Toledo Bar Assn. v. Gregory

[Cite as Toledo Bar Assn. v. Gregory, 132 Ohio St. 3d 110, 2012-Ohio-2365.]
TOLEDO BAR ASSOCIATION v. GREGORY.
[Cite as Toledo Bar Assn. v. Gregory, 132 Ohio St. 3d 110, 2012-Ohio-2365.]
Attorney misconduct, including failing to hold property of clients in an interest-
bearing client trust account separate from the lawyer’s own property and
failing to maintain a record of the funds held on behalf of each client—
Six-month suspension, all stayed on conditions.
(No. 2011-2036—Submitted January 18, 2012—Decided May 30, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-015.
__________________
Per Curiam.
{¶ 1} Respondent, Michele L. Gregory, formerly of Toledo, Ohio,
Attorney Registration No. 0071394, was admitted to the practice of law in Ohio in
1999. On February 14, 2011, relator, Toledo Bar Association, filed a seven-count
complaint alleging that Gregory had committed professional misconduct in her
handling of seven different client matters. The alleged misconduct included
failure to provide competent representation, neglect of client legal matters, failure
to act with reasonable diligence, failure to comply with reasonable requests for
information from a client, trust-account violations, and failure to disclose a
material fact in response to a request by a disciplinary authority.
{¶ 2} The parties submitted a consent-to-discipline agreement pursuant to
Gov.Bar R. V(11)(A)(3)(c) and BCGD Proc.Reg. 11, but the panel rejected the
agreement because it addressed only counts six and seven of relator’s complaint.
{¶ 3} At the hearing on the matter, relator moved the panel of the Board of
Commissioners on Grievances and Discipline to dismiss counts one through five
of its complaint, and the panel granted the motion. Based upon the parties’
stipulations of fact and misconduct and Gregory’s testimony, the panel found that
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Gregory had mishandled client funds and her client trust account as stipulated
with respect to counts six and seven of relator’s complaint. Based upon this
finding, the panel recommended that Gregory be suspended from the practice of
law for six months but that the entire suspension be stayed on the conditions that
she complete a one-year term of monitored probation, attend six hours of
continuing education (“CLE”) in law-office management, and commit no further
misconduct.
{¶ 4} The board adopted the panel’s findings of fact and misconduct as
well as the recommended sanction, and so do we.
Misconduct
{¶ 5} The parties stipulated and the panel and board found that Gregory
had mishandled the retainers remitted by two separate clients. Count six involved
client Brenda Rausch, who gave Gregory an $800 retainer to file an adoption
proceeding. Although Gregory maintained a client trust account, she initially
failed to deposit the retainer into her trust account, and her records were in such
disarray that it was impossible to determine when the money was finally
deposited into that account. Rausch discharged Gregory and requested a refund
because Gregory had failed to initiate the adoption proceeding. Gregory refunded
the retainer with a check from her client trust account.
{¶ 6} Count seven involved divorce client Kimberly Stockard. Gregory
received a retainer of $3,999.94—a $2,999.94 check, which she deposited with
six cents of her own money into her client trust account, and a $1,000 check,
which she deposited into her business account—on behalf of Stockard in January
2007. Stockard discharged Gregory on November 8, 2007, and Gregory
submitted a $2,820 bill for the 28.2 hours of work she had performed on
Stockard’s behalf. On November 27, 2007, Gregory issued Stockard a $1,180
refund check from her client trust account, though she later stipulated that from
February 2, 2007, through November 27, 2007, the balance in her client trust
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January Term, 2012
account was always less than $1,180, which shows that she had withdrawn some
of the unearned portion of the retainer.
{¶ 7} With respect to both counts, Gregory admitted that she had failed to
promptly deposit and hold the clients’ entire retainer in her client trust account.
She also admitted that she had failed to maintain an accurate record of the funds
held for each client; had failed to maintain records regarding her client trust
account, including all bank statements, deposit slips, and canceled checks; and
had failed to perform and retain monthly reconciliations.
{¶ 8} Based upon these facts, the parties stipulated and the panel and
board found that Gregory had violated 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), 1.15(a)(2) (requiring a lawyer to maintain a record for
each client on whose behalf funds are held), 1.15(a)(4) (requiring a lawyer to
maintain all bank statements, deposit slips, and canceled checks, if provided by
the bank, for each bank account), and 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) with respect to counts six and seven.1 The panel and board also found
that she had violated Prof.Cond.R. 1.15(c) (requiring a lawyer to deposit into a
client trust account legal fees and expenses that have been paid in advance) with
respect to count seven by withdrawing a portion of Stockard’s retainer from her
client trust account when the fees had not been earned.
{¶ 9} The board dismissed the charges alleging violations of Prof.Cond.R.
1.1 (requiring a lawyer to provide competent representation to a client) with
respect to counts six and seven and Prof.Cond.R. 8.1(a) (prohibiting a lawyer
from knowingly making a false statement of material fact in connection with a
1. Relator’s complaint did not allege violations of Prof.Cond.R. 1.15(a) or 1.15(a)(4) with respect
to count six, but Gregory stipulated to those violations with respect to that count. And at the
hearing, she testified that she had received adequate notice of those allegations.
