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

Crosby, Disciplinary Counsel v.124 Ohio St.3d 226, 2009-Ohio-6763. Decided 12/29/2009.Case Summaries- 56Respondent engaged in long-standing fraudulent trust account practices and deliberate deceptions. Board adoptedthe panel‘s findings and conclusions, but rejected the panel‘s recommendation of a two-year suspension with oneyear stayed on conditions. Respondent practiced law as Crosby Law Offices, L.L.C. during 2005 and 2006,practicing primarily in the area of workers‘ compensation, personal injury, and tort. In December 2006 he accepteda position as of counsel for his wife‘s firm, Elizabeth A. Crosby and Associates. While in his solo practice, hemaintained two bank accounts an IOLTA in the name of Crosby Law Offices, L.L.C., and a general operatingaccount in the name of Crosby-Dodge Law Group, L.L.C. He amended the signature card for the IOLTA todesignate Carol Mazanec as an authorized signer on the account. Mazanec provided clerical, administrative, andparalegal services during 2005-2006 and wrote and signed a number of IOLTA checks on behalf of and asauthorized or ratified by respondent. As to Count I, board found violations of DR 1-102(A)(6) and its counterpart,Prof.Cond.R. 8.4(h); DR 9-102(A); and Prof.Cond.R. 1.15(a) for his misconduct in using his IOLTA as a personalbank account and operating account from January 2006-May 2007. Approximately 20 checks were payable toMazanec in an amount of $57,713 for wages or bonuses. On 18 occasions there were electronic withdrawals forpayment of phone bills. Approximately 16 checks were written by respondent or Mazanec for office or personalbills owed to a variety of businesses. Eight checks totaling $142,823.48 were written to respondent‘s wife forrespondent‘s household expenses. 68 checks totaling more than $88,000 were made payable to cash and went torespondent‘s personal use. As to Count II, board found violations of DR 1-102(A)(5); Prof.Cond.R. 8.4(d); DR 1-102(A)(6) and its counterpart, Prof.Cond.R. 8.4(h); DR 9-102(B)(3); Prof.Cond.R. 1.15(a); Prof.Cond.R.1.15(a)(3); and Prof.Cond.R. 5.3(b) for his misconduct in not properly training or supervising Mazanec.Respondent stated he was not aware, but a simple review of IOLTA statements would have revealedinappropriate withdrawals for telephone bills. Respondent admitted he did not personally reconcile the bankingstatements. During the time period, his IOLTA had overdraft fees of $118.50. He claimed he sometimes askedMazanec for checks to pay his bills, and that she gave him IOLTA checks that he mistakenly used. As to CountIII, board found violations of DR 1-102(A)(5) and its counterpart, Prof.Cond.R. 8.4(d); DR 1-102(A)(6) and itscounterpart, Prof.Cond.R. 8.4(h); DR 9-102(A); DR 9-102(B)(3); Prof.Cond.R. 1.15(a); Prof.Cond.R. 1.15(a)(2);and Prof.Cond.R. 1.15(a)(3) for his misconduct between 2005-2006 when he settled five cases and promptlypaid each client, but failed to promptly withdraw his fee from the IOLTA. Instead he withdrew his fee in multiplechecks over several weeks or months. Through his actions he commingled clients‘ funds with his personal funds.He claimed he did not immediately remove all of his earned fees from the IOLTA because he wanted tomaintain a buffer in the event that unexpected expenses related to a case arose, but Mazanec testified she did notrecall any unexpected expenses arising after settlement. Respondent also acknowledged he kept the fund in hisIOLTA because it was easier and that once he withdrew the funds, it would be considered income. By keepinghis fees in his IOLTA, respondent shielded the funds from judgment creditors and taxing authorities. The court,citing several cases, noted that mishandling client funds is an area of gravest concern for the court inreviewing attorney misconduct and that it is of utmost importance for attorneys to maintain personal and operatingaccounts separate from client trust accounts. In aggravation, respond displayed a dishonest and selfish motive byusing his trust account to keep funds safe from collection procedures by taxing authorities and judgment creditors;the misuse of his trust account over several years was a pattern of misconduct; and he did not fully cooperate andlied about his reasons for using his trust account in the manner he did. BCGD Proc.Reg. 10(B)(1)(b), (c), (e), (f).Board recommended a suspension for 24 months. Cases were cited showing a range of sanctions (from a stayedsix-month suspension to an indefinite suspension) for commingling funds or failing to properly maintainIOLTAs. Respondent‘s conduct was found most similar to Wise (2006) who received an indefinite suspension, butunlike Wise, respondent did not have prior discipline. The court ordered a suspension for 24 months withreinstatement conditioned upon completion of 6 hours additional CLE in law-office management and accounting;and fully paying or providing evidence of a compromise of the obligations set forth in the order. One justiceconcurs in the 24 month suspension but would stay 12 months of the suspension.Rules Violated: Prof.Cond.R. 1.15(a), 1.15(a)(2), 1.15(a)(3), 5.3(b), 8.4(d), 8.4(h); DR 1-102(A)(5), 1-102(A)(6), 9-102(A), 9-102(B)(3)Aggravation: (b), (c), (e), (f).Mitigation: (a)Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NOPublic Official: NO Sanction: Two-year suspension