Opinion
D.D. No. 86-25
Decided December 24, 1986.
Attorneys at law — Misconduct — One-year suspension — Failure to maintain complete records and to pay funds to client — Failure to register with Supreme Court.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Relator, Disciplinary Counsel, brought this disciplinary action against respondent, James J. Kick, setting forth in the complaint four counts of misconduct. At the close of the relator's case, the board of commissioners dismissed one count. The remaining counts, upon which the board of commissioners has made its recommendation, consist mainly of Kick's failure to be able to account to his clients as to the status of their funds and the failure to maintain complete records, both due to the failure to provide adequate safeguards, as well as failure to pay two clients certain funds to which they were entitled upon their request. Further charges revolve around respondent's failure to timely file a Certificate of Registration with the Clerk of the Supreme Court.
The facts surrounding one of the charges involve Kick's representation of Willard and Ida Owens in an attempt to recover damages stemming from an automobile accident. In January 1982, State Farm Insurance Company forwarded two drafts totalling $1,900 to Kick, payable to Mr. and Mrs. Owens. On February 10 of that year, the Owenses endorsed the drafts and the funds were deposited in Kick's trust account. The Owenses felt the $1,900 payment was only a partial settlement of their claim for personal injuries, and they desired Kick to pursue a claim relating to the damage to their vehicle.
Kick testified that the Owenses requested that he maintain the $1,900 in his trust account until the entire matter was resolved. Mrs. Owens concurred with this contention, at least in part.
Kick finally filed a lawsuit on behalf of the Owenses in the spring of 1983 on the personal injury aspect of their claim. It became obvious to Mr. and Mrs. Owens, however, that something was wrong, and they ultimately discharged Kick in February 1984 and retained another law firm to pursue their pending suit, and to obtain the $1,900 which had been deposited in the trust account. Mrs. Owens contends that immediately prior to retaining the new firm her husband was unsuccessful in obtaining the $1,900 at issue. Attorney Alan Statman testified that Kick was cooperative in processing the substitution of counsel entry, and providing his client's file to Statman's office, but that he was unsuccessful in obtaining the $1,900 from Kick.
Statman testified that Kick first indicated that the funds were in his trust account, but that he deserved his one-third fee. Statman requested that Kick provide the Owenses with at least the two-thirds of the funds which were not in dispute, and that the question of the fee could be resolved at a later time. Statman indicated that Kick later claimed he had provided the funds to the Owenses, but he was unable to provide any copies of checks documenting that contention. Ultimately, in September 1984, the Owenses filed a malpractice action against Kick alleging he had converted their funds. Mr. and Mrs. Owens finally did receive their monies upon settlement of the malpractice claim.
Because the evidence clearly demonstrated that due to the failure to provide adequate safeguards, Kick failed to maintain complete records and was unable to account to his clients the status of their funds, the board determined that a violation of DR 9-102(B) had occurred. It was also clearly demonstrated that Kick failed to promptly pay to the Owenses the funds to which they were entitled, when they requested the same.
Kick provided testimony in mitigation regarding his failure to maintain proper records. It was admitted that his former secretary, Barbara Wood, had a great deal of responsibility regarding the trust account. Wood devised a scheme by which she had written checks from the trust account and had secreted the checks without their being processed. Over a period of two and one half to three years during her course of employment with Kick, Wood wrote extra paychecks to herself utilizing the funds which should have been in the trust account.
Eventually, Wood made restitution to Kick in the amount of $10,000, out of which funds he was able to resolve the malpractice action with Mr. and Mrs. Owens. Kick's maintenance of his trust account, however, can best be characterized as dismal. Although it does not appear that Kick ever used any trust account funds for his own purposes, he did not review the monthly trust account statements to ascertain that his balance was considerably less than what it should have been. His contention that he checked the statements from time to time is not persuasive. While there is no question that Kick was a victim of a theft by his secretary, it was also conceded that he and his secretary had a "personal relationship."
The final charge arose out of Kick's failure to file a Certificate of Registration with the Clerk of the Supreme Court of Ohio and to pay the registration fee. The board found Kick guilty of violating DR 3-101(B) with regard to his failure to file his Certificate of Registration by September 1, 1983, which prohibits a lawyer from practicing in violation of the profession's regulations, and DR 1-102(A)(1), which prohibits a lawyer from violating a Disciplinary Rule.
Upon such evidence and conclusions, the board of commissioners recommended that the respondent be suspended from the practice of law for a period of one year.
Angelo J. Gagliardo, disciplinary counsel, and Karen B. Hull, for relator.
Gregory K. Pratt, for respondent.
Upon a full review of this matter, this court finds that the respondent had violated DR 9-102(B), 3-101(B) and 1-102(A)(1). This court accepts the recommendation of the board and hereby orders that the respondent be suspended from the practice of law in the state of Ohio for a period of one year.
It is further ordered that the respondent be taxed the costs of these proceedings.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.