Disciplinary Counsel v. Wolanin , 121 Ohio St. 3d 390 ( 2009 )

[Cite as Disciplinary Counsel v. Wolanin, 121 Ohio St.3d 390, 2009-Ohio-1393.]
DISCIPLINARY COUNSEL v. WOLANIN.
[Cite as Disciplinary Counsel v. Wolanin,
121 Ohio St.3d 390, 2009-Ohio-1393.]
Attorney misconduct, including misappropriating client funds and failing to
cooperate in the investigation of misconduct — Indefinite suspension.
(No. 2008-2098 — Submitted December 17, 2008 — Decided April 1, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 07-031.
__________________
Per Curiam.
{¶ 1} Respondent, John Stanley Wolanin of Phoenix, Arizona, Attorney
Registration No. 0051970, was admitted to the Ohio bar in 1991. The Board of
Commissioners on Grievances and Discipline recommends that we indefinitely
suspend respondent’s license to practice law, based on findings that he
misappropriated client funds and failed to respond appropriately during the
investigation of this misconduct. We agree that respondent committed
professional misconduct as found by the board and that an indefinite suspension is
warranted.
{¶ 2} Relator, Disciplinary Counsel, charged respondent in a three-count
complaint with violations of the Disciplinary Rules of the Code of Professional
Responsibility and Gov.Bar R. V(4)(G) (requiring that lawyers cooperate in
disciplinary investigations). A panel of the board conducted a hearing in the case,
and although respondent participated intermittently in prehearing proceedings and
stipulated to the facts and misconduct alleged against him, he did not appear at the
hearing. The panel made findings of fact and conclusions of law and
recommended that respondent be permanently disbarred. The board adopted the
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panel’s findings of misconduct, but recommended an indefinite suspension from
the practice of law.
{¶ 3} Neither party has filed objections to the board’s certified report.
Misconduct
Count I
{¶ 4} Daniel Dechert retained respondent to represent him in a personal-
injury lawsuit. Respondent filed suit and negotiated a settlement in September
2005. The settlement provided for Dechert to receive $1,649.62 and for payment
of his medical bills.
{¶ 5} Respondent received the $1,649.62 check, made payable to him
and Dechert, in January 2006. But rather than remit the proceeds as required,
respondent either cashed the check or deposited it into an unknown bank account.
Dechert tried unsuccessfully to contact respondent from March through May
2006, and in May, he filed a grievance against respondent, who finally mailed
Dechert a check for $1,649.62 on June 19, 2006. Bank records of respondent’s
client trust account show that these funds were not on deposit until the day the
check was written.
{¶ 6} In failing to pay settlement proceeds belonging to Dechert and
failing to hold those funds in trust, respondent violated DR 1-102(A)(4)
(prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), 1-
102(A)(5) (prohibiting conduct that is prejudicial to the administration of justice),
1-102(A)(6) (prohibiting conduct that adversely reflects on the lawyer’s fitness to
practice law), 9-102(B)(1) (requiring notification to the client of the lawyer’s
receipt of client funds and other property), 9-102(B)(3) (requiring a lawyer to
maintain complete records of all client funds in his possession and to render
appropriate accounts regarding those funds to his clients), and 9-102(B)(4)
(requiring prompt delivery of client funds).
Count II
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January Term, 2009
{¶ 7} From September 2006 through January 2007, relator sent
respondent numerous requests for documentation concerning respondent’s use of
his trust account. Respondent failed to provide any documentation showing that
he had held Dechert’s funds in compliance with the Disciplinary Rules.
Respondent thereby violated DR 1-102(A)(5) and (A)(6) and Gov.Bar R.
V(4)(G).
Count III
{¶ 8} In May 2003, respondent accepted the personal-injury case of
William and Betty Ann Clark on a contingent-fee basis. The parties settled the
case in September 2005 for $6,500. Respondent received the settlement check in
October 2005 and deposited it into his trust account.
{¶ 9} Later in October, respondent paid himself the $2,400 contingent
fee. He then forwarded $2,000 of the settlement funds to the Clarks, promising to
pay the rest of their share by the end of the year, after the expert-witness fee was
determined. Respondent failed to pay the Clarks in full or provide any accounting
of their funds for the next year, and bank records show that he did not maintain
the funds in his client trust account. On November 20, 2006, respondent
deposited $1,700 into his trust account, bringing the balance to $1,708.04. The
next day, he mailed the Clarks a check for $1,700.1
{¶ 10} In failing to promptly pay settlement funds belonging to the Clarks
and failing to hold those funds in trust, respondent violated DR 1-102(A)(4), 1-
102(A)(6), 9-102(B)(3), and 9-102(B)(4).
Sanction
{¶ 11} In making a final determination as to the appropriate sanction in
disciplinary cases, we weigh evidence of the aggravating and mitigating factors
listed in Section 10 of the Rules and Regulations Governing Procedure on
1. The expert-witness fee was apparently $400.
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Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary
case is unique, we are not limited to the factors specified in the rule but may take
into account “all relevant factors” in determining what sanction to impose.
BCGD Proc.Reg. 10(B).
{¶ 12} The parties stipulated and the board found that respondent has no
disciplinary record, a mitigating factor under BCGD Proc.Reg. 10(B)(2)(a). The
parties also stipulated that respondent suffered from depression, adjustment
disorder, and alcohol abuse; however, the board attributed no mitigating effect to
this factor because respondent failed to satisfy BCGD Proc.Reg. 10(B)(2)(g)(iii),
which required respondent to show that he had experienced “a sustained period of
successful treatment.” Aggravating factors are that respondent had dishonest and
selfish motives and that he engaged in a pattern of misconduct. See BCGD
Proc.Reg. 10(B)(1)(b) and (c).
{¶ 13} An attorney who engages in conduct that violates DR 1-102(A)(4)
will ordinarily be suspended from the practice of law. Disciplinary Counsel v.
Beeler, 105 Ohio St.3d 188, 2005-Ohio-1143, 824 N.E.2d 78, ¶ 44; Disciplinary
Counsel v. Fowerbaugh (1995), 74 Ohio St.3d 187, 190, 658 N.E.2d 237. We
find this case similar to Cuyahoga Cty. Bar Assn. v. Maybaum, 112 Ohio St.3d 93,
2006-Ohio-6507, 858 N.E.2d 359, in which we indefinitely suspended the license
of an attorney who had misappropriated client funds and failed to keep proper
accounts. Id. at ¶ 7. In that case, the attorney also suffered from mental illness
but was unable to show a sustained period of successful treatment. Id. at ¶ 11-13.
Although Maybaum, unlike respondent, had a prior disciplinary record, Maybaum
had cooperated during the disciplinary proceedings. Id. at ¶ 10 and 24.
{¶ 14} For his part, respondent has declined to fully cooperate in the
disciplinary process, with no apologies. In fact, he booked a three-month trip to
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January Term, 2009
Poland to begin on the date of his scheduled disciplinary hearing, notifying the
panel chair just three days before his flight. The hearing was rescheduled for his
convenience, but respondent notified relator less than two days beforehand that he
would not be attending that hearing, either, “[i]n light of the stipulations
submitted.”
{¶ 15} Because respondent has shown little mitigation and a dismissive
attitude toward the disciplinary process, we see no reason to depart from the
standard sanction for such serious violations of the Disciplinary Rules.
Respondent is hereby indefinitely suspended from the practice of law in Ohio.
Costs are taxed to respondent.
Judgment accordingly.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger,
Assistant Disciplinary Counsel, for relator.
______________________
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