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

Case Summaries- 22
Boggs, Columbus Bar Assn. v.
129 Ohio St.3d 190, 2011-Ohio-2637. Decided 6/7/2011.
Respondent failed to inform his clients that he lacked professional liability insurance, comingled funds, and failed
to act with diligence in representing his clients. Respondent has been disciplined twice before; he received a public
reprimand in 1988 and a one-year stayed suspension in 2004. In Count 1, respondent accepted $1200 to represent
a client in divorce proceedings and deposited all of it into his operating account. The client later terminated
respondent and requested a refund. The client asked relator for assistance in obtaining his refund and presented
proof that respondent had agreed to refund $750. Respondent refunded the money from his IOLTA account by
moving money from his business account to this IOLTA account. Respondent stipulated that he did not have
malpractice insurance at this time and did not advise his client of this fact. The parties stipulated that this
conduct violated Prof.Cond.R. 1.4(c), 1.15(a), and 1.15(c). Relator also charged a violation of Prof.Cond.R.
1.15(d), but failed to present any evidence of it; the board treated this as a dismissal. In Count 2, a client paid
respondent $1300 for representation in a bankruptcy matter, which respondent deposited into his business account.
The client executed the proper forms, but failed to attend required counseling. The client later terminated
respondent and requested a refund, which respondent provided from his business account. Respondent lacked
professional liability insurance and did not advise his client of this fact. The parties stipulated that this conduct
violated Prof.Cond.R. 1.4(c), 1.15(a), and 1.15(c). Relator also charged a violation of Prof.Cond.R. 1.3, but failed
to present any evidence of it; the board treated this as a dismissal. The panel found that relator did not adequately
prove the allegations in Count 3, and treated it as a dismissal; the board agreed. In Count 4, a client paid
respondent $9700 for matters relating to her father‘s death and estate. There was no written fee agreement. When
the client requested an accounting of the retainer, and a refund of any unused money, respondent stated the entire
retainer was used. He never filed a legal action on the client‘s behalf and never provided an accounting.
Respondent stipulated that his conduct violated Prof.Cond.R. 1.15(a) and 1.15(c). In addition, the board found
that respondent violated Prof.Cond.R. 1.1, 1.3, 1.4(a)(3), 1.5(a), and 8.4(h). Relator also charged a violation of
Prof.Cond.R. 1.15(d), but failed to present any evidence of it, so the board treated it as dismissed. Respondent
objected, arguing that the panel‘s findings of fact were insufficient to find the non-stipulated violations. The
Court overruled the objections, noting that it will defer to the panel‘s determinations of credibility when those
determinations are supported by evidence, which they were in this case. Heiland (2008). In Count 5, a client paid
$4000 for respondent to pursue a wrongful termination case, which respondent deposited in an account other than
his IOLTA. Respondent advised his client to pursue arbitration and administrative remedies with the EEOC.
Respondent was not permitted to appear at the EEOC proceeding, but did provide some advice. The client was
returned to his job, but did not receive back pay or benefits. Respondent advised the client that the arbitration
award was binding and irreversible, and that he could do no more. He also refused to refund any of the money
paid to him, and did not provide the client with an accounting. Respondent lacked professional liability insurance
and did not advise his client of this fact. The parties stipulated that this conduct violated Prof.Cond.R. 1.4(a)(3)
and 1.4(c). Relator also charged a violation of Prof.Cond.R. 1.15(d), but failed to present any evidence of it;
the board treated this as a dismissal. In addition, the panel and board found that respondent violated Prof.Cond.R.
1.1, 1.3, 1.5(a), 1.15(c), and 8.4(h). The Court adopted the findings of fact and conclusions of law as to each count.
In aggravation, respondent had a prior disciplinary record, acted with a dishonest or selfish motive, and engaged in
a pattern of misconduct involving multiple offenses. BCGD Proc.Reg. 10(B)(1)(a), (b), (c), and (d). In mitigation,
respondent made full and free disclosure to the board and cooperated in the disciplinary proceeding. BCGD
Proc.Reg. 10(B)(2)(d). The panel and board were concerned that respondent took large sums of money from his
clients that he could not account for. The board recommended an indefinite suspension. Respondent objected and
asked for the panel‘s recommendation of a two-year suspension with one year stayed. The Court, relying on
Kaplan (2010) and Wise (2006), overruled the respondent‘s objection, noting that this is his third sanction and that
the previous two sanctions have not worked to rectify his serious misuse of his trust account, which was at issue in
his prior disciplinary cases. The Court indefinitely suspended respondent from the practice of law.
Rules Violated: Prof.Cond.R. 1.1, 1.3, 1.4(a)(3), 1.4(c), 1.5(a), 1.15(a), 1.15(c), 8.4(h)
Aggravation: (a), (b), (c), (d)
Mitigation: (d)
Prior Discipline: YES (x2) Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Indefinite Suspension