Disciplinary Counsel v. Stubbs

[Cite as Disciplinary Counsel v. Stubbs, 128 Ohio St.3d 344, 2011-Ohio-553.]

DISCIPLINARY COUNSEL v. STUBBS.

[Cite as Disciplinary Counsel v. Stubbs, 128 Ohio St.3d 344, 2011-Ohio-553.]

Attorneys — Misconduct — Failure to properly maintain and use a client trust

account — Failure to cooperate in a disciplinary investigation — Failure

to pay client expense from settlement proceeds as agreed — Indefinite

suspension.

(No. 2010-1803 — Submitted January 4, 2011 — Decided February 15, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-009.

__________________

Per Curiam.

{¶ 1} Respondent, SaKeya MonCheree Stubbs of Columbus, Ohio,

Attorney Registration No. 0071309, was admitted to the practice of law in Ohio in

1999.

{¶ 2} On May 14, 2010, relator, Disciplinary Counsel, filed an amended

five-count complaint charging respondent with professional misconduct arising

from her alleged misuse of her client trust account, failure to maintain adequate

records of client funds held in her trust account, failure to pay certain client

expenses from settlement proceeds as agreed, and failure to respond to the

resulting disciplinary investigations.

{¶ 3} Relator attempted to serve respondent with a copy of its amended

complaint by certified mail at her office address, but the postal service returned

that mailing unclaimed. A second certified mailing to a new address provided by

the postal service was also returned unclaimed. On July 26, 2010, the clerk of the

Supreme Court of Ohio accepted service on respondent’s behalf, in accordance

with Gov.Bar R. V(11)(B). Respondent did not answer the complaint or

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otherwise appear in the proceeding, and relator moved for default pursuant to

Gov.Bar R. V(6)(F).

{¶ 4} A master commissioner appointed by the Board of Commissioners

on Grievances and Discipline granted relator’s motion, making findings of fact

and misconduct and recommending that respondent be indefinitely suspended

from the practice of law and directed to make restitution to her client. The board

adopted the master commissioner’s report in its entirety. For the reasons that

follow, we accept these findings of fact and misconduct, adopt the board’s

recommendation, indefinitely suspend respondent from the practice of law in

Ohio, and order her to pay restitution to the affected client.

Misconduct

{¶ 5} The master commissioner found that in November 2008, relator

attempted to communicate with respondent regarding overdrafts on her client trust

account. Although several letters were delivered to respondent’s office via

certified mail and personal service, respondent did not respond. She missed a

scheduled deposition, even though a subpoena for her appearance had been

delivered to her secretary. Although she later appeared and testified, she did not

provide all the documents that she was ordered to produce, including her client

ledgers, canceled checks, and her trust account check register. She admitted that

she had failed to maintain accurate records for her trust account, that she had

deposited earned fees and payments for court-appointed cases into that account,

and that she had used the account to pay personal and office expenses. The record

further demonstrates that her trust account was overdrawn or checks were

returned for insufficient funds at least 17 times from October 2008 to August

2009.

{¶ 6} The master commissioner also found that after settling a client’s

personal-injury claim in February 2009, respondent agreed to pay certain of the

client’s medical bills from the settlement funds. She retained $5,489 of the

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settlement proceeds to pay those bills but later advised the client that she had used

the money to pay her own bills. Although she promised to return the money to

the client by January 4, 2010, she did not do so. She also failed to respond to

relator’s investigation of the client’s grievance.

{¶ 7} Based upon these facts, the master commissioner concluded that

respondent’s conduct with respect to the management of her client trust account

violated Prof.Cond.R. 1.15(a)(2) (requiring a lawyer to maintain a record for each

client on whose behalf funds are held) and (a)(3) (requiring a lawyer to maintain a

record for the lawyer’s client trust account setting forth the name of the account,

the date, amount, and client affected by each credit and debit, and the balance in

the account), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is

prejudicial to the administration of justice) and (h) (prohibiting a lawyer from

engaging in conduct that adversely reflects on the lawyer's fitness to practice law).

