Disciplinary Counsel v. Doellman , 127 Ohio St. 3d 411 ( 2010 )

[Cite as Disciplinary Counsel v. Doellman, 127 Ohio St.3d 411, 2010-Ohio-5990.]
DISCIPLINARY COUNSEL v. DOELLMAN.
[Cite as Disciplinary Counsel v. Doellman,
127 Ohio St.3d 411, 2010-Ohio-5990.]
Attorneys — Misconduct — Commingling of funds — Failure to maintain proper
IOLTA account — Failure to maintain complete records of client funds in
lawyer’s possession — Failure to promptly deliver to client funds to which
client is entitled — Engaging in conduct adversely reflecting on fitness to
practice law — One-year suspension, all stayed on conditions.
(No. 2010-0805 — Submitted August 10, 2010 — Decided December 15, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-040.
__________________
Per Curiam.
{¶ 1} Respondent Norbert Mark Doellman Jr. of Butler County, Ohio,
Attorney Registration No. 0002122, was admitted to the practice of law in Ohio in
November 1976. In October 2009, relator, Disciplinary Counsel, filed a three-
count amended complaint charging respondent with violations of the Code of
Professional Responsibility. Relator alleged that respondent had improperly
withheld client funds and that he had not held client funds in a separate trust
account, resulting in the commingling of client and personal and business funds.
Respondent answered the amended complaint, and the parties agreed upon
stipulations of facts, some (but not all) violations, and mitigating factors.
{¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline heard the case, issued findings of fact, and concluded that respondent
had violated DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely
reflects upon his fitness to practice law), 9-102(A) (all funds paid to a lawyer
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shall be deposited in an identifiable account containing no funds belonging to the
lawyer), 9-102(B)(3) (a lawyer shall maintain complete records of all client funds
coming into the possession of the lawyer and render appropriate accounting), 9-
102(B)(4) (a lawyer shall promptly pay the client any funds the client is entitled to
receive), and 9-102(B)(1) (a lawyer shall promptly notify a client of the receipt of
client funds). The panel further concluded that respondent had violated DR 1-
102(A)(5) (engaging in conduct prejudicial to the administration of justice) as
alleged in Count II, but found that relator had not proved any such violation as
alleged in Counts I and III. Finally, the panel found that relator had failed to
prove any violation of DR 1-102(A)(4) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation) as alleged in Count II.
{¶ 3} The panel recommended that respondent be suspended from the
practice of law for one year and that the suspension be stayed on the following
conditions: (1) respondent must make full restitution, (2) a monitor appointed by
relator must oversee respondent’s legal practice and the management of his
IOLTA account during the stayed suspension, and (3) respondent must comply
with his OLAP contract and with the recommendations of his mental-health
professionals.
{¶ 4} The board adopted the panel’s findings of fact and conclusions of
law and the recommended sanction. Relator objects in part. We accept the
board’s findings of fact, conclusions of law, and the recommended sanction.
Facts
{¶ 5} During the time in question, respondent was a sole practitioner in
Butler County, with an emphasis on debt collections. First National Bank of
Southwestern Ohio, n.k.a. First Financial Bank (“First Financial” or “the bank”)
hired respondent as a collection attorney in 1981. Respondent and First Financial
agreed that he would receive a one-third contingency fee on debts collected by
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him, whether they were paid to his office or directly to the bank. If debts were
paid to his office, respondent would remit two-thirds to the bank.
{¶ 6} When respondent began representing First Financial, separate
client trust accounts were not required. At the request of First Financial,
respondent established a separate trust account to be used exclusively to deposit
the bank’s collection funds. When IOLTA accounts became mandatory in 1985,
respondent established such an account at First Financial and deposited other
clients’ funds in that account as required. However, respondent did not convert
the existing account into an IOLTA account, and he continued to deposit the
bank’s collection proceeds in the non-IOLTA account until March 2001. He
regularly left his portion of the fees from this collection work in the same bank
account and used the account for personal and business transactions unrelated to
the practice of law. Respondent testified that he continued to use the non-IOLTA
account because he was not aware at the time that he could have more than one
IOLTA account.
{¶ 7} In March 2001, First Financial terminated respondent’s collection
services. At that time, respondent had over 150 collection files. First Financial
requested that respondent return the collection files and provide an accounting.
