Cincinnati Bar Assn. v. Gilbert

[Cite as Cincinnati Bar Assn. v. Gilbert, 138 Ohio St.3d 218, 2014-Ohio-522.]

CINCINNATI BAR ASSOCIATION v. GILBERT.

[Cite as Cincinnati Bar Assn. v. Gilbert, 138 Ohio St.3d 218, 2014-Ohio-522.]

Attorney misconduct, including practicing law while registered as an attorney on

inactive status and neglecting client matters—One-year suspension, stayed

on conditions.

(No. 2013-0575—Submitted June 5, 2013—Decided February 20, 2014.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 12-044.

____________________

Per Curiam.

{¶ 1} Respondent, Jason Robert Gilbert of Fort Thomas, Kentucky,

Attorney Registration No. 0074044, was admitted to the practice of law in Ohio in

2001.

{¶ 2} Relator, Cincinnati Bar Association, charged Gilbert with

professional misconduct for practicing law in Ohio while registered on inactive

status and for neglecting three client matters. Gilbert stipulated to the charged

misconduct, and the parties jointly recommended that he serve a one-year

suspension. After a hearing, a three-member panel of the Board of

Commissioners on Grievances and Discipline determined that Gilbert had

committed most of the charged misconduct and recommended that he serve a one-

year suspension, stayed on conditions. The board adopted the panel’s findings

and recommended sanction, and neither party has filed objections to the board’s

report.

{¶ 3} We adopt the board’s findings of fact and misconduct and suspend

Gilbert for one year, with the suspension stayed in its entirety on conditions.

SUPREME COURT OF OHIO

Misconduct

{¶ 4} Following graduation from law school in 2001, Gilbert took and

passed the Ohio bar exam but became employed as a Kentucky public defender.1

In 2002, Gilbert was admitted to the Kentucky bar, and in 2005, he registered for

inactive status in Ohio because he worked exclusively in Kentucky state courts.

After ten years as a public defender, Gilbert became dissatisfied with the work

and resigned.

{¶ 5} In the autumn of 2011, Gilbert was contacted by the administrative

assistant to Michelle Wenker, a Cincinnati attorney who was in a nursing home

after suffering a stroke. Wenker’s assistant indicated that she needed clerical help

in Wenker’s office. Although Gilbert started out assisting only with Wenker’s

administrative matters, he eventually “drifted” into doing some legal work for her

clients. However, Gilbert’s only legal experience was ten years of public-sector

criminal-defense work, and he has since acknowledged that he was “grossly

unprepared” for general private practice.

{¶ 6} In December 2011, Gilbert left Wenker’s office and became a tax

advisor. He reactivated his Ohio license in February 2012, and at the time of the

panel hearing, he was employed by a company in South Carolina reviewing

documents for discovery.

{¶ 7} During the few months that Gilbert worked in Wenker’s office, he

committed professional misconduct in four matters. First, Gilbert filed an answer

and counterclaim on Wenker’s behalf in an Ohio civil proceeding against her,

even though he had not yet reactivated his Ohio license. The parties stipulated

and the board found that Gilbert violated Prof.Cond.R. 5.5(a) (prohibiting a

1. Gilbert explained at the panel hearing that Kentucky allows attorneys to practice as public

defenders if they are licensed in another state and take and pass the Kentucky bar exam within 18

months.

2

January Term, 2014

lawyer from practicing law in a jurisdiction in violation of the regulation of the

legal profession in that jurisdiction). We agree with this conclusion.

{¶ 8} Second, Gilbert met with a former client of Wenker’s to discuss

whether the client was entitled to money as a beneficiary of a life-insurance

policy, and he agreed to represent the client. But Gilbert then failed to resolve the

client’s question or return his phone calls. The parties stipulated and the board

found that Gilbert violated Prof.Cond.R. 1.1 (requiring a lawyer to provide

competent representation to a client), 1.3 (requiring a lawyer to act with

reasonable diligence in representing a client), and 5.5(a). We agree with the

conclusion.

{¶ 9} The third and fourth client matters are similar. In each case,

Gilbert met with former clients of Wenker’s about divorce-related issues and

collected a retainer to conduct further work, but he did not deposit the clients’

money into a client trust account. Although Gilbert did some work on each case,

he failed to communicate with the clients, and they eventually terminated his

services. Based on this conduct, the parties stipulated and the board found that

Gilbert engaged in two violations of Prof.Cond.R. 1.15 (requiring a lawyer to hold

property of clients in an interest-bearing client trust account, separate from the

lawyer’s own property) and two more violations each of Prof.Cond.R. 1.1, 1.3,

and 5.5(a). We agree that the violations occurred.

{¶ 10} Relator also alleged that Gilbert violated Prof.Cond.R. 1.5 for

charging an excessive fee in one of the divorce-related matters, but the board

found that the evidence did not support a finding of a violation of this rule. We

agree and hereby dismiss that charge.

Sanction

{¶ 11} When imposing sanctions for attorney misconduct, we consider

several relevant factors, including the ethical duties violated, the actual injury

caused, the existence of any aggravating and mitigating factors listed in BCGD

3

SUPREME COURT OF OHIO

Proc.Reg. 10(B), and the sanctions imposed in similar cases. Stark Cty. Bar Assn.

v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16;

Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875

N.E.2d 935, ¶ 21. We have already identified Gilbert’s ethical violations.

