The opinion
[This opinion has been published in Ohio Official Reports at 177 Ohio St.3d 223.]
TOLEDO BAR ASSOCIATION v. WESTMEYER.
[Cite as Toledo Bar Assn. v. Westmeyer, 2024-Ohio-5196.]
Attorneys—Misconduct—Multiple violations of the Rules of Professional
Conduct—Conditionally stayed 18-month suspension.
(No. 2024-0489—Submitted July 9, 2024—Decided November 1, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2023-022.
______________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, and DETERS, JJ. BRUNNER, J., did not participate.
Per Curiam.
{¶ 1} Respondent, Joseph William Westmeyer III, of Toledo, Ohio,
Attorney Registration No. 0071262, was admitted to the practice of law in Ohio in
1999.1
{¶ 2} In a five-count July 2023 complaint, relator, the Toledo Bar
Association, alleged that Westmeyer had failed to honor “letters of protection”
issued to a chiropractor who had treated two of his personal-injury clients; had
failed to reasonably communicate with a third personal-injury client, to pursue the
client’s case with diligence, and to appropriately handle the client’s settlement
proceeds; had failed to notify his clients that he did not carry professional-liability
insurance; and had committed professional misconduct in regard to the
1. According to Westmeyer’s disciplinary-hearing testimony, he is also admitted to the United States
District Court for the Northern District of Ohio, Western Division; the United States District Court
for the Southern District of Michigan, Eastern Division; and the United States Court of Appeals for
the Second Circuit.
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management of his client trust account. Westmeyer waived a probable-cause
determination.
{¶ 3} In his answer, Westmeyer admitted some of the facts and misconduct
alleged in relator’s complaint. The parties later submitted stipulations of fact and
misconduct (including 21 exhibits) and aggravating and mitigating factors, and they
jointly recommended that Westmeyer be suspended from the practice of law for 18
months with the entire suspension stayed on the conditions that he complete certain
continuing-legal-education (“CLE”) courses and work for one year with a
monitoring attorney appointed by relator.
{¶ 4} The matter proceeded to a hearing before a three-member panel of the
Board of Professional Conduct, at which Westmeyer was the only witness.
Following the hearing, the panel issued an order dismissing four alleged rule
violations. The panel found that Westmeyer had committed the stipulated
misconduct and recommended that he be suspended from the practice of law for six
months with the entire suspension stayed on the conditions that he complete the
CLE recommended by the parties and refrain from further misconduct. The board
adopted the panel’s report and recommendation.
{¶ 5} The parties filed joint objections to the board’s recommended
sanction, arguing that their proposed sanction of an 18-month conditionally stayed
suspension is the proper sanction for Westmeyer’s misconduct in this case. After
reviewing the record, we adopt the board’s findings of misconduct, sustain the
parties’ joint objection to the board’s recommended sanction, and suspend
Westmeyer from the practice of law for 18 months with the entire suspension stayed
on the conditions recommended by the parties.
MISCONDUCT
Count I: The Meyers Matter
{¶ 6} Westmeyer represented Malik Meyers on a contingent-fee basis in a
personal-injury matter that stemmed from a 2017 auto accident. Edward Schwartz,
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D.C., treated Meyers for injuries he had sustained in that accident. Westmeyer,
Meyers, and Dr. Schwartz signed a letter of protection in which they agreed that
Westmeyer would pay Dr. Schwartz out of the proceeds of any settlement or
judgment in Meyers’s case for the medical treatment Dr. Schwartz rendered to
Myers.
{¶ 7} In March 2019, Meyers’s case settled for $17,500, and the funds were
deposited into Westmeyer’s client trust account. Between July 2019 and February
2021, Westmeyer paid Meyers $11,666.67 from his client trust account, but he did
not pay Dr. Schwartz the $4,296 in medical fees that Dr. Schwartz claimed he was
owed. Westmeyer and relator stipulated that Meyers had wanted to negotiate a
discount of the medical charges with Dr. Schwartz but that the doctor refused to
negotiate directly with Meyers. Despite the signed letter of protection in which
Westmeyer, Meyers, and Dr. Schwartz agreed that Westmeyer would be “solely
responsible for negotiating with [Dr. Schwartz] for billing matters,” Westmeyer
told Dr. Schwartz that he had paid the medical portion of the settlement to Meyers
and that Dr. Schwartz would have to recover his medical fees directly from Meyers.
