Disciplinary Counsel v. Yajko

[This opinion has been published in Ohio Official Reports at 77 Ohio St.3d 385.]

OFFICE OF DISCIPLINARY COUNSEL v. YAJKO.

[Cite as Disciplinary Counsel v. Yajko, 1997-Ohio-263.]

Attorneys at law—Misconduct—Indefinite suspension—Misappropriation of

funds from law firm over a prolonged period—Enaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation—Engaging in

conduct that adversely reflects on fitness to practice law.

(No. 96-524—Submitted September 25, 1996—Decided Febreuary 5, 1997)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 95-40.

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I. CHARGES

{¶ 1} On June 5, 1995, relator, Office of Disciplinary Counsel, charged

respondent, Mark A. Yajko of East Liverpool, Ohio, Attorney Registration No.

0006348, with twenty counts of professional misconduct. In particular, it was

alleged in each count that respondent violated DR 1-102(A)(4) (engaging in

conduct involving dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(6)

(engaging in conduct that adversely reflects on his fitness to practice law). The

respondent stipulated to the violations of the Disciplinary Rules in each count, all

of which pertained to misappropriation of funds from respondent’s employer,

Aronson, Fineman & Davis Co., a law firm. A brief summary of the twenty counts

that were stipulated to, which includes the dates and amount misappropriated and

the pattern of deception, follows:

(1) January 1990-January 1991, $1,150: Client made three payments for

fees, with respondent depositing only some of the fees into his firm’s office

account, keeping the balance, and preparing false receipts to cover the

discrepancies; (2) March 1994-July 1994, $429: Social Security claim fee check

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cashed, respondent keeping some of fee and altering amount of his firm’s fee on

file; (3) August 1994, $1,250: client persuaded to write a second check based on

“mix-up” of fees, which respondent then personally cashed without deposit to his

firm’s account (mother of client unwittingly involved in scheme); (4) May 1992-

July 1992, $750: similar scheme involving Social Security fee checks with

respondent depositing only part of the funds received into his firm’s account; (5)

July 1994, $750: respondent received bankruptcy fees but indicated on his firm’s

client file that the work was pro bono; (6) February 1992-March 1992, $361:

respondent received check from Columbiana County Court for defense counsel fees

for $561—only $200 of the $561 was credited to the firm for services provided to

the defendant, respondent keeping the balance; (7) September 1994-November

1994, $150: respondent in handling bankruptcy matter altered his firm’s accounting

records to reflect less paid by client than firm actually received; (8) June 1993-

November 1994, $459: similar scheme involving respondent’s appointment as

defense counsel, with less reported to his firm than fees received from court; (9)

October 1994, $300: similar scheme regarding guardianship fees where less was

deposited to his firm’s account than was actually received; (10) January 1993-

October 1993, $300: similar pattern of less deposited to respondent’s firm’s

account than fees earned by him as estate administrator; (11) June 1994, $126.76:

respondent cashed check received by his firm as fees for commissioner of estate

without deposit to firm’s account; (12) September 1991-November 1993, $1,000:

attorney fees received for handling an estate with less deposited in respondent’s

firm’s account than was received as fees (some question whether respondent

received more money from client than he was authorized to receive); (13) May

1991, $120: respondent issued estate check to himself, which he cashed as payment

of attorney fees without deposit to his firm’s account; (14) January 1993-April

1994, $400: same pattern of receiving fiduciary fees without deposit to firm’s

account; (15) January 1993-April 1993, $370: same pattern of receiving fiduciary

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January Term, 1997

fees without deposit to firm’s account; (16) June 1994-November 1994, $726:

similar pattern of receiving attorney fees in estate and depositing only some of the

checks to firm’s account; (17) November 1994-January 1995, $1,000: conversion

of attorney fees for estate with respondent cashing check received from fiduciary

and keeping the funds; (18) November 1992-July 1994, $750: only part of attorney

fees received from new client deposited into firm’s account; (19) May 1994-

February 1995, $400: respondent prepared false time-statement to reflect more

hours billed than worked, and appropriated the difference; (20) January 1988-

January 1989, $200: respondent deposited less to his firm’s account than he

received as attorney fees for handling an estate.

