Mahoning Cty. Bar Assn. v. Gerchak (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Mahoning Cty. Bar Assn. v. Gerchak, Slip Opinion No. 2015-Ohio-4305.]
NOTICE
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SLIP OPINION NO. 2015-OHIO-4305MAHONING COUNTY BAR ASSOCIATION v. GERCHAK.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Mahoning Cty. Bar Assn. v. Gerchak, Slip Opinion No.
2015-Ohio-4305.]
Attorneys—Misconduct—Failure to communicate basis of fee—Failure to hold
client funds in client trust account—Failure to deposit pre-paid legal fees
in client trust account—Two-year suspension, stayed on conditions—Two-
year probationary period.
(No. 2015-0290—Submitted April 14, 2015—Decided October 20, 2015.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2014-061.
_______________________
Per Curiam.
{¶ 1} Respondent, David John Gerchak of Youngstown, Ohio, Attorney
Registration No. 0069060, was admitted to the practice of law in Ohio in 1998. On
May 24, 2007, we suspended him for failure to complete continuing-legal-
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education requirements, In re Continuing Legal Edn. Suspension of Gerchak, 113
Ohio St.3d 1522, 2007-Ohio-2487, 866 N.E.2d 1095, and in 2011 we suspended
him for one year for violating Prof.Cond.R. 8.4(c) and (d), with the entire
suspension stayed on the conditions that he comply with the terms of a three-year
Ohio Lawyers Assistance Program contract and commit no further misconduct,
Disciplinary Counsel v. Gerchak, 130 Ohio St.3d 143, 2011-Ohio-5075, 956
N.E.2d 292.
{¶ 2} On September 3, 2014, a probable-cause panel of the Board of
Commissioners on Grievances and Discipline1 certified to the board a complaint
filed by relator, Mahoning County Bar Association, against Gerchak. In that
complaint, relator alleged that Gerchak had committed multiple ethical violations
regarding his recordkeeping in the representation of a criminal defendant.
{¶ 3} The parties entered into stipulations of fact, misconduct, and
aggravating and mitigating factors and agreed that a two-year suspension, fully
stayed on conditions, is the appropriate sanction for Gerchak’s violation of three
Rules of Professional Conduct. The parties agreed that the charges regarding two
additional alleged rule violations should be dismissed.
{¶ 4} A panel of the board conducted a hearing at which it received the
parties’ stipulations of fact, stipulated exhibits, and stipulations as to the
misconduct. At the hearing, Gerchak was the sole witness, addressing mostly
mitigation. The panel adopted the parties’ agreed sanctions, including a two-year
probation period during which Gerchak would be required to work with a
monitoring attorney, obtain a minimum of three hours of continuing legal education
in law-office management, pay the costs of the proceeding, and commit no further
misconduct. The board adopted the findings of fact, conclusions of law, and
1
Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been
renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII.
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January Term, 2015
recommendation of the panel. We adopt the board’s findings, conclusions, and
recommended sanction.
Misconduct
{¶ 5} In the spring of 2008, Jeff Blanche retained Gerchak to represent him
in a matter in which he was charged with four counts of assaulting a police officer.
He entered a plea and was sentenced to three years of community control with
conditions. Blanche later sought to have his conviction expunged or sealed, but
Gerchak advised him that his sole avenue of recourse was a gubernatorial pardon.
Gerchak gave Blanche a form to obtain fingerprints for a criminal-history check
and instructions to collect information to pursue the pardon. Blanche never
returned the fingerprint card, even after he had been given a second one. Blanche
paid Gerchak $750 to pursue the pardon, but Gerchak did not deposit the funds in
his client trust account.
{¶ 6} In November 2012, Blanche retained Gerchak to represent him
regarding charges of operating a vehicle while impaired (“OVI”). Because Gerchak
had not pursued the earlier pardon matter, he and Blanche agreed that the previously
paid $750 would be applied to the representation regarding the OVI arrest. Blanche
made multiple additional payments, bringing the total he paid Gerchak to $1,400.
