Opinion
No. 83-17
Decided December 28, 1983.
Attorneys at law — Misconduct — One-year suspension — Commingling funds — Delay in investigating complaint — Gov. R. V(4) is not analogous to speedy trial statute or statute of limitations.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Respondent, John W. Sacher, undertook to represent Kleen Leen Inc. ("Kleen Leen"), a wholly-owned subsidiary of the Ralston Purina Company, with offices in Cedar Rapids, Iowa, in a collection matter in 1977. Kleen Leen's vice-president, Harold W. Bell, initially contacted respondent by telephone to retain him and confirmed their agreement by a letter dated February 15, 1977. The letter stated in part that "* * * we would appreciate your handling this matter on an hourly fee basis." The debt respondent was retained to collect was originally $14,632.38, but interest and service charges increased the debtor's obligation to Kleen Leen to $20,487.51.
Respondent's initial efforts from 1977-1979 to collect the debt were largely unsuccessful, but in January 1980 respondent collected the debt in full after the debtor obtained a $201,604.56 loan from the Farmers Home Administration ("FMHA"). Respondent acted as the closing agent for the FMHA in this loan transaction. He disbursed $20,676.07 to himself as attorney for Kleen Leen at the FMHA closing and deposited the check for $20,676.07 in his office account. On the same day he made this deposit respondent withdrew $9,200 in cash from his account. Thereafter the balance in the account fell below the amount due Kleen Leen.
In April 1980 respondent remitted $11,000 to Kleen Leen. Respondent attributed the delay from January (when the debtor's other creditors were paid) to April to Kleen Leen's failure to submit necessary documentation, specifically a cancelled mortgage and note, until March and April 1980, respectively. When respondent sent Kleen Leen the $11,000 payment, he indicated by letter that "* * * the balance will be sent after our collection fee is deducted."
Respondent made no further payments to Kleen Leen until February 1982, notwithstanding Kleen Leen's frequent requests for an accounting during the interim. Respondent sent two checks to Kleen Leen in February 1982 in the amounts of $3,000 and $976.07, respectively. He charged Kleen Leen $5,850 for his services.
According to respondent, the twenty-month delay in accounting for Kleen Leen's funds resulted from a misunderstanding about how his fee was to be calculated. Respondent believed he was working on a contingent fee and therefore kept no records of his time while Kleen Leen had authorized payment "on an hourly fee basis." Respondent found it difficult to reconstruct the time he had expended on behalf of Kleen Leen from 1977 onwards although he repeatedly assured Kleen Leen from 1980-1982 that an accounting would be forthcoming. Kleen Leen, through Daniel E. Rogers, a Ralston Purina Company attorney, by letter dated January 7, 1982, threatened to file a complaint with the state bar association unless respondent immediately remitted the funds. Rogers wrote to the Ohio State Bar Association, relator herein, on February 2, 1982 to lodge a complaint against respondent and seek the association's assistance in resolving the matter of the unpaid balance. As noted, respondent remitted the balance due less his fee in February 1982, at about the time Rogers contacted relator.
In August 1982 relator filed a complaint with the Board of Commissioners on Grievances and Discipline (hereinafter "board"), pursuant to Gov. R. V, charging respondent with violations of DR 1-102(A)(3), (4) and (6); DR 6-101(A)(3); and DR 9-102(A) and (B). A hearing was held on relator's complaint on February 18, 1983 before a panel of the board. Respondent moved to dismiss the complaint for relator's failure to adhere to the time limit set forth in Gov. R. V(4). The panel did not rule on the motion to dismiss immediately and proceeded with the hearing. After the hearing the panel overruled respondent's motion to dismiss and found that respondent had violated the Code of Professional Responsibility. The panel recommended that respondent be suspended from the practice of law for one year. The board adopted the findings, conclusions, and recommendation of the panel in its certified report to this court.
Mr. Albert L. Bell, Mr. John R. Welch, Mr. John D. Starn and Mr. James P. Miller, for relator.
Murphey, Young Smith Co., L.P.A., Mr. David J. Young and Mr. Kevin R. McDermott, for respondent.
Respondent raises two objections to the board's report. His first objection is that relator's "failure * * * to follow the time limits imposed by Gov. R. V(4) justifies dismissal of the charges." His second objection is that "the discipline recommended * * * is unduly harsh."
