Disciplinary Counsel v. Bricker

[Cite as Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998.]

DISCIPLINARY COUNSEL v. BRICKER.

[Cite as Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35, 2013-Ohio-3998.]

Attorney misconduct—Improper use of client trust account—Using client trust

account to pay personal and business expenses—Failing to withdraw

earned fees—Failing to have contingent-fee collection clients sign closing

statements—Public reprimand.

(No. 2012-1713—Submitted February 27, 2013—Decided September 18, 2013.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-104.

____________________

Per Curiam.

{¶ 1} Respondent, Dale Elmer Bricker of Youngstown, Ohio, Attorney

Registration No. 0004922, was admitted to the practice of law in Ohio in 1961.

On December 3, 2007, we suspended Bricker’s license to practice law for his

failure to register as an attorney for the 2007 to 2009 biennium. In re Attorney

Registration Suspension of Bricker, 116 Ohio St.3d 1420, 2007-Ohio-6463, 877

N.E.2d 305. We granted his application for reinstatement four days later after he

paid the applicable registration and reinstatement fees. In re Reinstatement of

Bricker, 116 Ohio St.3d 1498, 2008-Ohio-290, 880 N.E.2d 97. On December 5,

2011, a probable-cause panel of the Board of Commissioners on Grievances and

Discipline certified a complaint filed by relator, disciplinary counsel. The

complaint alleged that Bricker had committed multiple violations of the Rules of

Professional Conduct by failing to prepare closing statements for a personal-

injury client and other clients for whom he had agreed to perform work on a

contingent-fee basis, commingling personal and client funds in his client trust

account, and using that account to pay some personal and operating expenses.

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{¶ 2} Bricker was served with the complaint and filed an answer. A panel

of the board conducted a hearing at which it received the parties’ stipulations of

fact, stipulated exhibits, and stipulations as to some of the charged misconduct, as

well as Bricker’s testimony. The panel prepared written findings of fact and

misconduct, purportedly dismissed an alleged violation of Prof.Cond.R. 8.4(h)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the

lawyer’s fitness to practice law), and recommended that Bricker be publicly

reprimanded for his misconduct. The board adopted the panel’s findings and

recommendation in toto.

{¶ 3} Relator objects to the dismissal of the alleged violation of

Prof.Cond.R. 8.4(h), arguing that contrary to the panel and board’s findings, he

has proven the violation by clear and convincing evidence. He also contends that

the recommended sanction is more lenient than the sanctions we have previously

imposed for comparable misconduct. For the reasons that follow, we overrule

relator’s objections, adopt the board’s findings of fact and misconduct, and

publicly reprimand Bricker.

Misconduct

Improper Use and Maintenance of

Client Trust Account

{¶ 4} From 1961 to 1995, Bricker served as in-house counsel for the

Edward J. DeBartolo Corporation. Since 1995, he has been a self-employed solo

practitioner practicing primarily in the areas of commercial and residential

landlord-tenant litigation, real estate, general civil litigation, and collections.

Occasionally, he represents plaintiffs in personal-injury matters.

{¶ 5} Since August 25, 2010, Bricker has maintained a client trust account

at PNC Bank that is designated as an Interest on Lawyers’ Trust Accounts

(“IOLTA”) account. Bricker previously kept personal and client funds in a

checking account that he designated as his “trust account” at Farmers National

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Bank, but he closed that account in 2009. He maintains his law-office operating

account at Farmers National Bank and a personal savings account at Huntington

Bank, but he does not have a personal checking account.

{¶ 6} On September 7, 2010, less than two weeks after Bricker opened his

IOLTA account, he issued a check from the account to pay a $30 personal

expense. Bricker continued to issue checks and to authorize electronic payments

from the account for his personal and business expenses until August 2011. He

also failed to maintain ledgers of the client funds held in his IOLTA account, and

therefore, he did not reconcile his IOLTA account balance with ledger balances

for each of his clients.

