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

Stubbs, Disciplinary Counsel v.
128 Ohio St.3d 344, 2011-Ohio-553. Decided 2/15/2011.
Case Summaries- 326
Respondent improperly used her client trust account as a business account, failed to maintain adequate
records of client funds held in the trust account, failed improperly withheld money from a client, and
failed to cooperate in the disciplinary investigation. Respondent failed to respond to relator‘s
complaint, so a master commissioner granted relator‘s motion for default. In November 2008, relator
attempted to communicate with respondent regarding overdrafts on her client trust account. Respondent
did not respond to several letters sent to her office and she missed a scheduled deposition for which a
subpoena had been delivered to her secretary. Later, when she did appear and testify, she failed to submit
all requested documents, including her client ledgers, canceled checks, and her trust account check
register. Respondent admitted that she failed to maintain accurate records, had deposited earned fees and
payments for court appointed cases into the account, and used the account to pay personal and office
expenses. The trust account was overdrawn or checks were transferred for insufficient funds at least 17
times from October 2008 to August 2009. In addition, she agreed to pay a client‘s medical bills from the
settlement funds of a personal injury case, but advised the client she used the money to pay her own
bills. Respondent kept $5,489 to pay the client‘s medical bills, but later told the client she used the
money to pay her own bills. She promised to return the money to the client by January 4, 2010, but
failed to do so. She failed to respond to relator‘s investigation of the grievance. The board adopted
the master commissioner‘s findings and conclusions that respondent‘s conduct with respect to her trust
account violated Prof.Cond.R. 1.15(a)(2) and 1.15(a)(3), 8.4(d) and 8.4(h); that her handling of the
settlement proceeds violated 1.15(d), 8.4(c), 8.4(d), and 8.4(h); and that her failure to cooperate in the
disciplinary investigations violated Prof.Cond.R. 8.4(d) and (h) as well as Gov.Bar R. V(4)(G). The
master commissioner, because of a lack of clear and convincing evidence, recommended dismissal of
allegations that respondent engaged in improper fee sharing, and failed to pay the medical expenses of
other clients. In aggravation, respondent had a prior disciplinary record in 2006, consisting of a sixmonth
stayed suspension and one year of monitored probation for falsifying a document to convince the
OBMV that she was insured at the time of an accident. Respondent also had two attorney registration
suspensions in 2007 and 2009. Also in aggravation; respondent engaged in a pattern of misconduct
involving multiple offenses; failed to cooperate in the disciplinary investigation; caused harm to a
vulnerable client and failed to make restitution to the client. BCGD Proc.Reg. 10(B)(1)(a), (c), (d), (e),
(h), and (i). No mitigating factors were present. Although respondent‘s past participation in OLAP
was noted, she no longer participates and produced no evidence that she suffered from a mental disability.
The board adopted the master commissioner‘s recommended sanction of an indefinite suspension. The
court considered the sanction imposed for comparable conduct in Torian (2005). The court adopted the
board‘s recommended sanction and so ordered an indefinite suspension conditioned on restitution to the
affected client.
Rules Violated: Prof.Cond.R. 1.15(a)(2), 1.15(a)(3), 1.15(d), 8.4(c), 8.4(d), 8.4(h); Gov.Bar R.
V(4)(G)
Aggravation: (a), (c), (d), (e), (h), (i)
Mitigation: NONE
Prior Discipline: YES (x2) Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Indefinite Suspension