Summary
In Toledo Bar Assn. v. Illman (1969), 18 Ohio St.2d 122, 124, this court said: "... What is mandatory is strict accounting and absolute separation of the funds of the client from those of the lawyer."
Summary of this case from Toledo Bar Assn. v. ConeOpinion
D.D. No. 95
Decided May 21, 1969.
Attorneys at law — Misconduct — Commingling client's funds with his own — Acts warranting suspension from practice for indefinite period.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Respondent, Harry R. Illman, represented Mrs. Mattie L. Humphry, plaintiff in a personal injury action. Mrs. Humphry died while the case was pending, and respondent revived the action in the name of Rosie L. Williams, her daughter, for whom he secured an appointment as administratrix of Mrs. Humphry's estate. The cause was tried and resulted in a verdict and judgment in the amount of $4,000 for the plaintiff.
On February 4, 1966, the defendant's insurance carrier issued its draft for $4,000 payable to Rosie L. Williams as administratrix and respondent as attorney of record. Respondent endorsed the draft, signing both his own name and the name of Rosie L. Williams as administratrix. He thereafter deposited the draft in a checking account which was used for respondent's personal as well as office affairs, and which was the only bank account respondent had at the time.
The complaint filed by relator charges respondent with violation of Rule XIX of the Rules of Practice of this court and Canons 11 and 32 of the Canons of Professional Ethics in endorsing the name of the administratrix to the check without authorization, commingling the proceeds thereof with his own funds, and using the proceeds for purposes other than those of his client.
Respondent does not dispute these facts which led to the filing of this complaint, but alleges that Mrs. Williams gave him authority to endorse her name on the draft by stating, in connection with the suit and administration, that she wanted him to "handle it" for her. He contends that there was no commingling or misuse of a client's funds for the reason that he placed cash from another source, $2,500 in the form of twenty-five $100 bills, in an envelope marked "The Mattie L. Humphry Estate" in the unlocked, center drawer of his desk, and informed his secretary and office associate that it was for their use in the event it was needed in the case while respondent was in Europe on vacation. Respondent states that the balance of the $4,000 was for his fee and advances of litigation expenses.
From conflicting testimony regarding Mrs. Williams' instructions, and her conversations and communications with respondent, and his asserted practice of maintaining large amounts of cash in his desk drawer, the Board of Commissioners on Grievances and Discipline found that respondent was without legal authority to sign the client's name as an endorsement of the draft, and concluded that respondent did not in fact have $2,500 in cash in a marked envelope as claimed, and did in fact commingle estate funds with his personal funds. The board found that respondent's acts constituted misconduct as defined in Section 5(a) of Rule XVIII of the Rules of Practice of this court, and recommended that he be suspended from the practice of law for an indefinite period.
The matter is before this court upon the findings and recommendations of the board, and upon respondent's objections thereto.
Mr. Jamille G. Jamra, for relator.
Messrs. Spangenberg, Hasenflue, Shibley Traci, Mr Craig Spangenberg and Mr. Nelson Lancione, for respondent.
It is undisputed that respondent deposited at least $2,500 of his client's funds in his personal checking account and spent a large portion thereof for his own use. His assertion that he took $2,500 of his personal cash on hand and placed it in an envelope marked for his client's use does not excuse this clear violation of Canon 11 of the Canons of Professional Ethics, which provides:
"Money of the client or collected for the client or other trust property coming into possession of the lawyer should be reported and accounted for promptly, and should not under any circumstances be commingled with his own or be used by him."
The mere availability of funds, on demand, does not satisfy the requirements of Canon 11. What is mandatory is strict accounting and absolute separation of the funds of the client from those of the lawyer. See Ohio State Bar Assn. v. Gray (1965), 1 Ohio St.2d 97, 98, 204 N.E.2d 683.
Respondent's present position could have easily been avoided if the draft had been deposited in a separate trust account and so recorded in an office ledger; and while we need not decide the question under the instant facts, the dispute relative to endorsement authority could likewise have been avoided if respondent had secured his client's simple written statement granting him that authority.
Having concluded from the evidence that respondent violated Canon 11, we next consider his professional record and are of the opinion that the board's recommendation for the disposition of this matter is well taken. Judgment is therefore rendered suspending respondent from the practice of law for an indefinite period.
Judgment accordingly.
MATTHIAS, Acting Chief Justice, TROOP, GRAY, O'NEILL, SCHNEIDER, HERBERT and DUNCAN, JJ., concur.
TROOP, J., of the Tenth Appellate District, sitting for TAFT, C.J.
GRAY, J., of the Fourth Appellate District, sitting for ZIMMERMAN, J.