Disciplinary Counsel v. Poley

[This decision has been published in Ohio Official Reports at 94 Ohio St.3d 425.]

OFFICE OF DISCIPLINARY COUNSEL v. POLEY.

[Cite as Disciplinary Counsel v. Poley, 2002-Ohio-1237.]

Attorneys at law—Misconduct—Eighteen-month suspension with entire sanction

stayed with condition—Engaging in conduct adversely reflecting on

fitness to practice law—Neglect of entrusted legal matters.

(No. 01-1828—Submitted December 12, 2001—Decided March 6, 2002.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 01-41.

__________________

Per Curiam.

{¶ 1} In a nine-count complaint filed on April 9, 2001, relator, Office of

Disciplinary Counsel, charged respondent, John D. Poley of Dayton, Ohio,

Attorney Registration No. 0000051, with numerous violations of the Code of

Professional Responsibility. Respondent answered, and the matter was referred to

a panel of the Board of Commissioners on Grievances and Discipline of the

Supreme Court (“board”).

{¶ 2} Based on stipulations and testimony received at a hearing on August

23, 2001, the panel found with respect to Count I that from January 1, 1997 through

December 31, 1999, respondent maintained a general bank account, a client trust

account, a business account, and a MasterCard account. Respondent deposited both

client funds and personal funds in the general bank account, and from that account

he paid client medical bills, the client portion of case settlements, the bar

association for client referrals, and his own personal bills. In his client trust

account, respondent also maintained both client and personal funds. In December

1997, respondent transferred $10,000 of personal funds from his client trust account

to his business account. On two occasions, he made payments on his MasterCard

SUPREME COURT OF OHIO

account from the client trust account. Respondent also used the MasterCard

account to pay both client and personal expenses. The panel concluded that

respondent’s treatment of these funds and accounts violated DR 1-102(A)(6) (a

lawyer shall not engage in conduct adversely reflecting on the lawyer’s fitness to

practice law) and 9-102(A) (a lawyer shall not commingle funds of a client with

personal funds).

{¶ 3} The panel found that in several cases respondent received client

settlement funds but failed to pay agreed portions of them to Dayton Physical

Medicine until May 25, 1999, several weeks after a grievance was filed against him.

Specifically in Count II, the panel found that in November 1997, respondent

withheld a portion of settlement funds he received on behalf of Charles Hutton and

did not pay Dayton Physical Medicine until eighteen months after he received the

funds and six weeks after a grievance was filed against him. Considering Count

III, the panel found that respondent withheld and failed until May 25, 1999, to pay

over to that same creditor funds from a settlement he had received on behalf of

Glenda Carlisle in November 1997. Count IV involved respondent’s similar

treatment of the withheld portion of April Easterling’s settlement funds that he

received in December 1997. The panel found with respect to Count V that

respondent received Shahab Mahallati’s settlement funds in February 1998 and

failed to pay the appropriate portion over to Dayton Physical Medicine until May

25, 1999. In addition, the panel found in Count VI that respondent withheld

settlement funds received on behalf of David Hammond in February 1998 for the

purpose of paying that same creditor but did not pay it in full until May 25, 1999.

{¶ 4} The panel found that respondent treated the funds of other clients in a

similar manner. Considering Count VII, the panel found that respondent received

settlement funds due to Salaheddin Mahallati in August 1999 but did not pay the

portion owed to Dayton Physical Medicine until January 2000. It found in Count

VIII that he received settlement funds due to Martha Ruby in June 1998, withheld

2

January Term, 2002

the full amount due to Dayton Physical Medicine, and paid that creditor only a

portion of the amount withheld.

{¶ 5} Finally, with respect to Count IX, the panel found that respondent

received settlement funds on behalf of Donna Jones in October 1999 and withheld,

but failed to timely pay, amounts due to Dayton Medical Imaging, Radiology

Physicians, Inc., and Dayton Neurological Consultants, Inc. As a result, those

creditors turned over their accounts to a collection agency. After the grievance was

filed, Jones informed relator that those creditors were paid.

{¶ 6} The panel concluded that in each of the last eight instances,

respondent violated DR 1-102(A)(6) (a lawyer shall not engage in conduct

adversely reflecting on the lawyer’s fitness to practice law) and 6-101(A)(3) (a

lawyer shall not neglect an entrusted legal matter).

{¶ 7} In mitigation, the panel found that by the time of hearing all the

creditors of respondent’s clients had been paid, that respondent had satisfactorily

resolved his trust account practices, that respondent had no prior disciplinary

infractions, and that he cooperated and expressed remorse. The panel also found

that the incidents that were the subject of the charges occurred when respondent

was an actively drinking alcoholic. Further, the panel noted that approximately

twenty months prior to the hearing, respondent had entered into an advocacy

contract with Ohio Lawyers Assistance Program (“OLAP”) and he is actively

engaged in a recovery program.

{¶ 8} The panel recommended that respondent receive an eighteen-month

suspension with all eighteen months stayed, conditioned on respondent’s renewing

and abiding by his contract with OLAP through October 7, 2003. The board

adopted the findings, conclusions, and recommendation of the board.

{¶ 9} Having reviewed the record in this case, we adopt the findings,

conclusions, and recommendation of the panel. Respondent is hereby suspended

from the practice of law in Ohio for eighteen months with the entire eighteen

3

SUPREME COURT OF OHIO

months stayed, provided that respondent abides by and renews his contract with

OLAP through October 7, 2003. If respondent fails to abide by his OLAP contract

during this period, the entire eighteen-month suspension shall be imposed. Costs

are taxed to respondent.

Judgment accordingly.

DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.

MOYER, C.J., and LUNDBERG STRATTON, J., dissent.

__________________

MOYER, C.J., dissenting.

{¶ 10} Respondent’s pattern of conduct by which he deprived clients of the

beneficial use of settlement funds entrusted to him does not warrant an entirely

stayed suspension. I would suspend respondent for eighteen months and stay

twelve months of the suspension subject to the same conditions ordered in the

majority opinion.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Dianna M. Anelli,

Assistant Disciplinary Counsel, for relator.

Kegler, Brown, Hill & Ritter, Geoffrey Stern and Christopher J. Weber, for

respondent.

__________________

4