Disciplinary Counsel v. Weiss

[Cite as Disciplinary Counsel v. Weiss, 133 Ohio St.3d 236, 2012-Ohio-4564.]

DISCIPLINARY COUNSEL v. WEISS.

[Cite as Disciplinary Counsel v. Weiss, 133 Ohio St.3d 236, 2012-Ohio-4564.]

Attorneys—Misconduct—Failing to promptly deliver funds that client is entitled

to receive and engaging in conduct that adversely reflects on the

attorney’s fitness to practice law—Indefinite suspension.

(No. 2012-0314—Submitted April 24, 2012—Decided October 9, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-090.

__________________

Per Curiam.

{¶ 1} Respondent, Stephen Michael Weiss, formerly of Columbus, Ohio,

Attorney Registration No. 0017566, was admitted to the practice of law in Ohio in

1968. His license was registered as inactive effective September 1, 2009. In a

complaint filed on October 10, 2011, relator, disciplinary counsel, alleged that

Weiss received a $98,580 check in settlement of a client’s personal-injury claim,

that he wrongfully retained $36,333.93 that the client was entitled to receive, and

that he failed to cooperate in the resulting disciplinary investigation.

{¶ 2} Although relator’s complaint was delivered by certified mail to the

address Weiss had registered with the Office of Attorney Services—where he

admitted he had received mail from relator—he did not submit an answer.1

Relator’s investigator sent Weiss a certified letter on December 2, 2011, advising

him that relator would move for default judgment no later than December 15,

2011. Having received no response, relator moved for default on December 21,

2011.

1. The signature on the return receipt begins with the letter “D” but the remainder is

undecipherable.

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{¶ 3} The Board of Commissioners on Grievances and Discipline

appointed a master commissioner, who found that Weiss had committed the

charged misconduct and recommended that he be indefinitely suspended from the

practice of law. The board adopted the master commissioner’s report and filed it

with this court. We adopt the board’s findings of fact and misconduct, and we

indefinitely suspend Weiss from the practice of law and order him to make

restitution of $36,333.93 to the affected client within 30 days of this order.

Misconduct

{¶ 4} Based on the sworn evidence submitted by relator, the board found

that following an accident in 2004, John Lilley retained Weiss to represent him in

a personal-injury matter. Although Weiss advised Lilley that his fee would be

one-third of any proceeds recovered, he did not provide him with a written fee

agreement.

{¶ 5} In early 2006, Lilley agreed to settle his claim for $100,000. On

January 27, 2006, American Family Insurance issued two checks—a $1,420

check to Lilley’s chiropractor and a $98,580 check to Lilley and Weiss.

Respondent deposited the check into his client trust account and distributed a total

of $29,386.07 to Lilley and two medical-service providers. Based upon the oral

fee agreement, respondent should have received a fee of one-third of $98,580 or

$32,860. Thus, Lilley was entitled to receive an additional $36,333.93 in

settlement proceeds. Weiss, however, did not distribute those funds to Lilley or

return his phone calls.

{¶ 6} In summer 2009, Lilley retained attorney Gregory Barwell to assist

him in collecting the remainder of his settlement proceeds from Weiss. Barwell

left several messages at the Ohio telephone number listed on Weiss’s attorney-

registration records. He reviewed real estate records and hired a private

investigator to locate Weiss. Barwell eventually found Weiss in Sarasota, Florida.

At some point, Weiss changed his attorney registration to inactive and provided

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January Term, 2012

the Office of Attorney Services with the Sarasota address. Although Barwell sent

Weiss two letters at the Sarasota address, requesting Lilley’s file and a full

accounting of the settlement funds, he did not receive a response.

{¶ 7} Relator sent a letter of inquiry to Weiss in March 2011 but did not

receive a response. In response to a second letter sent April 15, 2011, by relator,

Weiss stated that he had several health problems, that he was scheduled to have

open-heart surgery on April 26, 2011, and that if he made it through the surgery,

he would get in touch with relator. Of the next three letters relator sent to Weiss,

Weiss responded to only one, providing information on his health and stating that

he would attempt to find the information relator had requested.

{¶ 8} On July 8, 2011, relator advised Weiss by letter that relator had

subpoenaed Weiss’s client-trust-account records from January 1, 2006, through

April 29, 2011, and that if the records showed he had not fully and properly

disbursed Lilley’s settlement proceeds, relator intended to file a formal complaint.

Weiss did not respond.