Gov. R. V(4) stated as follows:
"The investigation of complaints shall be concluded within sixty days from the date of the receipt of the complaint. A decision as to the disposition of such complaint shall be made within thirty days thereafter. Extensions of time for completion of the investigation may be granted upon written request, and for good cause shown, by the Secretary or Acting Secretary, of the Board of Commissioners on Grievances and Discipline. If an investigation by the Grievance Committee of a local bar association or the Committee on Legal Ethics and Professional Conduct of the Ohio State Bar Association is not completed within one-hundred-fifty days, the matter under investigation shall be referred to the Disciplinary Counsel."
The board conceded that the above time requirements were not met in the case at bar, but concluded that "[f]ailure to meet the specific time requirements of Rule V(4) do [ sic] not require dismissal of the proceeding." The board recounted the relevant dates in its report, stating that "the initial letter from the complainant was received by the Ohio State Bar Association, the Relator, on February 5, 1982. Investigation was completed May 6, 1982. A recommendation for Complaint was made by Relator's Committee on Legal Ethics and Professional Conduct on May 14, 1982. The recommendation was approved by the Executive Committee of the Ohio State Bar Association at its regular meeting of June 25, 1982. Complaint was filed with the Supreme Court on August 26, 1982." The total elapsed time was two hundred-one days.
The board acknowledged that "[t]he purpose of Rule V(4) is to avoid undue delay" and that in an appropriate case dismissal of an untimely complaint may be warranted, citing Columbus Bar Assn. v. Teaford (1966), 6 Ohio St.2d 253 [35 O.O.2d 418]. Respondent's reliance on Teaford and our recent decision in Cincinnati Bar Assn. v. Backsman (May 25, 1983), D.D. No. 83-7, Ohio Official Reports Advance Sheets, Vol. 5, No. 3, at A-4, is misplaced because in each of these cases the delay was effectively determined to have been prejudicial to the respondent. In Teaford the complaint alleged violations based on events that had occurred eight to eleven years previously. Moreover, in Teaford the staleness of some of the claims did not give rise to a dismissal. Rather, this court imposed a lesser penalty than that recommended by the board in part because of evidentiary problems posed by the stale claims. In Backsman we noted that "[t]his case had its inception on March 28, 1978," and implicitly found the respondent's rights to have been prejudiced by the delay.
In the case at bar the delay was of considerably less duration and respondent did not demonstrate that his rights had been compromised in any way. We reject respondent's suggestion that Gov. R. V(4) is analogous either to a speedy trial statute or a statute of limitations. To the contrary, we concur in the board's finding that "* * * [t]he concerns of the Rule are addressed to [the] protection of the public from further instances of like conduct that may occur during a prolonged investigation." Gov. R. V(4) does not grant substantive rights to attorneys accused of misconduct and, accordingly, a non-prejudicial delay in proceeding against an attorney for alleged disciplinary violations does not justify a dismissal of the complaint.
With respect to respondent's second objection, we are satisfied after a careful examination and review of the record in this cause that the board's recommendation of a one-year suspension is not unduly harsh. As we recently observed in Disciplinary Counsel v. Morton (1983), 5 Ohio St.3d 206, 208, the penalties for commingling of funds generally "range from a one-year suspension to an indefinite suspension." As in Morton the charges brought against the respondent herein "represented an isolated incident of mismanagement * * * [but this] does not lessen the gravity of respondent's professional misconduct." Id. at 209. Thus, a one-year suspension based on the instant record is not unduly harsh.
This court concurred in the board's recommendation and imposed a public reprimand in Columbus Bar Assn. v. Thompson (1982), 69 Ohio St.2d 667 [23 O.O.3d 541], for a violation of DR 9-102(A)(1) and (2). While the mitigating circumstances advanced in Thompson and the case at bar are somewhat similar, i.e., respondent's inexperience and full cooperation, the magnitude of the misconduct is greater in this case than in Thompson and, therefore, a more severe sanction is appropriate.
We concur in the conclusion of the board that respondent violated DR 1-102(A)(4), DR 6-101(A)(3), and DR 9-102(A) and (B). It is the judgment of this court that respondent be 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 WISE, JJ., concur.
WISE, J., of the Fifth Appellate District, sitting for J.P. CELEBREZZE, J.