Consideration of the remaining factors demonstrates that a one-year suspension,

stayed in its entirety on conditions, is reasonable and appropriate in this case.

1. Aggravating and mitigating factors

{¶ 12} The board found, and we agree, that only one aggravating factor is

present—Gilbert committed multiple offenses. See BCGD Proc.Reg. 10(B)(1)(d).

In contrast, the mitigating factors are the absence of a disciplinary record in Ohio

or Kentucky, full and free disclosure to the disciplinary board and a cooperative

attitude toward the proceedings, and full restitution to the two clients from whom

Gilbert accepted retainers. See BCGD Proc.Reg. 10(B)(2)(a), (c), and (d).

Gilbert also expressed significant remorse for his conduct, and he submitted two

character letters, including one from a Kentucky trial court judge who stated that

she had presided over cases involving Gilbert for five years and found his

character to be “beyond reproach.” Finally, the board noted that it was unable to

find evidence of a dishonest or selfish motive in Gilbert’s misconduct.

2. Applicable precedent

{¶ 13} As the board noted, we have not had many cases involving an

attorney who practiced law while registered on inactive status—and even fewer

involving an attorney on inactive status who practiced incompetently or neglected

client matters. In Cincinnati Bar Assn. v. Bucciere, 121 Ohio St.3d 274, 2009-

Ohio-1156, 903 N.E.2d 640, an attorney mistakenly believed that his assistant had

arranged to register him for active status. He appeared in trial and appellate court

proceedings, attended a deposition, and agreed to participate in mediation to

resolve a dispute, all while his attorney-registration status was inactive. That

attorney had no prior discipline, lacked a dishonest or selfish motive, and

4

January Term, 2014

cooperated in the disciplinary proceedings, and we accordingly issued a public

reprimand. Id. at ¶ 4-6.

{¶ 14} In Disciplinary Counsel v. Motylinski, 134 Ohio St.3d 562, 2012-

Ohio-5779, 983 N.E.2d 1314, an attorney moved to the Virgin Islands and

changed the status of his license to inactive. However, he continued to work on

an Ohio case, including participating in a telephone pretrial conference with the

court and transmitting a settlement offer. Id. at ¶ 5-6. The attorney in Motylinski

also neglected the client matter, which resulted in other disciplinary-rule

violations. Id. at ¶ 7-8. In mitigation, he lacked a prior disciplinary record and

fully cooperated in the investigation, but he also acted with a dishonest motive by

hiding his inactive status in order to collect his fee. On that record, we sanctioned

the attorney with a stayed six-month suspension. Id. at ¶ 10-12.

{¶ 15} Here, Gilbert engaged in the practice of law in four client matters

while on inactive status, and he has admitted that he was not adequately prepared

to handle three of those matters, which resulted in their neglect. Accordingly, a

harsher sanction than in Motylinski is warranted. But given the facts and

mitigating factors, we agree with the board that Gilbert’s sanction should not be

much more severe than the sanction in Motylinski.

{¶ 16} As the board concluded, the amount of legal work that Gilbert

actually performed while on inactive status was minimal, involving only the filing

of a standard pleading, holding office conferences with clients, and drafting

domestic-relations documents that Gilbert never gave to the client or filed in

court. Gilbert did not appear in court, attend any depositions, or make any

significant legal decisions.

{¶ 17} In addition, there is no evidence indicating that Gilbert’s clients

were significantly harmed by his misconduct. As the cases cited in the board’s

report demonstrate, we have imposed relatively short, stayed suspensions on

lawyers who, like Gilbert, neglected multiple client matters but demonstrated the

5

SUPREME COURT OF OHIO

existence of significant mitigating factors that overwhelmingly outweighed the

few, if any, aggravating factors. See, e.g., Toledo Bar Assn. v. DiLabbio, 101

Ohio St.3d 147, 2004-Ohio-338, 803 N.E.2d 389 (stayed six-month suspension

for a lawyer who neglected three client matters, but whose case had only one

aggravating factor and several mitigating factors, including the absence of prior

discipline, absence of a selfish motive, restitution, and remorse); Cuyahoga Cty.

Bar Assn. v. Rutherford, 112 Ohio St.3d 159, 2006-Ohio-6526, 858 N.E.2d 417

(stayed six-month suspension for a lawyer who neglected three client matters and

failed to deposit unearned client funds in a trust account, but who had no prior

discipline, made full restitution, cooperated in the disciplinary investigation, and

had a mental disability that contributed to his misconduct).

Conclusion

{¶ 18} Having reviewed the record and the aggravating and mitigating

factors, and having considered the sanctions previously imposed in comparable

unauthorized-practice and client-neglect cases, we find that the board’s

recommended sanction is appropriate. Accordingly, Gilbert is hereby suspended

from the practice of law for one year, but the suspension is stayed on the

conditions that (1) he commit no further misconduct, (2) he pay the costs of these

proceedings before expiration of the one-year suspension, and (3) he notify relator

or the bar association in the venue where he practices and have that organization

provide a monitor to oversee his law practice in accordance with Gov.Bar R.

V(9), if he decides to practice law in Ohio during the stayed suspension. If

Gilbert fails to comply with the conditions of the stay, the stay will be lifted, and

he will serve the entire one-year suspension. Costs are taxed to Gilbert.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

____________________

6

January Term, 2014

Christopher R. Heekin and Edwin W. Patterson III, for relator.

Jason Robert Gilbert, pro se.

_________________________

7