{¶ 7} In response to a December 9, 2010 letter of inquiry from relator

about an overdraft of his IOLTA account, Bricker explained that he had signed a

five-year lease for a piece of office equipment and agreed to make the monthly

lease payments from his IOLTA account. He stated that unbeknownst to him, the

vendor withdrew $573.73 to cover the sales tax for the entire five-year lease,

thereby causing the overdraft. Bricker advised relator that he had recognized his

mistake, that he had arranged to have the lease payments withdrawn from another

bank account, and that he would use his IOLTA account only for client funds.

Despite making these representations, he continued to use his IOLTA account to

pay for personal and business expenses.

{¶ 8} In preparation for his August 2011 deposition, Bricker thoroughly

read the Rules of Professional Conduct, particularly Prof.Cond.R. 1.15. During

the deposition, relator and respondent discussed the proper use of an IOLTA

account. Bricker later stated that this was the first time he understood what the

rules required of him.

{¶ 9} The parties stipulated and the panel found that Bricker’s conduct

with respect to his IOLTA account violated Prof.Cond.R. 1.15(a) (requiring a

lawyer to hold the property of clients in an interest-bearing client trust account,

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separate from the lawyer’s own property), 1.15(a)(2) (requiring a lawyer to

maintain a record for each client on whose behalf funds are held), and 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) as charged in the complaint. The panel,

however, found that relator had not presented clear and convincing evidence that

Bricker’s conduct violated Prof.Cond.R. 8.4(h) and purported to dismiss an

alleged violation of that rule. The board adopted the panel’s findings of fact and

misconduct.

Failure to Provide Closing Statements to

Contingent-Fee Clients

{¶ 10} Bricker handles a number of collection matters on a contingent-fee

basis. He stipulated that in those cases, he executes letters of representation that

state that his fee will be one-third of the amount collected on behalf of his clients.

He deposits funds he collects on behalf of some of those clients into his IOLTA

account and disburses the client’s share of the proceeds, while retaining his

contingent fee. At the time of the panel hearing, however, his collections practice

was limited almost exclusively to matters on behalf of the Ohio attorney general.

He explained that in those cases, the debtors remit checks payable to the state

treasurer. Bricker then forwards the checks to the attorney general, who later

pays his fee.

{¶ 11} Relator charged Bricker with violating 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 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) for failing to provide closing statements to his contingent-fee clients.

{¶ 12} Bricker represented Gary Manchester in a personal-injury matter in

exchange for a contingent fee of one-third of any recovery. He settled the case for

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$7,158 and sent a letter to Manchester with a check from his IOLTA account

explaining the distribution of the settlement check—a practice that he also

followed with his collection clients. But at no time did he have Manchester or

any of his collection clients sign closing statements detailing the calculation of his

compensation and the distribution of costs and expenses. Although the parties

stipulated to these facts, they did not stipulate that this conduct violated

Prof.Cond.R. 1.5(c)(2).

{¶ 13} In his testimony before the panel, Bricker questioned the

application of the rule to collection matters, and in its report, the panel noted that

one panel member believed that the rule applied only to tort cases. The majority

of the panel found, however, that the commentary to Prof.Cond.R. 1.5(c)(1)

expresses the intent to expand upon previously aspirational goals to require all

contingent-fee agreements to be reduced to writing and signed by the client and

the lawyer, that Prof.Cond.R. 1.5(c)(2) directs that a lawyer shall provide a

closing statement that discloses the manner in which the contingent compensation

was determined, and that the closing statement shall be signed by the client and

the lawyer. Therefore, a majority of the panel found that the rule applies to all

contingent-fee cases and determined that Bricker’s failure to have his contingent-

fee collection clients and Manchester sign closing statements detailing the

disbursements in their cases violated Prof.Cond.R. 1.5(c)(2). The board adopted

the panel’s findings of fact and misconduct with respect to this alleged violation.

Recommended Sanction

{¶ 14} In recommending a sanction, the panel and board considered the

ethical duties that the lawyer violated and the sanctions imposed in similar cases.

See Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775

N.E.2d 818, ¶ 16. They also considered the aggravating and mitigating factors

listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

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{¶ 15} The only aggravating factor advanced by relator is Bricker’s four-

day attorney-registration suspension in December 2007 for failure to timely

submit his certificate of registration and pay the applicable registration fee. See

BCGD Proc.Reg. 10(B)(1)(a). The panel believed that this suspension resulted

from an oversight rather than a deliberate violation of the rules and therefore gave

it little weight as an aggravating factor.

{¶ 16} As mitigating factors, the parties stipulated and the panel found that

Bricker (1) did not act with a dishonest or selfish motive, (2) made a full and free

disclosure to the board and demonstrated a cooperative attitude toward the

disciplinary proceedings, and (3) presented letters from two judges, three

attorneys, and his pastor, who attested to his good character and reputation. See

BCGD Proc.Reg. 10(B)(2)(b), (d), and (e). The panel found that none of his

clients were harmed, that he used earned fees that he had left in his IOLTA

account to pay the personal expenses in question, and that he has fully

acknowledged the wrongful nature of his conduct and shown remorse. The panel

also determined that Bricker had “kept scrupulous records for his collection

accounts, although not in the format as required by the Rules of Professional

Conduct.” Moreover, the panel was impressed by Bricker’s long and

distinguished career of more than 50 years, his active participation in his church,

and his dedication to community service.

{¶ 17} Relator recommended that Bricker be suspended from the practice

of law for one year, fully stayed on the conditions that he serve one year of

monitored probation, complete six hours of continuing legal education in trust

accounts and office management, and commit no further misconduct. Bricker

argued that a public reprimand will adequately protect the public from future

misconduct because he has come to appreciate his duties under the Rules of

Professional Conduct during this disciplinary proceeding and has brought himself

into compliance with those rules.

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{¶ 18} The panel considered a number of cases involving similar

misconduct. It noted, however, the substantial mitigating factors and unique

circumstances of this case. While acknowledging that after serving for more than

30 years as in-house counsel, Bricker did not appreciate or comply with all the

technical ethical responsibilities of a lawyer engaged in solo practice, the panel

determined that he had not violated the spirit of those responsibilities because he

had provided honest and competent service to his clients and maintained

meticulous records, had not harmed any clients, and was extremely remorseful.

Believing that his participation in the disciplinary process itself was a sufficient

wake-up call, the panel recommended that he be publicly reprimanded for his

misconduct. The board adopted the panel’s findings and recommended sanction.

Relator’s Objections

Objection to the Dismissal of the Alleged Violation of Prof.Cond.R. 8.4(h)

{¶ 19} In his first objection, relator challenges the panel’s purported

dismissal1 of an alleged violation of Prof.Cond.R. 8.4(h), which provides that it is

professional misconduct for a lawyer to “engage in any other conduct that

adversely reflects on the lawyer’s fitness to practice law.” (Emphasis added.)

Relator argues that because he has presented clear and convincing evidence that

1. In its report, the panel stated its intention to dismiss the alleged violation of Prof.Cond.R. 8.4(h)

based on the insufficiency of relator’s evidence. Gov.Bar R. V(6)(G) permits a unanimous panel

of the board to order the dismissal of a complaint or an individual count without referring it to the

board or this court for review. The rule, however, requires the panel to provide notice to counsel

of record and certain interested parties, including disciplinary counsel, the certified grievance

committee, and the local bar association of the county in which the respondent resides and

maintains an office and the county from which the complaint arose, and the Ohio State Bar

Association. The record in this case does not establish that the panel complied with the notice

requirements of Gov.Bar R. V(6)(G) when it stated its intention to dismiss the alleged violation of