Despite repeated requests, respondent did not return all of the files, provide a
complete accounting, or turn over all funds that he had received on behalf of the
bank.
{¶ 8} At the same time, respondent was experiencing financial
difficulties and was unable to pay First Financial for personal loans that he had
obtained from the bank. In an effort to prevent First Financial from applying
funds in his business accounts against the amounts owed for these personal loans,
respondent closed his non-IOLTA First Financial account and opened a new non-
IOLTA account for that purpose at Key Bank.
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{¶ 9} Although he had been terminated by First Financial, respondent
continued to receive checks from debtors and clerks of court pursuant to
garnishment and collection actions that he had undertaken on behalf of the bank.
From June 2001 through April 2002, respondent deposited 38 checks totaling
$2,764.46 for First Financial debt collections into the Key Bank non-IOLTA
account. Respondent was entitled to one-third of these checks as a legal fee and
owed First Financial two-thirds ($1,842.97).
{¶ 10} Respondent did not segregate the funds owed to First Financial
from his own one-third fee and expended funds from the Key Bank account for
personal and business expenses. The account balance regularly fell below the
$1,842.97 that respondent owed to First Financial. Additionally, during this
period, respondent received a large number of checks in envelopes that he did not
open. He did not immediately forward these checks to First Financial.
Eventually, respondent gave the checks to his attorney, who turned them over to
First Financial. Respondent did not turn over the funds that he owed First
Financial from the 38 cashed checks.
{¶ 11} On June 22, 2001, First Financial filed suit against respondent in
the Butler County Court of Common Pleas for breach of contract, unjust
enrichment, conversion, and replevin. Respondent filed an answer and
counterclaim in which he alleged that First Financial owed him more than
$100,000 and admitted that he possessed funds from First Financial debt
collections that he was holding as a lien. Respondent believed that First Financial
had obtained direct payments from debtors in collection actions that he had
pursued on behalf of the bank without paying him his fee. Respondent testified
that he believed that the amounts he and the bank owed each other would be
sorted out as part of the litigation.
{¶ 12} Respondent’s conduct during the litigation was, at best, inadequate
and dilatory, and, at worst, contemptuous. Respondent failed to respond
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adequately to written discovery requests, did not attend scheduled court hearings;
did not comply with the trial court’s order compelling him to produce documents
and files to First Financial, and did not appear at his scheduled deposition.1
{¶ 13} In May 2002, First Financial moved for sanctions against
respondent for his failure to comply with the trial court’s order compelling
discovery. Respondent did not file a response and did not attend the June 6, 2002
hearing on the motion. Respondent testified that the court’s bailiff had told him
to remain with his father, who was undergoing surgery. After the hearing, the
trial court ordered respondent to turn over all of First Financial’s files within two
days, issued a judgment against respondent on the issue of liability, dismissed
respondent’s counterclaims (precluding him from proving his counterclaim
against First Financial), and ordered respondent to pay the bank’s costs and
attorney fees for the motion for sanctions. On June 6, 2002, the trial court also
granted the bank’s motion seeking escrow of all funds that both respondent and
the bank had collected relating to the collection cases.
{¶ 14} Respondent did not produce the files as ordered, and on June 18,
2002, the trial court issued an order allowing First Financial access to his office to
retrieve the files. Respondent’s landlord granted the bank access to the office,
and First Financial seized every file or document that related to the bank.
{¶ 15} The trial court scheduled a hearing to determine the bank’s
damages, but respondent failed to appear at the hearing. In February 2003, the
trial court entered a judgment against respondent for $279,292 as a sanction for
his failure to comply with the bank’s discovery requests and the trial court’s
orders. In April 2006, the Twelfth District Court of Appeals held that the trial
court erred in holding the June 6, 2002 hearing in respondent’s absence when the
evidence indicated that the court bailiff had excused his attendance from the
1. Relator did not allege that respondent’s conduct during the litigation was an independent
violation of the Code of Professional Responsibility.
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hearing. The court remanded the case for a new hearing on the motion for
sanctions. On remand, the trial court again issued a judgment against respondent
on the issue of liability, dismissed his counterclaims, and issued a final judgment
against respondent for $279,292.2
{¶ 16} In March 2008, respondent filed a Chapter 7 bankruptcy petition
seeking to discharge various debts, including the $279,292 judgment granted to
First Financial. The bank filed an adversary action contesting the dischargeability
of the judgment, asserting that the judgment was based upon respondent’s fraud
while acting in a fiduciary capacity. The bankruptcy court discharged the debt,
concluding that the judgment was based on respondent’s negligence, not
fraudulent or deceitful acts.