{¶ 8} In March 2021, Dr. Schwartz filed a grievance with relator, alleging
that Westmeyer had failed to honor the letter of protection in the Meyers matter and
letters of protection in two other matters, including the Hicks-Gover matter
addressed in Count II below. Several months after the grievance was filed,
Westmeyer mailed Dr. Schwartz a $2,500 check drawn on his client-trust-account,
representing a discounted payment for Meyers’s medical treatment. However, Dr.
Schwartz denies having received that check, and that check was never cashed. In
late November 2023, Westmeyer paid Dr. Schwartz in full for the medical services
he had rendered to Meyers.
{¶ 9} The parties stipulated and the board found that Westmeyer’s conduct
violated Prof.Cond.R. 1.5(c)(2) (requiring a lawyer entitled to compensation under
a contingent-fee agreement to prepare a closing statement to be signed by the
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lawyer and the client, detailing the calculation of the lawyer’s compensation, any
costs and expenses deducted from the judgment or settlement, and any division of
fees with a lawyer not in the same firm), 1.15(d) (requiring a lawyer to promptly
notify a client or third person that the lawyer has received funds in which the lawyer
knows the client or third person has a lawful interest and to promptly deliver any
funds that the client or third person is entitled to receive), and 1.15(e) (requiring a
lawyer in possession of funds in which two or more persons claim an interest to
hold those funds in his client trust account until the dispute is resolved). We adopt
the board’s findings of misconduct.
Count II: The Hicks-Gover Matter
{¶ 10} Westmeyer signed another letter of protection with Dr. Schwartz and
a second personal-injury client, Annette Hicks-Gover, agreeing that Westmeyer
would pay Dr. Schwartz out of the proceeds of any settlement or judgment in Hicks-
Gover’s personal-injury case for the medical treatment that Dr. Schwartz rendered
to Hicks-Gover. Dr. Schwartz charged $4,794 for Hicks-Gover’s treatment. After
settling the case in April 2020, Westmeyer prepared and had Hicks-Gover sign a
settlement statement, which stated that Westmeyer was holding $3,200 of the
settlement proceeds to pay Hicks-Gover’s medical bills; however, Westmeyer did
not contact Dr. Schwartz to negotiate a discounted fee for his medical services. In
December 2023, more than two years after Dr. Schwartz filed his grievance with
relator, Westmeyer paid Dr. Schwartz in full for the medical services he had
rendered to Hicks-Gover. The parties stipulated and the board found that
Westmeyer’s conduct with respect to the Hicks-Gover matter violated Prof.Cond.R.
1.15(d).2 We adopt that finding of misconduct.
2. In its report, the board appears to have inadvertently identified the charged violation of
Prof.Cond.R. 1.15(d) as a violation of Prof.Cond.R. 1.5(d); however, the board’s description of the
rule that Westmeyer violated matches Prof.Cond.R. 1.15(d).
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Counts III and V: The Mount Matter and Client-Trust-Account-
Management Issues
{¶ 11} Westmeyer represented Kaitlyn Mount on a contingent-fee basis in
a personal-injury matter arising from a 2019 incident in which Mount, as a
pedestrian, was struck by a truck. In December 2019, the case settled for $100,000,
and Westmeyer deposited the settlement proceeds into his client trust account.
Around that time, Mount began receiving communications from creditors asserting
liens for medical care that had been provided to Mount following the accident.
Over the next 20 months, Mount repeatedly requested that Westmeyer update her
on the status of her personal-injury claim, provide her with a summary of the liens,
and tell her when she could expect distribution of the settlement proceeds.
{¶ 12} Frustrated because Westmeyer had not provided any meaningful
response to her inquiries or distributed any portion of the settlement proceeds to
her, Mount sought the assistance of attorney Richard Cuneo. Cuneo attempted to
contact Westmeyer by phone, email, and U.S. Mail from September through
November 2021; he requested, among other things, an accounting of the settlement
proceeds, a list of Mount’s medical bills and whether they had been settled, and a
timeline for the distribution of Mount’s share of the settlement proceeds.
