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

Trainor, Cincinnati Bar Assn. v.
129 Ohio St.3d 100, 2011-Ohio-2645. Decided 6/7/2011.
Case Summaries- 335
Respondent failed to promptly return funds that a client was entitled to receive and failed to notify the
client that respondent lacked professional liability insurance. Respondent has previously been
disciplined by the Court; he received a conditionally stayed six- month suspension in 2003 and public
reprimand in 2006. The Court also ordered a 30- day reciprocal stayed suspension for respondent‘s
violation of Kentucky‘s disciplinary rules. The parties submitted stipulations as to findings of fact and
conclusions of law. Respondent was retained to represent a client against her homeowner‘s insurer in a
civil action. Respondent lacked professional liability insurance and failed to notify the client of that
fact. He later sent the client a letter acknowledging that he did not have insurance and requested that
she sign a release, but the client never did. Respondent tried the client‘s case, returned a favorable
result, and made all appropriate disbursements. However, the client later learned that the clerk had
refunded her filing fee to respondent, but that respondent had not refunded the fee to the client.
Respondent initially ignored the client‘s calls and then attempted to keep the filing fee for himself as
payment for additional work he performed. The client filed a grievance and then respondent returned the
fee. The parties stipulated that this conduct violated Prof.Cond.R. 1.4(c) and 1.15(d). The board also
noted that respondent lacked professional liability insurance prior to the adoption of the Ohio Rules of
Professional Conduct, and thus also found a violation of DR 1-104(A). The Court adopted the findings
of fact and conclusions of law. In aggravation, respondent had a prior disciplinary record, acted with a
dishonest and selfish motive, and engaged in a pattern of misconduct involving multiple offenses. BCGD
Proc.Reg. 10(B)(1)(a), (b), (c), and (d). The board also found that respondent‘s practice of verbally
disclosing his lack of liability insurance and then later sending written waivers to the client does not
comport with Prof.Cond.R. 1.4(c), and is therefore also an aggravating factor. In mitigation, respondent
made restitution (albeit untimely), cooperated throughout the disciplinary process, made full and free
disclosure to the board, and acknowledged the wrongful nature of his conduct. BCGD Proc.Reg.
10(B)(2)(c) and (d). The Court noted that it usually imposes a public reprimand for such misconduct, but
that respondent‘s previous instances of similar misconduct call for a harsher sanction in this case. The
Court adopted the board‘s recommended sanction of a two-year suspension with 18 months stayed on
the conditions that respondent complete 18 months of probation with a monitor and that respondent
engage in no further misconduct.
Rules Violated: Prof.Cond.R. 1.4(c), 1.15(d); DR 1-104(A).
Aggravation: (a), (b), (c), (d)
Mitigation: (c), (d)
Prior Discipline: YES (x2) Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Two-year suspension, 18 months stayed