Prof.Cond.R. 8.4(h). Instead, the panel certified its findings of fact and recommendations to the

board in accordance with Gov.Bar R. V(6)(H) and (I). Because the board did not order dismissal

and provide the notices required by Gov.Bar R. V(6)(J), we treat the purported dismissal as a

recommendation that the alleged violation be dismissed and address relator’s objection to that

recommendation herein. See, e.g., In re Complaint Against Harper, 77 Ohio St.3d 211, 216, 673

N.E.2d 1253 (1996); Disciplinary Counsel v. Doellman, 127 Ohio St.3d 411, 2010-Ohio-5990,

940 N.E.2d 928, ¶ 31-33.

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Bricker kept his earned fees and client funds in his IOLTA account, he has

necessarily proven a corresponding violation of Prof.Cond.R. 8.4(h).

{¶ 20} Bricker argues that if this court were to adopt relator’s argument,

every violation of a Rule of Professional Conduct will necessarily result in a

violation of Prof.Cond.R. 8.4(h), thereby depriving the rule of any purpose or

effect. Instead, he argues that the rule is a catchall provision that should be used

in just two circumstances—(1) situations in which a lawyer’s conduct in violation

of other more specific rules is so egregious that it adversely reflects on his fitness

to practice law and (2) cases in which there is no specific provision prohibiting a

lawyer’s conduct, yet there is clear and convincing evidence that the conduct is

unethical and that it adversely reflects on the lawyer’s fitness to practice. We

agree.

{¶ 21} Prof.Cond.R. 8.4(h) is a catchall provision. In order to find a

violation of Prof.Cond.R. 8.4(h), there must be clear and convincing evidence that

the lawyer has engaged in misconduct that adversely reflects on the lawyer’s

fitness to practice law, even though that conduct is not specifically prohibited by

the rules, or there must be proof that the conduct giving rise to a specific rule

violation is so egregious as to warrant an additional finding that it adversely

reflects on the lawyer’s fitness to practice law.

{¶ 22} This interpretation of Prof.Cond.R. 8.4(h) is evident in cases in

which we adopted the board’s recommendation to dismiss alleged violations of

Prof.Cond.R. 8.4(h) based on insufficient evidence to support a finding that the

respondent had engaged in conduct adversely reflecting on his fitness to practice

law despite finding other violations of the Rules of Professional Conduct when

the violations were not of a particularly egregious nature. See, e.g., Disciplinary

Counsel v. Gallo, 131 Ohio St.3d 309, 2012-Ohio-758, 964 N.E.2d 1024

(upholding dismissal of a violation of Prof.Cond.R. 8.4(h) when the respondent

had not knowingly committed the disciplinary offense and was under considerable

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pressure from his employer when he committed the offense); and Disciplinary

Counsel v. Gerchak, 130 Ohio St.3d 143, 2011-Ohio-5075, 956 N.E.2d 292

(upholding dismissal of a violation of Prof.Cond.R. 8.4(h) finding that the

disciplinary offense was not motivated by malicious or selfish reasons).

{¶ 23} On the other hand, the cases cited by relator involve lawyers who

stipulated that they violated Prof.Cond.R. 8.4(h). See Disciplinary Counsel v.

Johnston, 121 Ohio St.3d 403, 2009-Ohio-1432, 904 N.E.2d 892, ¶ 10;

Disciplinary Counsel v. Murraine, 130 Ohio St.3d 397, 2011-Ohio-5795, 958

N.E.2d 942, ¶ 6; and Disciplinary Counsel v. LaRue, 122 Ohio St.3d 445, 2009-

Ohio-3604, 912 N.E.2d 101, ¶ 5. The egregious nature of their misconduct also

warranted the additional finding that they had engaged in conduct that adversely

reflected on their fitness to practice law. Murraine and LaRue actively deposited

personal funds into their client trust accounts, and Johnston overdrew his trust

account on 22 occasions, bounced a trust-account check issued to a client, and did

not have any reliable recordkeeping system in place to account for client funds in

his possession, let alone a system that complied with the requirements of

Prof.Cond.R. 1.15. Murraine at ¶ 4; LaRue at ¶ 3; and Johnston at ¶ 8-9.