{¶ 9} Having reviewed the subpoenaed bank records of Weiss’s trust

account, the master commissioner and board found that Weiss used his client trust

account as a personal account, writing checks to himself from January 2006

through April 2011 in various amounts. Some of the checks identify the source of

the funds in the memo line, while others do not. He also wrote checks to

Coldwell Banker with the memo “property,” to Robert Ambrogia with a notation

identifying it as payment for a lease contract, to Andrew Weiss, and to the Ohio

State University with the memo “Andrew Weiss.” Following his move to Florida,

he wrote a $300 check to Cape Surgery from his client trust account. We also

find that as alleged in relator’s complaint, the balance in Weiss’s trust account

dropped below the $36,333.93 that Lilley was entitled to receive. As of April 30,

2007, the balance in the trust account dropped to $33,640.84. Though the balance

has fluctuated since that time, due to the deposit and withdrawal of funds

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belonging to other clients and Weiss’s distributions to himself, it has routinely

remained below the amount owed to Lilley. And as of April 29, 2011, the balance

was only $30,296.97.

{¶ 10} Relator sent Weiss a notice of intent to file and a draft copy of the

formal complaint on August 24, 2011. The certified mail was received, and the

return receipt was signed by “Sarah Potts” on August 26, 2011. The formal

complaint was served on October 15, 2011, but Weiss has not filed an answer or

otherwise appeared in this action.

{¶ 11} The master commissioner and board found that Weiss’s conduct

prior to February 1, 2007,2 violated DR 9-102(B)(4) (requiring a lawyer to

promptly pay or deliver funds and property to which a client is entitled) and 1-

102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects

on the lawyer’s fitness to practice law), and that his conduct after that date

violated Prof.Cond.R. 1.15(d) (requiring a lawyer to promptly deliver funds or

other property that the client is entitled to receive), 1.4(a)(4) (requiring a lawyer

to comply as soon as practicable with reasonable requests for information from

the client), 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a

demand for information by a disciplinary authority during an investigation), 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) and

Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate with a disciplinary

investigation). We adopt these findings of fact and misconduct.

2. Relator charged respondent with misconduct under applicable rules for acts occurring before

and after February 1, 2007, the effective date of the Rules of Professional Conduct, which

supersede the Code of Professional Responsibility. When both the former and current rules are

cited for the same act, the allegation constitutes a single ethical violation. Disciplinary Counsel v.

Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d 31, ¶ 1, fn. 1.

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January Term, 2012

Sanction

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

relevant factors, including the ethical duties that the lawyer violated 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. In making a final

determination, we also weigh evidence of 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.

{¶ 13} Weiss has engaged in conduct that adversely reflects on his fitness

to practice law not only by failing to deliver funds that his client is entitled to

receive, but by using dishonesty, fraud, deceit, or misrepresentation to convert a

portion of those funds to his own use. He has also failed to respond to that

client’s reasonable requests for information and failed to cooperate in the ensuing

disciplinary investigation.

{¶ 14} As mitigating factors, the board found that Weiss has no prior

disciplinary record and has been licensed to practice law for more than 40 years.

BCGD Proc.Reg. 10(B)(2)(a). Aggravating factors, however, include Weiss’s

dishonest and selfish motive in using his client trust account as a personal

account, his failure to cooperate in the disciplinary process, the harm to Lilley,

who has been deprived of more than $36,000 of his settlement proceeds for more

than six years, and Weiss’s failure to make restitution. BCGD Proc.Reg.

10(B)(1)(b), (e), (h), and (i).

{¶ 15} Based upon these factors, and citing Disciplinary Counsel v. Smith,

101 Ohio St.3d 27, 2003-Ohio-6623, 800 N.E.2d 1129 (imposing an indefinite

suspension, rather than disbarment, for an attorney who after more than 40 years

of practice, misappropriated client funds, failed to make restitution, and failed to

cooperate in the ensuing disciplinary investigation), the master commissioner and

board adopted relator’s recommendation that Weiss be indefinitely suspended

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from the practice of law and that any future reinstatement be conditioned upon his

payment of restitution. We adopt the board’s recommended sanction.

{¶ 16} Accordingly, Stephen Michael Weiss is indefinitely suspended

from the practice of law in Ohio and is ordered to make restitution of $36,333.93

to Lilley within 30 days of this order. Costs are taxed to Weiss.

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 Karen H. Osmond,

Assistant Disciplinary Counsel, for relator.

______________________

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