Her handling of her client settlement proceeds violated Prof.Cond.R. 1.15(d)

(requiring a lawyer to promptly deliver funds or other property that the client is

entitled to receive) and 8.4(c) (prohibiting a lawyer from engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation), (d), and (h).

Respondent’s failure to cooperate in each of the resulting investigations also

violated Prof.Cond.R. 8.4(d) and (h) as well as Gov.Bar R. V(4)(G) (requiring a

lawyer to cooperate with a disciplinary investigation).

{¶ 8} Citing a lack of clear and convincing evidence, the master

commissioner made no findings regarding allegations that respondent had

engaged in improper fee sharing or that she had failed to pay the medical

expenses of other clients.

{¶ 9} The board accepted the master commissioner’s findings of fact and

misconduct and dismissed the allegations that were not supported by clear and

convincing evidence. See Gov.Bar R. V(6)(K). We also accept these findings.

Sanction

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{¶ 10} In recommending that we indefinitely suspend respondent from the

practice of law in Ohio, the master commissioner and board considered the

aggravating and mitigating factors of respondent’s case. See BCGD Proc.Reg.

10(B). They cited as aggravating factors respondent’s prior disciplinary history,

including a six-month stayed suspension and one year of monitored probation,

which had been imposed after respondent had falsified a document in an attempt

to convince the Ohio Bureau of Motor Vehicles that she had been properly

insured at the time she had received a traffic citation, and two separate attorney-

registration suspensions. See BCGD Proc.Reg. 10(B)(1)(a); Columbus Bar Assn.

v. Stubbs, 109 Ohio St.3d 446, 2006-Ohio-2818, 848 N.E.2d 843; In re Attorney

Registration Suspension of Stubbs, 116 Ohio St.3d 1420, 2007-Ohio-6463, 877

N.E.2d 305; In re Attorney Registration Suspension of Stubbs, 123 Ohio St.3d

1475, 2009-Ohio-5786, 915 N.E.2d 1256. They also found that she had engaged

in a pattern of misconduct involving multiple offenses, failed to cooperate in the

disciplinary process, caused harm to a vulnerable client, and failed to make

restitution to that client. See BCGD Proc.Reg. 10(B)(1)(c), (d), (e), (h), and (i).

Although the master commissioner and board acknowledged respondent’s

previous participation in the Ohio Lawyers Assistance Program, they observed

that she was no longer an active participant in the program and had produced no

evidence that she suffered from a mental disability. Therefore, they found that no

mitigating factors were present. See BCGD Proc.Reg. 10(B)(2).

{¶ 11} Respondent has breached her duties to her clients, the public, and

the legal profession by failing to maintain accurate records of the funds held in

her client trust account, failing to promptly deliver funds that a client was entitled

to receive, and failing to cooperate in the disciplinary process. We have

previously recognized that an indefinite suspension is an appropriate sanction for

a lawyer who has failed to maintain accurate records of the funds held in her

client trust account, failed to promptly deliver funds that a client is entitled to

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January Term, 2011

receive, failed to provide diligent and competent legal representation to her

clients, and failed to cooperate in the resulting disciplinary investigation. See

Columbus Bar Assn. v. Torian, 106 Ohio St.3d 14, 2005-Ohio-3216, 829 N.E.2d

1210, at ¶ 17.

{¶ 12} Having reviewed the record, weighed the aggravating and

mitigating factors, and considered the sanctions imposed for comparable conduct,

we agree that an indefinite suspension is the appropriate sanction in this case.

{¶ 13} Accordingly, SaKeya MonCheree Stubbs is indefinitely suspended

from the practice of law in the state of Ohio, and any petition for reinstatement is

must include proof that she has paid restitution to the affected client. Costs are

taxed to respondent.

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 Robert R. Berger, Senior

Assistant Disciplinary Counsel, for relator.

______________________

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