Disciplinary Counsel v. Simon-Seymour

[Cite as Disciplinary Counsel v. Simon-Seymour, 131 Ohio St.3d 161, 2012-Ohio-114.]

DISCIPLINARY COUNSEL v. SIMON-SEYMOUR.

[Cite as Disciplinary Counsel v. Simon-Seymour,

131 Ohio St.3d 161, 2012-Ohio-114.]

Attorneys at law—Numerous violations of the Rules of Professional Conduct—

Two-year license suspension, partially stayed.

(No. 2011-1406—Submitted September 7, 2011—Decided January 19, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-016.

__________________

Per Curiam.

{¶ 1} Respondent, Christine M. Simon-Seymour of Chardon, Ohio,

Attorney Registration No. 0043828, was admitted to the practice of law in Ohio in

1990. On January 31, 2011, relator, Disciplinary Counsel, charged respondent

with multiple violations of the Code of Professional Responsibility and the Rules

of Professional Conduct1 arising from her representation of a decedent’s estate

and her mishandling of the assets of that estate.

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

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

See Section 11 of the Rules and Regulations Governing Procedure on Complaints

and Hearings Before the Board of Commissioners on Grievances and Discipline

(“BCGD Proc.Reg.”). They recommend that we adopt the consent-to-discipline

1. 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 Disciplinary Rules of the Code of Professional Responsibility. Although both the

former and current rules are cited for the same acts, the allegations comprise a single continuing

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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agreement and impose the parties’ agreed sanction of a two-year suspension from

the practice of law with six months stayed on conditions, based upon Simon-

Seymour’s admission that she neglected a decedent’s estate, failed to maintain

adequate records of estate and other funds held in her client trust account,

misappropriated estate funds, failed to promptly deliver funds that a client was

entitled to receive, engaged in conduct involving dishonesty, fraud, deceit, or

misrepresentation, and engaged in conduct that adversely reflects on her fitness to

practice law by knowingly making false statements to the probate court.

Misconduct

{¶ 3} The stipulated facts show that in February 2006, Teresa Kinat

hired Simon-Seymour to probate her husband’s estate. Kinat was appointed

administrator of the estate. Rather than having Kinat open a checking account for

the estate, Simon-Seymour deposited substantial estate funds into her client trust

account. Although respondent used the funds to pay some of the estate’s debts,

she also withdrew $2,603.14 for her attorney fees without probate court approval

and misappropriated estate funds for her own purposes or the purposes of others.

Simon-Seymour’s misappropriation of the estate funds endured for years, and at

one point, her client trust account was overdrawn when it should have contained

more than $17,000 in estate funds.

{¶ 4} Not only did Simon-Seymour misappropriate estate funds, she also

falsely represented to the probate court that she had made disbursements to pay

certain estate obligations, when in fact, she had not paid those debts. Despite

Kinat’s repeated requests, Simon-Seymour would not provide any proof that the

debts had been paid. She also took more than a year to transfer the title of a truck

owned by the decedent to his widow.

{¶ 5} Kinat filed a grievance against Simon-Seymour in February 2010

and terminated Simon-Seymour’s representation the next month. In June 2010,

Simon-Seymour issued a check for $6,872.30 to Kinat—$1,113.87 more than the

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balance of the estate funds for which she was unable to account. Although Kinat

deposited the check into her bank account on December 18, 2010, the funds did

not become available until January 21, 2011. Respondent admits that she never

provided Kinat with an accurate accounting for the estate and that she has not

maintained client ledgers detailing the funds held in her client trust account or

performed a monthly reconciliation of her client trust account since February 1,

2007.

{¶ 6} The parties stipulate that Simon-Seymour’s conduct violated

Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in

representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably

informed about the status of a matter), 1.4(a)(4) (requiring a lawyer to comply as

soon as practicable with reasonable requests for information from the client),

1.15(a) (requiring a lawyer to hold property of clients in an interest-bearing client

trust account 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),

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), 1.15(d) (requiring a lawyer to

promptly deliver funds or other property that the client is entitled to receive and

render promptly upon request a full accounting of funds or property in which a

client or third party has an interest), 3.3(a)(1) (prohibiting a lawyer from

knowingly making a false statement of fact or law to a tribunal), DR 1-102(A)(4)

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

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

and Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that

adversely reflects on the lawyer's fitness to practice law).

