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

Schiller, Disciplinary Counsel v.
123 Ohio St.3d 200, 2009-Ohio-4909. Decided 9/23/2009.
Case Summaries- 296
Respondent committed multiple violations. Board adopted the panel‘s findings and recommendations.
As to Count I, in three instances, respondent represented clients in filing Chapter 7 bankruptcy cases
and failed, despite repeated orders from the bankruptcy trustee, to turn over client tax returns and tax
refunds. From each client respondent obtained tax returns and took possession of tax refunds that
constituted part of the bankruptcy estate, deposited those amounts into his client trust account, and failed
to comply with the trustee and turn over the tax returns and the appropriate portion of the refund. He did
not comply until the trustee either obtained a show cause order or conducted a debtor‘s examination that
revealed respondent‘s possession of the items. He also misappropriated tax refunds in his client trust
account and had diverted it to personal purposes or to the representation of other clients. He tried to
conceal this by depositing other funds into the trust account at the eleventh hour and wrote checks to the
trustee. Board found violations of DR 1-102(A)(4) and Prof.Cond.R. 8.4(c); DR 1-102(A)(5) and
Prof.Cond.R. 8.4(d), DR 1-102(A)(6) and Prof.Cond.R. 8.4(h); DR 6-101(A)(3) and Prof.Cond.R 1.3;
DR 7-101(A)(3), DR 9-102(B)(3) and Prof.Cond.R. 1.16(d), 1.15(a), and 1.15(d). As to Count II, there
were two additional instances where respondent filed bankruptcies on behalf of clients and engaged in
similar conduct as Count I and violated the same rules. As to Count III, respondent was paid $1,199 to
represent a couple in filing a Chapter 13 bankruptcy. The trustee filed a notice and ultimately moved
to dismiss for failure to include employee income records in the filing. Respondent objected to the
motion, but failed to appear at a hearing on the confirmation of the Chapter 13 plan. Court denied the
plan and instructed a new one be submitted, but respondent did not submit an amended plan. The court
dismissed the case. Respondent told the client he would refile, but did not. After the client filed a
grievance, respondent promised to refile, but did not do so and did not return the fee. Board found
violations of DR 1-102(A)(5), 1-102(A)(6), 2-110(A)(2), 2-110(A)(3), 6-101(A)(3), 7-101(A)(2), 7-
101(A)(3), and 9-102(B)(4). As to Count IV, he was paid a $1,000 retainer to file a Chapter 13
bankruptcy, but over a six-month period failed to do so. He filed the case after the home had been sold in
a sheriff‘s sale. He told the client she had 60 days to reinstate and save the home. Respondent did not
appear at a creditor‘s meeting, but the client appeared. The court granted the trustee‘s motion for
respondent to disgorge a portion of his fee, but respondent did not comply. The court dismissed the
Chapter 13 case, and granted the trustee‘s motion for contempt order against respondent for failing to
disgorge the fee. The court imposed a daily fine until respondent purged the contempt. He purged
himself of the contempt but at the date of the stipulation in the disciplinary case still owed $800. Board
found violations of DR 1-102(A)(5) and Prof.Cond.R. 8.4(d); DR 1-102(A)(6) and Prof.Cond.R. 8.4(h);
DR 2-110(A)(3) and Prof.Cond.R. 1.16(e); DR 6-101(A)(3) and Prof.Cond.R. 1.3, DR 7-101(A)(2), DR
9-102(B)(4), and Prof.Cond.R. 1.15(d). As to Count V, respondent received $1,420 for representation in
a Chapter 13 bankruptcy case, but failed to provide updated wage information to the trustee, supplied
erroneous information on client‘s earnings to the court which led to a greatly increased wage deduction,
avoided client contact, failed to refund unearned fees, and when fired did not give file to the client‘s new
lawyer. Board found violations of DR 1-102(A)(5), 1-102(A)(6), 2-110(A)(3), 6-101(A)(3), 7-101(A)(2),
9-102(B)(3), and 9-102(B)(4). As to Count VI, respondent accepted $500 of a $1,100 retainer to file
a Chapter 7 bankruptcy, but did not file it by the time a credit card company filed suit against the client
in a common pleas court. He promised the client he would appear for him in the suit, but failed to appear
for a hearing and a default judgment was entered. The credit card company attached the client‘s bank
account and caused an overdraft. Respondent, by fax, demanded a return of the attached funds. He did
not return the client‘s calls. Board found violations of DR 1-102(A)(5) and Prof.Cond.R. 8.4(d); DR 1-
102(A)(6) and Prof.Cond.R. 8.4(h); DR 2- 110(A)(2) and Prof.Cond.R. 1.16(d); DR 2-110(A)(3) and
Prof.Cond.R. 1.16(e); DR 6-101(A)(3) and Prof.Cond.R. 1.3; DR 7-101(A)(2) and DR 9-102(B)(4), and
Prof.Cond.R. 1.16(d). As to Count VII, a client paid respondent $1,399 to file a Chapter 7 bankruptcy
petition, but he did not inform the client that he did not maintain insurance. He met with the client to
complete paperwork and told the client it would be filed, but he did not file the petition, failed to respond
to the client‘s inquiries, and failed to refund the fee. Board found violations of Prof.Cond.R. 1.3, 1.4(c),