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

Freeman, Disciplinary Counsel v.
119 Ohio St.3d. 330, 2008-Ohio-3836. Decided 8/13/2008.
Case Summaries- 91
Since admission to the practice of law in 1981, respondent has practiced as a solo practitioner. Count 1,
involved trust account violations. From January 1, 2004 through March 24, 2006, he had a trust account at
Fifth Third bank. In June or July 2006, he maintained a trust account at First Merit Bank. From 2004
through 2006, he deposited client funds and unearned retainers into those client trust accounts. Respondent
admitted that from 2004 through 2006, he used his client trust accounts as personal checking accounts, paying
personal bills and as a law office operating account to pay office bills. During this time, he commingled client
and lawyer funds in the accounts, overdrew the trust accounts 14 times, and failed to maintain appropriate
accounting of the client funds. Board adopted panel‘s findings of violations in Count 1 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 9-102(A) and Prof.Cond.R. 1.15(a); and
DR 9-102(B)(3) and Prof.Cond.R. 1.15(a)(2) and (3). [The Supreme Court of Ohio noted in Footnote 1 that
the conduct in Count 1, occurred prior and after the adoption of the Rules of Professional Conduct and that
relator charged respondent under the applicable rules of both, but that the court agreed with the Board that
the listing of the former and current rule constitutes only one rule violation.] As to Count II, accepted two
letters of inquiry from relator sent by certified mail, but failed to respond. He was personally served with a
subpoena to appear at a deposition, but after the deposition he failed to respond to a follow-up letter sent on
October 18, 2006 requesting additional information. He contacted relator in February 2007 about his lack of
response to the letter and relator re-sent the letter, but he failed to respond. Board adopted the panel‘s
findings of violations of DR 1-102(A)(5), 1-102(A)(6), and Gov.Bar R. V(4)(G). As to Count III,
respondent failed to respond to relator‘s letter requesting a response to a grievance. A letter of inquiry sent by
certified mail to his office was returned as undeliverable and indicated he had moved his office. He signed for
a letter of inquiry sent by certified mail to his home address, but he did not respond to the letter. A second
letter of inquiry was sent to his home and was returned unclaimed. That letter was re-sent and respondent
signed the return receipt but did not respond to the letter. Relator hand delivered a letter. Respondent
requested and was granted two extensions of time to respond but he did not respond. He was served with a
subpoena to appear for a deposition and he attended the deposition and answered fully the questions Board
adopted the panel‘s findings of violations of DR 1-102(A)(5) and 1-102(A)(6) and Gov.Bar R. V(4)(G).
Aggravating factors were: a pattern of misconduct; multiple offenses; failure to cooperate. BCGD
Proc.Reg. 10(B)(1)(c), (d), and (e). Mitigating factors were: no prior discipline; no dishonesty or selfish
motive; and entering a contract with OLAP and complying with its terms. He was also diagnosed with
―adjustment disorder with mixed anxiety and depressed mood‖ which the board found contributed to his
initial failure to cooperate. BCGD Proc.Reg. 10(B)(2)(a), (b), (h). Board adopted panel‘s recommended
sanction of suspension for one year with entire suspension stayed with monitored probation on conditions of
1) extending the OLAP contract for at least two years from court‘s order; 2) abiding by OLAP obligations; 3)
continuing treatment for anxiety and depression and prove of treatment and other medical information
requested by OLAP contract monitor; 4) cooperating with relator and law-practice monitor during stayed
suspension; 5) refraining from disciplinary violations. Supreme Court of Ohio adopted the Board‘s findings of
violations of DR 1-102(A)(5), 1-102(A)(6), 9-102(A), 9-102(B)(3), Prof.Cond.R. 8.4(d), 8.4(h), 1.15(a),
1.15(a)(2), 1.15(a)(3), and Gov.Bar R. V(4)(G) but disagreed with the recommended sanction. The court
found that an actual suspension was appropriate to adequately protect the public. The court ordered a oneyear
suspension with six-months stayed and probation on the conditions set forth by board. Citations to
Miles (1996), Morgan (2007), Grdina (2004). Two dissents in favor of Board‘s recommended sanction.
Rules Violated: Prof.Cond.R. 1.15(a), 1.15(a)(2), 1.15(a)(3), 8.4(d), 8.4(h); DR 1-102(A)(5), 1-
102(A)(6), 9-102(A), 9-102(B)(3); Gov.Bar R. V(4)(G)
Aggravation: (c), (d), (e)
Mitigation: (a), (b), (d), (e), (g)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Two-year suspension, 18 months stayed