Disciplinary Counsel v. Simmons (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Simmons, Slip Opinion No. 2019-Ohio-3783.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2019-OHIO-3783
DISCIPLINARY COUNSEL v. SIMMONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Simmons, Slip Opinion No.
2019-Ohio-3783.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to cooperate with a disciplinary investigation—Violation
of the Rules for the Government of the Bar—Conditionally stayed two-year
suspension.
(No. 2018-1760—Submitted May 8, 2019—Decided September 24, 2019.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2018-013.
_______________________
Per Curiam.
{¶ 1} Respondent, Frank James Simmons Jr., of Toledo, Ohio, Attorney
Registration No. 0058498, was admitted to the practice of law in Ohio in 1992.
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{¶ 2} We suspended his license to practice law for about seven months
beginning in 2005 and about eight months beginning in 2009 after he failed to
timely register as an attorney for those years. In re Attorney Registration
Suspension of Simmons, 107 Ohio St. 3d 1431, 2005-Ohio-6408, 838 N.E.2d 671;
In re Attorney Registration Suspension of Simmons, 123 Ohio St. 3d 1475, 2009-
Ohio-5786, 915 N.E.2d 1256. In 2008, we suspended him for one year, with six
months of the suspension conditionally stayed, for representing two clients in
Michigan courts, even though he was not licensed in Michigan and his Ohio license
was under suspension. He also falsely represented to those courts that he was
affiliated with a Michigan lawyer. See Disciplinary Counsel v. Simmons, 120 Ohio
St.3d 304, 2008-Ohio-6142, 898 N.E.2d 943. We reinstated him to the practice of
law on June 28, 2010. Disciplinary Counsel v. Simmons, 126 Ohio St. 3d 1207,
2010-Ohio-3398, 930 N.E.2d 324.
{¶ 3} In March 2018, relator, disciplinary counsel, charged Simmons with
misusing his client trust account and failing to cooperate in the ensuing disciplinary
investigation. Simmons stipulated to the charges against him, and the matter
proceeded to a hearing before a three-member panel of the Board of Professional
Conduct. The board issued a report finding that Simmons engaged in the stipulated
misconduct and recommending that we impose a two-year suspension, stayed in its
entirety on several conditions. No one objected to the board’s report.
{¶ 4} Based on our review of the record, we adopt the board’s findings of
misconduct and recommended sanction.
Misconduct
{¶ 5} Simmons is a solo practitioner with approximately 80 percent of his
practice dedicated to criminal-defense work, mostly minor criminal and traffic
matters. At his disciplinary hearing, he testified that many of his clients have little
or no funds and that many clients pay him at the time of or after their court hearing.
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{¶ 6} Simmons stipulated that between July 2016 and April 2017, he used
his client trust account as a personal and law-firm operating account and
commingled personal, business, and client funds in the account. For example, he
made payments from his client trust account for personal and business expenses—
such as office rent, an automobile loan, and cell-phone service—and frequently
withdrew cash from the account.
{¶ 7} In November 2016, Simmons’s bank notified relator that Simmons
had overdrawn his client trust account. In December 2016, Simmons overdrew the
account again. On December 21, 2016, relator sent Simmons a letter requesting
that he explain the initial overdraft and provide individual client ledgers for clients
with funds in the account. In February 2017, Simmons submitted a response
explaining the circumstances that led to the two overdrafts, but he failed to submit
any client ledgers.
{¶ 8} On April 5, 2017, relator sent Simmons a second letter requesting
additional information based on a review of the documents that relator had obtained
directly from Simmons’s bank. Relator again requested that Simmons provide
client ledgers. Although relator required Simmons to reply by April 19, 2017, he
failed to do so, and relator sent a follow-up letter on April 25, 2017.
{¶ 9} On June 8, 2017, relator received a letter from Simmons that
addressed many of relator’s additional questions. Simmons also pledged to
supplement his response with client ledgers. Not having received the ledgers by
June 26, 2017, relator sent a follow-up letter to Simmons’s counsel. Simmons
replied to the letter but failed to enclose the client ledgers. On July 21, 2017, relator
again notified Simmons’s counsel that relator had not yet received the requested
documents. On October 30, 2017, relator sent Simmons’s counsel a final letter
stating that despite relator’s repeated requests, Simmons had not yet provided the
client ledgers. Relator also expressed concern that Simmons lacked a “fundamental
understanding of his obligations regarding how he is to handle [his client trust]
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account” and requested a meeting to discuss the matter. But neither Simmons nor
his counsel replied. On November 2, 2017, relator learned of another overdraft in
Simmons’s client trust account.
