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

Fletcher, Disciplinary Counsel v.
122 Ohio St.3d 390, 2009-Ohio-3480. Decided 7/22/2009.
Case Summaries- 84
Respondent used his IOLTA to pay business and personal expenses; failed to maintain records; and
loaned money to client for personal expenses. Following the Supreme Court‘s rejection of the Board‘s
recommendation of acceptance of a consent-to-discipline agreement proposing a six-month suspension,
stayed on conditions of a one-year probation and no further misconduct, a panel of the board held a
disciplinary hearing upon the court‘s order for ―further proceedings and consideration of a more severe
sanction.‖ See Disciplinary Counsel v. Fletcher, 119 Ohio State.3d 1467, 2008-Ohio-4989. As to
Count I, from at least 2002 until early August 2007, respondent did not maintain an operating account for
his practice, but instead used his IOLTA account, in which he had commingled his own funds with
clients‘ funds, to pay business expenses. He also used the IOLTA account to pay personal expenses.
Respondent wrote at least 150 checks to pay personal and business expenses between January 2005
and January 2007. From January 2007 through February 2007, he wrote 101 checks to himself from his
IOLTA without verifying the amount in the account that belonged to him. On several occasions he
received cash from deposits made to his IOLTA that he applied to pay personal expenses. Twice during
2006, the account was overdrawn, once because of his small error in addition and once because of a
bank mistake. The mistakes triggered the bank‘s notification to disciplinary authorities pursuant to R.C.
4705.10(A)(4). Board adopted panel‘s findings and conclusions that respondent‘s conduct prior to
February 1, 2007 violated DR 9-102(A) and 9-102(B)(3) and his conduct on or after February 1, 2007
violated Prof.Cond.R. 1.15(a) and 1.15(a)(2). As to Count II, in 2006 respondent represented a client in
both bankruptcy and divorce proceedings. He loaned the client approximately $900 for personal
expenses unrelated to either case. He also cashed checks for the clients‘ small cleaning company,
by first depositing the checks into his IOLTA account. In addition to repaying the loan, the client
occasionally paid respondent a $25 or $50 fee for the check cashing and loan service. Board adopted
panel‘s findings and conclusions that respondent violated DR 5-103(B) and DR 9-102(B)(3). The
Supreme Court of Ohio agreed with the findings of violations as to both Counts. In mitigation,
respondent had no prior disciplinary record, there was no selfish or dishonest motive, and he cooperated.
BCGD Proc.Reg. 10(B)(2)(a), (b), and (d). In addition, no clients were harmed and there was no
evidence that respondent was trying to hide or disguise income or assets. The board adopted the panel‘s
recommended sanction of a suspension for six months, stayed on conditions that (1) he complete a oneyear
probation with monitoring of the IOLTA by an attorney appointed by relator and (2) he commit no
further misconduct. Supreme Court of Ohio agreed and so ordered.
Rules Violated: Prof.Cond.R. 1.15(a), 1.15(a)(2); DR 5-103(B), 9-102(A), 9-102(B)(3)
Aggravation: NONE
Mitigation: (a), (b), (d)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: Six-month suspension, stayed