Disciplinary Counsel v. Vivyan

[Cite as Disciplinary Counsel v. Vivyan, 125 Ohio St. 3d 12, 2010-Ohio-650.]
DISCIPLINARY COUNSEL v. VIVYAN.
[Cite as Disciplinary Counsel v. Vivyan, 125 Ohio St. 3d 12, 2010-Ohio-650.]
Attorneys — Misconduct — Failure to properly maintain and use a client trust
account — Six-month suspension stayed on condition.
(No. 2009-1548 — Submitted October 20, 2009 — Decided March 3, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-20.
__________________
Per Curiam.
{¶ 1} Respondent, Thomas Fairchild Vivyan of Pataskala, Ohio,
Attorney Registration No. 0028977, was admitted to the practice of law in Ohio in
1971. The Board of Commissioners on Grievances and Discipline recommends
that we publicly reprimand respondent, based on findings that he withdrew for his
personal use settlement proceeds held in trust for a client. We agree that
respondent violated ethical standards by withdrawing unearned funds from his
client trust account; however, we find a six-month suspension of his license to
practice, all stayed on condition of no further misconduct, to be the appropriate
sanction.
{¶ 2} Relator, Disciplinary Counsel, charged respondent in one count
with multiple violations of the Rules of Professional Conduct, including
Prof.Cond.R. 1.15(a) (requiring a lawyer to hold property of clients separate from
the lawyer’s own property), 1.15(b) (allowing a lawyer to deposit personal funds
in a trust account only to pay or waive bank charges), and 1.15(c) (requiring a
lawyer to deposit into a client trust account advances to be withdrawn only when
earned). The parties waived a hearing, and a panel of three board members heard
the case on the parties’ agreed stipulations of fact and law. Based on respondent’s
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admissions and other evidence of record, the panel found the cited misconduct
and recommended a public reprimand. The board adopted the panel’s findings of
misconduct and recommendation.
Misconduct
{¶ 3} Respondent, a sole practitioner, maintained both an Interest on
Lawyer Trust Account (“IOLTA”) account and a business account at Huntington
National Bank. In December 2007, he settled a personal-injury claim on behalf of
three clients for $7,700. Respondent agreed to reduce his contingent fee from
one-third to an amount equal to the amount received by each client. He also
obtained one doctor’s consent to reduce a medical bill by 20 per cent but agreed
with his clients to keep the remaining settlement proceeds in trust as he continued
to negotiate with the doctor.
{¶ 4} In the following months, respondent distributed $910 in settlement
proceeds to each of the three clients from his IOLTA account. But from mid-
January to mid-February 2008, respondent withdrew $1,535 in unearned proceeds
from this account by drawing eight checks payable to cash. Respondent used
these funds for personal expenses.
{¶ 5} Respondent admitted that by withdrawing unearned funds from a
bank account dedicated to safekeeping entrusted client funds, he violated
Prof.Cond.R. 1.15(a), (b), and (c). We accept his admissions and find that he has
breached these ethical duties.
Sanction
{¶ 6} 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 Rules and Regulations Governing Procedure on Complaints and Hearings
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January Term, 2010
Before the Board of Commissioners on Grievances and Discipline (“BCGD
Proc.Reg.”) 10(B). 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).
{¶ 7} In comparing respondent’s case to others in which lawyers
misused client trust accounts, the board noted dispositions ranging from a one-
year suspension, all stayed on conditions, to a six-month conditionally stayed
suspension, to a public reprimand. Though the board resolved that respondent’s
long and previously unblemished career weighed in favor of a public reprimand,
the board acknowledged that we ordinarily impose a conditionally stayed
suspension of six months for this misconduct. Examples cited by the board
included:
{¶ 8} “In Disciplinary Counsel v. Fletcher, [122 Ohio St. 3d 390, 2009-
Ohio-3480, 911 N.E.2d 897], respondent did not have an operating account from
2002 to 2007, paid his personal and business expenses from the IOLTA account,
wrote at least 150 checks from 2005 to 2007 and received a 6 month stayed
suspension.”
{¶ 9} “In Disciplinary Counsel v, Johnston, 121 Ohio St. 3d 403, 2009-
Ohio-1432 [904 N.E.2d 892], respondent received a one year suspension, all
stayed. He used his IOLTA account for operating and personal expenses for two
years, commingling his own funds with his clients.”
{¶ 10} “In Cuyahoga Cty. Bar Assn. v. Nance, 119 Ohio St. 3d 55, 2008-
Ohio-3333 [891 N.E.2d 746], respondent admitted that he had violated [ethical
standards prohibiting conduct that adversely reflects on a lawyer’s fitness to
practice law and requiring a lawyer to maintain client funds in an identifiable
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bank account separate from his own] by misusing his client trust account. He
received a six month stayed suspension with conditions.”
{¶ 11} “In Columbus Bar Assn. v. Peden, 118 Ohio St. 3d 244, 2008-Ohio-
2237 [887 N.E.2d 1183], respondent received a six month suspension, all stayed,
where he had no IOLTA account and also violated Gov.Bar V(4)(G).”
{¶ 12} “In Disciplinary Counsel v. Newcomer, 119 Ohio St. 3d 351, 2008-
Ohio-4492, [894 N.E.2d 50], respondent received a six month suspension, stayed.
Respondent’s personal account was closed by his bank and he then used the
IOLTA account for personal expenses.”
{¶ 13} That respondent has practiced nearly 40 years without incident
weighs in his favor. See BCGD Proc.Reg. 10(B)(2)(a). Also mitigating are
respondent’s cooperation and honesty during the disciplinary process and his
good character and reputation apart from the underlying misconduct. BCGD
Proc.Reg. 10(B)(2)(d) and (e). The board found that respondent had made timely
and good faith restitution in that he replenished the IOLTA account upon notice
that it was overdrawn. See BCGD Proc.Reg. 10(B)(2)(c).
{¶ 14} While the board found that respondent may not have specifically
intended to misuse his client trust account, we conclude that he knew that he had
withdrawn client funds to which he was not entitled, and that conduct calls for our
standard disposition. Respondent is therefore suspended from the practice of law
in Ohio for six months; however, the suspension is stayed on condition of no
further misconduct. If respondent violates this condition, the stay will be lifted,
and respondent’s license to practice will be suspended for the full six months.
{¶ 15} Costs are taxed to respondent.
Judgment accordingly.
MOYER C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR, LANZINGER,
and CUPP, JJ., concur.
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January Term, 2010
O’DONNELL, J., dissents and would publicly reprimand respondent.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator.
Thomas F. Vivyan, pro se.
______________________
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