Westmeyer spoke with Cuneo on several occasions and responded in writing to
some of Cuneo’s concerns. In a November 6, 2021 letter to Cuneo, Westmeyer
explained that although Mount’s case had settled for the $100,000 insurance-policy
limits, he was continuing to negotiate the outstanding subrogation lien, which
exceeded $288,000. In mid-December 2021, Mount filed a grievance against
Westmeyer.
{¶ 13} In May 2022, Cuneo sent Westmeyer a letter from Mount by email
and U.S. Mail terminating Westmeyer’s representation and requesting the release
of her file and the proceeds of her settlement that remained in his possession.
Westmeyer denied receiving that communication. Having received no response
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from Westmeyer by mid-August 2022, Cuneo sent another letter demanding that
Westmeyer turn over Mount’s file and settlement proceeds. Several days later,
Westmeyer hand-delivered to Cuneo’s law office Mount’s file and a $100,000
check payable from his client trust account to Cuneo’s client trust account.
{¶ 14} Although Westmeyer initially claimed that he was entitled to a
$33,333.33 attorney fee for representing Mount, at his disciplinary hearing, he
testified that he had not collected and would not pursue a fee. Westmeyer stipulated
that he had failed to maintain for each client for whom he held funds a record
identifying all receipts and disbursements made on the client’s behalf for seven
years after the termination of the representation or final disbursement of the funds.
He also stipulated that he had failed to perform monthly reconciliations of his client
trust account and failed to timely distribute the funds to his clients and other persons
who were entitled to receive them.
{¶ 15} Westmeyer acknowledged that he deposited Mount’s $100,000
settlement proceeds into his client trust account on December 20, 2019, and that he
did not make any distributions of Mount’s settlement proceeds until August 22,
2022, when he transferred the entire amount to Cuneo. He also stipulated that the
balance in his client trust account dropped to $90,090.63 by December 31, 2019,
and that it dropped as low as $46.22 as of January 1, 2022. Moreover, Westmeyer
acknowledged that the balance in his client trust account remained under $100,000
until August 2, 2022, when he deposited another client’s $250,000 settlement
check. In his testimony before the hearing panel, Westmeyer explained that the
$100,000 that he had transferred to Cuneo (representing Mount’s entire settlement)
was actually the attorney fee he had earned from that $250,000 settlement.
{¶ 16} The parties stipulated that Westmeyer “commingled funds by not
having an account balance of at least $100,000.00 in his [client] trust account” from
the time he deposited Mount’s settlement proceeds into his client trust account in
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December 2019 until he transferred those funds to Cuneo in August 2022. And the
board made a similar finding.
{¶ 17} The parties stipulated and the board found that Westmeyer’s conduct
with respect to the Mount matter violated Prof.Cond.R. 1.3 (requiring a lawyer to
act with reasonable diligence in representing a client), 1.4(a)(3) (requiring a lawyer
to keep a client reasonably informed about the status of a matter), 1.4(a)(4)
(requiring a lawyer to comply as soon as practicable with a client’s reasonable
requests for information), 1.15(a) (requiring a lawyer to hold the property of clients
in an interest-bearing client trust account, separately from the lawyer’s own
property), and 1.15(d).
{¶ 18} In addition, the parties stipulated and the board found that
Westmeyer’s conduct with respect to his client trust account violated Prof.Cond.R.
1.15(a) (requiring a lawyer to preserve required client-trust-account records for
seven years after termination of the representation or the appropriate disbursement
of such funds or property, whichever comes first),3 1.15(a)(2) (requiring a lawyer
to maintain a record for each client that sets forth the name of the client; the date,
amount, and source of all funds received on behalf of the client; and the current
balance for each client), 1.15(a)(5) (requiring a lawyer to perform and retain a
monthly reconciliation of the funds held in the lawyer’s client trust account), and
1.15(e)4 (requiring a lawyer to promptly distribute all funds or other property as to
which the interests are not in dispute). We accept the board’s findings of
misconduct.
3. Although relator did not charge Westmeyer with a violation of this portion of Prof.Cond.R.
1.15(a) in its complaint, Westmeyer has stipulated and testified that his conduct violated this rule.
4. In its report, the board appears to have inadvertently identified the charged violation of
Prof.Cond.R. 1.15(e) as a violation of Prof.Cond.R. 1.15(c); however, the board’s description of the
rule that Westmeyer violated matches Prof.Cond.R. 1.15(e).