{¶ 2} On October 20, 1995 the Board of Commissioners on Grievances and

Discipline of the Supreme Court (“board”) heard the matter essentially to consider

respondent’s statement of mitigation.

II. FACTS

{¶ 3} Respondent worked for the law firm of Aronson, Fineman & Davis

Co., L.P.A. (“Aronson”) for twelve years. During the last seven years of

employment with Aronson, respondent stole funds from Aronson. The thefts

pertained to twenty separate instances, each involving a different client.

Respondent stole a total of $21,402.57 from his former employer, Aronson. The

missing funds were discovered by Aronson after it instituted a new accounting

system. Respondent then confessed his theft of Aronson’s funds. Respondent then

contacted the relator, and confessed his wrongdoings. Prior to his dismissal,

respondent earned approximately $40,000 to $44,000 per year.

III. MITIGATION

{¶ 4} At the October 20, 1995 hearing before the board, respondent

submitted the following evidence in hopes of mitigating any sanction that the board

might impose: He grew up in a working-class family. He was the first of his

extended family to receive a graduate degree. After graduating from Duquesne

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University School of Law, respondent became an associate for his former employer,

Aronson. Respondent is married and has a wife and two children. Respondent’s

wife does not work. Respondent is active in the community. He was the treasurer

of the Lions Club, and is a member of the Elks and a member of the school board

and credits himself with improving the financial status of the local school district.

{¶ 5} During questioning in the mitigation hearing, the respondent alleged

that his family lives at or below their means; that they are “average to below average

income people who try to get by.” In response to assistant disciplinary counsel

asking if respondent, due to financial difficulties, attempted to curtail his expenses

in some way, respondent stated, “I did everything I knew to do.” Respondent went

on to state, “You know, if we were living large and in a position to cut back, I would

understand your question, but when you’re barely getting by, there’s almost no

room to cut.” Respondent claimed that one of the expenses that further precipitated

his financial decline was the destruction of his boat, which allegedly caused

respondent to incur replacement costs and increased insurance cost’s. Respondent

also cited payment of medical needs by his family.

{¶ 6} With regard to his employment with Aronson, respondent claims that

Aronson did not provide an opportunity for him to become partner. He also claims

that he was not provided an expense account most of the time, and was not awarded

any bonuses or incentives from his employer. The respondent claimed that he did

not leave Aronson despite twelve years of alleged lack of appreciation because his

situation could be likened to a battered spouse syndrome in that he felt abused and

trapped and unable to leave employment.

__________________

Geoffery Stern, Disciplinary Counsel, and Stacy M. Solochek, Assistant

Disciplinary Counsel, for relator.

Chester, Willcox & Saxbe, J. Craig Wright and Donald C. Brey, for

respondent.

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January Term, 1997

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LUNDBERG STRATTON, J.

{¶ 7} Respondent apparently has served his local community well; he has a

family and apparently is remorseful of his theft of funds. He is to be commended

for all the hours he contributed to improving the local school district situation.

However, this does not erase the fact that he committed thefts against his former

employer, Aronson. His conduct exhibited a pattern and practice of theft over a

prolonged period. This pattern of conduct, along with the fact that respondent used

his position as an attorney to steal the funds, makes respondent’s wrongdoings

particularly egregious.

{¶ 8} Respondent emphasizes the fact that he voluntarily came to the

Disciplinary Counsel and confessed his thefts. After further examination, it is

apparent that respondent did not “voluntarily” admit to his thefts until Aronson,

apparently after instituting a new accounting system, discovered financial problems

with respondent’s cases. Had respondent not come forward, Aronson obviously

would have. This reduces the voluntary nature of respondent’s “confession.”

Respondent is fortunate to have escaped a felony charge.

