Disciplinary Counsel v. Leksan , 136 Ohio St. 3d 85 ( 2013 )

[Cite as Disciplinary Counsel v. Leksan, 136 Ohio St. 3d 85, 2013-Ohio-2415.]
DISCIPLINARY COUNSEL v. LEKSAN.
[Cite as Disciplinary Counsel v. Leksan, 136 Ohio St. 3d 85, 2013-Ohio-2415.]
Attorneys—Misconduct—Mismanagement of client trust account—
Misappropriation of client funds—Significant mitigating circumstances—
Indefinite suspension with reinstatement upon specified conditions.
(No. 2012-2055—Submitted February 6, 2013—Decided June 13, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 12-031.
____________________
Per Curiam.
{¶ 1} Respondent, Thomas John Leksan of Cincinnati, Ohio, Attorney
Registration No. 0027125, was admitted to the practice of law in Ohio in 1982.1
{¶ 2} In a complaint certified by a probable-cause panel of the Board of
Commissioners on Grievances and Discipline in April 2012, relator, disciplinary
counsel, charged Leksan with 22 violations of the Rules of Professional Conduct
arising from the improper handling of his client trust account. Relator alleged that
Leksan had failed to maintain adequate records of the funds held in his client trust
account; had failed to reconcile the account on a monthly basis; had
misappropriated client funds for his personal and business expenses, for loans to
his friends, and for distribution to clients whose funds he had previously
misappropriated; and had improperly deposited his personal funds into his client
trust account. Relator further alleged that Leksan’s conduct involved dishonesty,
fraud, deceit, or misrepresentation, was prejudicial to the administration of justice,
and adversely reflected on his fitness to practice law.
1. Leksan testified at the disciplinary hearing that he is also licensed to practice law in Kentucky.
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{¶ 3} The parties submitted stipulations of fact and misconduct and of
aggravating and mitigating factors and suggested that the appropriate sanction for
Leksan’s misconduct is a two-year suspension, with conditions on his
reinstatement. They also submitted 26 stipulated exhibits.
{¶ 4} A panel of the board conducted a hearing in which Leksan testified
about his misconduct, his long-term depression, and his gambling addiction. The
panel adopted the parties’ stipulations of fact, misconduct, and aggravating and
mitigating factors but rejected the stipulated sanction, finding that an indefinite
suspension with the stipulated conditions on Leksan’s reinstatement is more
appropriate.
{¶ 5} The full board adopted the panel’s findings and recommended
sanction. The board further recommends that we adopt the parties’ stipulated
conditions for Leksan’s reinstatement to the practice of law. No objections have
been filed.
{¶ 6} Having reviewed the record, we adopt the board’s findings of fact
and misconduct and indefinitely suspend Leksan from the practice of law in Ohio.
Misconduct
Count One—General Trust-Account Violations
{¶ 7} The parties stipulated that since 2009, Leksan has failed to maintain
a general ledger or individual ledgers of client funds in his possession, in violation
of Prof.Cond.R. 1.15(a)(2) (requiring a lawyer to maintain a record for each client
on whose behalf funds are held) and 1.15(a)(3) (requiring a lawyer to maintain a
record for the lawyer’s client trust account, setting forth the name of the account,
the date, amount, and client affected by each credit and debit, and the balance in
the account) and has failed to reconcile his client trust account, in violation of
Prof.Cond.R. 1.15(a)(5) (requiring a lawyer to perform and retain a monthly
reconciliation of the funds held in the lawyer’s client trust account). From at least
February 2009 through at least March 2011, Leksan retained earned fees in his
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client trust account and withdrew them on an as-needed basis, deposited at least
$89,435.55 in personal funds into that account to cover shortages created by his
misappropriation of client funds, and used funds from the account to make more
than $30,000 in personal loans to two of his friends, in violation of Prof.Cond.R.
1.15(a) (requiring a lawyer to hold property of clients in an interest-bearing client
trust account, separate from the lawyer’s own property) and 1.15(b) (permitting a
lawyer to deposit his or her own funds in a client trust account only for the
purpose of paying or obtaining a waiver of bank service charges).
Count Two—Misappropriation of Funds Regarding Multiple Clients
{¶ 8} On February 12, 2009, Leksan opened a client trust account at Park
National Bank and deposited there a $50 check from a client trust account he
maintained at Huntington Bank. He closed his client trust account at Huntington
Bank later that month. Although he should have held more than $36,000 in trust
for two clients at that time, he did not transfer any more funds to the Park
National Bank account, because he had used his clients’ money to pay his
personal or business expenses or to pay other clients whose funds he had
previously misappropriated.