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Count IV: Professional-Liability Insurance
{¶ 19} Westmeyer has stipulated that he did not maintain professional-
liability insurance before or during his representation of Meyers, Hicks-Gover, or
Mount and that he did not inform his clients in writing or otherwise of that fact.
The parties stipulated and the board found that that conduct violated Prof.Cond.R.
1.4(c) (requiring a lawyer to inform a client if the lawyer does not maintain
professional-liability insurance).
RECOMMENDED SANCTION AND THE PARTIES’ JOINT
OBJECTIONS
{¶ 20} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 21} In this case, the parties stipulated and the board found that the
aggravating factors consist of Westmeyer’s pattern of misconduct, multiple
offenses, and the vulnerability of and resulting harm to the victims of his
misconduct. See Gov.Bar R. V(13)(B)(3), (4), and (8). As for mitigating factors,
the parties stipulated and the board found that Westmeyer does not have a record
of prior discipline and that he presented evidence of his good character and
reputation. See Gov.Bar R. V(13)(C)(1) and (5).
{¶ 22} The parties stipulated that the appropriate sanction for Westmeyer’s
misconduct is an 18-month suspension with the entire suspension stayed on the
conditions that he complete six hours of CLE in addition to the requirements of
Gov.Bar R. X, with four hours focused on client-trust-account management and
two hours focused on law-office management, and that he be required for a period
of one year to work with a monitoring attorney appointed by relator to supervise
his practice—particularly his compliance with client-trust-account rules. In support
of that recommended sanction, they cited several cases in which we imposed
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conditionally stayed 18-month or one-year suspensions for comparable
misconduct. See Disciplinary Counsel v. Poley, 2002-Ohio-1237; Cleveland
Metro. Bar Assn. v. Watson, 2022-Ohio-2212; Disciplinary Counsel v. Weber,
2021-Ohio-3907; Disciplinary Counsel v. Dockry, 2012-Ohio-5014. But the board
found that the misconduct at issue in those cases was “more pervasive and more
egregious” than Westmeyer’s misconduct in this case.
{¶ 23} Instead, the board found that the facts of two other cases in which
we imposed six-month conditionally stayed suspensions for similar acts of
misconduct—Columbus Bar Assn. v. Keating, 2018-Ohio-4730, and Cincinnati Bar
Assn. v. Jackson, 2019-Ohio-4203—were more analogous to the facts of this case.
The board therefore recommends that we suspend Westmeyer from the practice of
law for six months with the entire suspension stayed on the conditions that he
commit no further misconduct and complete six hours of CLE in addition to the
requirements of Gov.Bar R. X, with four hours focused on client-trust-account
management and two hours focused on law-office management.
{¶ 24} The parties filed joint objections to the board’s recommended
sanction and reassert that the proper sanction for Westmeyer’s misconduct in this
case is a conditionally stayed 18-month suspension.
ANALYSIS
{¶ 25} We begin our analysis with the four cases that the parties cite in
support of their proposed sanction of a conditionally stayed 18-month suspension—
Poley, Watson, Weber, and Dockry.
{¶ 26} In Poley, the attorney withheld settlement funds to pay the medical
bills of eight separate clients and failed to timely transmit those funds to the clients’
medical-treatment professionals, as Westmeyer did in this case. Although he
maintained a general business account and a client trust account, Poley used both
accounts for personal and client-related expenses. For example, he deposited both
personal and client funds into his business account and used that account to pay
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clients’ medical bills and to distribute settlement proceeds to his clients. Poley also
maintained personal funds in his client trust account and used the funds in that
account to pay his personal credit-card bills. No aggravating factors were noted,
and mitigating factors consisted of Poley’s clean disciplinary record, his
cooperation in the disciplinary process and expressed remorse, and his payment of
restitution and resolution of his lax client-trust-account practices by the time of his
disciplinary hearing. Poley, 2002-Ohio-1237, at ¶ 7. We suspended Poley from
the practice of law for 18 months and stayed the entire suspension on the condition
that he abide by and renew his existing contract with the Ohio Lawyers Assistance
Program. Id. at ¶ 9.