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disciplinary matter) and 8.1(b) (prohibiting a lawyer from knowingly failing to
respond to a demand for information by a disciplinary authority during an
investigation) with respect to count six, finding that relator had failed to prove
them by clear and convincing evidence.
{¶ 10} We adopt these findings of fact and misconduct and also dismiss
the charge alleging a violation of Prof.Cond.R. 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) with respect to count seven, which has not been proven by
clear and convincing evidence and has not been disposed of by either the panel or
the board.
Sanction
{¶ 11} In recommending a sanction, the panel and board considered the
aggravating and mitigating factors listed in BCGD Proc.Reg. 10. See
Disciplinary Counsel v. Broeren, 115 Ohio St. 3d 473, 2007-Ohio-5251, 875
N.E.2d 935, ¶ 21. As aggravating factors, they found that Gregory had engaged
in a pattern of misconduct involving multiple offenses. See BCGD Proc.Reg.
10(B)(1)(c) and (d). In mitigation, the panel and board cited the absence of both a
prior disciplinary record and a dishonest or selfish motive. See BCGD Proc.Reg.
10(B)(2)(a) and (b). They also cited the absence of lasting harm to clients,
Gregory’s timely good-faith effort to rectify the consequences of her misconduct
by making restitution, her full and free disclosure to the board, and her
cooperative attitude toward the disciplinary proceedings. See BCGD Proc.Reg.
10(B)(2)(c) and (d). They found that Gregory had acknowledged the wrongful
nature of her conduct, had sincerely assured the panel that she would not commit
similar misconduct in the future, and had voluntary wound down her practice
during the pendency of this disciplinary matter to protect potential clients from
having to find new attorneys if she lost her right to practice.
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January Term, 2012
{¶ 12} Relator suggests that a one-year stayed suspension is the
appropriate sanction for Gregory’s misconduct, citing Disciplinary Counsel v.
Croushore, 108 Ohio St. 3d 156, 2006-Ohio-412, 841 N.E.2d 781 (imposing a
one-year stayed suspension and two years of monitored probation upon an
attorney for commingling personal and client funds in his client trust account and
failing to maintain adequate records of client funds held in that account) and Allen
Cty. Bar Assn. v. Schramski, 124 Ohio St. 3d 465, 2010-Ohio-630, 923 N.E.2d 603
(imposing a one-year suspension stayed on conditions, including the completion
of a two-year term of monitored probation, for an attorney who failed to maintain
adequate records of funds held in her client trust account, commingled personal
and client funds in her client trust account, and used that account to pay personal
expenses).
{¶ 13} The panel and board rejected relator’s recommended sanction,
however, finding that Gregory’s misconduct was not as egregious as Croushore’s
or Schramski’s. Instead, they found our decisions in Disciplinary Counsel v.
Fletcher, 122 Ohio St. 3d 390, 2009-Ohio-3480, 911 N.E.2d 897, and Disciplinary
Counsel v. Vivyan, 125 Ohio St. 3d 12, 2010-Ohio-650, 925 N.E.2d 947, to be
more instructive.
{¶ 14} In Fletcher, the attorney had failed to maintain required records to
document the identity of funds in his client trust account, used his client trust
account as his operating account, and provided impermissible financial assistance
to a client. Fletcher at ¶ 4-6, 11. We found that his failure to follow adequate
accounting practices, however, was the result of his “complete lack of
understanding and appreciation of his duty to safeguard client funds.” Id. at ¶ 16.
And although he had commingled personal and client funds, the amounts involved
were small, no one had accused him of misappropriation, and no clients were
harmed as a result of his misconduct. Id. at ¶ 15-16. Consequently, we found that
the appropriate sanction for Fletcher’s misconduct was a six-month suspension,
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stayed on the conditions that Fletcher complete one year of monitored probation
and that he commit no further misconduct. Id. at ¶ 17. And in Vivyan, we
imposed a six-month stayed suspension for an attorney who withdrew $1,535 in
unearned fees from his client trust account. Vivyan had practiced law for 40
years without misconduct and had made timely restitution in that he replenished
his trust account when he learned that it was overdrawn. Id. at ¶ 13.
{¶ 15} Given Gregory’s full acknowledgment of her deficiencies, her
timely good-faith effort to make restitution, and her sincere assurance that she
will not commit similar misconduct in the future, we believe that a six-month
suspension stayed on the conditions recommended by the board will adequately
protect the public from future misconduct.
{¶ 16} Accordingly, we suspend Michele L. Gregory from the practice of
law in Ohio for six months, all stayed on the conditions that she complete a one-
year term of monitored probation in accordance with Gov.Bar R. V(9), attend at
least six hours of CLE in law-office management in addition to the requirements
of Gov.Bar R. X, and commit no further misconduct. If Gregory fails to comply
with the conditions of the stay, the stay will be lifted and she will serve the full
six-month suspension. Costs are taxed to Gregory.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Michael A. Bonfiglio, Bar Counsel; MacMillan, Sobanski & Todd, L.L.C.,
and Richard S. MacMillan; and Handwork & Kerscher, L.L.P., and Jeffrey M.
Kerscher, for relator.
Michele L. Gregory, pro se.
______________________
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