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

Sabroff, Disciplinary Counsel v.
123 Ohio St.3d 182, 2009-Ohio-4205. Decided 8/27/2009.
Case Summaries- 288
Respondent misappropriated clients‘ funds, settled a client‘s claim without consent, failed to maintain all
client funds in a trust account, commingled client and personal funds in the trust account, practiced law
under suspension, and failed to cooperate with relator‘s investigation. Respondent did not answer the
complaint and upon relator‘s motion for default the matter was heard by a master commissioner
whose findings, conclusions, and recommended sanction was adopted by the board. As to Count I,
board found violations of DR 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 9-102(B)(3), 9-102(B)(4) for
misappropriating the funds of a couple who engaged him to represent them in personal injury claims by
presenting a settlement statement to them showing that he had withheld part of their share to pay for
their medical treatment, but then did not pay the medical bills nor retain the funds in his trust
account. The clients received collection notices and respondent informed them he had signed an
agreement with the doctor to be responsible for the bills, but he could not produce a copy of the
document, did not pay the doctor, and did not reimburse the couple. As to Count II, board found
violations of Prof.Cond.R. 8.4(d) and 8.4(h), and Gov.Bar R. V(4)(G) for failing to respond to relator‘s
first letter of inquiry; for responding to the second letter of inquiry but not fully addressing the specific
allegations; for leaving a telephone message on the morning of his deposition sating he had suffered a
physical injury that prevented his appearance, and for failing to reschedule the deposition after agreeing
to do so. As to Count III, board found violations of DR 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-
101(A)(3), 9-102(B)(3) and 9-102(B)(4) for misappropriating the money of a personal injury client. He
filed a complaint, but a month before trial he voluntarily dismissed it without her consent. The client had
already purchased a transatlantic ticket to appear at trial. He received a settlement offer and contrary to
the client‘s directive he accepted it. He forged her name on the settlement check and deposited the funds
into his trust account. The client refused to sign the settlement statement he prepared reflecting his 40%
contingency fee of $7.000, expenses of $1,511.26, and disbursement of $9,000 to the client. He mailed
the check to her parents‘ house, but then stopped payment on the check after realizing he had not
deducted the funds to pay medical expenses. He promised to issue a new check after he paid the medical
bills. His trust account often was less than $9,000 during this time. After not hearing from respondent,
the client contacted the police. He pleaded guilty to one count of theft as a fifth-degree felony and was
ordered to pay restitution to the client as a condition of his agreement to plead to a reduced charge. As to
Count IV, board found violations of Prof.Cond.R. 8.4(b), 8.4(c), 8.4(d), an 8.4(h) for his felony
conviction. At the sentencing hearing he admitted using cocaine and marijuana after his pleas hearing,
resulting in his failing a court-ordered drug test and he admitted paying the ordered restitution late. He
was sentenced to community control, in-patient drug treatment and community control and the court
ordered him not to practice law. As to Count V, board found violations of Prof.Cond.R. 5.5(a) and
Gov.Bar R. V(8)(E) for practicing law while under an interim suspension following his felony
conviction for theft in In re Sabroff, 115 Ohio St.3d. 1435, 2007-Ohio-5636. Less than a month after
his interim suspension he sent a letter to the municipal court on behalf of his son who had been charged
with a traffic violation using letterhead referring to himself as ―Attorney and Counselor at Law,‖ and
entering a plea of not guilty, waiving all statutory time requirements, and seeking scheduling of a
pretrial hearing. When relator asked him if he had practiced law while under suspension, he sent a letter
to the municipal court withdrawing because ―of a plethora of physical problems.‖ As to Count VI, board
found violations of DR 1-102(A)(4), 1-102(A)(6), and 9-102(A) for his conduct during the time period
of December 1, 2004 and February 28, 2006 of using his trust account to pay cable, credit card,
telephone, electric, insurance premiums, college tuition, attorney registration fee, and check made
payable to ―Cash.‖ During this time, he also deposited checks in the trust account for settling personal
injury claims. Respondent‘s failure to cooperate prevents a determination of whether his health issues
and chemical dependency mitigate his misconduct. BCGD Proc.Reg. 10(B)(2)(g). In aggravation, he
acted with dishonesty or selfish motive, engaged in a pattern of misconduct, committed multiple
offenses, failed to cooperate, refused to acknowledge his wrongful conduct, has not made restitution to
the Count I clients, and paid restitution to the Count III client only after ordered to do so as a