{¶ 10} Based on this conduct, the parties stipulated and the board found that
Simmons violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold the property of
clients in an interest-bearing client trust account, separate from the lawyer’s own
property), Prof.Cond.R. 1.15(a)(2) (requiring a lawyer to maintain a record for each
client on whose behalf funds are held), and Prof.Cond.R. 8.1(b) and Gov.Bar R.
V(9)(G) (both requiring a lawyer to cooperate with a disciplinary investigation).
{¶ 11} We agree with the board’s findings of misconduct.
Sanction
{¶ 12} 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.
{¶ 13} As an aggravating factor, the board noted Simmons’s prior
disciplinary record. See Gov.Bar R. V(13)(B)(1). In mitigation, the board found
that Simmons lacked a selfish motive and displayed a cooperative attitude toward
the disciplinary process after relator filed the complaint. See Gov.Bar R.
V(13)(C)(2) and (4). The board also noted that Simmons expressed genuine
remorse for his misconduct and that he had begun working with an attorney to help
organize his practice and develop a more formal procedure for fee arrangements
with clients, some of whom simply retained him in courthouse hallways.
{¶ 14} To support its recommended sanction, the board primarily relied on
Disciplinary Counsel v. Turner, 140 Ohio St. 3d 109, 2014-Ohio-3158, 15 N.E.3d
851. Turner deposited personal funds into his client trust account, used the account
for personal and business expenses, and failed to cooperate in the ensuing
disciplinary investigation. Turner also had prior disciplinary offenses, including
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two attorney-registration suspensions and one stayed six-month suspension.
Mitigating factors included an absence of a selfish or dishonest motive and
cooperation in the disciplinary process after relator had filed the disciplinary
complaint. In addition, we noted that Turner did not actually have client funds in
his trust account—all the funds in Turner’s client trust account were his own
money; therefore, there was no evidence that he had commingled personal funds
with client funds. We suspended Turner for two years but stayed the entire
suspension on the condition that he engage in no further misconduct.
{¶ 15} The board concluded that Simmons’s misconduct and the mitigating
and aggravating factors here are comparable to those in Turner and that although
Simmons commingled client and personal funds in his client trust account, no
clients were actually harmed by his actions. As in Turner, the board here
recommended a conditionally stayed two-year suspension, finding no threat to the
public in allowing Simmons to continue practicing law. The board also
recommended, however, that we condition the stay of Simmons’s suspension on
his completing certain continuing-legal-education (“CLE”) courses and submitting
to a one-year term of monitored probation. Probation is necessary, the board
concluded, to ensure Simmons’s continued compliance with the professional-
conduct rules regulating client trust accounts and to ensure that he “goes forward
with his plans of better client and law office organization and client management.”
{¶ 16} We agree that a two-year suspension, all stayed on the conditions
recommended by the board, is the appropriate sanction in this case. Simmons’s
misconduct and the aggravating and mitigating factors here are similar to those in
Turner, and therefore, a similar sanction is warranted. In addition, the board’s
recommended conditions are properly tailored to address the causes of Simmons’s
misconduct. See Allen Cty. Bar Assn. v. Brown, 124 Ohio St. 3d 530, 2010-Ohio-
580, 925 N.E.2d 112, ¶ 16 (noting that we “tailor[] the conditions of stayed
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suspension to address the causes of misconduct”). We therefore adopt the board’s
recommended sanction.
Conclusion
{¶ 17} For the reasons explained above, Frank James Simmons Jr. is
suspended from the practice of law in Ohio for two years, with the entire suspension
stayed on the conditions that he (1) complete a minimum of three hours of CLE
focused on client-trust-account management and a minimum of three hours of CLE
focused on law-office management, in addition to the CLE requirements of
Gov.Bar R. X, (2) serve a one-year term of monitored probation pursuant to
Gov.Bar R. V(21) during the first year of his stayed suspension, (3) refrain from
further misconduct, and (4) pay the costs of this proceeding. If Simmons fails to
comply with any of these conditions, the stay will be lifted and he will serve the
entire two-year suspension. Costs are taxed to Simmons.