{¶ 24} Bricker, in contrast, left earned fees in his client trust account and

paid some personal and business expenses directly from that account instead of

issuing checks to himself and then paying his obligations from a personal or

operating account. And there is no evidence that he ever used client funds to pay

those obligations, as Johnston did. While we have determined that Bricker’s

conduct violated more specific provisions of the rules, we do not find that this

misconduct is so egregious as to constitute a separate violation of Prof.Cond.R.

8.4(h). Furthermore, relator does not argue that Bricker engaged in any additional

conduct that adversely reflects on his fitness to practice law. We therefore

overrule relator’s first objection to the board report and dismiss the alleged

violation of Prof.Cond.R. 8.4(h).

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Objection to the Board’s Recommended Sanction

{¶ 25} In his second objection, relator contends that Bricker’s conduct

warrants a six-month conditionally stayed suspension from the practice of law.

He argues that we have imposed conditionally stayed suspensions of six months

to one year for comparable misconduct. See, e.g., Columbus Bar Assn. v. Watson,

132 Ohio St.3d 496, 2012-Ohio-3830, 974 N.E.2d 103; Disciplinary Counsel v.

Murraine; and Disciplinary Counsel v. Johnston (imposing one-year conditionally

stayed suspensions); and Disciplinary Counsel v. Vivyan, 125 Ohio St.3d 12,

2010-Ohio-650, 925 N.E.2d 947; Disciplinary Counsel v. LaRue; and

Disciplinary Counsel v. Fletcher, 122 Ohio St.3d 390, 2009-Ohio-3480, 911

N.E.2d 897 (imposing six-month conditionally stayed suspensions).

{¶ 26} These cases, however, are largely distinguishable from the case

currently before us. In Watson, we imposed a one-year suspension stayed on

conditions on an attorney who deposited client funds into his operating account,

deposited a $20,000 gift from his mother into his client trust account, and issued

two checks from his client trust account to pay his rent. Watson at ¶ 4-6.

Notably, Watson had been diagnosed with depression and attention-

deficit/hyperactivity disorder, but he did not present sufficient evidence to support

a finding that his condition was a mitigating factor pursuant to BCGD Proc.Reg.

10(B)(2)(g). Id. at ¶ 9-12. But given the ongoing nature of these mental-health

conditions, their potential to impair Watson’s ability to competently, ethically,

and professionally practice law, and a previous lapse in treatment, we found that a

one-year suspension stayed on conditions, including participation in an evaluation

by the Ohio Lawyers Assistance Program and compliance with any treatment

recommendations, would best protect the public from future misconduct. Id. at

¶ 14-15.

{¶ 27} Murraine, LaRue, and Johnston are distinguishable because in each

of those cases, the respondent deposited personal funds into his trust account and

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then withdrew funds to pay for personal or operating expenses. Murraine at ¶ 4-

6; LaRue at ¶ 3; and Johnston at ¶ 5-7. In Vivyan, the respondent withdrew

unearned funds from his client trust account for his personal use. Vivyan at ¶ 5.

In contrast, Bricker’s commingling resulted from his failure to timely withdraw

fees from his client trust account as they were earned, and his payment of

personal expenses directly from his client trust account was more in the nature of

a distribution of those earned fees. Moreover, there is no suggestion that he ever

misappropriated client funds, either purposely or negligently.

{¶ 28} Of all the cases cited by relator, the facts surrounding the misuse of

the trust account in Fletcher are most similar to those presented in the present

case. Fletcher failed to maintain records to document the identity of client funds

in his client trust account for at least 11 years and failed to maintain records of

disbursements and balances for each client for at least one year. Fletcher, 122

Ohio St.3d 390, 2009-Ohio-3480, 911 N.E.2d 897, at ¶ 4. He also failed to

maintain an operating account for at least five years, opting instead to commingle

personal and client funds in his client trust account and to use that account to pay

personal and business expenses. Id. at ¶ 5-6. But in addition to this misconduct,

Fletcher also violated DR 5-103(B)(3) (a lawyer shall not provide financial

assistance in connection with litigation unrelated to court costs or litigation

expenses) when he loaned money to a client for the client’s personal expenses.

