Summary
imposing indefinite suspension on attorney involved in a check-kiting scheme when $16,000 in restitution remained unpaid
Summary of this case from Cincinnati Bar Assoc. v. NewmanOpinion
D.D. No. 82-30
Decided April 6, 1983.
Attorneys at law — Misconduct — Indefinite suspension — Fraudulent transactions by use of checking accounts — "Check kiting."
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
This matter came on for hearing at Painesville on August 31, 1982, before the Board of Commissioners on Grievances and Discipline, upon the complaint of the Lake County Bar Association, relator herein.
The complaint filed against Herbert R. Baxter, respondent herein, alleged that respondent was guilty of misconduct as defined in Section 5(A) of Gov. R. V, in that he violated the following rules:
"DR 1-102(A). A lawyer shall not:
"* * *
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"* * *
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
The complaint alleges that the respondent, between January 1980 and September 2, 1980, effected serious fraudulent transactions by the use of checking accounts at the Lake National Bank, now known as Bank One of Northeastern Ohio, and at the Society National Bank, in a pattern commonly known as "check kiting." As a result of these transactions, respondent obtained from the Lake National Bank, the sum of $16,409.64. Evidence was introduced that respondent had made deposits or withdrawals as between the two accounts in the approximate amount of $500,000. Society National Bank apparently was the first bank to suspect a kiting operation and closed out its account and, as a result, Lake National Bank suffered a loss of $16,409.64.
During the intervening two-year period, respondent has paid back approximately $500 to Lake National Bank and he still owes the bank approximately $16,000 not including interest. Various bank statements were introduced by stipulation substantiating these figures. Joseph J. Magri, corporate counsel for Bank One, testified that he met with respondent in September 1980 concerning an existing overdraft and attempted to make arrangements with respondent for repayment. He also stated that he suspected a kiting operation at this time. He further testified that the reason he recommended the bank file a complaint with the bar association was that he, Magri, being an attorney, realized the implications of respondent's conduct and felt an obligation to report this to the bar association.
Based upon the factual pattern developed at the hearing herein, the board of commissioners recommended that the respondent, Herbert R. Baxter, be suspended from the practice of law for an indefinite period.
Mr. James N. Krivok and Mr. J. Melvin Andrews, for relator.
Mr. David P. Freed, for respondent.
Upon a review of all of the facts and circumstances as presented to the Board of Commissioners on Grievances and Discipline, this court finds that respondent has violated DR 1-102(A)(4) and (6), and concurs with the recommendation of the board.
It is the judgment of this court that respondent be indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, WEBER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
WEBER, J., of the Second Appellate District, sitting for LOCHER, J.