Disciplinary Counsel v. Dockry

[Cite as Disciplinary Counsel v. Dockry, 133 Ohio St.3d 527, 2012-Ohio-5014.]

DISCIPLINARY COUNSEL v. DOCKRY.

[Cite as Disciplinary Counsel v. Dockry, 133 Ohio St.3d 527, 2012-Ohio-5014.]

Attorney misconduct, including failing to hold client funds in an interest-bearing

account, separate from the attorney’s funds; failing to perform a monthly

reconciliation of the funds held in the trust account; and failing to

maintain a record for each client on whose behalf funds are held—One-

year suspension, stayed on conditions.

(No. 2012-0287—Submitted May 22, 2012—Decided October 31, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-044.

__________________

Per Curiam.

{¶ 1} Respondent, Michael Brian Dockry of Youngstown, Ohio,

Attorney Registration No. 0002845, was admitted to the practice of law in Ohio in

1982. On April 11, 2011, relator, disciplinary counsel, filed a complaint alleging

that Dockry had committed professional misconduct by depositing and

maintaining personal funds in his client trust account, using that account to pay

his personal and business expenses, borrowing client funds from the account for

his personal use, failing to maintain ledgers of the client funds held in that

account, and failing to reconcile the account.

{¶ 2} The parties submitted stipulations of fact and agreed that Dockry’s

conduct violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold client funds in

an interest-bearing client trust account, separate from the lawyer’s own funds),

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 a monthly

reconciliation of the funds held in the lawyer’s client trust account and to retain

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evidence of the reconciliation). Dockry, however, contested allegations that his

conduct violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in

conduct involving dishonesty, fraud, deceit, or misrepresentation) and 8.4(h)

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

lawyer’s fitness to practice law) as alleged in the complaint.

{¶ 3} A panel of the Board of Commissioners on Grievances and

Discipline conducted a hearing at which it heard Dockry’s testimony and admitted

the parties’ stipulations, 16 stipulated exhibits, and 25 exhibits offered by Dockry.

The panel issued a report finding that Dockry committed all of the charged

misconduct and recommending that he be suspended from the practice of law for

one year, with six months stayed on the conditions that he serve one year of

monitored probation and engage in no further misconduct. The board adopted the

panel’s findings of fact, conclusions of law, and recommended sanction.

{¶ 4} Dockry objects to the recommended sanction and argues that a six-

month suspension stayed on conditions will adequately protect the public from

any further misconduct. We adopt the board’s findings of fact and misconduct.

However, for the reasons that follow, we sustain Dockry’s objection in part and

impose a one-year suspension, all stayed on the conditions recommended by the

board.

Misconduct

{¶ 5} The board, based upon the parties’ stipulations, the exhibits

presented, and Dockry’s testimony at the hearing, made the following finding of

facts. Dockry began his solo practice in 1982 and has maintained a client trust

account at PNC Bank and its predecessor, National City Bank, since 1983.

Though he continuously maintained a personal checking account beginning in

1982, he did not open an operating account for his law practice until November

2010.

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January Term, 2012

{¶ 6} Since February 1, 2007, Dockry has handled cases on an hourly fee

basis and deposited the fee advances received from his clients into his client trust

account. He has also always deposited and maintained personal funds in his client

trust account beyond the amount permitted by Prof.Cond.R. 1.15(b), which allows

lawyers to deposit their own funds in a client trust account for the sole purpose of

paying bank fees or obtaining a waiver of bank fees. For example, in April 2009,

he deposited $212 of his personal funds into his client trust account, and in May

2010, he deposited $3,035.24 of his personal funds. Dockry estimated that

typically 75 percent of the funds held in his client trust account belonged to his

clients.

{¶ 7} Dockry also used his client trust account to pay his personal and

business expenses, including his office rent and telephone service, his personal

membership dues for the Austintown Kiwanis Club, and his family’s medical

expenses.

{¶ 8} On one occasion, in April 2009, Dockry wrote a $2,000 trust-

account check to himself to cover a deficiency in his personal checking account.