{¶ 9} Respondent claims that his family was “barely getting by” and there

was “almost no room to cut.” From our examination of respondent’s statement in

mitigation, his claims seem to contradict that bleak financial picture presented by

respondent, or else portray financial irresponsibility. Either way, neither excuse

provides any justification for respondent’s thefts.

{¶ 10} Respondent owned a boat which sank. He incurred cost of a

replacement and increased insurance costs. This court makes absolutely no

judgment on how respondent may spend his money. However, when respondent

represents to this court that “there’s almost no room to cut,” it is perplexing to this

court why respondent continued to maintain his boat especially in light of the

replacement expense and increased insurance costs. This does not appear to be the

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action of a family that is “barely getting by” and certainly does not carry weight as

mitigation. Further, respondent’s salary was $40,000 to $44,000. While not

excessive, it certainly is not meager.

{¶ 11} Finally, with regard to respondent’s battered-spouse syndrome

analogy to his continued employment with Aronson, despite Aronson’s alleged

poor treatment of him, this court does not find any support for such a theory in this

context. Further, even accepting the viability of such a theory, the evidence does

not support such a novel proposition. Respondent’s salary history shows relatively

significant increases over the last three years of his employment with Aronson. By

his own admission, respondent’s salary in 1994 was $40,000 to $44,000; in 1993,

$36,000; in 1992, $32,000. At minimum, that is at least a twenty-five percent raise

over a two-year period.

{¶ 12} In Disciplinary Counsel v. Crowley (1994), 69 Ohio St. 3d 554, 556,

634 N.E. 2d 1008, 1009, this court stated:

“ ‘[T]he calculated, deliberate manner in which Respondent conducted and

concealed his fraudulent schemes, his gross abuse of a position of trust and

responsibility for personal gain, the amount of the theft, the length of time over

which the thefts occurred and a concern that Respondent’s testimony offered in

mitigation and justification for the thefts *** demonstrated a fundamental lack of

appreciation for lawyers’ ethical obligations to the profession and the public.’”

{¶ 13} In the case at bar, respondent also instituted a deliberate scheme to

defraud his employer over a period of years. Further, respondent’s mitigation

claims for the most part are unpersuasive. Moreover, and perhaps most important,

two of the incidents that respondent cited as precipitating his financial crisis, the

expenses for the boat (May 1988) and his wife’s surgery (1991) occurred

subsequent to his initial misappropriation in January 1988. This raises serious

credibility issues pertaining to respondent’s mitigation claims.

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January Term, 1997

{¶ 14} The relator recommended that respondent be suspended from the

practice of law for a period of two years. However, the board determined that an

indefinite suspension from the practice of law was a more appropriate sanction.

{¶ 15} Respondent committed theft, plain and simple. Further, the thefts

were committed over a period of years, indicating that respondent had developed a

pattern and practice of deception. Respondent also claims that his clients were not

injured by the thefts. However, respondent fails to consider the embarrassment and

concern that the clients endured when they were accused of not properly paying

their fees. Finally, respondent’s mitigation statement lacks credibility. While the

respondent is to be commended for his many hours of community service, that is

not sufficient to mitigate against the violation committed. Perhaps the board

summed it up best in its findings of fact when it stated:

“[I]t should matter little whether the theft or misappropriation is from an

attorney’s partners, associates, clients, family or friend; or whether the thefts were

committed brazenly or deceptively, or whether tens of thousands of dollars or a

relatively small amount was misappropriated.”

{¶ 16} Respondent’s violations of DR 1-102(A)(4) and 1-102(A)(6) were

stipulated. Having reviewed the record, we concur in the board’s recommended

sanction. Respondent is therefore suspended from the practice of law in Ohio

indefinitely. Costs taxed to the respondent.

Judgment accordingly.

MOYER, C.J., and RESNICK, J., concur.

COOK, J., concurs in judgment only.

DOUGLAS, J., dissents.

F.E. SWEENEY and PFEIFER, JJ., dissent and would order a two-year

suspension.

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