{¶ 9} Over the next two and one-half years, Leksan repeatedly
misappropriated funds from clients to satisfy his own financial obligations or
obligations to other clients whose funds he had previously misappropriated. The
parties and the board cite five examples of this pattern of misconduct:
{¶ 10} A. On August 25, 2009, Leksan deposited an $8,000 settlement
check into his client trust account, from which his client David Leach was entitled
to receive $5,557.77. Instead of distributing those funds to Leach, he paid another
client, April Mills, $5,450.17, leaving a balance of only $112.42 in his client trust
account at that time.
{¶ 11} B. On August 27, 2009, Leksan deposited a $55,000 settlement
check in his client trust account. After attorney fees, costs, and expenses were
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deducted from that settlement, his clients Judy and Edward Beasley were entitled
to receive $25,000. From August 28, 2009, through September 8, 2009, Leksan
did not distribute any funds to the Beasleys or their creditors, but used the
proceeds of their settlement to pay his client Jennie Moore $31,050.63 and Leach
$5,557.77, and to loan his friend Ron Tripodo $15,000, leaving just $53.95 in his
client trust account.
{¶ 12} C. On November 25, 2009, Leksan deposited a $36,500 settlement
check into his client trust account, from which his clients Mary and Stewart
Daniel were entitled to receive $18,643.52. From November 25, 2009, through
January 19, 2010, before disbursing any funds to the Daniels, he paid various bills
on behalf of himself and other clients and loaned Tripodo another $10,000,
leaving a balance of just $296.48 in his client trust account.
{¶ 13} D. On January 22, 2010, Leksan deposited a $19,730 settlement
check—the entire amount of which he was to pay to Toyota Financial on behalf of
his client Christopher Seda—into his client trust account. On January 25, 2009,
before paying Toyota Financial, he used the settlement proceeds to pay the
Daniels the $18,643.52 they were entitled to receive from their settlement. On
February 11, 2010, his client trust account held only $132.96 when it should have
held at least $19,730.
{¶ 14} E. On February 19, 2010, Leksan deposited two settlement checks
totaling $10,655.24 into his client trust account, from which his client Lila
Bumstead was entitled to receive $4,194.24, and his client Victoria Bumstead,
was entitled to receive $2,794.29. Within days of depositing the settlement
checks, Leksan withdrew $8,500 from his client trust account, leaving a balance
of $2,288.20—$4,700.33 less than he owed the Bumsteads.
{¶ 15} The parties stipulated and the board found that by prematurely
withdrawing client funds to satisfy his own personal obligations and those
regarding other clients, Leksan violated Prof.Cond.R. 1.15(a), 8.4(c) (prohibiting
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a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), and 8.4(h) (prohibiting a lawyer from engaging in conduct
that adversely reflects on the lawyer’s fitness to practice law).
Count Three—The Chasteen Matter
{¶ 16} On March 2, 2010, Leksan deposited a $137,500 check—the gross
proceeds of a settlement he had obtained on behalf of his clients Kenneth and Alta
Chasteen—into his client trust account. After deductions for attorney fees, costs,
and medical expenses, the Chasteens were entitled to receive $84,685.55.
However, Leksan used the settlement proceeds to pay $6,988.53 to the Bumsteads
and $19,730 to Toyota Financial on behalf of Seda and to loan $6,000 to Tripodo.
{¶ 17} In mid-April 2010, Leksan issued a partial distribution of $45,000
to the Chasteens from his client trust account and advised them that he would hold
the remaining $39,685.55 of their settlement proceeds while he negotiated their
outstanding medical bills and insurance-subrogation matters. By July 22, 2010,
however, he had withdrawn the remaining proceeds to pay personal or business
expenses, leaving just $7.45 in his client trust account. Two insurers agreed to
waive their entire subrogation liens, and in August 2010, the last subrogated
insurer agreed to accept $5,000 as full and final payment. Leksan paid that
insurer on November 2, 2010, using personal funds that he had deposited into his
client trust account the previous week.
{¶ 18} The Chasteens inquired more than once about the remainder of
their settlement proceeds, and Leksan initially advised them that their subrogation
matters were still pending. Once the subrogation matters were resolved, however,
he stopped accepting the Chasteens’ calls. He did not distribute the remainder of
their settlement proceeds to them until July 29, 2011—almost nine months after
he had resolved the subrogation issues in their case.
{¶ 19} The parties stipulated and the board found that Leksan’s conduct in
the Chasteen matter violated Prof.Cond.R. 1.4(a)(4) (requiring a lawyer to comply
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as soon as practicable with reasonable requests for information from the client),
1.15(a), 1.15(d) (requiring a lawyer to promptly deliver funds or other property
that the client is entitled to receive), 8.4(c), 8.4(d) (prohibiting a lawyer from
engaging in conduct that is prejudicial to the administration of justice), and 8.4(h).