He returned the funds to his trust account two days later, noting on the check that

the funds had been a loan. The board found that Dockry also loaned $300 to a

friend from personal funds that Dockry had improperly maintained in his client

trust account and that he later reimbursed the account for the loan with personal

funds.1 In addition, the board found that from February 1, 2007, to early 2010,

Dockry did not maintain ledgers of the client funds held in his client trust account

and did not properly reconcile the account.

{¶ 9} The parties stipulated and the board found that the conduct

described above is consistent with the way Dockry used his client trust account

1. Dockry also stipulated that in February 2010, he issued a check from his client trust account

that exceeded his personal funds in the account. He reimbursed the account the following month.

Relator did not amend the complaint to charge any violations related to this conduct.

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from February 2007 until the commencement of relator’s investigation of this

matter.

{¶ 10} The board found that Dockry’s conduct violated Prof.Cond.R.

1.15(a), 1.15(a)(2), 1.15(a)(5), 8.4(c), and 8.4(h) as charged in relator’s complaint.

We adopt the board’s findings of fact and misconduct.

Sanction

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

ethical duties that respondent had violated, the applicable aggravating and

mitigating factors listed in BCGD Proc.Reg. 10, and the sanctions imposed in

similar cases. See, e.g., 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.

{¶ 12} The board adopted the parties’ stipulated factors in mitigation—

absence of a prior disciplinary record, payment of restitution, cooperation with the

disciplinary proceedings, and good character and reputation apart from the

charged misconduct. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (e). The board

adopted the sole stipulated aggravating factor—that Dockry’s conduct was

motivated by a dishonest or selfish motive, BCGD Proc.Reg. 10(B)(1)(b).

{¶ 13} Relator argues that the appropriate sanction for Dockry’s

misconduct is a one-year suspension with six months stayed on the condition that

Dockry serve one year of monitored probation. Dockry, however, argues that a

six-month fully stayed suspension coupled with a period of monitored probation

will adequately protect the public.

{¶ 14} The board noted that in Disciplinary Counsel v. Wise, 108 Ohio

St.3d 381, 2006-Ohio-1194, 843 N.E.2d 1198, ¶ 3-6, 10, we imposed an indefinite

suspension on an attorney who used his client trust account to pay business and

personal expenses; failed to maintain client ledgers, records, or receipts showing

the source of some of the funds deposited into the account; and overdrew the

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account 19 times in the span of three years. But in contrast to the court’s findings

in Wise, the board found that Dockry had not overdrawn his client trust account

multiple times, had no prior disciplinary violations, and had cooperated in

relator’s investigation. Therefore, the board adopted relator’s recommendation

that Dockry be suspended from the practice of law for one year with six months

stayed on the conditions that he serve one year of monitored probation and

commit no further misconduct.

{¶ 15} Dockry objects to the recommended sanction, arguing that a six-

month fully stayed suspension on the conditions recommended by the board will

adequately protect the public from future misconduct. In support of this

argument, he cites a number of cases in which we have imposed fully stayed

suspensions on attorneys who have engaged in comparable misconduct with

respect to their client trust accounts.

{¶ 16} In Disciplinary Counsel v. Vivyan, 125 Ohio St.3d 12, 2010-Ohio-

650, 925 N.E.2d 947, ¶ 4, 14, we imposed a six-month, fully stayed suspension on

an attorney who over a period of approximately one month withdrew $1,535 in

unearned funds from his client trust account and used those funds for personal

expenses in violation of Prof.Cond.R. 1.15(a), 1.15(b), and 1.15(c) (requiring

lawyers to deposit into client trust account advances to be withdrawn only when

earned). In determining that a fully stayed suspension was the appropriate

sanction, we relied on a number of cases involving attorney use of client trust

accounts for personal and/or business expenses. Vivyan at ¶ 8-12, citing

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

N.E.2d 897 (imposing a six-month stayed suspension on an attorney who used his

client trust account for personal and business expenses for approximately five

years); Disciplinary Counsel v. Johnston, 121 Ohio St.3d 403, 2009-Ohio-1432,

904 N.E.2d 892 (imposing a one-year stayed suspension on an attorney who

commingled personal funds with client funds for nearly two years while using his

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client trust account for operating and personal expenses); Cuyahoga Cty. Bar

