Columbus Bar Assn. v. McCarty ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Columbus Bar Assn. v. McCarty, Slip Opinion No. 2024-Ohio-4940.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-4940COLUMBUS BAR ASSOCIATION v. MCCARTY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Columbus Bar Assn. v. McCarty, Slip Opinion No.
2024-Ohio-4940.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to deposit into a client trust account advance legal fees
and expenses to be withdrawn by the lawyer only as fees are earned or
expenses incurred—Conditionally stayed six-month suspension.
(No. 2024-1103—Submitted September 3, 2024—Decided October 16, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2023-040.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, and DETERS, JJ. BRUNNER, J., did not participate.
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Kevin Richard McCarty, of Groveport, Ohio, Attorney
Registration No. 0059226, was admitted to the practice of law in Ohio in 1992.
{¶ 2} On November 17, 2023, relator, Columbus Bar Association, filed a
three-count complaint with the Board of Professional Conduct alleging that
McCarty neglected client matters, failed to reasonably communicate with clients,
and failed to protect clients’ interests upon the termination of the representation.
Relator also alleged that McCarty failed to properly deposit funds into and maintain
records for his client-trust account.
{¶ 3} McCarty waived a probable-cause determination, and the parties
submitted a consent-to-discipline agreement recommending that McCarty be
suspended for one year, fully stayed on conditions. That agreement was rejected
by a panel of the board, and the parties then entered into stipulations of fact and
misconduct.
{¶ 4} After a hearing, the panel found that McCarty committed some of the
professional conduct alleged in the complaint but unanimously dismissed other
alleged rule violations. It then recommended that McCarty be suspended for six
months, with the suspension fully stayed on conditions. The board adopted the
panel’s findings of fact, conclusions of law, and recommended sanction.
{¶ 5} After a thorough review of the record, we adopt the board’s findings
of fact and misconduct and its recommended sanction. We suspend McCarty from
the practice of law in Ohio for six months, with the suspension fully stayed on the
conditions that he engage in no further misconduct, complete six hours of
continuing legal education (“CLE”) focused on law-office and client-trust-account
management, and serve a one-year period of monitored probation.
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January Term, 2024
I. MISCONDUCT
A. The Pratt Matter
{¶ 6} On March 2, 2022, Pamela Pratt retained McCarty to manage the
administration of her mother’s estate. The representation initially focused on
obtaining access to Pratt’s mother’s safety-deposit box at a bank in Ashville, Ohio,
as Pratt believed it might contain her mother’s will and a real-estate transfer-on-
death affidavit. McCarty did not have Pratt sign a retention or fee agreement, but
she did agree to pay McCarty a quoted fee of $400 for the representation.
{¶ 7} On March 7, Pratt returned to McCarty’s office for a second meeting
and signed paperwork required to be appointed commissioner. She needed that
appointment to inventory her mother’s safety-deposit box. Pratt also provided
McCarty with her mother’s will and transfer-on-death affidavit, which had been
found by Pratt’s daughter-in-law prior to the meeting. Additionally, Pratt paid
McCarty another $850 to prepare a deed transferring her mother’s home to her and
to file the paperwork for Pratt to be appointed executor of her mother’s estate.
During the meeting, McCarty informed Pratt that he would be out of the office later
in March for a trip to Florida. Pratt understood that McCarty would be back from
Florida on April 17.
{¶ 8} On March 17, Pratt received a call from the Pickaway County Probate
Court informing her that the paperwork for her commissioner appointment had been
received but that the fees included with the paperwork were insufficient. Pratt
therefore had to miss a day of work to travel to the court to pay the additional
amount needed to obtain her appointment. After receiving her commission, Pratt
visited the bank on March 25, to review and inventory the contents of the safety-
deposit box.
{¶ 9} Pratt attempted to contact McCarty in mid-April to follow up on the
representation. However, she learned that McCarty’s phone number had changed
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SUPREME COURT OF OHIO
and found McCarty’s office “cleared out” when she visited it. Pratt had no other
means to contact McCarty.
{¶ 10} Unable to reach McCarty and concerned for his well-being, Pratt
went to the Groveport Police Department for assistance, but the police could not
find a forwarding address or any additional information regarding McCarty’s
whereabouts. Unbeknownst to Pratt, McCarty had begun a full-time position as the
mediation supervisor at the Franklin County Court of Common Pleas at the end of
March.
{¶ 11} McCarty’s departure from private practice without telling Pratt
delayed the administration of her mother’s estate, and she incurred additional
expenses—including property taxes and upkeep for her mother’s home—before she
retained a new attorney. Pratt’s new counsel had to complete the work McCarty
had started, as McCarty did not perform any work for the $850 payment from Pratt.
{¶ 12} McCarty did not communicate with Pratt about the estate matter after
he returned to private practice in May 2022, but on December 29, 2022, he did
return the $1,250.00 he had accepted from Pratt.
{¶ 13} Based on the evidence presented at the hearing and the stipulations
of the parties, the board found by clear and convincing evidence that McCarty
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(3) (requiring a lawyer to keep a client reasonably
informed about the status of a matter), and 1.16(d) (requiring a lawyer withdrawing
from representation to take steps reasonably practicable to protect a client’s
interest). The board dismissed charges for alleged violations of Prof.Cond.R. 1.1
(requiring a lawyer to provide competent representation to a client), 1.4(b)
(requiring a lawyer to explain a matter to the extent reasonably necessary for a
client to make informed decisions regarding the representation), 1.5(a) (prohibiting
a lawyer from making an agreement for, charging, or collecting an illegal or clearly
excessive fee), and 1.5(b) (requiring an attorney to communicate the nature and
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January Term, 2024
scope of the representation and the basis or rate of the fee and expenses within a
reasonable time after commencing the representation unless the lawyer regularly
represented the client and will charge the client on the same basis as previously
charged).
B. McCarty’s Client Trust Account
{¶ 14} During its investigation into the Pratt matter, relator requested that
McCarty produce a copy of his Interest on Lawyers’ Trust Accounts (“IOLTA”)
ledger for all client transactions that occurred in 2022. In response, McCarty
produced only one handwritten ledger dated “December 2022” that contained four
client names (including Pratt) alongside the fees he received from them. For Pratt,
the ledger had a single line indicating that Pratt paid McCarty $1,250 on “June 28.”
This amount did not separate the $400 and $850 payments that Pratt made to
McCarty on March 2 and March 7, 2022, respectively.
{¶ 15} Relator then asked McCarty to produce his Chase Bank IOLTA
account statements for January through November 2022. The statements did not
show that McCarty had deposited the $400 or $850 payments Pratt made. The
statements did, however, include a $270,029.98 deposit on June 30, which McCarty
identified as the proceeds from the sale of his residence. McCarty indicated that he
did not remember his personal bank information at the time of sale and that he
therefore gave the agent his IOLTA-account information to complete the closing.
McCarty then began to make withdrawals from his IOLTA account, with checks
written to himself and deposited into a personal account he kept at Huntington
National Bank.
{¶ 16} Relator subpoenaed Huntington National Bank and Chase Bank for
records related to McCarty’s personal and trust accounts, including monthly
statements, checks, and deposits. Relator thereby discovered that the majority of
the checks written from or deposited into the IOLTA account had not been recorded
in the trust ledger that McCarty had provided to relator.
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SUPREME COURT OF OHIO
{¶ 17} Twenty checks deposited into McCarty’s personal account consisted
of refund checks for clients’ overpayments of costs to clerks of court and a county
auditor. Neither the 2022 IOLTA trust ledger nor the statements from either the
IOLTA or McCarty’s personal account show that these funds were returned to
clients. McCarty did, however, made full restitution to the affected clients
following the filing of the complaint in this matter.
{¶ 18} Based on the evidence presented at the hearing and the stipulations
of the parties, the board found by clear and convincing evidence that McCarty
violated Prof.Cond.R. 1.15(b) (permitting a lawyer to deposit his or her own funds
into a client trust account for the sole purpose of paying or obtaining a waiver of
bank service charges), 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(d) (requiring a lawyer to promptly deliver
funds or other property that a client is entitled to receive). The board dismissed a
charge for an alleged violation of Prof.Cond.R. 1.15(a) (requiring a lawyer to hold
funds belonging to a client or third party in a client trust account separately from
his own property).
C. The Shaner Matter
{¶ 19} In December 2020, Jennifer Shaner retained McCarty to represent
her in a divorce action filed by Shaner’s then-husband. Shaner paid McCarty a
$1,000 retainer for the representation, but McCarty’s IOLTA records do not show
that any deposits were made into the account during December 2020 or January
2021.
{¶ 20} Based on the evidence presented at the hearing and the stipulations
of the parties, the board found by clear and convincing evidence that McCarty
violated Prof.Cond.R. 1.15(c). The board dismissed charges for alleged violations
of Prof.Cond.R. 1.5(b), 1.15(a), 1.16, and 3.3(a) (prohibiting a lawyer from making
a false statement to a tribunal).
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January Term, 2024
II. SANCTION
{¶ 21} When imposing sanctions for attorney misconduct, we consider all
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.
{¶ 22} The board found two aggravating factors in this case: (1) a pattern
of misconduct and (2) multiple offenses. See Gov.Bar R. V(13)(B)(3) and (4). As
for mitigating factors, the board found that McCarty (1) had no prior disciplinary
record, (2) had not acted with a dishonest or selfish motive, (3) had made timely
restitution to clients, and (4) had displayed a cooperative attitude toward the
disciplinary proceedings. See Gov.Bar R. V(13)(C)(1) through (4).
{¶ 23} The board recommends that we suspend McCarty from the practice
of law for six months, with the suspension fully stayed on the conditions that he (1)
engage in no further misconduct, (2) complete six hours of CLE focused on law-
office and IOLTA management in addition to the requirements of Gov.Bar R. X,
and (3) complete a one-year term of monitored probation under Gov.Bar R. V(21),
with monitoring focused on law-office and IOLTA management.
{¶ 24} In making this recommendation, the board relied on Mahoning Cty.
Bar Assn. v. Malvasi, 2015-Ohio-2361; Dayton Bar Assn. v. Wilcoxson, 2018-Ohio-
2699; and Dayton Bar Assn. v. Hooks, 2014-Ohio-2596.
{¶ 25} The attorney in Malvasi was retained to represent a couple in a real-
estate action. The couple paid Malvasi a $2,500 retainer, which Malvasi failed to
deposit into his IOLTA account. Malvasi then failed to file a complaint or contact
the opposing parties about a potential settlement for approximately 11 months.
During this time, Malvasi had little contact with the couple. Almost a year after he
was retained, Malvasi informed the couple that he had not yet filed the lawsuit, yet
he continued to take no further action on their behalf to file the complaint.
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SUPREME COURT OF OHIO
{¶ 26} We concluded that Malvasi’s misconduct violated Prof.Cond.R. 1.3,
1.4(a)(3), 1.4(a)(4), and 1.15(c). Id. at ¶ 4. There were no aggravating factors,
while mitigation included the absence of prior discipline, the lack a of dishonest or
selfish motive, a good-faith effort to make restitution and rectify the consequences
of the misconduct, a cooperative attitude toward the disciplinary proceedings, and
evidence of good character and reputation. Id. at ¶ 6. We imposed a six-month
suspension, stayed on the conditions that Malvasi commit no further misconduct,
serve a one-year term of monitored probation, and complete a seminar on law-office
management. Id. at ¶ 10.
{¶ 27} The attorney in Wilcoxson, 2018-Ohio-2699, was retained to
represent a client in a federal employment-discrimination lawsuit. The client
agreed to pay a $1,000 retainer plus a $400 filing fee but gave Wilcoxson only
$500. Despite the client’s failure to pay the full amount promised, Wilcoxson filed
suit—but not until four days after the filing deadline. He did not inform the client
about the status of the case until after it was dismissed. The client then retained a
new attorney, but Wilcoxson disregarded requests to turn over the client’s file.
{¶ 28} We concluded that Wilcoxson’s misconduct violated Prof.Cond.R.
1.3, 1.4(a)(3), 1.16(d), 8.1(b) (prohibiting a lawyer from knowingly failing to
respond to a demand for information by a disciplinary authority during an
investigation), and 8.4(a) (prohibiting a lawyer from violating or attempting to
violate the Rules of Professional Conduct). Id. at ¶ 13. We found as an aggravating
factor that Wilcoxson had failed to notify the client that he did not have
professional-liability insurance, while mitigation included the absence of prior
discipline, the lack of a dishonest or selfish motive, payment of restitution, and
evidence of good character and reputation. Id. at ¶ 8. We imposed a six-month
suspension, stayed on the condition that Wilcoxson engage in no further
misconduct. Id. at ¶ 13-14.
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January Term, 2024
{¶ 29} In Hooks, 2014-Ohio-2596, a client living in Tennessee retained the
attorney to seek a modification of a child-custody and child-support order. The
client paid Hooks a $1,500 retainer and sent him the necessary paperwork, but
Hooks never filed the documents seeking the modification. Additionally, Hooks
failed to respond to the client’s repeated calls and messages, and the client therefore
had to pay child support for a child that was then living with him. Eventually,
Hooks’s neglect of the matter led the client to file a grievance with the Dayton Bar
Association.
{¶ 30} We concluded that Hooks’s misconduct violated Prof.Cond.R. 1.3
and 1.4. Id. at ¶ 9. One aggravating factor—that Hooks committed multiple
offenses—was present, while mitigation included the absence of prior discipline,
the lack of a dishonest or selfish motive, and acceptance of responsibility for the
misconduct. Id. at ¶ 12. We imposed a six-month suspension, stayed on the
conditions that Hooks complete 12 hours of CLE in law-office management, submit
to an evaluation by the Ohio Lawyers Assistance Program (“OLAP”) within three
months of our order, participate in a one-year mentoring program, and commit no
further misconduct. Id. at ¶ 18.
{¶ 31} In addition to the cases relied on by the board, Wood Cty. Bar Assn.
v. Driftmyer, 2018-Ohio-5094, is instructive. Driftmyer was retained to defend a
client against criminal charges that included rape. The client paid Driftmyer the
agreed fee of $5,000 in two installments as well as an additional $3,200 to pay for
a private investigator. The client was convicted and filed a grievance against
Driftmyer, alleging ineffective assistance of counsel. During Driftmyer’s
disciplinary hearing, it was discovered that she had never tried a rape case before,
was unprepared to defend her client at trial, and failed to disclose crucial defense
witnesses to the State. Further, Driftmyer failed to deposit $2,500 of the client’s
fee into her client trust account.
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SUPREME COURT OF OHIO
{¶ 32} We concluded that Driftmyer’s misconduct violated Prof.Cond.R.
1.3, 1.4(c), 1.15(a), 1.15(a)(1), and 8.1(b). Id. at ¶ 12. Two aggravating factors
were present: Driftmyer committed multiple offenses and failed to cooperate in the
disciplinary process. Id. at ¶ 14. Mitigation included the absence of prior
discipline, the lack of a dishonest or selfish motive, and evidence of good character
and reputation. Id. We imposed a six-month suspension, stayed on the conditions
that Driftmyer submit to an OLAP assessment, comply with treatment
recommendations resulting from it, establish and utilize a client trust account,
obtain professional-liability insurance or else notify clients that she does not carry
it, complete 12 hours of CLE in criminal-trial practice and 6 hours of CLE in law-
office management, engage in no further misconduct, and serve a one-year term of
monitored probation. Id. at ¶ 22.
{¶ 33} We agree with the board that McCarty’s misconduct in this case—
his violations of Prof.Cond.R. 1.3, 1.4(a)(3), 1.16(d), 1.15(b), 1.15(c), and
1.15(d)—is comparable to the attorneys’ misconduct in Malvasi, Wilcoxson, and
Hooks. Like McCarty in the Pratt matter, the attorneys in those cases were
sanctioned for their mishandling of a single client’s matter in which they failed to
diligently work for and reasonably communicate with the client. Additionally, in
Malvasi and Driftmyer, the client-matter misconduct was coupled with IOLTA-
account violations. In each of these cases, we imposed a six-month suspension
stayed on conditions. We therefore agree with the board that this is the appropriate
sanction for McCarty’s misconduct.
{¶ 34} Imposition of this sanction does not diminish the fact that McCarty
abandoned a client when he temporarily left private practice. However, “the
primary purpose of attorney discipline is not to punish the offender but to protect
the public against members of the bar who are unworthy of the trust and confidence
essential to the attorney-client relationship.” Disciplinary Counsel v. Carter, 2023-
Ohio-3992, ¶ 31. And after a review of the record and our applicable precedent,
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January Term, 2024
we are convinced that suspending McCarty from the practice of law for six months,
with the entire suspension stayed on conditions, is sufficient to protect the public
from further misconduct.
III. CONCLUSION
{¶ 35} Accordingly, Kevin McCarty is suspended from the practice of law
for six months, with the suspension stayed in its entirety on the conditions that he
(1) engage in no further misconduct, (2) complete six hours of CLE focused on law-
office and client-trust-account management in addition to the requirements of
Gov.Bar R. X, and (3) serve a one-year period of monitored probation in
accordance with Gov.Bar R. V(21) focused on law-practice and client-trust-account
management. If McCarty fails to comply with a condition of the stay, the stay will
be lifted and he will serve the full six-month suspension. Costs are taxed to
McCarty.
Judgment accordingly.
__________________
Kent R. Markus and Holly N. Wolf, Bar Counsel; and Jyoshu Tsushima,
Legal Aid Society of Columbus, for relator.
Holly Marie Wilson, Reminger Co., L.P.A., for respondent.
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