Disciplinary Counsel v. Johnston , 121 Ohio St. 3d 403 ( 2009 )

[Cite as Disciplinary Counsel v. Johnston, 121 Ohio St.3d 403, 2009-Ohio-1432.]
DISCIPLINARY COUNSEL v. JOHNSTON.
[Cite as Disciplinary Counsel v. Johnston,
121 Ohio St.3d 403, 2009-Ohio-1432.]
Attorneys — Misconduct — Conduct adversely reflecting on fitness to practice
law — Failure to maintain client funds in separate account — One-year
suspension stayed on conditions.
(No. 2008-2447 — Submitted February 4, 2009 — Decided April 2, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 08-017.
__________________
Per Curiam.
{¶ 1} Respondent, Wesley Alton Johnston of Wadsworth, Ohio,
Attorney Registration No. 0061166, was admitted to the practice of law in Ohio in
1993. The Board of Commissioners on Grievances and Discipline recommends
that we suspend respondent’s license to practice for one year, staying the
suspension on remedial conditions, based on findings that he impermissibly
commingled his personal and client funds by using his client trust account for
operating expenses. We agree that respondent committed this professional
misconduct as found by the board and that a one-year stayed suspension is
appropriate.
{¶ 2} Relator, Disciplinary Counsel, charged respondent in a one-count
complaint with violations of the current Rules of Professional Conduct and the
Disciplinary Rules of the former Code of Professional Responsibility.1 A panel
1. In effect, relator charged respondent with continuing violations of the applicable rules for
misconduct occurring before and after February 1, 2007, the effective date of the Rules of
Professional Responsibility, which supersede the Code of Professional Conduct. In specifying
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appointed by the board heard the case, including the parties’ extensive stipulations
and respondent’s testimony, made findings of misconduct, and recommended an
18-month, conditionally stayed suspension from practice. The board accepted the
findings of misconduct but recommended a conditionally stayed suspension of
one year.
{¶ 3} The parties have not objected to the board’s report.
Misconduct
{¶ 4} Upon passing the bar, respondent worked for approximately one
and one-half years for another attorney and then opened his own practice, mainly
accepting court-appointed juvenile and criminal cases. As of the November 2008
panel hearing, respondent maintained offices in Wadsworth, Youngstown, and
Cleveland. He devoted approximately half of his practice to court-appointed
criminal work but also represented clients in domestic-relations disputes and
Social Security claims, and in cases involving contract and business litigation,
workers’ compensation, and personal injury.
{¶ 5} Soon after opening his solo practice, respondent opened a bank
account for holding client funds in trust, an account he has always maintained.
But because of financial difficulties, respondent eventually started overdrawing
his operating bank account, which led to large bank overdraft charges and other
fees. He then switched to using his client trust account both for entrusted funds
and as his operating account. From January 2006 through October 2007,
respondent admittedly commingled funds in his client trust account by depositing
client funds, personal funds, earned attorney fees, and unearned retainer fees into
the account.
both the former and current rules for the same acts, the allegations compose a single ethical
violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d
31, fn. 1.
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January Term, 2009
{¶ 6} Respondent made nine deposits that had no relation to any client,
for a total of $3,370.63, into his client trust account during 2006. The bulk of
these deposits came from rent money that respondent had collected for the
landlord from another tenant in his office building. He had deposited other funds
just to avoid overdrawing the account.
{¶ 7} During 2006, respondent cashed 37 checks from the trust account,
withdrawing a total of $12,327.44. He cashed 18 checks from the trust account
during 2007, withdrawing another $6,455. Respondent wrote 44 checks from the
client trust account during 2006 and 2007 to pay personal obligations. He also
routinely made ATM or debit withdrawals and transferred funds from the account
to pay both personal and business creditors. Respondent insists that he had earned
all funds that he withdrew, and relator did not charge that he had misappropriated
any client funds.
{¶ 8} Moreover, respondent overdrew his client trust account during
2006 and 2007. His bank assessed him for either overdraft or insufficient-fund
charges 22 times. The negative balance in respondent’s trust account triggered
the bank’s obligation to report the impropriety to relator, which commenced the
investigation that led to the underlying complaint.