{¶ 7} We adopt the parties’ stipulations of fact and misconduct in their

entirety.

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Sanction

{¶ 8} The board recommends that we adopt the parties’ stipulated

sanction of a two-year suspension from the practice of law, with six months

stayed on the conditions that Simon-Seymour complete five hours of continuing

legal education (“CLE”) on the management of trust accounts and that she

commit no further misconduct.

{¶ 9} The parties stipulate that the absence of a disciplinary record,

Simon-Seymour’s full and free disclosure during relator’s investigation, and her

cooperative attitude toward the disciplinary proceedings should be accorded

mitigating effect. See BCGD Proc.Reg. 10(B)(2)(a) and (d). We also observe

that respondent has made more than full restitution to Kinat, although she did not

do so until after relator had initiated his investigation. See BCGD Proc.Reg.

10(B)(2)(c). The parties have not stipulated to, and the board has not found, any

aggravating factors, although we find that Simon-Seymour has engaged in a

pattern of misconduct by failing to follow required accounting procedures for her

client trust account and by misappropriating client funds over a period of several

years. See BCGD Proc.Reg. 10(B)(1)(c) and (d).

{¶ 10} We find that the parties’ stipulated sanction is within the range of

sanctions that that we have previously imposed for comparable misconduct. In

Disciplinary Counsel v. Blair, 128 Ohio St.3d 384, 2011-Ohio-767, 944 N.E.2d

1161, we considered an attorney who had mishandled and misappropriated almost

$17,000 in funds belonging to her incompetent ward and who had failed to

properly supervise her employees, resulting in the filing of a false guardian

account and a forged affidavit. Like Simon-Seymour, Blair had no prior

disciplinary record, had made a full and free disclosure to the board, and had

demonstrated a cooperative attitude toward the disciplinary proceeding. Id. at

¶ 15. Blair submitted evidence of her positive reputation in the legal community,

as well as her diagnosed alcohol dependence and depression, though she did not

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establish that those conditions were causally related to her misconduct. Id. at

¶ 15, 17. We imposed a two-year suspension with 18 months stayed on the

conditions that she serve 18 months of monitored probation in accordance with

Gov.Bar R. V(9), remain in compliance with her Ohio Lawyers Assistance

Program contract, continue to receive both alcohol and mental-health counseling,

complete 12 hours of CLE in law-office management in addition to the CLE

requirements of Gov.Bar R. X, and commit no further misconduct. Id. at ¶ 21.

{¶ 11} And in Cleveland Metro. Bar Assn. v. Gresley, 127 Ohio St.3d

430, 2010-Ohio-6208, 940 N.E.2d 945, the attorney had accepted fees from ten

clients, failed to perform the agreed legal work, and then failed to cooperate in the

ensuing disciplinary investigation. We imposed a two-year suspension, with six

months stayed on the conditions that he account to the affected clients for the fees

paid to him, make full restitution to the affected clients for unearned fees, and

return to his clients all files and other materials to which they were entitled. Id. at

¶ 27.

{¶ 12} On the board’s recommendation, and having considered Simon-

Seymour’s misconduct, the aggravating and mitigating factors set forth in BCGD

Proc.Reg. 10(B), and the sanctions imposed for similar misconduct, we adopt the

parties’ consent-to-discipline agreement. Simon-Seymour is hereby suspended

from the practice of law for two years, with the final six months stayed on the

conditions that she complete five hours of CLE on the management of trust

accounts and that she commit no further misconduct. If Simon-Seymour fails to

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

the full two-year suspension. Costs are taxed to Simon-Seymour.

Judgment accordingly.

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

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

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

Disciplinary Counsel, for relator.

Abraham Cantor, for respondent.

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