{¶ 29} The two cases cited by the board in support of its recommendation

of a public reprimand are more compelling than the cases cited by relator—

Cincinnati Bar Assn. v. Seibel, 132 Ohio St.3d 411, 2012-Ohio-3234, 972 N.E.2d

594, and Medina Cty. Bar Assn. v. Piszczek, 115 Ohio St.3d 228, 2007-Ohio-

4946, 874 N.E.2d 783. Seibel failed to memorialize a contingent-fee agreement

in writing, treated his client’s retainer and deposit for litigation costs as a

nonrefundable retainer and deposited it into his operating account without

advising the client that she might be entitled to a refund if Seibel did not complete

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the representation, failed to maintain the client’s retainer and fees in an interest-

bearing client trust account separate from his own funds, and failed to promptly

deliver the client’s funds and file to her upon the termination of his employment.

Seibel at ¶ 5-8. The board—and this court—rejected the parties’ stipulated

sanction of a six-month stayed suspension in favor of a public reprimand, noting

that Seibel did not have a prior disciplinary record, did not act with a dishonest or

selfish motive, accepted responsibility for his misconduct, and made restitution.

Id. at ¶ 11-12, 16.

{¶ 30} In Piszczek, we publicly reprimanded an attorney who entrusted the

day-to-day management of his client trust account to an associate attorney and

failed to monitor the account activity. His lack of oversight allowed his associate

to issue payments to clients who did not have funds in the client trust account and

overpayments to clients who did have money in the account, actions that resulted

in an overdraft of more than $7,000. Piszczek at ¶ 4. Piszczek also commingled

personal and client funds by leaving earned fees in his client trust account and

withdrawing them without documenting which client the fees should be attributed

to. Id. at ¶ 5. No aggravating factors were present. Piszczek engaged in an

account audit, reconciled all of the discovered irregularities, made timely

restitution, ceased his associate’s use of the account, and instituted an effective

office accounting system. He also fully cooperated in the disciplinary proceeding

and presented evidence of his good character and reputation in the legal

community. Id. at ¶ 6.

{¶ 31} We are mindful that the primary purpose of the disciplinary process

is not to punish the offender but to protect the public from lawyers who are

unworthy of the trust and confidence essential to the attorney-client relationship.

Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-6510, 858

N.E.2d 368. Here, the board recognized that Bricker had practiced as in-house

counsel for more than 30 years before commencing his solo practice and that he

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had practiced law for more than 50 years—with only a brief, four-day suspension

for his failure to timely complete his attorney registration in 2007. It also

recognized his honest and competent service to his clients, the absence of harm to

any client, and his genuine remorse for his violations of the Rules of Professional

Conduct. On these facts, and in light of Seibel and Piszczek, in which we publicly

reprimanded the attorneys despite the fact that their conduct involved the actual

misuse of client funds, the board has recommended that we publicly reprimand

Bricker for his conduct in this case.

{¶ 32} Having considered Bricker’s misconduct, the applicable mitigating

factors, and the sanctions imposed for comparable misconduct, we believe that a

public reprimand will adequately protect the public from future harm. Therefore,

we overrule relator’s objection and adopt the board’s recommended sanction.

{¶ 33} Accordingly, we publicly reprimand Dale Elmer Bricker for his

improper handling of his client trust account. Costs are taxed to Bricker.

Judgment accordingly.

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

O’NEILL, JJ., concur.

KENNEDY, J., dissents and would impose a six-month suspension, stayed.

____________________

Jonathan E. Coughlan, Disciplinary Counsel, and Joseph M. Caligiuri,

Chief Assistant Disciplinary Counsel, for relator.

John B. Juhasz, for respondent.

________________________

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