{¶ 9} Respondent ended up bouncing one check to a client, but he
quickly covered the check, paying the client by a certified check that included
associated bank charges. Respondent also did not have an acceptably reliable
recordkeeping system to allow him to account to clients for funds in his
possession.
{¶ 10} Based on the parties’ stipulations, the panel and board found clear
and convincing evidence that respondent had violated DR 1-102(A)(6) and its
counterpart, Prof.Cond.R. 8.4(h) (both prohibiting a lawyer from engaging in
conduct that adversely reflects upon his fitness to practice law); DR 9-102(A) (all
funds of clients paid to a lawyer shall be deposited in one or more identifiable
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bank accounts containing no funds belonging to the lawyer) and its counterpart,
Prof.Cond.R. 1.15(a) (a lawyer shall hold property of clients or third persons that
is in a lawyer’s possession in connection with representation separate from the
lawyer’s own property); and DR 9-102(B)(3) (a lawyer shall maintain complete
records of all funds, securities, and other properties of a client coming into the
possession of a lawyer and render appropriate accounts to his client regarding
them). We accept these findings of misconduct.
Sanction
{¶ 11} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties violated by the lawyer in question and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10 of the Rules and Regulations Governing Procedure on
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} We have already discussed respondent’s violations of duties owed
to his client and the profession. With respect to precedent, the board’s
recommendation of a one-year suspension, all stayed on conditions, is within the
range of sanctions we have imposed in similar cases.
{¶ 13} As the board observed, we suspended the lawyer in Disciplinary
Counsel v. Newcomer, 119 Ohio St.3d 351, 2008-Ohio-4492, 894 N.E.2d 50,
from practice for six months, staying the entire suspension, because he had used
his client trust account for his personal banking needs after the bank closed his
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January Term, 2009
personal account. That lawyer overdrew the client trust account on two
occasions. We found him in violation of DR 1-102(A)(6) and 9-102(A).
{¶ 14} By contrast, the lawyer in Disciplinary Counsel v. Vogtsberger,
119 Ohio St.3d 458, 2008-Ohio-4571, 895 N.E.2d 158, commingled his own
funds with those held in trust for clients to shield the money from creditor
garnishment. Because that lawyer committed the extra impropriety of acting
dishonestly to hide personal resources, a violation of DR 1-102(A)(4), we
suspended him for two years with a stay of only the second year.
{¶ 15} The board found respondent’s misuse of his client trust account of
greater gravity than the misuse in Newcomer but less than the misuse in
Vogtsberger. We agree. Moreover, though respondent engaged in a pattern of
misconduct, an aggravating factor under BCGD Proc.Reg. 10(B)(1)(c), he has
presented much in mitigation. Respondent has no previous record of professional
discipline, has incorporated a new accounting system for his practice, and has
cooperated fully in the disciplinary proceedings, which are all mitigating factors
under BCGD Proc.Reg. 10(B)(2)(a), (c), and (d). Fortunately, no client suffered
significant financial harm due to respondent’s misconduct. Respondent’s good
character and reputation in his community and his charitable work on behalf of
victims of Huntington’s disease, disadvantaged clients, and his church also weigh
in his favor.
{¶ 16} We suspend respondent from the practice of law in Ohio for one
year; however, the suspension is stayed on the condition that he complete a one-
year monitored probation in accordance with Gov.Bar R. V(9). The monitoring
attorney, to be appointed by relator, shall provide oversight as to respondent’s
business practices, especially as they relate to management of his client trust
account. As a second condition of the stay, respondent shall complete, in addition
to the other continuing legal education (“CLE”) requirements under Gov.Bar. R.
X, six hours of CLE in law-office management and accounting. If respondent
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fails to comply with the terms of the stay and probation, the stay will be lifted,
and he will serve the entire one-year suspension.
{¶ 17} 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 Stacey Solocheck
Beckman, Assistant Disciplinary Counsel, for relator.
Paul Knott, for respondent.
______________________
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