Opinion
D.D. No. 84-5
Decided November 7, 1984.
Attorneys at law — Misconduct — One-year suspension — Misuse of clients' funds — Commingling of funds.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
The Office of Disciplinary Counsel, relator instituted this disciplinary action against Richard G. Lucey, respondent, charging respondent with violations of DR 1-102(A)(4) and (6), DR 9-102(A), and DR 9-102(B)(1), (B)(3) and (B)(4) of the Code of Professional Responsibility. These charges stemmed from respondent's representation of two clients before the Bureau of Workers' Compensation. Respondent answered and denied that his conduct constituted violations of the Code of Professional Responsibility. A hearing was held before a three-member panel of the Board of Commissioners on Grievances and Discipline ("board") on February 3, 1984.
The facts surrounding these charges are as follows: In 1969 John Stewart retained respondent to pursue a workers' compensation claim in the Bureau of Workers' Compensation. On April 23 or 24, 1978 respondent received a check from the Bureau of Workers' Compensation payable to Stewart in the amount of $1,050. Respondent endorsed the check by signing both his and Stewart's name on the back of the check. Respondent then cashed the check, deposited $1,000 in his personal account and retained $50 in cash for the medical report. Respondent stipulated that he never informed Stewart in writing that the check was received, but claimed that he orally informed Stewart of receipt of the check and that Stewart had granted respondent permission to endorse the check by signing Stewart's name.
Stewart testified that respondent never informed him, by letter or otherwise, that respondent had received the payment on Stewart's workers' compensation claim despite the fact that Stewart made numerous calls to respondent's office. Stewart denied that he had ever granted respondent the authorization to endorse the check and further denied receiving a check from respondent in the amount of $300 in 1979. Stewart testified that it was not until 1981 that he was paid by respondent, after respondent was contacted by an investigator from the Bureau of Workers' Compensation.
Respondent testified that in 1979 he paid Stewart the money from Stewart's award. Respondent allegedly gave Stewart a check for $300 and $267 in cash for a total payment of $567. Stewart's share of the award was $667, but respondent deducted $100 as repayment of loans made by respondent to Stewart's wife and daughter. In 1981, the Bureau of Workers' Compensation initiated an investigation at the request of Stewart. Respondent was contacted by an investigator from the Bureau of Workers' Compensation upon Stewart's complaint that his award had never been paid. Respondent subsequently paid Stewart $567, thus appearing to have paid Stewart twice for the same claim.
The second instance leading to these disciplinary charges involved respondent's representation of Willie Sims before the Bureau of Workers' Compensation. In 1978 respondent received Sims' award of $1,120 and deposited the award into respondent's bank account. Respondent issued a check to Sims in the amount of $730 representing Sims' share of the award. This check was initially returned for insufficient funds but honored upon redeposit four days later.
Prior to the hearing before the panel, respondent entered into the following pertinent stipulations of fact:
"5. From 1978 to 1982, Respondent deposited into Respondent's Bank account for the 940 Leader Building Association account, funds belonging wholly to Respondent and funds belonging in part to his clients and in part to Respondent.
"6. From 1978 to 1982, Respondent had no active Bank Trust Account and therefore commingled his personal funds with those funds belonging solely to his clients.
"7. From 1978 to 1982, Respondent failed to keep proper records to adequately identify funds belonging to his clients and failed to maintain complete records regarding those funds.
"8. Respondent had in his possession in his bank account for the 940 Leader Building Association, monies which he owed to Mr. Sims (his client), as monies received through a pending legal action. Respondent gave Mr. Sims a personal check from his 940 Leader Building Bank Account which was returned for insufficient funds on April 24, 1978. The check was later honored by the bank on April 28, 1978, four days later.
"9. The funds actually used for distribution to Mr. Sims to cover his check were taken from the deposit of Mr. Stewart's award of $1,050.00 from his claim before the Industrial Commission/Bureau of Workers' Compensation.
"10. Immediately after the payment was made to Mr. Sims, the balance in Respondent's account was less than the amount necessary to reimburse Mr. Stewart for his Workers' Compensation claim award."
The board found that respondent was guilty of violating DR 1-102(A)(6), DR 9-102(A), and DR 9-102(B)(1), (3) and (4), but not guilty of violating DR 1-102(A)(4). The board recommended that respondent be suspended from the practice of law for a period of one year. Respondent filed objections to the board's report.
DR 1-102(A) provides in part:
"A lawyer shall not:
"* * *
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
DR 9-102(A) states in part:
"All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated * * *."
DR 9-102(B) also states that:
"A lawyer shall:
"(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
"* * *
"(3) Maintain complete records of all funds, securities, or other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
"(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive."
Mr. Angelo J. Gagliardo, disciplinary counsel, and Mr. Carl J. Corletzi, for relator.
Mr. Thomas J. Pokorny and Mr. Elmer A. Giuliani, for respondent.
Respondent's sole objection to the finding of the board centers on the board's determination that respondent lacked authority to endorse Stewart's check from the Bureau of Workers' Compensation and, as such, there is insufficient evidence to warrant a finding that respondent violated either DR 9-102(B)(1) or (4). This court has reviewed the evidence presented to the board and concludes that the board's finding that respondent lacked the authority to endorse Stewart's check is supported by the record. Consequently, we are not inclined to disturb the board's finding in that regard.
As to the remaining charges, respondent admits that his conduct ran afoul of DR 9-102(A) and DR 9-102(B)(3). Furthermore, based on the findings of the board and the facts stipulated by respondent, we concur in the board's finding that respondent's conduct violated DR 1-102(A)(6) as well.
Respondent suggests that a one-year suspension would be unduly harsh. In our view, a one-year suspension is entirely appropriate in view of the circumstances surrounding respondent's misconduct. As we stated in Disciplinary Counsel v. Morton (1983), 5 Ohio St.3d 206, 208:
"* * * There are few ethical breaches which impact more negatively on the integrity of the legal profession than the misuse of a client's funds. * * *"
This is true whether the attorney's actions are due to dishonesty or, as was the case herein, ignorance and ineptitude. The facts of this case demonstrate that respondent commingled funds of his clients with his personal funds, failed to promptly notify a client of the receipt of funds, failed to keep virtually any records of client funds, and failed to promptly pay funds to a client. All of the above clearly adversely reflects on respondent's fitness to practice law. As a result, we agree with the board and relator that respondent's professional misconduct warrants a one-year suspension.
Accordingly, the findings of the board are adopted, and respondent is hereby suspended from the practice of law for a period of one year.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.