance. The Board noted that evidence at the hearing clearly and convincingly showed the panel that respondent has untreated and unresolved substance abuse and medical issues that threaten his ability to practice law. His problems with alcohol are longstanding. As a condition for admission to the Ohio bar, he was required to participate in alcohol-abuse treatment with OLAP and he did so from 2001-2004. He completed the program successfully, but his alcohol problems have persisted. He conceded that at the time of the 2007 depositions, he had returned to drinking. He has been cited three times for driving under the influence, most recently in 2005. He produced a new OLAP contract at the October 8, 2008 hearing. Although the contract was signed by an OLAP representative in July, respondent did not sign and return the OLAP contract until a week before the hearing. He testified that he had not spoken to OLAP representatives since July, that he consumed alcohol, but only ―rarely‖ since then, and that he attended two A.A. meetings the week before the hearing. He testified that he had begun treatment with a psychologist, who diagnosed him with depression, and with two physicians who both prescribed medications for his condition. Panel chair, granted respondent leave to file medical records documenting his mental-health treatment, but he has not done so. In mitigation, he has no prior discipline. BCGD Proc.Reg.10(B)(2)(a). Due to the lack of medical evidence, the Board attributed no mitigating effect to his alcohol dependence and his claimed depression. BCGD Proc.Reg.10(B)(2)(g)(i) and (ii). In aggravation, he engaged in a pattern of misconduct and had not been appropriately responsible during the disciplinary process. BCGD Proc.Reg.10(B)(1)(c) and (e). Board adopted panel‘s recommended sanction of a two-year suspension, with the second stayed upon conditions: that upon completion of the one-year suspension, his reinstatement be subject to the requirements of Gov.Bar R. V10(C) through (G) for reinstatement from indefinite suspension; and that with any petition for reinstatement filed, he provide proof from treating medical professionals and OLAP that his alcohol and mental-health problems have been resolved, that he has followed all treatment recommendations , including compliance with his 2008 OLAP contract, and
Case Summaries- 209 that he is competent to return to competent, ethical, and professional practice of law; that upon reinstatement he complete one year of monitored probation pursuant to Gov.Bar R. V(9). The Supreme Court of Ohio adopted the Board‘s findings, and recommended sanction and so ordered. Rules Violated: Prof.Cond.R. 1.4(c), 1.15(a), 1.15(b), 8.4(h); DR 1-102(A)(6), 1-104(A), 1-104(B), 9- 102(A), 9-102(B)(3) Aggravation: (c), (e) Mitigation: (a) Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO Public Official: NO Sanction: Two-year suspension, 12 months stayed
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The Supreme Court of Ohio Board of
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Table of Cases Table of Cases- 1 [F
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Drain, Cuyahoga Cty. Bar Assn. v. 1
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Horton, Disciplinary Counsel v. 124
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Markovich, Akron Bar Assn. v. 117 O
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Table of Cases- 9 Ramos, Cleveland
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Table of Cases- 11 Stuard, Becker,
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Case Summaries Allerding, Columbus
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Case Summaries- 15 Archer, Northwes
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Case Summaries- 17 intermittently o
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Bartels, Allen Cty. Bar Assn. v. 12
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Blair, Disciplinary Counsel v. 128
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Case Summaries- 23 Bowling, Discipl
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Broschak, Disciplinary Counsel v. 1
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Brown, Dayton Bar Assn. v. 124 Ohio
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Brown, Allen Cty. Bar Assn. v. 124
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Brueggeman, Disciplinary Counsel v.
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Bunstine, Disciplinary Counsel v. 1
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Bursey, Disciplinary Counsel v. 124
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Butler, Disciplinary Counsel v. 128
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Campbell, Disciplinary Counsel v. 1
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Cantrell, Disciplinary Counsel v. 1
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Cantrell, Disciplinary Counsel v. 1
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Case Summaries- 45 abuse impede his
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Case Summaries- 47 respondent‘s d
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Case Summaries- 49 with a client if
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Case Summaries- 51 not DR 1-102(A)(
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Clovis, Columbus Bar Assn. v. 125 O
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Corrigan, Geauga Cty. Bar Assn. v.
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Cunningham, Butler Cty. Bar Assn. v
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Davis, Disciplinary Counsel v. 121
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Dawson, Cleveland Metropolitan Bar
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DeLoach, Akron Bar Assn. v. 130 Ohi
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Detweiler, Disciplinary Counsel v.