Count Four—The Hedrick Matter
{¶ 20} On August 20, 2010, Leksan deposited into his client trust account
a $3,750 settlement check that he had received on behalf of his client Michael
“Lars” Hedrick. The settlement proceeds were to be distributed as follows:
$2,114.78 to Hedrick, $1,250 to Leksan, and $385.22 to Boilermakers National
Health and Welfare Fund in satisfaction of a lien. Hedrick requested that Leksan
pay the $385.22 directly to him so that Hedrick could extinguish the lien. While
Leksan issued a $2,114.78 check payable to Hedrick on September 20, 2010, and
withdrew his attorney fees from his client trust account on an as-needed basis, he
did not release the remaining $385.22 to Hedrick until March 5, 2012. The
balance in Leksan’s client trust account, however, dropped below that amount on
several occasions between August 20, 2010, and July 29, 2011, and the account
was overdrawn by $107.54 on March 17, 2011.
{¶ 21} The parties stipulated and the board found that Leksan’s conduct in
the Hedrick matter violated Prof.Cond.R. 1.15(a), 1.15(d), 8.4(c), and 8.4(h).
Count Five—The Carnine Matter
{¶ 22} Leksan deposited a $19,000 settlement check into his client trust
account on January 28, 2011. He met with his client Jason Carnine to distribute
the settlement proceeds on January 31, 2011, and issued two checks to himself for
fees and expenses totaling $6,612.44 and three checks to Carnine (at Carnine’s
request) totaling $7,977.35. He also drafted checks payable to five of Carnine’s
medical providers, showed Carnine the checks, and told him that he would mail
them to the medical providers on Carnine’s behalf. Leksan waited about five
months—until June and July 2011—to mail the checks, and in the interim he used
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January Term, 2013
the funds to pay his personal and business expenses or to pay other clients whose
funds he had misappropriated. Although he should have retained at least
$4,409.61 in his client trust account during that time, it was overdrawn by $57.54
in February 2011.
{¶ 23} The parties stipulated and the board found that Leksan’s conduct in
the Carnine matter violated Prof.Cond.R. 1.15(a), 1.15(d), 8.4(c), and 8.4(h).
{¶ 24} Upon a thorough review of the record, we adopt the board’s
findings of fact and misconduct with respect to each of these five counts.
Sanction
{¶ 25} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated 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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 26} As aggravating factors, the parties stipulated and the board found
that Leksan acted with a selfish or dishonest motive, engaged in a pattern of
misconduct involving multiple offenses, and committed misconduct that caused
harm to his clients. See BCGD Proc.Reg. 10(B)(1)(b), (c), (d), and (h). In
mitigation, the parties stipulated and the board found that Leksan had no prior
disciplinary record, made a good-faith effort to rectify the consequences of his
misconduct, fully and freely disclosed his conduct to relator and displayed a
cooperative attitude toward the disciplinary proceedings, and submitted evidence
of his good character and reputation apart from the charged misconduct. See
BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (e).
{¶ 27} The board also found that Leksan was recovering from a gambling
addiction, was struggling with an alcohol addiction, and had been engaged in
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treatment for these and other problems for more than ten years. Relevant to these
considerations, the record contains a letter from psychiatrist John M. Hawkins,
M.D., who states that he has treated Leksan for depression and low self-esteem
for more than ten years. Dr. Hawkins’s letter states that Leksan has focused on
helping people in his law practice, but that Leksan failed to stay on top of his
accounts receivable and accepted too many cases in which the clients could not
pay him. In Dr. Hawkins’s view, several factors, in particular Leksan’s “desire to
be with people in a higher socio-economic class and spending beyond his means,
led to mismanagement of his personal and professional accounts.” Dr. Hawkins’s
letter additionally states that Leksan believed that his gambling addiction was a
way to resolve his debts and used gambling as a psychological distraction to avoid
his feelings of pain and low self-acceptance. Unfortunately, that addiction only
worsened Leksan’s financial condition.
{¶ 28} Dr. Hawkins states that Leksan began to address his gambling and
alcohol addictions in early 2009 with the help of Gamblers Anonymous,
Alcoholics Anonymous, and the Ohio Lawyers Assistance Program (“OLAP”).
He believes that Leksan has made tremendous strides in the treatment of his
psychological problems and addictions, that he has new tools and a support
system to assist him, and that he remains committed to his treatment program. He
believes that Leksan can successfully and responsibly practice law in the future.
Based on Dr. Hawkins’s statements, we find that Leksan’s depression and alcohol
and gambling addictions qualify as mitigating factors pursuant to BCGD
Proc.Reg. 10(B)(2)(g).
{¶ 29} The parties stipulated that the proper sanction for Leksan’s
misconduct is a two-year suspension from the practice of law, with reinstatement
conditioned on the submission of proof that he has (1) completed 12 hours of
continuing legal education (“CLE”) in law-office management, (2) implemented a
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system to properly manage client funds in his practice, and (3) complied with his
OLAP contract as well as the recommendations of his treating professionals.