{¶ 17} As an explanation for his conduct during the litigation, respondent
testified before the panel that he was suffering from clinical depression. He began
psychiatric treatment in April 2002, and his psychiatrist ordered him to be
hospitalized for severe depression in March 2003. According to respondent’s
testimony and a letter from his psychiatrist at the time, he had essentially “shut
down,” could not organize or motivate himself, and did not open his
correspondence.
{¶ 18} During 2001 and 2002, respondent was also engaged in collection
efforts for other clients. He deposited funds belonging to those clients into his
Key Bank non-IOLTA account rather than his IOLTA account at First Financial.
Respondent testified that he did so to protect the funds from being seized by First
Financial. The non-IOLTA account regularly held respondent’s personal and
business funds, and respondent used the account to conduct personal and business
transactions unrelated to the practice of law.
2. The record reflects two different figures for the amount of the sanction. Because $279,292 is
the amount most often cited, we use that figure without endorsing it as the correct one.
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{¶ 19} Respondent currently practices law on a very limited basis. He
does collection work, performs basic research, and assists people dealing with
simple foreclosures. He has been diagnosed with Major Depression Recurrent
and Generalized Anxiety Disorder and is under the care of a psychiatrist. He
finds it difficult to complete tasks, but with effort he can work successfully for
short periods and gains satisfaction from doing so. On November 2, 2009,
respondent signed a four-year contract with OLAP. On January 28, 2010,
respondent promised in writing to pay First Financial a total of $1,842.97 in 12
monthly payments as restitution. He made the first payment on that date.
Misconduct
Count I
{¶ 20} In Count I, relator alleged that between 1981 and March 2001
respondent violated the Code of Professional Responsibility by failing to maintain
an IOLTA account to hold proceeds from his collection efforts for First Financial
and by depositing the funds collected into his non-IOLTA trust account. Relator
also alleged that the non-IOLTA account regularly held respondent’s personal and
business funds and that he used that account for personal and business
transactions unrelated to the practice of law.
{¶ 21} The parties stipulated and the board found that the conduct
described in Count I violated DR 1-102(A)(6) and 9-102(A).
{¶ 22} Respondent disputed relator’s allegation that his conduct with
regard to Count I violated DR 1-102(A)(5). The board found that relator failed to
prove that allegation by clear and convincing evidence because there was no proof
of injury to the client and respondent did not interfere with the administration of
justice. The board recommended dismissal of this violation.
Count II
{¶ 23} In Count II, relator alleged that after First Financial terminated
respondent, he continued to receive checks from debtors of the bank.
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Specifically, relator alleges that respondent collected at least 38 checks worth
$2,764 from debtors after his termination and that he did not (1) forward the
uncashed checks to First Financial, (2) provide First Financial with any notice that
he had received the checks, (3) provide First Financial with an accounting, or (4)
deposit the checks into an IOLTA account for safekeeping until any payment
dispute over the division of the checks was resolved. Instead, respondent
deposited the checks into his non-IOLTA account at Key Bank and utilized the
funds for his own personal and business expenses, allowing the balance of the
account to fall below the amount owed to First Financial on multiple occasions.
{¶ 24} The parties stipulated and the board found that respondent’s
conduct as described in Count II violated DR 1-102(A)(6), 9-102(A), 9-
102(B)(3), and 9-102(B)(4).
{¶ 25} Respondent disputed three violations alleged by relator in relation
to Count II. First, respondent disputed that his conduct violated DR 1-102(A)(5).
The board concluded that relator proved a violation of this Disciplinary Rule by
clear and convincing evidence because respondent failed to maintain complete
records of First Financial funds that came into his possession and because he
delayed the determination of the amount owed to the bank, thereby interfering
with the administration of justice. Respondent does not now object to the board’s
conclusion that he violated DR 1-102(A)(5).
{¶ 26} Respondent also disputed that his conduct violated DR 9-
102(B)(1). The board determined that relator had proved this violation by clear
and convincing evidence because respondent failed to provide First Financial with
timely notice of the specific checks that he either deposited in the Key Bank
account or left unopened. As with the previous violation, respondent does not
object to the board’s conclusion that he violated DR 9-102(B)(1).
