Opinion

Cincinnati Bar Assn. v. White

  • 79 Ohio St. 3d 491
  • 1997 Ohio 160
Court
Ohio Supreme Court
Filed
Oct 1, 1997
Status
Published
Cited by
2 cases
Authority
More cited than 54.3%

The opinion

[This opinion has been published in Ohio Official Reports at 79 Ohio St.3d 491.]

CINCINNATI BAR ASSOCIATION v. WHITE.

[Cite as Cincinnati Bar Assn. v. White, 1997-Ohio-160.]

Attorneys at law—Misconduct—Indefinite suspension—Improper solicitation of

clients—Commingling client funds with personal funds and funds used to

operate law office.

(No. 97-808—Submitted July 7, 1997—Decided October 1, 1997.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 96-13.

___________________

{¶ 1} On February 5, 1996, relator, Cincinnati Bar Association, filed a

complaint charging that respondent, Andrew G. White III of Cincinnati, Ohio,

Attorney Registration No. 0010310, violated several Disciplinary Rules by using

an attorney referral service that was not sponsored or approved by any bar

association, and by commingling his clients’ funds with his own. After respondent

filed his answer and the parties submitted stipulations and exhibits, a panel of the

Board of Commissioners on Grievances and Discipline of the Supreme Court

(“board”) found the following facts.

{¶ 2} Respondent was the sole shareholder, director, and officer of Raw

Data Corporation (“Raw Data”), whose only purpose was to recommend and

promote the use of respondent’s services as a lawyer to auto accident victims. Raw

Data employed Pat Harris and Karla Horn to inspect auto collision reports filed by

police agencies and collect the names of persons identified as not being “at fault.”

Harris and Horn would then telephone those persons, ostensibly to help them to

find a lawyer, but in fact simply to refer them to respondent. Harris was paid for

each referral to respondent; Horn was paid a weekly salary. Raw Data, which was

not approved by the Cincinnati Bar Association, did not fit the definition of a legal

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aid office or other legal entity entitled to recommend professional employment.

Raw Data referred at least thirty clients to respondent.

{¶ 3} In addition, respondent agreed with Charles Mayabb, a chiropractor,

to refer his personal injury clients to Mayabb for treatment in exchange for medical

reports that Mayabb would provide to respondent for use in settling or litigating

claims. Respondent further agreed to pay Mayabb’s fees when a personal injury

claim was resolved for one of his clients. Respondent also leased office space to

Mayabb in the building where respondent maintained his own office.

{¶ 4} When respondent obtained funds pursuant to settlement agreements

for several of his clients whom he had solicited through Raw Data, he placed the

funds in various bank accounts, where they were commingled with his personal and

law office monies. He also delivered settlement statements to his clients indicating

that a portion of their settlements would be withheld by him and paid to Mayabb to

satisfy their debts for chiropractic services. The settlement statements also

purported to constitute mutual releases between respondent and each client with

respect to all matters relating to respondent’s representation.

{¶ 5} However, respondent failed to pay the withheld amounts to Mayabb.

Instead, respondent converted the monies to his own use by taking a “set-off”

against amounts that he claimed were owed to him by Mayabb under their lease

agreement. Because respondent did not pay Mayabb, Mayabb threatened legal

action against respondent’s clients.

{¶ 6} The panel concluded that respondent’s conduct violated DR 1-

102(A)(2) (circumventing a Disciplinary Rule through the actions of another), 1-

102(A)(3) (engaging in conduct involving moral turpitude), 1-102(A)(4) (engaging

in conduct involving dishonesty, fraud, deceit, or misrepresentation), 2-103(B)

(compensating a person to recommend his employment), 2-103(C) (requesting a

person to recommend or promote his services), 7-101(A)(3) (prejudicing a client

during the course of the professional relationship), and 9-102(A) and (B)(4) (failing

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January Term, 1997

to promptly pay to the client upon request funds in the possession of the lawyer

which the client is entitled to receive). Despite favorable mitigation evidence

indicating respondent’s good character, the panel recommended that respondent be

suspended from the practice of law for two years with the final year stayed and that

he be placed on probation for one year.

{¶ 7} The board adopted the findings and conclusions of the panel, but

recommended that the respondent be suspended indefinitely from the practice of

law.

__________________

E. Hanlin Bavely and Adam P. Hall, for relator.

John H. Berlew, for respondent.

__________________

Per Curiam.

{¶ 8} DR 2-103(B) provides that “[a] lawyer shall not compensate or give

anything of value to a person or organization to recommend or secure the lawyer’s

employment by a client * * *.” The only organizations excepted from this rule are

those that can qualify under DR 2-103(D). Such excepted organizations are a legal

aid society or a public defender office, a military legal assistance office, a qualified

legal referral service, or a bona-fide organization offering a legal services plan that

complies with certain conditions. The purpose of DR 2-103 is to ensure that

individual lawyers do not avoid the advertising and solicitation restrictions of the

Code of Professional Responsibility.

{¶ 9} In this case respondent formed his own corporation whose sole

purpose was to find potential clients and direct them to respondent. Respondent

paid the employees of that corporation, which did not qualify under DR 2-103(D).

Thus, respondent clearly violated DR 2-103(B) as found by the board. In a similar

case, Disciplinary Counsel v. Heard (1985), 16 Ohio St.3d 18, 16 OBR 369, 475

N.E.2d 784, where an attorney created an unincorporated association to solicit

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SUPREME COURT OF OHIO

individuals whose property was subject to foreclosure, we imposed a one-year

suspension.

{¶ 10} In addition, respondent commingled client funds with his own

personal funds and the funds used to operate his law office. DR 9-102(A) requires

that client funds be deposited in one or more identifiable bank accounts in which

no funds of the lawyer or law firm are deposited. As the board found, by depositing

client funds in accounts which contained his own personal and business funds,

respondent violated DR 9-102(A).

{¶ 11} Moreover, respondent, having received settlement funds for clients,

was required to hold such funds as a fiduciary for those clients. It is axiomatic that

for respondent to be able to take a setoff , he must hold the debits and credits in the

same capacity. Here, respondent used settlement funds of his clients that he held

as a fiduciary to set off against his personal claim against Mayabb for rent.

Respondent was not entitled to set off fiduciary funds against personal debts owed

to him. His use of client funds in this manner was tantamount to conversion of his

clients’ monies. Funds may not be withdrawn from a client’s account for a lawyer’s

own purposes whether for personal or private business use. Columbus Bar Assn. v.

Robinson (1979), 59 Ohio St.2d 62, 13 O.O.3d 56, 391 N.E.2d 1019; Columbus

Bar Assn. v. Thompson (1982), 69 Ohio St.2d 667, 23 O.O.3d 541, 433 N.E.2d 602.

{¶ 12} In view of respondent’s violation both of his duty to the profession

to avoid improper solicitation and his duty to his clients not to commingle or

convert their funds, we agree with the board that a more stringent sanction than that

recommended by the panel is appropriate. Respondent is hereby indefinitely

suspended from the practice of law in Ohio. Costs taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

___________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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