Cincinnati Bar Assn. v. Davis

[Cite as Cincinnati Bar Assn. v. Davis, 133 Ohio St.3d 525, 2012-Ohio-4998.]

CINCINNATI BAR ASSOCIATION v. DAVIS.

[Cite as Cincinnati Bar Assn. v. Davis, 133 Ohio St.3d 525, 2012-Ohio-4998.]

Attorneys—Misconduct—Failure to maintain professional-liability insurance and

to preserve identity of client funds in a client trust account—One-year

suspension, with six months stayed on condition.

(No. 2012-0687—Submitted May 9, 2012—Decided October 30, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-111.

__________________

Per Curiam.

{¶ 1} Respondent, Michael W. Davis of Fort Thomas, Kentucky,

Attorney Registration No. 0016994, was admitted to the practice of law in Ohio in

1973. On December 5, 2011, relator, Cincinnati Bar Association, charged

respondent with professional misconduct for failing to notify clients that he did

not carry malpractice insurance, failing to deposit client funds in his interest-

bearing client trust account, and providing in his fee contract for automatic

withdrawal from representation when local rules required the filing of a motion to

withdraw.

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

Discipline considered the cause on the parties’ consent-to-discipline agreement.

See BCGD Proc.Reg. 11.

{¶ 3} In the consent-to-discipline agreement, Davis stipulates to the facts

alleged in relator’s complaint and agrees that his conduct violated Prof.Cond.R.

1.4(c) (requiring a lawyer to inform the client if the lawyer does not maintain

professional-liability insurance), 1.15(a) (requiring a lawyer to preserve the

identity of client funds in an interest-bearing client trust account, separate from

SUPREME COURT OF OHIO

the lawyer’s own property), and 1.16(c) (prohibiting a lawyer from withdrawing

from representation in a proceeding without leave of court if the rules of the

tribunal so require).

{¶ 4} The parties stipulate that respondent’s commission of multiple

offenses was an aggravating factor. See BCGD Proc.Reg. 10(B)(1)(d). The

parties also stipulate that mitigating factors included respondent’s absence of a

prior disciplinary record and cooperative attitude toward the disciplinary

proceedings. See BCGD Proc.Reg. 10(B)(2)(a) and (d). Based upon these

factors, the parties stipulate that a one-year suspension with six months of the

suspension stayed is the appropriate sanction for Davis’s misconduct.

{¶ 5} The panel and board found that the consent-to-discipline

agreement conforms to BCGD Proc.Reg. 11 and recommend that we adopt the

agreement in its entirety. The panel and board considered several disciplinary

cases, including Cincinnati Bar Assn. v. Trainor, 129 Ohio St.3d 100, 2011-Ohio-

2645, 950 N.E.2d 524 (imposing a 24-month suspension, with 18 months stayed

on conditions, on an attorney who failed to inform a client at the time of the

client’s engagement that he did not carry malpractice insurance and failed to

promptly return funds that the client was entitled to receive); Erie-Huron

Counties Joint Certified Grievance Commt. v. Miles, 76 Ohio St.3d 574, 669

N.E.2d 831 (1996) (imposing a one-year suspension on an attorney who

commingled client and office funds in her escrow account, failed to properly

return funds when requested, and failed to account for retained funds in a

businesslike manner); Toledo Bar Assn. v. Lubitsky, 63 Ohio St.3d 669, 590

N.E.2d 746 (1992) (imposing a six-month suspension on an attorney who failed to

escrow a retainer fee, failed to accurately account for a fee or return unused

portions of the fee, and charged a clearly excessive fee); and Cincinnati Bar Assn.

v. Helbling, 124 Ohio St.3d 510, 2010-Ohio-955, 924 N.E.2d 364 (imposing a

public reprimand on an attorney who improperly used his client trust account).

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January Term, 2012

We agree that Davis violated Prof.Cond.R. 1.4(c), 1.15(a), and 1.16(c) and, as

stated in the parties’ agreement and as indicated by the cited precedent, that this

conduct warrants a one-year suspension from the practice of law with six months

of the suspension stayed. Therefore, we adopt the parties’ consent-to-discipline

agreement.

{¶ 6} Accordingly, Davis is hereby suspended from the practice of law

for a period of one year, with the final six months of the suspension stayed on the

condition that Davis commit no further misconduct. If Davis fails to comply with

the condition of the stay, the stay will be lifted, and Davis will serve the entire

one-year suspension. Costs are taxed to Davis.

Judgment accordingly.

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

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

__________________

Beth Silverman and Richard J. Goldberg, for relator.

Michael W. Davis, pro se.

______________________

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