Opinion
D.D. No. 85-15
Decided March 12, 1986.
Attorneys at law — Misconduct — One-year suspension — Failure to prosecute appeal — Failure to disburse funds to clients — Licensed attorney charged with knowledge of all Disciplinary Rules.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Relator, Bar Association of Greater Cleveland, filed the complaint in the instant disciplinary action against respondent, Walter H. Rubinstein. Count One of the amended complaint was withdrawn by the relator, and Count Five, alleging violations of DR 6-101(A)(3) and 7-101(A)(1) and (2), was dismissed by the Board of Commissioners on Grievances and Discipline. The remaining counts of the amended complaint charged the respondent with violations of DR 1-102(A)(4), 7-101(A)(3), and 9-102(B)(1), (2), (3) and (4).
Count Two of the amended complaint alleged that the respondent failed to prosecute an appeal on behalf of his client, Carey Estates, Inc. Respondent allegedly advised his client that "the appeal was going fine," but the appeal was dismissed for want of prosecution on June 1, 1982. Respondent did not advise his client of the dismissal until August or September 1983. Relator charged that the foregoing conduct violated DR 1-102(A)(4) and 7-101(A)(3).
Count Three of the amended complaint alleged that the respondent had (1) failed to disburse $2,000 of a $3,000 judgment that he had received on behalf of his client, Carolyn Bruno, and (2) failed to reimburse a $250 filing fee that had been advanced by his client's mother but was later paid to respondent by his client. The relator charged that by this conduct, respondent violated DR 1-102(A)(4) and 9-102(B)(1), (2), (3) and (4).
The fourth count of relator's amended complaint alleged that the respondent received a draft for $15,000 on behalf of his client, Damon Alexander, but failed to inform Alexander when the check had cleared through the bank and had been deposited in the respondent's account. Alexander discovered that the check had cleared and sought payment from the respondent in the amount of $10,000, as per his fee agreement with the respondent. At that time, respondent's account had a balance of only $3,010, and he wrote Alexander a check for $3,000. The relator charged that respondent's conduct under this count violated DR 1-102(A)(4) and 9-102(B)(2), (3) and (4).
After a hearing on January 17, 1985, the board of commissioners determined that the respondent's conduct constituted violations DR 1-102(A)(4), 7-101(A)(3), and 9-102(B)(1), (2), (3) and (4), as charged in Counts Two, Three and Four of the relator's amended complaint. The board recommended that respondent be suspended from the practice of law in the state of Ohio for a period of one year.
Foster J. Fludine, John T. Mulligan and Thomas L. Dettelbach, for relator.
Julian Cohen and Gerald Steinberg, for respondent.
Upon review of the record in the instant case, we conclude that the respondent has violated DR 1-102(A)(4), 7-101(A)(3), and 9-102(B)(1), (2), (3) and (4) of the Code of Professional Responsibility.
The respondent contends that his violations, if any, of the aforementioned Disciplinary Rules were not intentional, but resulted from misunderstandings with his clients and a technical application of the rules. However, even assuming that the respondent did not set out to violate the rules in question, his conduct did, in fact, violate these rules. As an attorney licensed to practice in this state, the respondent was charged with knowledge of all of the Disciplinary Rules; and while the respondent may not have intended to harm his clients or to violate the Code of Professional Responsibility, on three separate occasions he did both.
We note that the respondent cooperated in the proceedings below and that he pledged to make his clients whole. The respondent's cooperation in this matter distinguishes this case from Disciplinary Counsel v. Heck (1984), 15 Ohio St.3d 33, in which similar disciplinary violations resulted in an indefinite suspension. Accordingly, respondent is hereby suspended from the practice of law in Ohio for a period of one year.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.