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- 335Respondent failed to promptly return funds that a client was entitled to receive and failed to notify theclient that respondent lacked professional liability insurance. Respondent has previously beendisciplined by the Court; he received a conditionally stayed six- month suspension in 2003 and publicreprimand in 2006. The Court also ordered a 30- day reciprocal stayed suspension for respondent‘sviolation of Kentucky‘s disciplinary rules. The parties submitted stipulations as to findings of fact andconclusions of law. Respondent was retained to represent a client against her homeowner‘s insurer in acivil action. Respondent lacked professional liability insurance and failed to notify the client of thatfact. He later sent the client a letter acknowledging that he did not have insurance and requested thatshe sign a release, but the client never did. Respondent tried the client‘s case, returned a favorableresult, and made all appropriate disbursements. However, the client later learned that the clerk hadrefunded 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 aspayment for additional work he performed. The client filed a grievance and then respondent returned thefee. The parties stipulated that this conduct violated Prof.Cond.R. 1.4(c) and 1.15(d). The board alsonoted that respondent lacked professional liability insurance prior to the adoption of the Ohio Rules ofProfessional Conduct, and thus also found a violation of DR 1-104(A). The Court adopted the findingsof fact and conclusions of law. In aggravation, respondent had a prior disciplinary record, acted with adishonest and selfish motive, and engaged in a pattern of misconduct involving multiple offenses. BCGDProc.Reg. 10(B)(1)(a), (b), (c), and (d). The board also found that respondent‘s practice of verballydisclosing his lack of liability insurance and then later sending written waivers to the client does notcomport with Prof.Cond.R. 1.4(c), and is therefore also an aggravating factor. In mitigation, respondentmade restitution (albeit untimely), cooperated throughout the disciplinary process, made full and freedisclosure 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, butthat respondent‘s previous instances of similar misconduct call for a harsher sanction in this case. TheCourt adopted the board‘s recommended sanction of a two-year suspension with 18 months stayed onthe conditions that respondent complete 18 months of probation with a monitor and that respondentengage 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: NOPublic Official: NO Sanction: Two-year suspension, 18 months stayed