Toledo Bar Assn. v. Peters

[Cite as Toledo Bar Assn. v. Peters, 87 Ohio St. 3d 348, 1999-Ohio-138.]
TOLEDO BAR ASSOCIATION v. PETERS.
[Cite as Toledo Bar Assn. v. Peters (1999), 87 Ohio St. 3d 348.]
Attorneys at law — Misconduct — Eighteen-month suspension with final twelve
months stayed on condition — Neglecting an entrusted legal matter —
Commingling client funds.
(No. 99-1159 — Submitted August 25, 1999 — Decided December 22, 1999.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 97-73.
In early 1996, respondent, William J. Peters of Toledo, Ohio, Attorney
Registration No. 0032163, who had not registered or paid his fees with the
Supreme Court for the years 1995 and 1996, settled a personal injury claim on
behalf of his client, Lucretia Woods, and received a check for $15,000, which he
deposited in his trust account on February 7, 1996. On February 6, 1996, after
receiving the check and before depositing it, respondent prepared a settlement
statement. The statement provided that respondent would take his agreed
contingent fee of $5,000, transmit $5,471.20 to Woods, and use the balance of the
proceeds to pay Woods’s medical fees.
Respondent claimed that at the time of the settlement he had an oral
agreement with Woods to increase her recovery by compromising some of her
medical bills for less than was due.
On February 6, 1996, the day of the settlement statement, Chiropractic
Enterprises (“Chiropractic”) wrote to respondent and agreed to compromise its
$3,350 bill for $2,000. On March 29, 1996, respondent sent a $1,000 check to
Woods for her savings from the Chiropractic compromise and kept $350 as his fee
for negotiating it. After several telephone calls to respondent, Chiropractic wrote
to him in June 1996, stating that it had not received the compromise amount and if
it was not received within ten days, Chiropractic would seek payment from Woods.
Chiropractic wrote respondent again in August 1996, noting that payment had not
been received despite the fact that respondent had signed a “Doctor’s Lien” with
Chiropractic. Respondent finally paid Chiropractic $2,000 on January 31, 1997.
From April 8, 1996 through June 10, 1996, and from June 21, 1996 through
January 3, 1997, respondent had less than $2,000 in his trust account. He used the
trust account for other than client matters because the Internal Revenue Service
had attached his personal bank account.
On February 20, 1997, respondent paid American Radiological $93.34 as a
compromise of Woods’s $140 bill, and kept the difference as his fee for reduction
of the bill. On the same day, respondent paid National Digitizing $163.34 as a
compromise of Woods’s $245 bill, and kept the difference as a fee for achieving
the reduction.
On August 11, 1997 relator, Toledo Bar Association, filed a complaint
charging that respondent’s conduct violated several Disciplinary Rules.
Respondent answered, and the matter was heard by a panel of the Board of
Commissioners on Grievances and Discipline of the Supreme Court (“board”).
The panel found the facts as stated and concluded that by not paying
Woods’s medical bills for nearly a year, respondent violated DR 6-101(A)(3)
(neglecting an entrusted legal matter), and by using the client funds in his trust
account, he violated DR 9-102 (commingling client funds with the attorney’s
funds). The panel also found that respondent collected a clearly excessive fee and
thereby violated DR 2-106(A). In addition, the panel found that respondent had
not registered with the Supreme Court as required by Gov.Bar R. VI(1)(A) for a
period of time before the complaint was filed.
In mitigation, the panel found that the respondent had not been previously
disciplined by the court and that he freely admitted his wrongdoing. The panel
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recommended that respondent be suspended from the practice of law for eighteen
months with the final twelve months stayed on condition that during the stay
respondent submit to a monitoring program satisfactory to the relator.
The board adopted the findings of fact of the panel, and found in mitigation
that respondent showed genuine remorse for his misconduct and that Woods
suffered no real harm as a result of the delay. The board concluded that respondent
had violated DR 6-101(A)(3) and 9-102, but not 2-106(A), and adopted the
recommendation of the panel.
__________________
Jonathan B. Cherry, for relator.
Martin E. Mohler, for respondent.
__________________
Per Curiam. We adopt the findings, conclusions, and recommendation of
the board. Respondent violated DR 9-102. The evidence indicates that during
most of the year in which respondent delayed paying his client’s medical bills, the
balance in his trust account was insufficient to make those payments and that
insufficiency was caused by respondent’s personal use of the funds. Respondent
also violated DR 6-101(A)(3). His delay in paying Woods’s medical bills for
nearly a year was a breach not only of his promise to Woods in the settlement
statement, but also of his agreement with Chiropractic to pay the compromise
amount. Respondent’s compromise of the American Radiological and National
Digitizing bills solely for his own benefit was a breach of his fiduciary duty to his
client.
Respondent is hereby suspended from the practice of law for eighteen
months with the final twelve months stayed on condition that during the stay
respondent submit to a monitoring program satisfactory to relator. Costs are taxed
to respondent.
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Judgment accordingly.
MOYER, C.J., CORRIGAN, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
DOUGLAS, J., dissents because he would stay a one-year suspension.
MICHAEL J. CORRIGAN, J., of the Eighth Appellate District, sitting for
RESNICK, J.
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