{¶ 27} Finally, respondent disputed relator’s allegation that his conduct
violated DR 1-102(A)(4). The board agreed with respondent that relator had
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failed to prove by clear and convincing evidence that his conduct violated this
rule. The board noted that pursuant to advice from counsel, respondent’s answer
filed in the litigation disclosed that he was holding First Financial collection funds
upon which he claimed a lien. The board also considered that respondent
intended that the amount owed to him by First Financial and the amount that he
owed the bank would be sorted out as part of the litigation. The board
recommended dismissal of this charge.
Count III
{¶ 28} In Count III, relator alleged that respondent failed to maintain an
IOLTA account in 2001, 2002, and 2003 and that he deposited funds collected on
behalf of multiple clients into his non-IOLTA Key Bank account. Relator further
alleged that the account regularly held respondent’s personal and business funds
and that respondent used the account for transactions unrelated to the practice of
law.
{¶ 29} The parties stipulated and the board found that respondent’s
conduct described in Count III violated DR 1-102(A)(6) and 9-102(A).
Respondent disputed the allegation that his conduct described in Count III
violated DR 1-102(A)(5). As with Count I, the board agreed with respondent that
relator had failed to prove by clear and convincing evidence that his conduct
violated this rule because there was no proof of injury to any clients and
respondent did not interfere with the administration of justice. The board
recommended dismissal of this violation.
Objections
{¶ 30} Relator objects to the board’s recommendation that the charge
alleging a violation of DR 1-102(A)(4) in Count II and the charges alleging
violations of DR 1-102(A)(5) in Counts I and III be dismissed. A question arose
during oral argument as to whether the board’s recommendation to dismiss these
charges precludes this court from reviewing relator’s objections and, if we find
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merit to the objections, from determining that respondent violated these
Disciplinary Rules. We conclude that it does not.
{¶ 31} When a unanimous panel finds insufficient evidence to support an
alleged violation, it may dismiss the count without referring it to the board or this
court for review pursuant to Gov.Bar R. V(6)(H). Cuyahoga Cty. Bar Assn. v.
Marosan, 109 Ohio St.3d 439, 2006-Ohio-2816, 848 N.E.2d 837, ¶13. When the
panel has dismissed a violation for lack of sufficient evidence, we will not disturb
that finding. Id. However, in this case the panel did not dismiss the alleged
violations; it recommended their dismissal. To dismiss a claim, the panel must
give written notice of the action taken to the board, the respondent, all counsel of
record, Disciplinary Counsel, the certified grievance committee for the local bar
association, and others. Gov.Bar R. V(6)(H). The panel in this case, quite
rightly, did not follow this procedure, as it was only recommending dismissal.
{¶ 32} When the panel recommends dismissal, the board may dismiss the
count by reporting the dismissal to the secretary of the board, who shall notify the
same persons and organizations that would have received notice if the complaint
had been dismissed by the hearing panel. Gov.Bar R. V(6)(K).
{¶ 33} The board adopted the panel’s findings of fact, conclusions of law,
and recommendation. However, the record does not establish that the board
provided the notices required by Gov.Bar R. V.(6)(K). Thus, the board did not
effectuate a dismissal, and this court is not precluded from addressing relator’s
objections to the recommended dismissals. See In re Complaint Against Harper
(1996), 77 Ohio St.3d 211, 216, 673 N.E.2d 1253 (rejecting the respondent’s
argument that the board and this court could not review allegations for which the
panel had recommended, but had not effectuated, dismissal).
{¶ 34} Nonetheless, we agree with the board’s recommendations to
dismiss the alleged violations of DR 1-102(A)(4) in Count II and DR 1-102(A)(5)
in Counts I and III. “Relator must prove by clear and convincing evidence the
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facts necessary to establish a violation of a Disciplinary Rule.” Disciplinary
Counsel v. Bunstine, 123 Ohio St.3d 298, 2009-Ohio-5286, 915 N.E.2d 1224, ¶
12, citing Gov.Bar R. V(6)(J) and Disciplinary Counsel v. Jackson (1998), 81
Ohio St.3d 308, 310, 691 N.E.2d 262. Relator did not establish these violations
by clear and convincing evidence.