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DiCato, Akron Bar Assn. v. 130 Ohio
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DiMartino, Mahoning Cty. Bar Assn.
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Doellman, Disciplinary Counsel v. 1
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Drain, Cuyahoga Cty. Bar Assn. v. 1
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Ellis, Columbus Bar Assn. v. 120 Oh
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Emerson, Cincinnati Bar Assn. v. 12
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Farah, Toledo Bar Assn. v. 125 Ohio
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Farrell, Cincinnati Bar Assn. v. 12
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Fink, Akron Bar Assn. v. 131 Ohio S
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Folwell, Disciplinary Counsel v. 12
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Freedman, Akron Bar Assn. v. 128 Oh
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Freeman, Disciplinary Counsel v. 12
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Freeman, Disciplinary Counsel v. 11
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Frost, Disciplinary Counsel v. 122
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Case Summaries- 95 his goal of gain
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Gibson, Akron Bar Assn. v. 128 Ohio
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Glaeser, Cuyahoga Cty. Bar Assn. v.
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Goldblatt, Disciplinary Counsel v.
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Gottehrer, Cleveland Metro. Bar Ass
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Case Summaries- 105 disgorgement of
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Grote, Cincinnati Bar Assn. v. 127
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Hackett, Cincinnati Bar Assn. v. 12
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Case Summaries- 111 presented evide
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Hanni, Mahoning Cty. Bar Assn. v. 1
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Hauck, Cincinnati Bar Assn. v. 129
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Heiland, Disciplinary Counsel v. 11
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Heisler, Cincinnati Bar Assn. v. 11
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Henry, Disciplinary Counsel v. 127
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Hickman, Toledo Bar Assn. v. 119 Oh
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Hildebrand, Cleveland Metro. Bar As
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Holda, Akron Bar Assn. v. 125 Ohio
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Horan, Disciplinary Counsel v. 123
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Hoskins, Disciplinary Counsel v. 11
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Howard, Disciplinary Counsel v. 123
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Hunter, Columbus Bar Assn. v. 130 O
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Jackel, Ohio State Bar Assn. v. 118
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Jackson, Disciplinary Counsel v. 12
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Jaffe, Cleveland Metro Bar Assn. v.
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Johnson, Toledo Bar Assn. v. 121 Oh
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Johnson, Cuyahoga Cty. Bar Assn. v.
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Johnston, Disciplinary Counsel v. 1
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Jones, Mahoning Cty. Bar Assn. v. 1
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Kaplan, Cleveland Metro. Bar Assn.
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Kealy, Cleveland Metro. Bar Assn. v
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Kellogg-Martin, Disciplinary Counse
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Page 161 and 162: Case Summaries- 159 other assets in
Page 163 and 164: Case Summaries- 161 none of the mon
Page 165 and 166: Case Summaries- 163 Although the un
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Page 169 and 170: Landis, Disciplinary Counsel v. 124
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Page 175 and 176: Case Summaries- 173 Board‘s findi
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Page 181 and 182: Lentes, Disciplinary Counsel v. 120
Page 183 and 184: Lewis, Medina Cty. Bar Assn. v. 121
Page 185 and 186: Case Summaries- 183 and blame the w
Page 187 and 188: Longino, Disciplinary Counsel v. 12
Page 189 and 190: Lowden, Toledo Bar Assn. v. 117 Ohi
Page 191 and 192: Case Summaries- 189 8.4(h) by his a
Page 193 and 194: Mamich, Disciplinary Counsel v. 125
Page 195 and 196: Manning, Disciplinary Counsel v. 11
Page 197 and 198: Marosan, Stark Cty. Bar Assn. v. 11
Page 199 and 200: Martin, Toledo Bar Assn. v. 131 Ohi
Page 201 and 202: Mason, Toledo Bar Assn. v. 118 Ohio
Page 203 and 204: McAuliffe, Disciplinary Counsel v.
Page 205 and 206: McCord, Disciplinary Counsel v. 121
Page 207 and 208: McFaul, Cleveland Metro. Bar Assn.
Page 209: Case Summaries- 207 withdrawal. Res
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Page 215 and 216: Miller, Disciplinary Counsel v. 126
Page 217 and 218: Minamyer, Butler Cty. Bar Assn. v.