{¶ 27} Like Westmeyer, the attorney in Watson failed to prepare a
settlement statement in one client’s contingent-fee case, failed to promptly pay the
medical bills of two clients out of their settlement proceeds, failed to perform
monthly reconciliations of his client trust account, and failed to maintain required
client ledgers. Watson also neglected four client matters and failed to reasonably
communicate with those clients, but there was no suggestion that his client-trust-
account balance ever dropped below the amount that should have been held in trust
for his clients, as Westmeyer’s did in this case.
{¶ 28} Watson engaged in a pattern of misconduct involving multiple
offenses but, unlike Westmeyer, did not harm a vulnerable client, Watson, 2022-
Ohio-2212, at ¶ 14. As for mitigation, Watson had no prior discipline, did not act
with a selfish or dishonest motive, made a timely, good-faith effort to make
restitution, cooperated in the ensuing disciplinary investigation, and accepted
responsibility for his misconduct. Id. at ¶ 15. We suspended Watson for one year,
stayed in its entirety on the conditions that he complete six hours of CLE focused
on law-office and client-trust-account management, serve a one-year term of
monitored probation, and commit no further misconduct. Id. at ¶ 21.
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{¶ 29} In Weber, the attorney received medical-payments-coverage checks
payable to several of his personal-injury clients. Weber or a member of his staff
signed the clients’ names to two of those checks without the clients’
authorization—purportedly for the convenience of the clients—and deposited them
into his client trust account without informing his clients. When Weber left the
firm where he had been employed, he did not transfer the medical-payment funds
from his own client trust account to the firm’s client trust account. And on at least
one occasion, the balance in his client trust account dropped below $300, even
though he should have been holding nearly $22,000 on behalf of several clients.
Weber also deposited personal funds and earned fees into his client trust account,
failed to timely withdraw one earned fee from that account, and failed to conduct
monthly reconciliations of that account for more than two years. He delayed
distributing settlement proceeds to his clients on at least three occasions, and when
he finally made the distributions, his bank returned one of the checks for
insufficient funds. While Weber was found to have violated Prof.Cond.R. 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation), see Weber, 2021-Ohio-3907, at ¶ 9, the hearing panel in this
case unanimously dismissed the allegation that Westmeyer had violated that rule.
{¶ 30} Aggravating factors in Weber consisted of a pattern of misconduct
and multiple offenses. Id. at ¶ 16. As for mitigating factors, Weber had a clean
disciplinary record, made restitution to all clients affected by his misconduct,
cooperated in the disciplinary process, and submitted evidence of his good
character and reputation. Id. We noted that although the evidence demonstrated
that the balance in Weber’s client trust account had dropped below the amount that
he should have held on behalf of his clients, the board found no evidence that Weber
had misappropriated the funds for his own benefit. On the contrary, Weber—like
Westmeyer—“was simply not experienced in managing client funds in a client trust
account when he started his solo practice,” id. We suspended Weber from the
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practice of law for one year and stayed that suspension in its entirety on the
conditions that he complete six hours of CLE focused on client-trust-account and
client-fund management, commit no further misconduct, and pay the costs of his
disciplinary proceedings. Id. at ¶ 21.
{¶ 31} In Dockry, the last of the cases advanced by the parties in support of
their proposed sanction, the attorney failed to maintain client ledgers and to
properly reconcile his client trust account for several years—much like Westmeyer
did in this case. But unlike Westmeyer, Dockry also deposited and maintained
personal funds in his client trust account, used that account to pay his personal and
business expenses, and loaned himself and a friend money from that account for
their personal use. In addition to committing three of the rule violations present in
this case, Dockry stipulated that he had engaged in dishonest conduct and that his
conduct adversely reflected on his fitness to practice law. However, Dockry
committed only five rule violations, compared to Westmeyer’s 14 rule violations.
The sole aggravating factor was Dockry’s dishonest or selfish motive. Dockry,
2012-Ohio-5014, at ¶ 23. In mitigation, Dockry had a clean disciplinary record,
made restitution, cooperated in the disciplinary proceedings, and submitted
evidence of his good character. Id. Citing those factors and the corrective measures
Dockry had taken to ensure that he did not repeat his misconduct, we concluded
that a one-year suspension, stayed in its entirety on the conditions that Dockry
complete a one-year period of monitored probation and commit no further
misconduct, would adequately protect the public. Id. at ¶ 27.