Assn. v. Nance, 119 Ohio St.3d 55, 2008-Ohio-3333, 891 N.E.2d 746 (imposing a

six-month stayed suspension on an attorney who engaged in conduct that

adversely reflected on his fitness to practice law by using his client trust account

to pay personal and business expenses and overdrawing the account on at least

one occasion); Columbus Bar Assn. v. Peden, 118 Ohio St.3d 244, 2008-Ohio-

2237, 887 N.E.2d 1183 (imposing a six-month stayed suspension on an attorney

who overdrew his client trust account nine times in a two-year period, failed to

maintain a client trust account for several months, and occasionally deposited

unearned fees in his office operating account); and Disciplinary Counsel v.

Newcomer, 119 Ohio St.3d 351, 2008-Ohio-4492, 894 N.E.2d 50 (imposing a six-

month stayed suspension on an attorney who used his client trust account for his

personal banking needs after his bank closed his personal account for reasons

related to his poor financial condition).

{¶ 17} Although some of the attorneys in the cases cited by Dockry were

found to have engaged in conduct adversely reflecting on their fitness to practice

law, see, e.g., Johnston at ¶ 10; Peden at ¶ 4; Nance at ¶ 3; Newcomer at ¶ 4, none

of them were charged with dishonesty, fraud, deceit, or misrepresentation for his

misconduct, as Dockry was. And it is that distinction that relator argues requires

Dockry to serve an actual suspension from the practice of law.

{¶ 18} “Generally, misconduct involving dishonesty, fraud, deceit, or

misrepresentation warrants an actual suspension from the practice of law.”

Disciplinary Counsel v. Karris, 129 Ohio St.3d 499, 2011-Ohio-4243, 954 N.E.2d

118, ¶ 16, citing Disciplinary Counsel v. Kraemer, 126 Ohio St.3d 163, 2010-

Ohio-3300, 931 N.E.2d 571, ¶ 13; and Disciplinary Counsel v. Fowerbaugh, 74

Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. However, we have imposed a

fully stayed suspension on at least one occasion when an attorney engaged in

conduct involving dishonesty, fraud, deceit, or misrepresentation. In Disciplinary

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Counsel v. Fumich, 116 Ohio St.3d 257, 2007-Ohio-6040, 878 N.E.2d 6, the

attorney deposited $16,000 of his personal funds into his client trust account and

told his clients that the money was from settling their case. The case had actually

been dismissed two years earlier following the attorney’s failure to respond to

motions for summary judgment. Id. at ¶ 5-7, 18. He also failed to promptly

return a client’s legal documents on request. Id. at ¶ 8. We found that his conduct

violated DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct

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

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

lawyer’s fitness to practice law), 6-101(A)(3) (prohibiting a lawyer from

neglecting an entrusted legal matter), 9-102(A) (requiring a lawyer to deposit all

client funds in one or more identifiable bank accounts and to keep the funds

separate from the lawyer’s own property), and 9-102(B)(4) (requiring a lawyer to

promptly pay or deliver funds and property to which a client is entitled). Id. at

¶ 9. Finding that there were no aggravating factors and that there were multiple

mitigating factors, including the absence of a prior disciplinary record, the

respondent’s payment of restitution, his cooperation in the disciplinary process,

his excellent character and reputation, and the absence of a motive to exploit his

clients, we imposed a one-year fully stayed suspension. Id. at ¶ 16-18.

{¶ 19} Despite our holding in Fumich, relator argues that a one-year

suspension with six months stayed is appropriate here. He argues that that

sanction is in line with the sanctions that we imposed for conduct comparable to

Dockry’s in Cincinnati Bar Assn. v. Hauck, 129 Ohio St.3d 209, 2011-Ohio-3281,

951 N.E.2d 83, and Disciplinary Counsel v. Riek, 125 Ohio St.3d 46, 2010-Ohio-

1556, 925 N.E.2d 980.