Gerchak deposited none of the payments in his client trust account. Gerchak did
not have a written fee agreement for the OVI case, nor did he provide Blanche with
a monthly statement detailing the time spent, funds disbursed, or funds remaining.
{¶ 7} The parties stipulated and the board found that Gerchak’s conduct
violated Prof.Cond.R. 1.5(b) (requiring an attorney to communicate the nature and
scope of the representation and the basis or rate of the fee and expenses within a
reasonable time after commencing the representation), 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(c) (requiring a lawyer to deposit into a client
trust account legal fees and expenses that have been paid in advance). The parties
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and the board also recommend that the remaining alleged violations be dismissed.
We adopt the board’s findings of fact and misconduct.
Sanction
{¶ 8} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties 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. We also weigh evidence of the aggravating
and mitigating factors listed in Gov.Bar R. V(13).
{¶ 9} The parties stipulated and the board found as an aggravating factor
that Gerchak had prior disciplinary offenses. See Gov.Bar R. V(13)(B)(1). As
mitigating factors, the parties stipulated and the board found that Gerchak has
demonstrated the absence of a dishonest or selfish motive, that he has made full and
free disclosure and demonstrated a cooperative attitude toward the disciplinary
proceedings, and that he has presented evidence of his good character and
reputation apart from the charged misconduct. See Gov.Bar R. V(13)(C)(2), (4),
and (5). Upon the panel’s recommendation, the board also found as mitigating
factors Gerchak’s acknowledgment of wrongdoing and full reimbursement of fees
paid, even though some work was performed on the case. The board also found
that Gerchak acknowledged a need for and was receptive to mentoring.
{¶ 10} The parties jointly recommended that Gerchak be suspended for two
years, all stayed on conditions. The board considered sanctions imposed in three
cases that involved similar facts and violations: Akron Bar Assn. v. Tomer, 138
Ohio St.3d 302, 2013-Ohio-5494, 6 N.E.3d 1133 (attorney suspended for two years,
stayed on conditions, for violations of Prof.Cond.R. 1.3, 1.4(a)(2), 1.4(c), 1.15, and
8.4(c) that included client-trust-account improprieties; the attorney had no prior
discipline, and the aggravating factors included multiple offenses and submission
of fraudulent evidence during the disciplinary process), Disciplinary Counsel v.
Dockry, 133 Ohio St.3d 527, 2012-Ohio-5014, 979 N.E.2d 313 (attorney received
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January Term, 2015
one-year suspension, stayed on conditions, for multiple violations of Prof.Cond.R.
1.15(a), 1.15(a)(2), 1.15(a)(5), 8.4(c), and 8.4(h); numerous mitigating factors were
significant to the ultimate sanction), and Disciplinary Counsel v. Doellman, 127
Ohio St.3d 411, 2010-Ohio-5990, 940 N.E.2d 928 (attorney received one year
suspension, stayed on conditions, for client-trust-account violations, including
failure to maintain an account and commingling personal, client, and business
funds).
{¶ 11} Having reviewed the record, weighed the aggravating and mitigating
factors, and considered the sanctions imposed for comparable misconduct, we
adopt the board’s findings and recommended sanction. Accordingly, David John
Gerchak is hereby suspended from the practice of law in Ohio for two years, all
stayed on the conditions that he (1) submit to a two-year period of probation
pursuant to Gov.Bar R. V(21), during which he shall work with a monitoring
attorney, (2) annually complete a minimum of three hours of continuing legal
education on law-office management, and (3) commit no further misconduct. If
Gerchak fails to comply with the conditions of the stay, the stay will be lifted, and
Gerchak will serve the entire two-year suspension. Costs are taxed to Gerchak.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
David C. Comstock Jr. and Ronald E. Slipski, Bar Counsel, for relator.
John B. Juhasz, for respondent.
_________________
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