{¶ 32} Of the two cases advanced by the board in support of its
recommended sanction of a six-month conditionally stayed suspension, we find that
the conduct that was at issue in Keating is most similar to the conduct at issue here.
{¶ 33} Like Westmeyer, Keating failed to maintain proper client-trust-
account records, failed to remit payment to a chiropractor for treatment provided to
several of his firm’s personal-injury clients, and failed to inform his clients that he
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did not maintain professional-liability insurance. In addition, after Keating and the
attorney with whom he practiced suspected that their accounting firm was stealing
money from the law firm’s client trust account, the two attorneys decided to leave
their earned fees in their client trust account so they would have adequate funds to
pay any client or third-party claims. Shortly before Keating bought out the other
attorney’s interest in the law firm, the two attorneys separated the trust-account
funds into two accounts; in one of those accounts, they isolated the funds for which
they could not identify an owner. Although Keating committed multiple offenses,
he had a clean disciplinary record, did not act with a selfish or dishonest motive,
made full restitution to the chiropractor who had treated his clients, modified his
practices and procedures with respect to his client trust account, and cooperated in
the disciplinary proceedings. Keating, 2018-Ohio-4730, at ¶ 20-21.
{¶ 34} Keating also hired a certified public accountant with a certification
in financial forensics to analyze the firm’s record-keeping policies and procedures
and issue an opinion regarding the ownership of the funds for which Keating could
not identify any owner. The forensic accountant concluded that the isolated funds
were most likely profits of the law firm and that it was unlikely that they were client
funds. Furthermore, Keating testified that for at least six years, no one had made
any claims to the funds for which he could not identify an owner. Apart from the
problems with the payments to the chiropractor, there was no evidence that Keating
or the other attorney had failed to pay any clients or third parties from one of their
client trust accounts. Moreover, we found that Keating had acted in good faith to
protect his clients and the rights of third parties who may have had claims against
the funds. We suspended Keating from the practice of law for six months with the
entire suspension stayed on the conditions that he serve a two-year period of
monitored probation, obtain the assistance of someone with accounting expertise to
ensure the proper management of his client trust account, and complete six hours
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of CLE related to client-trust-account management. Keating, 2018-Ohio-4730, at
¶ 33.
{¶ 35} Here, in contrast to the facts of Keating, the evidence shows that just
over a year after Westmeyer deposited Mount’s $100,000 settlement proceeds into
his client trust account, he withdrew all but $46.22 of those funds for purposes
entirely unrelated to Mount’s case. The parties stipulated that Westmeyer
“commingled funds by not having an account balance of at least $100,000.00 in his
trust account” from the time he deposited Mount’s settlement proceeds into his
client trust account in December 2019 until he transferred those funds to Cuneo in
August 2022, and the board made a similar finding.
{¶ 36} During his November 2023 deposition in this disciplinary
proceeding, Westmeyer testified that he occasionally “ballparked” the amount of
attorney fees or expenses he was owed in any given case and underestimated the
amount to which he was entitled, leaving a portion of those funds in his client trust
account. To the extent that Westmeyer left the fees he had earned in his client trust
account while that account also contained funds belonging to clients, we agree that
he improperly commingled personal and client funds, as stipulated by the parties
and found by the board. But to the extent that his client trust account contained less
than the $100,000 it should have held on Mount’s behalf, we find that Westmeyer’s
misconduct is more akin to misappropriation than commingling.
{¶ 37} On the record before us, however, it does not appear that
Westmeyer’s misappropriation of Mount’s settlement proceeds was deliberate. See
Cleveland Bar Assn. v. Belock, 1998-Ohio-261, ¶ 10 (“No circumstances ever
justify the deliberate misappropriation of [a] client’s funds for a lawyer’s personal
benefit.”). Rather, like the attorney in Weber, it appears that Westmeyer’s
misappropriation was the result of his own inexperience in managing a client trust
account when he started his own practice.
