Opinion
D.D. No. 81-21
Decided March 9, 1982.
Attorneys at law — Misconduct — Public reprimand — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The Columbus Bar Association, relator herein, filed a complaint with the Board of Commissioners on Grievances and Discipline, pursuant to Gov. R. V, charging H. Lee Thompson, respondent, in Count I, with conduct in violation of DR 9-102(A)(1) and (2), failing to preserve the identity of funds of a client; and in Count II, refusing to provide all information requested about the allegation in Count I, which is a violation of Gov. R. V(4). Relator recommended a one-year suspension from the practice of law.
A private hearing was held in Columbus on June 5, 1981, with relator and respondent being represented by counsel. Count II was withdrawn and the parties submitted an agreed stipulation of facts as to Count I, which, in the main, provides:
"During the period from June 1980 through September 1980, Respondent deposited sums of money from various clients into his trust account * * * but on occasion he would withdraw sums of [money] from said trust account in order to meet his own office expenses before that money was earned by him, resulting on one occasion in there being insufficient funds in said account to cover a trust check drawn thereon.
"Specifically, on June 26, 1980, Respondent received the sum of $225.00 from his client, Robert Steele, which sum was to be used to pay E E Insurance, through their attorney, Joseph Schilder, in return for E E Insurance vacating a certain judgment against Robert Steele.
"The $225.00 was duly deposited in the Respondent's trust account on June 27, 1980. On August 1, 1980, check #1732 was drawn by Respondent payable to Joseph Schilder in the amount of $225.00 and was sent to Joseph Schilder, who subsequently deposited same, only to have the check returned for insufficient funds. After a phone call to Respondent and a week or so later, Mr. Schilder deposited the check once again, only to have it returned again to him marked, `Do not redeposit.'
"Subsequently, in October of 1980, Respondent did pay the $225.00 to Mr. Schilder by separate check.
"* * *
"Each check drafted bears the signature of Respondent. During this time he made no deposits of his own funds into said trust account and during this time he maintained a separate personal checking account and a separate H. Lee Thompson, Attorney at Law, checking account. Nor, in withdrawing the various funds from said trust account, did Respondent debit any such withdrawals to any specific client account, nor had these funds withdrawn by Respondent been earned by him."
Respondent testified that he had been practicing law for approximately six years; that he had taken a course in law school on legal ethics; that he had worked for Ohio State Legal Services for approximately two years after graduation, for the Industrial Commission for approximately two years, and had been engaged in the private practice of law for about two years as a sole practitioner, sometimes sharing office expenses with another attorney.
After a full hearing was afforded, the board of commissioners found respondent guilty of Count I, and recommended a public reprimand.
Mr. Stanley D. Ross and Mr. Geoffrey Stern, for relator.
Mr. Richard E. Wright, for respondent.
The activities with which the respondent is charged are serious indeed, but the charges could reasonably have been even more severe. The facts show that the funds which were given to the respondent by a client were for a specific purpose. When those funds were placed in a trust account, and a check later drawn thereon, the check was returned for insufficient funds. Upon redeposit of the check, it was again returned because of insufficient funds in the account.
It was also stipulated that additional monies of other clients went into this trust fund maintained by respondent, and that on a number of occasions respondent had drawn checks upon the account to pay for certain personal expenses of respondent such as office rent and utilities. The stipulated facts revealed that during the period in question none of respondent's own funds were deposited to this trust account.
The charge filed here against respondent, under DR 9-102 (A)(1) and (2), is failing to properly deposit, identify, account for, and distribute funds of his client. We concur with the board of commissioners that respondent did violate this Disciplinary Rule.
Failure to promptly pay over and failure to properly account to a client for his funds is closely related to commingling, which often arises out of similar circumstances.
The mishandling of clients' funds either by way of conversion, commingling, or just poor management, encompasses an area of the gravest concern of this court in reviewing claimed attorney misconduct. As summarized in the Ohio State Bar Foundation's publication, Ethics and Discipline in Ohio, 1977, at page 15:
"No aspect of attorney misconduct is more frequently engaged in, or more severely condemned, than the commingling of an attorney's funds with those of his client. * * *"
This commentary would also apply equally to attorneys who fail to properly account to their clients as to the latters' funds.
We are well aware that this court has shown its great concern for this type of attorney defalcation by the severity of the sanction imposed by the court. For example, in Akron Bar Assn. v. Hughes (1976), 46 Ohio St.2d 369, the court stated, at page 372:
"* * * it has been the consistent practice of this court in recent years to impose a penalty of either indefinite suspension or of disbarment in cases involving commingling of funds."
Suspension of one year is advocated by the relator, and such a sanction for the conduct here could reasonably be meted out well in keeping with the sanctions ordered in some of the cases reviewed. However, the board of commissioners has recommended a public reprimand, basing their position for the lesser penalty upon the following facts: (1) respondent reimbursed the client and no one was harmed by respondent's conduct; (2) some of the checks drawn on the trust account were prepared by a substitute secretary unfamiliar with the accounts; and (3) respondent acted under a misapprehension with regard to the impropriety of payment of personal expenses from his trust account. None of these facts excuse the respondent for his actions, and we are quite hesitant to accept the recommendation of the lesser sanction. However, considering respondent's willingness to cooperate with the investigators and the board, to answer the charges and appear at all stages of the proceeding, including oral hearing before this court, and that respondent's demeanor indicates he has learned a significant lesson here, we accept the recommendation of the board.
Accordingly, we publicly reprimand respondent, H. Lee Thompson, for his acts.
Judgment accordingly.
W. BROWN, Acting C.J., REILLY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.
SWEENEY, J., not participating.
REILLY, J., of the Tenth Appellate District, sitting for CELEBREZZE, C.J.