Lorain Cty. Bar Assn. v. Smith (Slip Opinion) , 147 Ohio St. 3d 419 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lorain Cty. Bar Assn. v. Smith, Slip Opinion No. 2016-Ohio-7469.]
NOTICE
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advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-7469
LORAIN COUNTY BAR ASSOCIATION v. SMITH.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lorain Cty. Bar Assn. v. Smith, Slip Opinion No.
2016-Ohio-7469.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Public
reprimand.
(No. 2016-0539—Submitted June 1, 2016—Decided October 27, 2016.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2015-031.
_______________________
Per Curiam.
{¶ 1} Respondent, Gerald Morton Smith of Avon Lake, Ohio, Attorney
Registration No. 0008781, was admitted to the practice of law in Ohio in 1961.
{¶ 2} On May 4, 2015, relator, Lorain County Bar Association, filed an
eight-count complaint against Smith with the Board of Professional Conduct. In
the complaint, relator alleged that Smith violated the Rules of Professional Conduct
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in his representation of a single client by charging a clearly excessive fee, failing to
deposit the fee into his client trust account, failing to advise the client that he might
be entitled to a refund of all or part of the fee if it was not earned, failing to maintain
required trust-account records, and representing to the client that he could
improperly influence government officials to achieve a favorable resolution of the
client’s criminal matter. The parties entered into stipulations of fact and
misconduct, stipulating to some but not all of the charged offenses.
{¶ 3} After conducting a hearing, a panel of the board issued a report in
which it found that the stipulated violations were proven by clear and convincing
evidence, dismissed an additional alleged violation on relator’s motion, and
unanimously dismissed the remaining allegations based on the insufficiency of the
evidence. See Gov.Bar R. V(12)(G). The panel recommended that Smith be
publicly reprimanded for his misconduct. The board adopted the findings of fact,
conclusions of law, and recommendation of the panel. There are no objections to
the board’s findings or recommendation. We adopt the board’s report in its entirety
and publicly reprimand Smith for the conduct described below.
Misconduct
{¶ 4} On or about March 13, 2008, Robert Gonzalez Jr. requested that Smith
represent his father, Robert Gonzalez, in a criminal matter. Smith informed
Gonzalez Jr. that he would accept the representation and that his fee would be
$25,000. An associate in Smith’s firm appeared in the Oberlin Municipal Court on
behalf of Gonzalez. Gonzalez Jr. paid Smith $10,000 on March 14, 2008, and paid
him an additional $15,000 four days later.
{¶ 5} Gonzalez was indicted on April 9, 2008, on a number of serious
offenses, including kidnapping and abduction with firearm specifications, and
faced a possible sentence of more than 32 years in prison if convicted on all counts.
{¶ 6} Upon reviewing the charges and the facts of the case after Gonzalez’s
arraignment, Smith told him that he would require an additional $50,000 to
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represent him—of which Gonzalez Jr. paid $45,000. The fact that Smith never
entered into a written fee contract with Gonzalez created uncertainty regarding the
nature of the fees, which Smith described variously in his testimony as a flat fee, a
retainer, or a retainer until a flat fee could be set. It is clear, however, that no portion
of the $70,000 fee was ever deposited into Smith’s client trust account and that
Smith failed to advise Gonzalez in writing that if the entire fee was not earned, he
might be entitled to a refund of some or all of the fee. In addition, Smith failed to
maintain records, bank accounts, and bank statements and failed to retain monthly
reconciliations for Gonzales that would have demonstrated the manner in which he
handled client funds.
{¶ 7} On April 21, 2008, Gonzalez was released on bond. In December
2008, he pleaded guilty to the charged offenses—with the exception of a charge for
violating a protection order, which was dismissed. In March 2009, he was
sentenced to two years in prison on the kidnapping charge and a three-year
consecutive sentence for the firearm specification. Gonzalez was eligible for
judicial release in just three and a half years, and despite the state’s opposition, he
was released from prison in November 2012. The board found that there was little
question that Smith provided Gonzalez with very effective assistance of counsel.
{¶ 8} The board also found that regardless of how Smith characterized his
fee, his handling of the funds violated several Rules of Professional Conduct, and
it therefore accepted Smith’s stipulation that he violated Prof.Cond.R. 1.5(d)(3)
(prohibiting a lawyer from charging a fee denominated as “earned upon receipt,”
“nonrefundable,” or in any similar terms without simultaneously advising the client
in writing that the client may be entitled to a refund of all or part of the fee if the
lawyer does not complete the representation), 1.15(c) (requiring a lawyer to deposit
advance legal fees and expenses into a client trust account, to be withdrawn by the
lawyer only as fees are earned or expenses incurred), and 1.15(a)(1) through (5)
(requiring a lawyer to hold funds belonging to a client or third party in a client trust
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account separate from his own property and to maintain certain records regarding
the funds held in that account and certain bank records, as well as to perform and
retain a monthly reconciliation of the account).
{¶ 9} We adopt the board’s findings of fact and misconduct.
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 11} The parties stipulated and the board found as relevant mitigating
factors the absence of a prior disciplinary record in Smith’s more than 50-year legal
career, the absence of a dishonest or selfish motive, his full and free disclosure to
the board and cooperative attitude during the course of the disciplinary proceedings,
and evidence of his good reputation apart from the charged misconduct. See
Gov.Bar R. V(13)(C)(1), (2), (4), and (5). The only aggravating factor present is
that Smith engaged in multiple offenses. See Gov.Bar R. V(B)(4).
{¶ 12} The board recommends that we publicly reprimand Smith for his
misconduct. In support of that recommendation, the board cites Akron Bar Assn.
v. White, 136 Ohio St. 3d 51, 2013-Ohio-2153, 989 N.E.2d 1013 (publicly
reprimanding a lawyer with no prior disciplinary record who deposited a client
retainer in his firm’s operating account rather than his client trust account), and
Trumbull Cty. Bar Assn. v. Rucker, 134 Ohio St. 3d 282, 2012-Ohio-5642, 981
N.E.2d 866 (publicly reprimanding a lawyer with no prior disciplinary record who
failed to hold client property in an interest-bearing client trust account separate
from the lawyer’s own property, failed to advise the client that the client may be
entitled to a refund of all or part of a “nonrefundable” fee if the lawyer did not
complete the representation, failed to promptly deliver funds or property that a
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client was entitled to receive, neglected the client’s legal matter, and failed to
reasonably communicate with the client).
{¶ 13} Having thoroughly reviewed the board’s findings of fact and
conclusions of law, the applicable aggravating and mitigating factors, and the
sanctions we have imposed for comparable misconduct, we adopt the board’s
findings of fact and misconduct and agree that a public reprimand is the appropriate
sanction in this case.
{¶ 14} Accordingly, Gerald Morton Smith is publicly reprimanded for the
misconduct described above. Costs are taxed to Smith.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
D. Chris Cook, for relator.
Gallagher Sharp, Monica A. Sansalone, and Matthew T. Norman, for
respondent.
_________________
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