Disciplinary Counsel v. Fletcher , 122 Ohio St. 3d 390 ( 2009 )

[Cite as Disciplinary Counsel v. Fletcher, 122 Ohio St.3d 390, 2009-Ohio-3480.]
DISCIPLINARY COUNSEL v. FLETCHER.
[Cite as Disciplinary Counsel v. Fletcher,
122 Ohio St.3d 390, 2009-Ohio-3480.]
Attorneys — Misconduct — Failure to maintain separate account and to keep
complete records of trust account — Six-month suspension, stayed on
conditions.
(No. 2008-1691 ⎯ Submitted April 8, 2009 — Decided July 22, 2009.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 07-103.
__________________
Per Curiam.
{¶ 1} Respondent, Peter F. Fletcher of Northfield, Ohio, Attorney
Registration No. 0030992, was admitted to the practice of law in Ohio in 1982.
The Board of Commissioners on Grievances and Discipline has recommended
that we suspend respondent’s license to practice for six months, staying the entire
suspension on conditions of a monitored probation and no further misconduct,
based on findings that respondent misused his client trust account and
impermissibly provided financial assistance to a client. We agree that respondent
breached ethical standards as found by the board and that a six-month
conditionally stayed suspension is appropriate.
{¶ 2} Relator, Disciplinary Counsel, charged respondent with two counts
of professional misconduct, alleging multiple violations of the Disciplinary Rules
of the former Code of Professional Responsibility and the current Rules of
Professional Conduct, effective February 1, 2007. The board initially considered
the case on a consent-to-discipline agreement, filed pursuant to BCGD Proc.Reg.
11, in which the parties stipulated to facts and misconduct and proposed a six-
month suspension of respondent’s license, stayed on conditions of a one-year
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probation and no further misconduct. The board accepted the agreement and
recommended that we impose the recommended sanction.
{¶ 3} Upon review of the board’s certified report, we rejected the
recommendation and returned the cause to the board “for further proceedings and
consideration of a more severe sanction.” See Disciplinary Counsel v. Fletcher,
119 Ohio St.3d 1467, 2008-Ohio-4989, 894 N.E.2d 327. A three-member panel
of the board thereafter heard the cause and, based on the parties’ stipulations and
respondent’s testimony, made findings of fact and conclusions of law and
recommended a conditionally stayed six-month suspension. The board adopted
the panel’s findings of misconduct and again recommended the suspension of
respondent’s license for six months, all stayed on conditions of monitored
probation and no further misconduct.
Misconduct
Count I — Misuse of Client Trust Account
{¶ 4} Respondent, who first entered the practice of law in Connecticut in
1975 and spent years as a corporate attorney and in association with a law firm,
has more recently practiced on his own in the areas of criminal and traffic law,
bankruptcy, divorce, personal injury, and Social Security disability. He has
maintained an Interest on Lawyer’s Trust Accounts (“IOLTA”) account since at
least 1996, but according to his testimony, he has over the succeeding years only
occasionally received funds from clients that had to be held in trust. Prior to
February 1, 2007, before Prof.Cond.R. 1.15(a)(2)1 specified that lawyers must
1. {¶ a} Prof.Cond.R. 1.15(a) provides:
{¶ b} “A lawyer shall hold property of clients or third persons that is in a lawyer’s possession
in connection with a representation separate from the lawyer’s own property. * * * For funds, the
lawyer shall do all of the following:
{¶ c} “ * * *
{¶ d} “(2) maintain a record for each client on whose behalf funds are held that sets forth all
of the following:
{¶ e} “(i) the name of the client;
{¶ f} “(ii) the date, amount, and source of all funds received on behalf of such client;
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January Term, 2009
maintain records to document the identity of client funds in an IOLTA account,
respondent did not keep such records. And for more than a year after that date,
respondent did not record disbursements and balances for each client as that rule
requires.
{¶ 5} From at least 2002 until early August 2007, respondent did not
maintain an operating account for his practice. He instead used his IOLTA
account, in which he had commingled his own funds with funds belonging to
clients, to pay business expenses. He also used his IOLTA account to pay
personal expenses. Between January 2005 and January 2007, respondent wrote at
least 150 checks to pay for personal and business expenses from his IOLTA
account.
{¶ 6} From January 2005 through February 2007, respondent wrote 101
checks to himself from his IOLTA account without first verifying the amount in
the account that belonged to him. On several occasions during this period, he
received cash from deposits made into his IOLTA account that he applied to
incidental personal expenses. And twice during 2006, the account was
overdrawn, once because of a small error in his addition and again because of a
bank mistake. The mistakes triggered the bank’s obligation under R.C.
4705.10(A)(4)2 to notify disciplinary authorities, which led to these proceedings.