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{¶ 38} At his disciplinary hearing, Westmeyer testified that he worked with
his father from the time he was sworn in as an attorney in 1999 until his father
retired on March 1, 2017. During that time, Westmeyer was a signatory on the
firm’s client trust account, but it was his father who managed the account. After
his father’s retirement, Westmeyer opened his own firm and took over his father’s
pending cases. Although he opened a new business operating account, he kept his
father’s client trust account “for continuity.” But unlike the attorney in Keating,
Westmeyer never audited that client trust account or otherwise separated the funds
between the old firm and his new firm. Westmeyer testified that he did not
understand his responsibilities with respect to the client trust account under
Prof.Cond.R. 1.15 before relator’s investigation, though he acknowledged it was
his obligation to do so.
{¶ 39} When asked why he did not do more to understand and manage the
client trust account upon his father’s retirement, Westmeyer stated, “I took over a
law practice that had two practicing lawyers and went down to one. So I was
initially busy, overwhelmed. And that led to just not following through with what
I should have been doing.” He also testified that at some point, the bank had
switched to electronic statements and that he had not been logging into his online
account to look at them. He explained that he kept “a very crude accounting ledger”
on the back of his check stubs to track the deposit and disbursement of client funds,
and he expressed his belief that that practice kept him from overdrawing the
account.
{¶ 40} With the assistance of counsel, Westmeyer took some steps to
correct his client-trust-account-management mistakes by the time of his
disciplinary hearing. He instructed the bank to send him paper statements and
started reconciling those statements. He also started creating and maintaining
account ledgers for his current clients. Westmeyer testified that by the time relator
commenced its investigation, his father was unable to answer questions or assist
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him in conducting an audit of the client trust account because of cognitive decline.
His father died on December 26, 2023. Westmeyer further explained that a $75,000
check he had issued from his client trust account in January or February 2020—
which appears to have been drawn entirely from Mount’s settlement proceeds—
was used to make a payment in a case that had started when his father still practiced.
During his November 2023 deposition—more than six years after his father’s
retirement—Westmeyer testified that he did not know if all the funds from his
father’s clients had been distributed but that he had not received calls from anyone
looking for money.
{¶ 41} We find that Westmeyer’s misconduct in this case is most
comparable to, but more egregious than, the misconduct that was at issue in Keating
and Weber. The evidence shows that because of his inexperience in managing a
client trust account, Westmeyer essentially abdicated his duty to properly manage
and account for the funds held in his client trust account for about four years after
his father’s retirement and that his failure to properly manage that account resulted
in the misappropriation and misuse of $100,000 in client funds—more than four
times the amount that Weber misappropriated for his own benefit, see Weber, 2021-
Ohio-3907, at ¶ 13. And in contrast to the apparent misconduct of an outside
accounting firm in Keating, see 2018-Ohio-4730 at ¶ 11, Westmeyer himself was
the source of the accounting irregularities in this case. Moreover, Westmeyer has
not undertaken any effort to audit his client trust account as Keating, see id. at ¶ 14,
did to determine whether his firm’s clients have in fact received all the funds to
which they are entitled.
{¶ 42} On these facts, the conditionally stayed six-month suspension
recommended by the board does not accurately reflect the seriousness of
Westmeyer’s misconduct. We conclude, however, that the 18-month suspension
advanced by the parties, stayed in its entirety on the conditions recommended by
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January Term, 2024
the parties, will protect the public and provide Westmeyer with the proper tools and
incentive to remedy the deficiencies in his accounting practices going forward.
CONCLUSION
{¶ 43} Accordingly, Joseph William Westmeyer III is hereby suspended
from the practice of law in Ohio for 18 months with the entire suspension stayed
on the conditions that he (1) commit no further misconduct, (2) complete four hours
of CLE focused on client-trust-account management and two hours of CLE focused
on law-office management, in addition to the requirements of Gov.Bar R. X, and
(3) serve a one-year term of monitored probation pursuant to Gov.Bar R. V(21),
with the monitoring attorney to supervise Westmeyer’s practice, including his
compliance with client-trust-account rules. If Westmeyer fails to comply with the
conditions of the stay, the stay will be revoked and he will be required to serve the
full 18-month suspension. Costs are taxed to Westmeyer.
Judgment accordingly.
__________________
Margaret Mattimoe Sturgeon, Bar Counsel, and Christopher F. Parker,
Assistant Bar Counsel, for relator.
Charles J. Kettlewell, for respondent.
__________________
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