{¶ 30} Disbarment is the presumptive sanction for an attorney who
misappropriates client funds, but we have recognized that in some
misappropriation cases significant mitigating circumstances may weigh in favor
of an indefinite suspension. Cincinnati Bar Assn. v. Rothermel, 104 Ohio St. 3d
413, 2004-Ohio-6559, 819 N.E.2d 1099, ¶ 18, citing Cleveland Bar Assn. v.
Dixon, 95 Ohio St. 3d 490, 2002-Ohio-2490, 769 N.E.2d 816, ¶ 15.
{¶ 31} In support of their stipulated sanction, the parties cited Columbus
Bar Assn. v. King, 132 Ohio St. 3d 501, 2012-Ohio-873, 974 N.E.2d 1180
(imposing a two-year suspension on an attorney who, over a period of months,
used client-trust-account funds to pay his own expenses, deposited personal funds
into and failed to keep adequate records of the funds held in his client trust
account, fabricated a fee dispute to justify his failure to promptly return a client's
money, and failed to advise his clients that he did not carry malpractice
insurance), and Disciplinary Counsel v. Crosby, 124 Ohio St. 3d 226, 2009-Ohio-
6763, 921 N.E.2d 225 (imposing a two-year suspension on an attorney who used
his client trust account for personal and business expenses, failed to maintain
adequate records of the funds, and failed to promptly withdraw his earned fees).
Neither of these cases, however, involved Leksan’s primary offense—the
misappropriation of substantial client funds.
{¶ 32} The board acknowledged that Leksan obtained treatment for his
diagnosed depression, as well as his alcohol and gambling addictions, and that he
continues to aggressively pursue treatment by meeting with his treating
professionals five days per week. He has made his clients whole, having restored
most of the misappropriated funds before his misconduct was even discovered.
He has confessed his misconduct to all but one of the affected clients and many
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have written letters of recommendation on his behalf asking for leniency.2 He
also has submitted more than 20 letters—many from fellow attorneys—attesting
to his honesty, professionalism, and good character apart from the charged
misconduct. Two of Leksan’s character-reference letters are from members of
Gamblers Anonymous who praise him for the inspiration and assistance he has
given them (and others like them) in addressing not only their compulsive
gambling but also the legal repercussions of their addictions.
{¶ 33} The board found that Leksan had been cooperative, sincere, and
frank with relator and the panel. The board also expressed a belief that he
“knowingly” caused his client trust account to be overdrawn (by less than $150)
so that the bank would inform relator of the overdraft and bring a stop to his
ethical violations. In light of these mitigating factors, the absence of any prior
violations, Leksan’s demeanor at the panel hearing, and his efforts to wind down
his practice, the panel was persuaded that permanent disbarment was not
warranted. But the panel was not convinced that the stipulated two-year
suspension was an adequate sanction for Leksan’s misconduct. Therefore, the
panel recommended that he be indefinitely suspended from the practice of law in
Ohio and that his reinstatement be subject to the conditions stipulated by the
parties. The board concurred in the panel’s analysis and recommendation.
{¶ 34} Having reviewed the record, including the circumstances of
Leksan’s misconduct as well as the aggravating and mitigating factors found by
the board, we agree that an indefinite suspension is the appropriate sanction in this
case. We have imposed indefinite suspensions for similar instances of
misconduct involving the misappropriation of client funds. See, e.g., Akron Bar
Assn. v. Smithern, 125 Ohio St. 3d 72, 2010-Ohio-652, 926 N.E.2d 274
(indefinitely suspending an attorney for converting client funds on more than 30
2. Leksan testified at the disciplinary hearing that the remaining client could not be located.
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separate occasions and for depositing more than $100,000 in client retainers into
her personal bank account rather than her firm’s trust account; mitigating factors
included more than 20 years of practice without disciplinary violations,
cooperation in the disciplinary proceedings, an agreement to make full restitution,
and gambling and alcohol addictions that were causally related to the attorney’s
misconduct).
{¶ 35} Accordingly, Thomas John Leksan is indefinitely suspended from
the practice of law in Ohio, and his reinstatement is conditioned on the
submission of proof that he has (1) completed 12 hours of CLE in law-office
management in addition to meeting the requirements of Gov.Bar R. X, (2)
implemented a system to properly manage client funds in his practice, and (3)
complied with his OLAP contract and the recommendations of his treating
professionals. Costs are taxed to Leksan.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_____________________
Jonathan E. Coughlan, Disciplinary Counsel, and Karen H. Osmond,
Assistant Disciplinary Counsel, for relator.
Montgomery, Rennie & Jonson, L.P.A., and George D. Jonson, for
respondent.
________________________
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