DR 1-102(A)(4)
{¶ 35} Relator objects to the board’s determination that the violation of
DR 1-102(A)(4) alleged in Count II was not demonstrated by clear and
convincing evidence. Relator argues that the following evidence sufficiently
proved respondent’s deceptive and dishonest conduct in violation of DR 1-
102(A)(4): (1) respondent’s failure to comply with First Financial’s repeated
requests that he cease all collection activities on its behalf, (2) his failure to notify
the bank of his receipt of the 38 checks that he deposited between June 2001 and
April 2002, and (3) his use of the funds for his own personal benefit instead of
holding them in escrow pending the court’s decision on First Financial’s lawsuit.
{¶ 36} We agree with the board. Although respondent’s conduct was
wrong, relator did not establish by clear and convincing evidence that he acted in
a deceptive or dishonest manner. Respondent did not represent to the bank or to
the trial court that he had stopped collecting funds on behalf of First Financial.
Indeed, as the board noted, respondent filed an answer during the litigation in
which he disclosed that he was holding funds that he had collected on behalf of
First Financial and that he claimed a lien on the funds. Respondent believed that
First Financial owed him fees and that the amount each owed the other would be
sorted out as part of the litigation. Respondent’s failure to participate in the
litigation, which was a product of his mental state at the time of the litigation,
does not transform his violations into deceptive or dishonest conduct.
{¶ 37} Furthermore, we note that the United States Bankruptcy Court for
the Southern District of Ohio recently discharged the $272,292 sanction that the
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trial court ordered respondent to pay to First Financial based on his conduct
during the litigation. In doing so, the bankruptcy court rejected First Financial’s
argument that respondent’s conduct was fraudulent and deceitful and concluded
that respondent was merely negligent. Although the bankruptcy court’s decision
is not binding on this court’s determination of whether respondent’s conduct was
deceitful or dishonest, it further supports the board’s conclusion that respondent
did not violate DR 1-102(A)(4).
{¶ 38} We are not persuaded by relator’s objection. We agree with the
board that relator has not established by clear and convincing evidence that
respondent violated DR 1-102(A)(4). Accordingly, we dismiss this violation as
alleged in Count II.
DR 1-102(A)(5)
{¶ 39} Relator also objects to the board’s conclusion with respect to
Counts I and III that respondent did not violate DR 1-102(A)(5). Relator argues
that respondent’s failure to use an IOLTA account to hold client funds and the
resultant commingling of personal and client funds violated DR 1-102(A)(5). In
support of this objection, relator cites Disciplinary Counsel v. Freeman, 119 Ohio
St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31(holding that the respondent violated
DR 1-102(A)(5) by using his IOLTA account as a personal bank account,
commingling client and personal funds, causing several IOLTA account
overdrafts, and failing to maintain the required accounting of client funds);
Disciplinary Counsel v. Tyack, 107 Ohio St.3d 35, 2005-Ohio-5833, 836 N.E.2d
568 (holding that the respondent violated DR 1-102(A)(5) by failing to deposit
unearned retainers into an IOLTA account, commingling funds, bouncing a check
for filing fees, and failing to respond to attempts to collect the funds from the
dishonored check); Disciplinary Counsel v. McCauley, 114 Ohio St.3d 461, 2007-
Ohio-4259, 873 N.E.2d 269 (holding that the respondent violated DR 1-102(A)(5)
by using his IOLTA account as a personal account, commingling client funds, and
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causing multiple overdrafts); and Disciplinary Counsel v. Wise, 108 Ohio St.3d
381, 2006-Ohio-1194, 843 N.E.2d 1198 (same).
{¶ 40} Relator’s reliance on these cases is not persuasive. First, the
respondents in both Freeman and McCauley stipulated that their conduct violated
DR 1-102(A)(5), whereas in this case, respondent disputed this violation.
Freeman at ¶ 1; McCauley at ¶ 2. Further, none of these cases demand a
conclusion that failure to use an IOLTA account or commingling funds
constitutes a violation of DR 1-102(A)(5).
{¶ 41} This court has declined to find violations of DR 1-102(A)(5) when
attorneys have commingled funds. See, e.g., Columbus Bar Assn. v. Chasser, 124
Ohio St.3d 578, 2010-Ohio-956, 925 N.E.2d 595, ¶ 18-19; Ohio State Bar Assn. v.
