Akron Bar Assn. v. White

[Cite as Akron Bar Assn. v. White, 136 Ohio St.3d 51, 2013-Ohio-2153.]

AKRON BAR ASSOCIATION v. WHITE.

[Cite as Akron Bar Assn. v. White, 136 Ohio St.3d 51, 2013-Ohio-2153.]

Attorneys—Misconduct—Failure to deposit legal fees into client trust account—

Public reprimand.

(No. 2012-2071—Submitted February 6, 2013—Decided May 30, 2013.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-105.

____________________

Per Curiam.

{¶ 1} Respondent, Daniel Scott White of Hudson, Ohio, Attorney

Registration No. 0015290, was admitted to the practice of law in Ohio in 1984.

{¶ 2} In a six-count December 2011 complaint, relator, Akron Bar

Association, charged White with professional misconduct in one client matter.

Relator alleged that White had not provided competent representation to his

client, Ray Brown, regarding the purchase of a previously owned automobile and

that White had failed to properly account for fees generated in that representation.

The parties initially submitted a consent-to-discipline agreement pursuant to

BCGD Proc.Reg. 11. The panel of the Board of Commissioners on Grievances

and Discipline assigned to hear the matter rejected the agreement.

{¶ 3} Following a hearing in which the majority of the evidence was

submitted in the form of stipulations, the panel was unable to find clear and

convincing evidence to support all of the charged rule violations and thus

recommended dismissal of some of the violations alleged. The panel concluded

that respondent violated several rules and recommended that he be publicly

reprimanded, ordered to pay restitution to the client, and required to attend a

seminar in law-office management. The board adopted the hearing panel’s

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findings of fact and conclusions of law regarding only a single violation found by

the panel and dismissed the remaining alleged violations. The board also adopted

the recommended sanction of a public reprimand but without the conditions

recommended by the panel. On December 19, 2012, this court issued an order to

show cause why the court should not confirm the board’s recommendation and

enter an order of discipline. No objections have been filed.

{¶ 4} Upon our independent review of the record, we adopt the board’s

findings of fact and conclusions of law and misconduct and agree that the

appropriate sanction is a public reprimand.

Misconduct

{¶ 5} White’s client, Brown, through a local lawyer-referral service,

sought representation regarding a dispute over various repairs made to a

previously owned car that had been recently purchased from a local auto dealer.

Brown paid White a retainer of $450 to file suit, which White deposited into his

firm operating account rather than his client trust account. Brown faxed White

certain documents regarding the purchase that apparently showed that he was not

the actual buyer and that he in fact had no ownership interest in, or title to, the

automobile in question. The documents also showed that the vehicle was

purchased “as is.” White filed a complaint in county court against a dealer other

than the one that was named in the documents as the seller of the vehicle. White

testified at the disciplinary hearing that when he had been unable to attend a

pretrial conference due to a scheduling conflict, Brown attended the conference

alone after insisting that the matter not be delayed and informing White that he

had been to court “a number of times.” White eventually dismissed the complaint

without prejudice.

{¶ 6} Relator’s first three counts directly relate to the court action.

Count I alleged that respondent violated Prof.Cond.R. 1.1 (requiring a lawyer to

provide competent representation to a client) by filing an action with incorrect

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information regarding both the plaintiff and the defendant. Count II alleged a

violation of Prof.Cond.R. 1.1 for filing suit when the purchase documents clearly

indicated that the car was sold “as is” and that the buyer was responsible for all

repairs. Count III alleged violations of Prof.Cond.R. 1.1 and 1.3 (requiring a

lawyer to act with reasonable diligence in representing a client) for not attending

the pretrial hearing at which his client appeared alone.

{¶ 7} Although the panel found that Count I was proved by clear and

convincing evidence, the board disagreed, finding that the faxed documents sent

to White by Brown demonstrated that Brown “clearly believed that he had

purchased the subject vehicle ‘at Simpson Motors’ based upon representations

made to him by Ken Simpson,” the very allegation contained in the complaint

White had filed. The board thus dismissed that count. The board agreed with the

panel and dismissed Count II concerning the as-is provision because White’s

uncontested testimony at his disciplinary hearing was that he had had success in

overcoming such a provision in his career “if you have sufficient evidence of

fraud.” The board also, in agreement with the panel, dismissed Count III

regarding White’s failure to attend the pretrial hearing, based on Brown’s

insistence on not delaying the proceedings and Brown’s assertions to White that

he was comfortable with the hearing going forward in White’s absence.