Judgment accordingly.
O’CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ.,
concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
_________________
KENNEDY, J., concurring in part and dissenting in part.
{¶ 18} I agree with the majority’s determination that a fully stayed two-year
suspension of respondent, Frank James Simmons Jr., is warranted to protect the
public, and I concur in the court’s order:
Frank James Simmons Jr. is suspended from the practice of law in
Ohio for two years, with the entire suspension stayed on the
conditions that he (1) complete a minimum of three hours of
[continuing-legal-education (“CLE”) courses] focused on client-
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trust-account management and a minimum of three hours of CLE
focused on law-office management, in addition to the CLE
requirements of Gov.Bar R. X, (2) serve a one-year term of
monitored probation pursuant to Gov.Bar R. V(21) during the first
year of his stayed suspension, (3) refrain from further misconduct,
and (4) pay the costs of this proceeding. If Simmons fails to comply
with any of these conditions, the stay will be lifted and he will serve
the entire two-year suspension. Costs are taxed to Simmons.
Majority opinion at ¶ 17.
{¶ 19} Although I agree that probation is appropriate, I part ways with the
majority over its failure to impose additional specific conditions for Simmons to
follow during the one-year monitored probationary period. The majority opinion
simply orders Simmons to “serve a one-year term of monitored probation pursuant
to Gov.Bar R. V(21) during the first year of his stayed suspension.” Id. Other than
ordering that Simmons complete additional hours of CLE, pay the costs of the case,
and commit no further misconduct, the majority gives no guidance to Simmons or
his monitor regarding their respective duties during the term of monitored
probation, thereby failing to promote public confidence that the underlying causes
of Simmons’s misconduct will be addressed.
{¶ 20} As I explained in Disciplinary Counsel v. Halligan, ___ Ohio St.3d
___, 2019-Ohio-3748, ___N.E.3d ___, ¶ 41 (Kennedy, J., concurring in part and
dissenting in part), the “failure to attach conditions to probation is more than a
missed opportunity to set the criteria and goals for professional redemption, it is an
abdication of our duty under the Rules for the Government of the Bar.”
“[C]onditions are essential to the scheme” of probation established by Gov.Bar R.
V(21), id. at ¶ 43; “[w]ithout guidance as to the specific conditions of probation—
conditions specifically designed by this court to protect the public and rehabilitate
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the respondent—a term of monitored probation has little value,” id. at ¶ 44. For
these reasons, “[a] term of probation should have sufficient conditions tied to a
respondent’s violations to protect the public from further violations of the Rules of
Professional Conduct,” id. at ¶ 45, while also providing supervisory activities
“tailored to benefit a respondent,” id.
{¶ 21} In this case, I would impose the following specific conditions for the
one-year term of monitored probation: (1) during the first three months of the term
of probation, Simmons shall meet with his monitoring attorney on a monthly basis,
then every two months for the remainder of the term of probation; (2) Simmons
shall give the monitoring attorney complete access to client files, ledgers, and
account statements from his client trust account, and ledgers and account statements
from his business account; (3) the monitoring attorney shall review Simmons’s
client files for fee agreements and identify those clients who have paid Simmons
retainers in advance of legal work; (4) the monitoring attorney shall review the
ledgers and account statements from Simmons’s client trust and business accounts
and ensure that client funds are deposited into and disbursed from the client trust
account while earned fees are deposited into, and business expenses are paid from,
Simmons’s business account; and (5) Simmons shall complete the additional CLE
hours focused on client-trust-account management and law-office management
prior to the termination of probation.
{¶ 22} “An effective attorney-probation system—one that follows the Rules
for the Government of the Bar—requires the considered input of this court in
establishing the conditions of probation.” Halligan at ¶ 47 (Kennedy, J., concurring
in part and dissenting in part). Because the majority fails to impose sufficient
additional conditions of probation, I dissent from that part of the court’s decision
today.
DEWINE, J., concurs in the foregoing opinion.
_________________
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Scott J. Drexel, Disciplinary Counsel, and Stacy Solochek Beckman,
Assistant Disciplinary Counsel, for relator.
Patricia Horner, for respondent.
_________________
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