McCray, 109 Ohio St.3d 43, 2006-Ohio-1828, 845 N.E.2d 509, ¶14-15. In
Chasser, this court affirmed the board’s conclusions that the respondent violated,
among other rules, DR 1-102(A)(6) and 9-102(A), the same provisions that
respondent violated in Counts I and III in this case. Id. at ¶ 18. The court also
affirmed the board’s conclusion that although the respondent withheld client
funds, used the funds for his own benefit, and failed to maintain complete records
of the funds, he did not engage in conduct that was prejudicial to the
administration of justice in violation of DR 1-102(A)(5). Id. at ¶ 19. In McCray,
the respondent improperly withdrew $5,000 from a client trust account. Id. at ¶
14. This court agreed with the board’s conclusion that the relator did not establish
that the attorney’s conduct was prejudicial to the administration of justice,
because there was no evidence that the withdrawal adversely affected the client or
that the respondent’s actions were intended to or did deceive the trial court or the
client.
{¶ 42} Relator has not established by clear and convincing evidence that
by depositing client funds in a non-IOLTA account and commingling client and
personal funds, respondent prejudiced the administration of justice. We agree
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with the board that relator has not established that respondent violated DR 1-
102(A)(5). Accordingly, we dismiss the charge as to both Count I and Count III.
{¶ 43} Having rejected relator’s objections, we adopt the board’s findings
of fact and misconduct. The record demonstrates by clear and convincing
evidence that respondent’s conduct described in Counts I and III violated DR 1-
102(A)(6) and 9-102(A) and that the conduct described in Count II violated DR 1-
102(A)(5), 1-102(A)(6), 9-102(A), 9-102(B)(1), 9-102(B)(3), and 9-102(B)(4).
{¶ 44} We now turn to the board’s recommended sanction.
Sanction
{¶ 45} The primary purpose of disciplinary sanctions is not to punish the
offender but to protect the public. Disciplinary Counsel v. O’Neill, 103 Ohio St.3d
204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53. When imposing sanctions for
attorney misconduct, we consider all relevant factors, including the ethical duties
that the lawyer has 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. We also weigh evidence of the aggravating and mitigating factors listed in
Section 10(B) of the Rules and Regulations Governing Procedure on Complaints
and Hearings Before the Board of Commissioners on Grievances and Discipline
(“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473,
2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary case is unique,
we are not limited to the factors specified in the rule but may take into account
“all relevant factors” in determining what sanction to impose. BCGD Proc.Reg.
10(B).
{¶ 46} The board found as an aggravating factor that respondent
committed multiple violations. The board also found factors mitigating
respondent’s conduct, including (1) his lack of a prior disciplinary record, (2) his
full and free disclosure of his conduct and his cooperative attitude toward these
proceedings, (3) his good reputation among friends and clients, (4) his previous
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sanction for his conduct relating to the litigation, and (5) his promise to make
restitution to First Financial.
{¶ 47} Relator objects to the board’s failure to find that respondent’s
conduct established a pattern of misconduct (BCGD Proc.Reg. 10(B)(1)(c)) and
selfish motive (BCGD Proc.Reg. 10(B)(1)(b)) as aggravating factors. Relator
argues that respondent engaged in a pattern of misconduct by “failing to use an
IOLTA account to hold collection proceeds for six clients over a period of 18
years and as a result commingling client funds.” Relator’s argument is
technically accurate, but misleading. Although Counts I and III both involve
misconduct with respect to respondent’s failure to use an IOLTA account and the
commingling of client and personal funds, the counts involve separate and
independent violations, not a pattern as relator suggests. Count I relates to
respondent’s failure to maintain an IOLTA account to hold proceeds collected for
First Financial. This violation occurred because First Financial requested that
respondent maintain a separate account for its funds and respondent did not know
that he could maintain more than one IOLTA account. Count III relates to
respondent’s conduct depositing other clients’ funds in a non-IOLTA account
subsequent to his termination by First Financial. This violation resulted from
respondent’s belief that if he placed the funds into the IOLTA account at First
Financial, the bank would seize the funds to pay off respondent’s delinquent
personal loans. Although both counts relate to respondent’s failure to properly
utilize an IOLTA account, the counts relate to independent violations, not a
pattern of misconduct. See, e.g., Disciplinary Counsel v. Rohrer, 124 Ohio St.3d
65, 2009-Ohio-5930, 919 N.E.2d 180, ¶ 34, fn. 4 (declining to overturn the
board’s conclusion that the respondent had not engaged in a pattern of misconduct
when the conduct involved separate acts that did not constitute a “salient”
pattern).
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{¶ 48} Although respondent did not engage in a pattern of misconduct
with respect to the trust-account-related violations in Counts I and III, we agree
with relator that respondent engaged in a pattern of misconduct in relation to
Count II by accepting and depositing 38 checks totaling $2,764.46 from bank
debtors over ten months and expending these funds instead of turning them over
to the bank or escrowing them.
{¶ 49} Relator also contends that the board erred by not considering
respondent’s selfish motive as an aggravating factor. We agree. Respondent
acted with a selfish motive in retaining the funds owed to First Financial because
he believed that he was “entitled to [his] share of those funds.”
{¶ 50} After considering the aggravating and mitigating factors, the board
recommended a one-year suspension from the practice of law, all of it stayed on
certain conditions. Relator objects to the recommended sanction and argues that
respondent’s conduct mandates an actual suspension. Relator asks the court to
impose a 24-month suspension with 12 months stayed. Although we agree with
relator that the board failed to consider as aggravating factors that respondent
engaged in a pattern of misconduct and acted with a selfish motive, we agree with
the board’s recommended sanction, even considering these additional aggravating
factors.
{¶ 51} While relator’s brief sets forth multiple arguments in support of an
actual suspension, relator conceded during oral argument that the appropriate
sanction depends on whether relator violated DR 1-102(A)(4) by engaging in
dishonest or deceitful conduct.3 Relator argues that this court’s case law requires
3. {¶ a} Although relator concedes that the appropriate sanction turns on whether respondent’s
conduct was deceitful or dishonest, we must address another argument that relator sets forth in
support of an actual suspension. Relator points to a letter from licensed social worker Mary
Hattemer, who observed that respondent “demonstrates a lack of motivation and follow through,”
“finds it difficult to complete a task,” “lacks the energy to accomplish the task,” “ha[s] some
trouble accomplishing * * * goals,” and “at times does not maintain basic hygiene.” Relator argues
that based on this letter, an actual suspension is appropriate because respondent’s recovery is
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an actual suspension when an attorney engages in a pattern of dishonest conduct.
See, e.g., Disciplinary Counsel v. Brumbaugh, 99 Ohio St.3d 65, 2003-Ohio-
2470, 788 N.E.2d 1076, at ¶ 13 (“An actual suspension from the practice of law is
the general sanction for an attorney that engages in a course of conduct that
violates DR 1-102(A)(4)”); Disciplinary Counsel v. Fowerbaugh (1995), 74 Ohio
St.3d 187, 190, 658 N.E.2d 237 (“Respect for our profession is diminished with
every deceitful act of a lawyer. We cannot expect citizens to trust that lawyers are
honest if we have not yet sanctioned those who are not. * * * When an attorney
engages in a course of conduct resulting in a finding that the attorney has violated
DR 1-102(A)(4), the attorney will be actually suspended from the practice of law
for an appropriate period of time”).
{¶ 52} Relator is correct that dishonest or deceitful conduct generally
mandates an actual suspension. However, as we stated in relation to Count II,
although respondent’s conduct was wrong, it was not deceptive or dishonest.
Accordingly, we are not constrained to impose an actual suspension.
{¶ 53} Further, as the board noted, the cases cited by relator in support of
a more severe sanction are not persuasive in this case. See Disciplinary Counsel
v. Wolanin, 121 Ohio St.3d 390, 2009-Ohio-1393, 904 N.E.2d 879; Cuyahoga
Cty. Bar Assn. v. Maybaum, 112 Ohio St.3d 93, 2006-Ohio-6507, 858 N.E.2d
359; and Disciplinary Counsel v. Claflin, 107 Ohio St.3d 31, 2005-Ohio-5827,
incomplete, and in the interest of protecting the public, more time should be allowed so that
respondent may complete treatment and recovery. See Disciplinary Counsel v. Freeman, 119
Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 22.
{¶ b} Relator ignores the second paragraph of the same letter, in which Hattemer states: “Mr.
Doellman is engaging in a limited practice of law at this time. According to the client he helps
with collections; does basic research, and volunteers to assist people dealing with simple
foreclosures. When he is focused on simple tasks, he appears to be more energized. According to
Mr. Doellman he is able to follow through with these simple tasks and receives a sense of
satisfaction when the task is completed.” Moreover, respondent has voluntarily limited his legal
practice to a small number of basic matters that he is able to manage in his current mental state.
We do not agree with relator that an actual suspension is necessary to protect the public or to allow
respondent additional time for treatment and recovery.
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SUPREME COURT OF OHIO
836 N.E.2d 564. These cases involved more egregious misconduct, included
findings of dishonesty, fraud, deceit, or misrepresentation, and involved other
aggravating factors, such as failure to fully participate in and a dismissive attitude
toward the disciplinary process, lack of sincerity in the disciplinary hearing, client
vulnerability, lack of remorse, or a prior disciplinary record.
{¶ 54} In cases where attorneys have misused client trust accounts, as
respondent did in this case, but without an improper motive or deceit, this court
has regularly imposed six-month suspensions, conditionally stayed. See, e.g.,
Disciplinary Counsel v. Vivyan, 125 Ohio St.3d 12, 2010-Ohio-650, 925 N.E.2d
947, ¶ 7-12; Disciplinary Counsel v. Fletcher, 122 Ohio St.3d 390, 2009-Ohio-
3480, 911 N.E.2d 897; Cuyahoga Cty. Bar Assn. v. Nance, 119 Ohio St.3d 55,
2008-Ohio-3333, 891 N.E.2d 746; Columbus Bar Assn. v. Peden, 118 Ohio St.3d
244, 2008-Ohio-2237, 887 N.E.2d 1183; Disciplinary Counsel v. Newcomer, 119
Ohio St.3d 351, 2008-Ohio-4492, 894 N.E.2d 50.
{¶ 55} But respondent’s conduct went beyond misusing his IOLTA
account and commingling funds. He deliberately withheld funds from First
Financial and failed to maintain and provide the bank with an accounting of the
funds. We agree with the board that a more severe sanction than a six-month
stayed suspension is appropriate. At the same time, although we recognize as
aggravating the fact that respondent (1) committed multiple violations, (2)
engaged in a pattern of misconduct, and (3) acted with a selfish motive, these
factors are outweighed by the mitigating factors. These mitigating factors include
(1) respondent’s lack of a prior disciplinary record, (2) his full and free disclosure
of his conduct and his cooperative attitude toward these proceedings, (3) his good
reputation among friends and clients, (4) the sanction already imposed by the
Butler County Common Pleas Court in the First Financial litigation, and (5) his
promise to make restitution to First Financial. Further, we agree with the board
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January Term, 2010
that respondent is not likely to ever repeat his transgressions. See, e.g., Stark Cty.
Bar Assn. v. Ake, 111 Ohio St.3d 266, 2006-Ohio-5704, 855 N.E.2d 1206.
{¶ 56} Having reviewed the record, weighed the aggravating and
mitigating factors, and considered the sanctions imposed for comparable conduct,
we adopt the board’s recommended sanction of a one-year suspension, stayed on
conditions.
Conclusion
{¶ 57} Norbert Mark Doellman Jr. is suspended from the practice of law
in Ohio for one year. However, the suspension is stayed on the following
conditions: (1) respondent must not commit any further misconduct during the
stayed suspension period, (2) respondent must make full restitution to First
Financial, totaling $1,842.97 plus five percent interest from January 28, 2010, in
12 monthly payments as agreed, (3) relator must appoint a monitor to oversee
respondent’s legal practice and the management of his IOLTA account during the
period of the stayed suspension, and (4) respondent must comply with his OLAP
contract and follow the recommendations of his current mental-health
professionals. If respondent violates these conditions, the stay will be lifted, and
respondent will serve the one-year suspension. Costs are taxed to respondent.
Judgment accordingly.
PFEIFER, ACTING C.J., and BRYANT, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
PEGGY L. BRYANT, J., of the Tenth Appellate District, sitting for BROWN,
C.J.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger, Senior
Assistant Disciplinary Counsel, for relator.
Montgomery, Rennie & Jonson and George Jonson, for respondent.
______________________
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