{¶ 8} The last three counts relate to White’s handling of and accounting

for the retainer. Count IV alleged a violation of Prof.Cond.R. 1.15(c) (requiring a

lawyer to deposit into a client trust account legal fees and expenses that have been

paid in advance) because White deposited his fee into his firm operating account

rather than into his trust account. Because White did not provide to Brown a

written fee agreement, relator, in Count V, alleged violations of Prof.Cond.R.

1.5(b) (requiring an attorney to communicate the nature and scope of the

representation and the basis or rate of the fee and expenses within a reasonable

time after commencing the representation unless the lawyer regularly represented

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the client and will charge the client on the same basis as previously charged) and

1.5(d)(3) (prohibiting a lawyer from charging a flat fee without simultaneously

advising the client in writing that the client may be entitled to a refund of all or

part of the fee if the lawyer does not complete the representation). And in Count

VI, relator alleged that because White failed to pay the referral fee to the lawyer-

referral service pursuant to an executed agreement, he violated Prof.Cond.R.

1.15(d) (requiring a lawyer to promptly deliver funds or other property that the

client or a third person with an interest is entitled to receive).1

{¶ 9} The board, as did the panel, accepted the stipulated violation

regarding Count IV. The board rejected the stipulated violation regarding Count

V and dismissed that count, in accordance with the panel’s view that the

agreement between White and Brown was not required to be in writing “because

the terms of representation,” as learned first at the hearing, “were clearly

communicated to the client within a reasonable time after commencing

representation.” Although the panel found a violation of Prof.Cond.R. 1.15(d)

regarding Count VI, the board dismissed that count for lack of clear and

convincing evidence that the payment due the lawyer-referral service was the type

of obligation to which the rule of conduct applies.

Sanction

{¶ 10} 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

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

1. Allegations of violations of Prof.Cond.R. 8.4(a) (prohibiting a lawyer from violating or

attempting to violate the Ohio Rules of Professional Conduct), (c) (prohibiting a lawyer from

engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), (d) (prohibiting a

lawyer from engaging in conduct that is prejudicial to the administration of justice), and (h)

(prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to

practice law), all additionally contained in Count VI, were withdrawn by relator at the outset of the

hearing.

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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.

{¶ 11} The parties stipulated to a sanction of a public reprimand. As

mitigating factors, the parties stipulated to, and the panel accepted, White’s lack

of prior disciplinary history, his cooperation with the investigators, and his

admission of wrongdoing. See BCGD Proc.Reg. 10(B)(2). The panel found that

no aggravating factors were present. Although the board did not directly address

mitigating or aggravating factors, it adopted the panel’s findings of fact and

conclusions of law as to only one of the violations found by the panel—Count

IV’s alleged violation of Prof.Cond.R. 1.15(c).

{¶ 12} The board adopted the recommended sanction of a public

reprimand, but without the conditions recommended by the panel. Neither the

board nor the panel cited case law for the recommendation of a public reprimand.

In Trumbull Cty. Bar Assn. v. Rucker, 134 Ohio St.3d 282, 2012-Ohio-5642, 981

N.E.2d 866, ¶ 5, we recently imposed a public reprimand on an attorney whose

conduct, similar to White’s, included a failure to deposit the client’s funds in an

interest-bearing client trust account. The mitigating factors in that case included

lack of a prior disciplinary record, cooperation with the disciplinary investigation,

absence of a dishonest or selfish motive, and restitution. Id. at ¶ 4.

{¶ 13} A public reprimand here is consistent with our precedent involving

similar misconduct and comparable aggravating and mitigating factors.

Accordingly, we accept the board’s recommendation and hereby publicly

reprimand Daniel Scott White for his violation of Prof.Cond.R. 1.15(c). Costs are

taxed to White.

Judgment accordingly.

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

FRENCH and O’NEILL, JJ., concur.

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____________________

Anderson & Miller Co., L.P.A., and Harvey Miller; and Patricia A. Vance,

for relator.

Haber Polk Kabat, L.L.C., and Richard C. Haber, for respondent.

________________________

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