Cincinnati Bar Assn. v. Trainor

[Cite as Cincinnati Bar Assn. v. Trainor, 129 Ohio St.3d 100, 2011-Ohio-2645.]

CINCINNATI BAR ASSN. v. TRAINOR.

[Cite as Cincinnati Bar Assn. v. Trainor,

129 Ohio St.3d 100, 2011-Ohio-2645.]

Attorneys at law — Repeated misconduct — Partially stayed license suspension.

(No. 2010-1894 — Submitted February 15, 2011 — Decided June 7, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-023.

__________________

Per Curiam.

{¶ 1} Respondent, Robert N. Trainor of Covington, Kentucky, Attorney

Registration No. 0012089, was admitted to the practice of law in Ohio in 1978.

He is also admitted to the practice of law in Kentucky. On February 8, 2010,

relator, Cincinnati Bar Association, filed a complaint charging respondent with

professional misconduct for failing to notify a client at the time of the client’s

engagement that he did not carry malpractice insurance and for failing to

promptly return funds that the client was entitled to receive.

{¶ 2} Respondent has been sanctioned twice by this court for violations

of the Code of Professional Conduct. In July 2003, we imposed a conditionally

stayed six-month suspension for failing to properly account for and preserve the

identity of his client's funds in violation of DR 9-102(A) (requiring a lawyer to

preserve the identity of client funds) and (B) (requiring a lawyer to maintain

complete records of and appropriately account for client funds). Cincinnati Bar

Assn. v. Trainor, 99 Ohio St.3d 318, 2003-Ohio-3634, 791 N.E.2d 972, ¶ 6. And

in August 2006, we publicly reprimanded respondent for failing to properly notify

his clients that he did not carry malpractice insurance. Cincinnati Bar Assn. v.

Trainor, 110 Ohio St.3d 141, 2006-Ohio-3825, 851 N.E.2d 505, ¶ 9. During the

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pendency of the current proceeding, we also imposed a 30-day reciprocal stayed

suspension after respondent was sanctioned by the Supreme Court of Kentucky

for missing a statute-of-limitations deadline and failing to maintain adequate

professional-liability insurance. Disciplinary Counsel v. Trainor, 126 Ohio St.3d

1249, 2010-Ohio-5102, 935 N.E.2d 422; Trainor v. Kentucky Bar Assn.

(Ky.2010), 311 S.W.3d 719, 722.

{¶ 3} The parties submitted stipulations of fact and misconduct, and

respondent testified at the disciplinary hearing. In light of respondent’s prior

disciplinary violations, two of which involve respondent’s failure to maintain

professional-liability insurance or his failure to inform his client’s of his

uninsured status, the board recommends that we suspend respondent for 24

months, with 18 months stayed on conditions. We adopt the board’s findings of

fact, conclusions of law, and recommended sanction.

Misconduct

{¶ 4} The stipulated facts and testimony demonstrate that in October

2005, a woman retained respondent to represent her in a civil action against her

homeowner’s insurer. Respondent did not carry professional-liability insurance

then and failed to advise the client of that fact. The following month, he sent the

client a letter disclosing that he did not carry professional-liability insurance and

requesting that she sign an acknowledgement, but she never did.

{¶ 5} Respondent tried the client’s case and obtained a favorable result.

In April 2009, the month after respondent had distributed the proceeds of the

action less his attorney fees, the client discovered that the clerk of courts had

issued a check to respondent refunding her $225 filing fee. Respondent did not

respond to the client’s calls requesting the return of those funds. She testified,

however, that she eventually spoke with respondent, who advised her that he

would check into the matter. And when the client called again, respondent

advised her that the funds were due to him for additional work he had performed

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in the case. In July, after the client filed a grievance with relator, respondent

returned the $225 to her.

{¶ 6} The parties stipulated that respondent’s conduct violated

Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client, in a writing signed by

the client, if the lawyer does not maintain professional-liability insurance), and

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

client is entitled to receive). The board, however, observed that respondent’s

conduct relating to his lack of malpractice insurance preceded the February 1,

2007 effective date of the Ohio Rules of Professional Conduct. Therefore, the

board found that respondent’s conduct in that regard violated DR 1-104(A) of the

Code of Professional Responsibility, which likewise required a lawyer to disclose

to the client, in a writing signed by the client, that the lawyer lacked professional-

liability insurance. We adopt these findings of fact and misconduct.

Sanction

{¶ 7} 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 Section 10(B) of the Rules and Regulations Governing Procedure on

Complaints and Hearings Before the Board of Commissioners on Grievances and

Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

{¶ 8} As aggravating factors, the board found that this is the third time in

seven years that respondent has faced disciplinary action, that he had a selfish and

dishonest motive, and that he has engaged in a pattern of misconduct involving

multiple offenses for failing to maintain professional-liability insurance or to

inform his clients of his uninsured status and for his handling of client funds. See

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BCGD Proc.Reg. 10(B)(1)(a), (b), (c), and (d). The board also found that

respondent’s current method of informing clients of his insurance status — telling

them verbally at the initial interview, later sending written waivers for his clients

to sign, and continuing to represent the clients even if they do not sign and return

the waiver — does not comply with Prof.Cond.R. 1.4(c). The board found that

his conduct was an aggravating factor. See BCGD Proc.Reg. 10(B).

{¶ 9} As mitigating factors, the board found that respondent has made

restitution, albeit untimely, has been cooperative through these disciplinary

proceedings, has acknowledged the wrongful nature of his conduct, and has

otherwise made full disclosure to relator and the board. See BCGD Proc.Reg.

10(B)(2)(c) and (d).

{¶ 10} We have imposed public reprimands for similar misconduct. See,

e.g., Butler Cty. Bar Assn. v. Matejkovic, 121 Ohio St.3d 266, 2009-Ohio-776,

903 N.E.2d 633 (imposing a public reprimand for an attorney’s failure to deposit

unearned funds into a client trust account and failure to advise clients that he did

not carry malpractice insurance); Cuyahoga Cty. Bar Assn. v. Jackson, 120 Ohio

St.3d 173, 2008-Ohio-5378, 897 N.E.2d 151 (imposing a public reprimand for an

attorney’s failure to account to a client for his time, fees, and expenses and failure

to apprise that client that he did not maintain malpractice insurance). Based upon

respondent’s history of similar disciplinary violations, however, the board

recommends that we suspend respondent from the practice of law in Ohio for 24

months, with 18 months stayed on the condition that he complete 18 months of

probation and be monitored by an attorney appointed by relator in accordance

with Gov.Bar R. V(9)(B). We adopt the board’s recommended sanction.

{¶ 11} Accordingly, Robert N. Trainor is suspended from the practice of

law in Ohio for 24 months, with the last 18 months stayed on the conditions that

he complete 18 months of probation and be monitored by an attorney appointed

by relator in accordance with Gov.Bar R. V(9)(B), and that he commit no further

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misconduct. The appointed monitor shall ensure that respondent either maintains

professional-liability insurance in an amount that conforms with the Ohio Rules

of Professional Conduct or informs his clients, in a writing signed by the client,

that he does not maintain such insurance, and that he complies with the

requirements of Prof.Cond.R. 1.15 regarding the safekeeping of funds and

property. If respondent fails to comply with these conditions, the stay will be

lifted, and he will serve the full 24-month suspension. Costs are taxed to

respondent.

Judgment accordingly.

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

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

__________________

Paul M. Laufman, for relator.

Robert N. Trainor, pro se.

__________________

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