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

Vivyan, Disciplinary Counsel v.
125 Ohio St.3d 12, 2010-Ohio-650. Decided 3/3/2010.
Case Summaries- 343
Respondent withdrew unearned settlement proceeds of $1535 from his IOLTA for personal use.
Respondent, a sole practitioner, had his IOLTA and personal account at Huntington Bank. In
December 2007, respondent settled a personal injury claim for $7700 on behalf of three clients. He
agreed to reduce his contingent fee from one-third to the amount equal to his clients‘ shares. Respondent
also obtained one doctor‘s consent to reduce a medical bill, but agreed with his clients to keep the
remaining settlement proceeds in trust as he continued to negotiate with the doctor. Respondent
distributed $910 in settlement proceeds to each of his clients. However, respondent withdrew $1535 in
unearned proceeds from his IOLTA (via eight checks payable to cash) during January and February 2008
for personal expenses. Respondent admitted he violated Prof.Cond.R. 1.15(a), (b), and (c). Board
adopted panel‘s findings of violations of Prof.Cond.R. 1.15(a), (b), and (c) and adopted the panel‘s
recommended sanction of a public reprimand. Mitigating factors include respondent‘s 40 year practice of
law without incident; cooperation and honesty during the investigation; good character other than this
event; and the fact that respondent made timely and full restitution by replenishing the IOLTA when
notified of the overdraw. BCGD Proc.Reg 10(B)(2)(a), (c), (d), and (e). The board further found that
respondent may not have specifically intended to misuse his IOLTA. However, the Supreme Court
concluded that respondent knew he had withdrawn client funds to which he was not entitled and that
conduct calls for the standard disposition. The court noted that examples of cases cited by the Board
included Fletcher (2009) (six month stayed suspension), Johnston (2009) (one year suspension, all
stayed), Nance (2008) (6 months suspension stayed with conditions), Peden (2008) (six month
suspension, all stayed), and Newcomer (2008) (six month suspension, stayed). The Supreme Court
rejected the board‘s recommended public reprimand. Instead, the court suspended the respondent for
six months, all stayed on the condition that respondent engage in no further misconduct, and so ordered.
Justice O‘Donnell dissented, as he agreed that a public reprimand was appropriate.
Rules Violated: Prof.Cond.R. 1.15(a), 1.15(b), 1.15(c)
Aggravation: NONE
Mitigation: (a), (c), (d), (e)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed