Lorain Cty. Bar Assn. v. Walton , 2024 Ohio 4975 ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lorain Cty. Bar Assn. v. Walton, Slip Opinion No. 2024-Ohio-4975.]
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-4975LORAIN COUNTY BAR ASSOCIATION v. WALTON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lorain Cty. Bar Assn. v. Walton, Slip Opinion No.
2024-Ohio-4975.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to inform client of potential entitlement to refund of fees
paid if representation not completed, failing to inform client of lack of
professional-liability insurance, and failing to deposit advance legal fees in
client trust account and to withdraw those fees only as earned or expenses
incurred—Eighteen-month suspension fully stayed on conditions, to
commence after attorney’s license has been restored to active status from
current suspension.
(No. 2024-1107—Submitted September 3, 2024—Decided October 17, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2023-036.
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SUPREME COURT OF OHIO
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, and DETERS, JJ. BRUNNER, J., did not participate.
Per Curiam.
{¶ 1} Respondent, Gerald Robert Walton, of Twinsburg, Ohio, Attorney
Registration No. 0003914, was admitted to the practice of law in Ohio in 1980.
{¶ 2} On October 27, 2016, we imposed a conditionally stayed six-month
suspension on Walton based on his failure to respond to two letters of inquiry and
a subpoena compelling his deposition following two overdrafts of his client trust
account. Disciplinary Counsel v. Walton, 2016-Ohio-7468, ¶ 1, 9. In October
2021, this court issued a monetary sanction against Walton in the amount of $225
for not completing the continuing-education hours required by Gov.Bar R. X(3),
see 2021-Ohio-3654, but he paid that sanction by the due date. Walton has not
registered as an active attorney for the 2023/2024 biennium as required by Gov.Bar
R. VI(2)(A). And on October 19, 2023, we suspended his license and imposed a
monetary sanction of $300 on him for failing to comply with the CLE requirements
of Gov.Bar R. X. See 2023-Ohio-3804. That suspension remains in effect and the
$300 monetary sanction has not been paid.
{¶ 3} In an October 2023 complaint, relator, Lorain County Bar
Association, charged Walton with five ethical violations arising from his
representation of a husband and wife in a civil matter. Walton admitted most of the
allegations in his answer to relator’s complaint. The parties entered into
stipulations of fact, misconduct, and aggravating and mitigating factors, and relator
sought to dismiss one alleged rule violation. The parties stipulated that a
conditionally stayed 18-month suspension is the appropriate sanction for Walton’s
misconduct. In addition, the parties filed a joint motion to waive a formal hearing,
given Walton’s significant health conditions. The chair of the panel of the Board
of Professional Conduct appointed to hear the matter granted that motion, and the
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panel unanimously dismissed the allegation that Walton had failed to diligently
represent his clients.
{¶ 4} The panel issued a report finding that Walton had failed to (1) advise
his clients that they may be entitled to a refund of the agreed-upon flat fee if he did
not complete the work, (2) deposit the clients’ advance payment into his client trust
account, and (3) advise the clients that he did not maintain professional-liability
insurance. The panel recommended that Walton be suspended from the practice of
law for 18 months with the entire suspension stayed on the conditions that he
commits no further misconduct and serves a one-year period of monitored
probation focused on law-practice management and client-trust-account
compliance. In addition, the panel recommended that Walton’s suspension not take
effect until he is reinstated from his existing suspension and he registers for active
status with the Supreme Court’s Office of Attorney Services.
{¶ 5} The board adopted the panel’s findings of fact, conclusions of law,
and recommended sanction. After independently reviewing the record and our
precedent, we adopt the board’s findings of misconduct and recommended
sanction.
MISCONDUCT
{¶ 6} According to Walton’s answer to the complaint and the parties’
stipulations, Linda Bilow, a longtime client of Walton’s, asked Walton to represent
her and her husband in a matter involving a roofing company. Walton admitted
that he sent Bilow a letter of engagement requesting a $1,500 “non-refundable
retainer.” However, the letter of engagement did not inform Bilow that she may be
entitled to a refund of all or part of that fee if Walton did not complete the
representation, as required by Prof.Cond.R. 1.5(d)(3) (prohibiting a lawyer from
charging a fee denominated as “earned upon receipt” or “nonrefundable” or using
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
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complete the representation). Walton also admitted that he failed to inform Bilow
that he did not maintain professional-liability insurance, as required by
Prof.Cond.R. 1.4(c) (requiring a lawyer to inform a client if the lawyer does not
maintain professional-liability insurance and to obtain a signed acknowledgment of
that notice from the client).
{¶ 7} In addition, Walton admitted that he failed to deposit Bilow’s fee into
his client trust account, in violation of Prof.Cond.R. 1.15(a) (requiring a lawyer to
hold the property of clients in an interest-bearing client trust account, separately
from the lawyer’s own property) and 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).
{¶ 8} The panel and board found by clear and convincing evidence that
Walton violated Prof.Cond.R. 1.4(c), 1.5(d)(3), 1.15(a), and 1.15(c). We adopt the
board’s findings of misconduct.
RECOMMENDED SANCTION
{¶ 9} 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.
{¶ 10} The parties stipulated and the board found that two aggravating
factors are present in this case—Walton has a history of prior discipline and he
committed multiple offenses. See Gov.Bar R. V(13)(B)(1) and (4). As for
mitigating factors, the parties stipulated and the board found that Walton did not
act with a selfish or dishonest motive and that he made full and free disclosure and
exhibited a cooperative attitude toward the disciplinary proceedings. See
Gov.Bar R. V(13)(C)(2) and (4).
{¶ 11} The parties stipulated that the appropriate sanction for Walton’s
misconduct is a conditionally stayed 18-month suspension. In support of that
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sanction, the parties cited three cases in which we imposed sanctions for similar
misconduct—two in which we imposed two-year suspensions with 18 months
conditionally stayed, see Geauga Cty. Bar Assn. v. Snavely, 2016-Ohio-7829, ¶ 18;
Lorain Cty. Bar Assn. v. Nelson, 2017-Ohio-8856, ¶ 24, and a third in which we
imposed a conditionally stayed six-month suspension, see Cincinnati Bar Assn. v.
Jackson, 2019-Ohio-4203, ¶ 15.
{¶ 12} In the first case cited by the parties, Snavely engaged in misconduct
similar to Walton’s by (1) failing to inform two clients that she did not carry legal-
malpractice insurance, (2) accepting a flat fee from a client without informing the
client that he may be entitled to a refund of all or part of the fee if Snavely did not
complete the representation, (3) failing to deposit that fee into a client trust account,
(4) failing to maintain a client trust account, and (5) lacking knowledge about how
to properly use a client trust account. Snavely also engaged in significant additional
misconduct that is not present in this case: she pleaded guilty to a first-degree
misdemeanor count of attempted forgery for forging one client’s signature on a
legal-malpractice-waiver form, and she was admitted to an inpatient treatment
program for heroin addiction and pleaded guilty to a fifth-degree felony count of
possessing heroin, for which she was granted intervention in lieu of conviction.
Although her addiction impaired her ability to represent two of her clients, Snavely
failed to withdraw from the representations and failed to promptly refund to one
client an unearned fee. In the presence of just one aggravating factor and five
mitigating factors, we suspended Snavely for two years with 18 months stayed on
conditions. Snavely at ¶ 12-13, 18.
{¶ 13} In the second case cited by the parties, Nelson failed to advise a
client that he may be entitled to a refund of all or a portion of the flat fee he charged
and considered earned on receipt, failed to deposit an unearned fee into his client
trust account, failed to maintain required client-trust-account records, and failed to
notify a client that he lacked malpractice insurance—all acts of misconduct similar
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to Walton’s. But Nelson also failed to promptly refund an unearned fee to a client
and failed to cooperate in the resulting disciplinary investigation. Nelson lacked a
selfish motive, submitted some evidence of his good character and reputation, and
acknowledged some of his misconduct. Nelson at ¶ 16. However, Nelson had
previously been publicly reprimanded for violating one of the same professional-
conduct rules as Walton and failed to implement the procedures necessary to ensure
compliance with that rule. See id. at ¶ 22-23. We concluded that an actual
suspension was necessary to protect the public and therefore suspended Nelson for
two years with 18 months stayed on conditions. Id. at ¶ 23-24.
{¶ 14} Unlike Nelson, Walton fully complied with relator’s investigation in
this case and admitted to his misconduct. And while Walton has previously been
disciplined by this court, his previous sanctions were for conduct that bears no
resemblance to the conduct at issue in his present case.
{¶ 15} Finally, in the third case cited by the parties, Jackson failed to deposit
an unearned fee into his client trust account and failed to maintain required client-
trust-account records. He also failed to inform two other clients that he did not
maintain professional-liability insurance, failed to inform a chiropractor who had
treated those clients that he had received the clients’ settlement proceeds, and failed
to pay the healthcare provider from those proceeds as agreed. Furthermore, he
failed to prepare closing statements detailing the distribution of the clients’
settlement funds. Although Jackson engaged in a pattern of misconduct involving
multiple offenses, he cooperated in the disciplinary proceedings, presented
evidence of his good character and reputation, and made a timely, good-faith effort
to make restitution to one of the clients and to the chiropractor. Jackson, 2019-
Ohio-4203, at ¶ 11. And in contrast to Walton, he had a clean disciplinary record.
We imposed a conditionally stayed six-month suspension for Jackson’s
misconduct. Id. at ¶ 15.
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{¶ 16} The board also considered three other cases in which we either
publicly reprimanded or imposed a conditionally stayed six-month suspension on
attorneys who failed to advise individual clients in writing that they could be
entitled to a refund of all or part of their “flat” or “nonrefundable” fee if the attorney
did not complete their representation. See Lorain Cty. Bar Assn. v. Vagotis, 2021-
Ohio-806, ¶ 5; Dayton Bar Assn. v. Strahorn, 2017-Ohio-9204, ¶ 2, ¶ 19; Lorain
Cty. Bar Assn. v. Smith, 2016-Ohio-7469, ¶ 6. Like Walton, some of those attorneys
failed to deposit any portion of their client’s fee into a client trust account, see
Vagotis at ¶ 5; Smith at ¶ 6, and/or failed to properly inform their clients that they
did not carry professional-liability insurance, see Vagotis at ¶ 5; Strahorn at ¶ 5.
The attorneys in Smith, Vagotis, and Strahorn each failed to advise their clients in
writing that if the entire fee was not earned, the client may be entitled to a refund
of some or all of the fee. Smith at ¶6; Vagotis at ¶5; Strahorn at ¶5. In addition,
one of those attorneys failed to act with reasonable diligence and promptness in
representing his client. See Strahorn at ¶ 9. In Vagotis and Smith, we publicly
reprimanded the attorneys for their misconduct, Vagotis at ¶ 13; Smith at ¶ 14, but
in Strahorn, we imposed a conditionally stayed six-month suspension, Strahorn at
¶ 19. But none of those attorneys had a history of prior discipline, as Walton does
here. See Vagotis at ¶ 9; Strahorn at ¶ 12; Smith at ¶ 11.
{¶ 17} Given the nature of Walton’s misconduct and his incidents of prior
discipline, the board recommends that Walton be suspended from the practice of
law for 18 months with the suspension fully stayed on the conditions that he
completes a one-year term of monitored probation pursuant to Gov.Bar R. V(21)
focused on law-practice and client-trust-account management and commits no
further misconduct.
{¶ 18} Having reviewed the record and our precedent, we find that this—
Walton’s most recent incident of misconduct—warrants a sanction greater than the
conditionally stayed six-month suspensions we imposed in Jackson and Strahorn,
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much less the public reprimands issued in Vagotis and Smith. We also find that
Walton’s misconduct is not quite as egregious as the misconduct that was at issue
in Snavely, which included the commission of two criminal offenses, or the
misconduct that was at issue in Nelson, which included the failure to promptly
refund a client’s unearned fee and the failure to cooperate in the resulting
disciplinary investigation. We therefore adopt the board’s recommended sanction.
CONCLUSION
{¶ 19} Accordingly, Gerald Robert Walton is suspended from the practice
of law in Ohio for 18 months with the suspension fully stayed on the conditions
that he completes a one-year term of monitored probation pursuant to Gov.Bar R.
V(21) focused on law-practice and client-trust-account management and commits
no further misconduct. If Walton fails to comply with the conditions of the stay,
the stay will be lifted and he will serve the full 18-month suspension. This
suspension shall commence after Walton has satisfied all requirements for the
termination of his current suspension for failure to comply with the CLE
requirements of Gov.Bar R. X and he has restored his license to active status. Costs
are taxed to Walton.
Judgment accordingly.
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Dooley, Gembala, McLaughlin & Pecora Co., L.P.A., Matthew A. Dooley,
Bar Counsel, and Michael R. Briach, for relator.
Gerald Walton, pro se.
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