Page 219 and 220: Case Summaries- 217 represent his c
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Page 223 and 224: Mitchell, Disciplinary Counsel v. 1
Page 225 and 226: Mullaney, Brooking, and Moeves, Cin
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Page 239 and 240: Case Summaries- 237 Master Commissi
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Page 245 and 246: Case Summaries- 243 conditions that
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Page 251 and 252: Case Summaries- 249 met by imposing
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Pullins, Disciplinary Counsel v. 12
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Case Summaries- 261 disqualificatio
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Randall, Dayton Bar Assn. v. 118 Oh
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Case Summaries- 265 history, no dis
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Raso, Disciplinary Counsel v. 129 O
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Resnick, Ohio State Bar Assn. v. 12
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Ricketts, Disciplinary Counsel v. 1
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Ridenbaugh, Disciplinary Counsel v.
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Ritson, Toledo Bar Assn. v. 127 Ohi
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Roberts, Disciplinary Counsel v. 11
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Robinson, Disciplinary Counsel v. 1
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Rohrer, Disciplinary Counsel v. 124
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Rozanc, Lake Cty. Bar Assn. v. 123
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Rust, Toledo Bar Assn. v. 124 Ohio
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Sabol, Disciplinary Counsel v. 118
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Case Summaries- 289 condition of th
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Sanz, Cincinnati Bar Assn. v. 128 O
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Saunders, Greene Cty. Bar Assn. v.
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Sayler, Cleveland Metro. Bar Assn.
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Case Summaries- 297 1.5(a), 1.16(d)
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Schram, Dayton Bar Assn. v. 122 Ohi
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Scott, Toledo Bar Assn. v. 129 Ohio
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Shaw, Disciplinary Counsel v. 126 O
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Shea, Columbus Bar Assn. v. 117 Ohi
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Shuler, Disciplinary Counsel v. 129
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Siewert, Disciplinary Counsel. v. 1
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Simon, Disciplinary Counsel v. 128
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Smith, Disciplinary Counsel v. 124
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Smith, Disciplinary Counsel v. 128
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Smithern, Akron Bar Assn. v. 125 Oh
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Squire, Disciplinary Counsel v. 130
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Stafford, Disciplinary Counsel v. 1
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Stoll, Erie-Huron Grievance Commt.
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Stuard, Becker, and Bailey, Discipl
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Taylor, Disciplinary Counsel v. 120
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Theisler, Mahoning Cty. Bar Assn. v
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Thomas, Cleveland Metro. Bar Assn.
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Case Summaries- 333 court entered a
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Trainor, Cincinnati Bar Assn. v. 12
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Troxell, Columbus Bar Assn. v. 129
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Troy, Lake Cty. Bar Assn. v. 130 Oh
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Case Summaries- 341 professionals i
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Vivyan, Disciplinary Counsel v. 125
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Case Summaries- 345 offenses, there
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Walker, Disciplinary Counsel v. 119
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Weisberg, Toledo Bar Assn. v. 124 O
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Case Summaries- 351 Chandlers to di
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Williams, Disciplinary Counsel v. 1
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Williamson, Butler Cty. Bar Assn. v
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Wineman, Disciplinary Counsel v. 12
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Wittbrod, Akron Bar Assn. v. 130 Oh
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Yeager, Disciplinary Counsel v. 123
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Zaffiro, Cleveland Metro. Bar Assn.
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Zigan, Disciplinary Counsel v. 118
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Bennett (2/4/2010) (unlawfully stru
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Clovis (5/5/2010) (as required by G
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on inactive status and while under
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suspension, and remanded to board t
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violations for attempt to dismiss a
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Wineman (5/6/2009) Wolanin (4/1/200
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Willette (3/20/2008) DR 2-103(C) (r
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Patterson (12/2/2009) Ryan (8/27/20
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DR 7-102(A)(5) (knowingly making fa
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DR 9-102(B)(4) (failure to promptly
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Dearfield (10/19/2011) DeLoach (8/3
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McNerney (5/28/2009)(term suspensio
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Hoppel (6/8/2011) Hunter (11/15/201
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Rule 1.5(a) (charging or collecting
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Gottehrer (3/17/2010) Gresley (12/2
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Marshall (2/12/2009) Martin (12/15/
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Meade (12/22/2010) Medley (1/27/201
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