{¶ 7} After agreeing that respondent “no longer engages in this conduct,”
the parties stipulated as follows:
{¶ 8} “Respondent’s conduct before February 1, 2007, as set forth in
Count One violates the Code of Professional Responsibility * * *, specifically:
{¶ g} “(iii) the date, amount, payee, and purpose of each disbursement made on behalf of such
client;
{¶ h} “(iv) the current balance for such client.”
2. R.C. 4705.10(A)(4) provides: “The depository institution shall notify the office of disciplinary
counsel or other entity designated by the supreme court on each occasion when a properly payable
instrument is presented for payment from the account, and the account contains insufficient
funds.”
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DR 9-102(A) (all funds of clients paid to a lawyer shall be deposited in one or
more identifiable bank accounts and no funds belonging to the lawyer or law firm
shall be deposited therein); and DR 9-102(B)(3) (a lawyer shall maintain
complete records of all funds, securities, and other properties of a client coming in
the possession of the lawyer which the client is entitled to receive).
{¶ 9} “Respondent’s conduct on and after February 1, 2007, as set forth
in Count One violates the Ohio Rules of Professional Conduct, specifically:
ORPC 1.15(a) (A lawyer shall hold property of clients or third persons that is in
[a] lawyer’s possession in connection with a representation separate from the
lawyer’s own property); and ORPC 1.15(a)(2) (a lawyer shall maintain a record
for each client on whose behalf funds are held).”
{¶ 10} The panel and board agreed that respondent violated the cited
ethical standards. Because respondent’s continued misuse of his IOLTA account
violated DR 9-102(A) and (B)(3) and Prof.Cond.R. 1.15(a) and (a)(2), we accept
the findings that he engaged in this misconduct.
Count II — Financial Assistance to a Client
{¶ 11} While representing a client during 2006 in both bankruptcy and
divorce proceedings, respondent loaned the client approximately $900 for
personal expenses unrelated to either case. Respondent also cashed checks for the
client’s small cleaning company by first depositing the checks into his IOLTA
account. For the check-cashing and loan service, the client occasionally paid
respondent a $25 or $50 fee in addition to repaying the loan. Respondent did not
maintain records of the money that he deposited for his client.
{¶ 12} After agreeing that respondent “no longer engages in this conduct,”
the parties stipulated as follows:
{¶ 13} “Respondent’s conduct before February 1, 2007, as set forth in
Count Two herein violates the Code of Professional Responsibility * * *,
specifically: DR 5-103(B) (a lawyer shall not provide financial assistance to a
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January Term, 2009
client in connection with litigation unrelated to court costs or litigation expenses)
and [DR 9-102(B)(3)] (a lawyer shall maintain complete records of all funds,
securities, and other properties of a client coming in the possession of the lawyer
which the client is entitled to receive).”
{¶ 14} The panel and board agreed that respondent violated the cited
ethical rules. Because respondent’s continued financial assistance to his client
and incomplete recordkeeping violated DR 5-103(B) and 9-102(B)(3), we accept
the findings that he engaged in this misconduct.
Sanction
{¶ 15} The parties proposed a one-year suspension of respondent’s
license, all stayed on the conditions that (1) he complete a one-year probation that
would include monitoring of his IOLTA account by an attorney appointed by
relator and (2) he commit no further misconduct. In deciding to recommend a
six-month suspension, stayed on the suggested conditions, the board considered
the stipulated mitigating factors that respondent had no prior disciplinary record,
his misconduct was not the result of a selfish or dishonest motive, and he had
cooperated fully in the disciplinary process. See BCGD Proc.Reg. 10(B)(2)(a),
(b), and (d). The board also observed that “[n]o clients were harmed as a result of
Respondent’s misconduct.” In addition, no evidence indicated to the board that
respondent “was trying to hide or disguise income or assets for [the client] by
depositing them into his IOLTA account.”
{¶ 16} We adopt the board’s recommendation. Respondent assisted his
client financially out of concern for the client’s well-being, not for any illicit
purpose. And though his poor accounting practices resulted from a complete lack
of understanding and appreciation of his duty to safeguard client funds, it appears
from the stipulations that he commingled a relatively small sum, and no one has
accused him of misappropriation. Moreover, respondent has acknowledged his
deficiencies and earnestly promised to find or accept help in properly managing
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his IOLTA account, operating bank account, and personal bank account. The
board’s recommendation will ensure that he does.
{¶ 17} Respondent is therefore suspended from the practice of law in
Ohio for six months; however, the suspension is stayed on the conditions that (1)
he complete a one-year probation including monitoring of his IOLTA account by
an attorney appointed by relator and (2) he commit no further misconduct. If
respondent fails to comply with the conditions of the stay, the stay will be lifted,
and respondent will serve the entire six-month suspension. 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 Philip A. King, Assistant
Disciplinary Counsel, for relator.
Peter F. Fletcher, pro se.
______________________
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