{¶ 20} For more than five years, Hauck commingled his personal and

business funds in a bank account that also contained client funds, and he did so to

avoid overdraft charges and to avoid tax garnishments by the Internal Revenue

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Service. Hauck at ¶ 4, 6. The account was not truly a client trust account, as it

belonged to a nonprofit entity that Hauck had formed. The printed checks for the

account were deceptive because they did not name the nonprofit entity and instead

bore Hauck’s name, followed by “Attorney at Law” and “IOLTA” (interest on

lawyers’ trust accounts). Id. at ¶ 5. During the course of his deception, Hauck

stopped payment on a $2,800 check he had issued to a client, representing the

proceeds of the client’s personal-injury claim, because the account did not contain

sufficient funds. Id. at ¶ 3. For this pattern of deceptive conduct, we imposed a

one-year suspension with six months stayed on the conditions that Hauck serve

six months of monitored probation and that he commit no further misconduct. Id.

at ¶ 14.

{¶ 21} Riek, like Hauck, commingled personal and client funds in his

client trust account. For almost one year, Riek paid personal expenses directly

from the account, and he overdrew the account on four occasions. Riek, 125 Ohio

St.3d 46, 2010-Ohio-1556, 925 N.E.2d 980, at ¶ 4. He used settlement funds in

the account that were due to a client to pay his personal expenses, which caused a

$2,875.60 check issued to the client to be dishonored by the bank. Id. at ¶ 6-7.

When the client inquired about the dishonored check, Riek falsely represented

that the settlement check Riek had received had been dishonored. Id. at ¶ 7.

{¶ 22} Although Dockry did misappropriate client funds from his client

trust account, as Hauck and Riek did, he did not make affirmative

misrepresentations to his clients, as Hauck and Riek did. Nor did he issue checks

to clients when there were not sufficient funds in the bank to cover them. Thus,

even though Dockry engaged in dishonesty, fraud, deceit, or misrepresentation by

taking an unauthorized loan from his client trust account, we find that his conduct

is more comparable to that of Vivyan, Fletcher, Johnston, and Fumich.

{¶ 23} We find that the numerous mitigating factors in this case, including

the absence of a prior disciplinary record in nearly 30 years of practice, the

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prompt payment of restitution, Dockry’s full cooperation in these disciplinary

proceedings, and his good character and reputation in the community, outweigh

the sole aggravating factor—a dishonest or selfish motive, which relates solely to

Dockry’s unauthorized borrowing of client funds (money he paid back two days

after borrowing it). Moreover, there has been no harm to Dockry’s clients.

{¶ 24} Dockry testified that his practice is limited to five or ten hours a

week due to his full-time employment as an Austintown Township administrator

and that he has only three to five clients at any given time. He handles evictions

for a property-management company, but the majority of his clients retain him to

probate estates and prepare wills and powers of attorney. Notably, Walter

Terlecky, the president of Dockry’s largest client, submitted a letter praising

Dockry’s character and integrity over the course of their 20-year working

relationship and stating that his company intends to continue that relationship

despite Dockry’s violation of the Rules of Professional Conduct.

{¶ 25} Since relator initiated his investigation of Dockry’s trust-account

practices, Dockry has taken corrective measures to ensure that he does not repeat

his past mistakes. He watched a webcast sponsored by relator that explained the

proper use of a client trust account, and he has stopped depositing personal funds

into his client trust account. He has also studied the Rules of Professional

Conduct and begun to maintain client ledgers and a general ledger that he

reconciles with his bank statement each month.

{¶ 26} Based upon the facts of Dockry’s misconduct, the presence of

significant mitigating factors, and our precedent, we believe that a one-year

suspension stayed on the conditions that Dockry submit to one year of monitored

probation and commit no further misconduct will adequately protect the public.

{¶ 27} Accordingly, we sustain Dockry’s objection in part and suspend

him from the practice of law in Ohio for one year, all stayed on the conditions that

he satisfactorily complete one year of monitored probation in accordance with

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Gov.Bar R. V(9) and that he commit no further misconduct. If Dockry fails to

comply with the conditions of the stay, the stay will be lifted and he will serve the

full one-year suspension. Costs are taxed to Dockry.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Philip A. King, Assistant

Disciplinary Counsel, for relator.

John B. Juhasz, for respondent.

______________________

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