Cincinnati Bar Assn. v. Helbling

[Cite as Cincinnati Bar Assn. v. Helbling, 124 Ohio St.3d 510, 2010-Ohio-955.]

CINCINNATI BAR ASSOCIATION v. HELBLING.

[Cite as Cincinnati Bar Assn. v. Helbling,

124 Ohio St.3d 510, 2010-Ohio-955.]

Attorneys at law — Misconduct — Safekeeping of funds and property — Consent-

to-discipline agreement — Public reprimand.

(No. 2009-2264 — Submitted January 13, 2010 — Decided March 18, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-047.

__________________

Per Curiam.

{¶ 1} Respondent, John Joseph Helbling of Cincinnati, Ohio, Attorney

Registration No. 0046727, was admitted to the practice of law in Ohio in 1990.

{¶ 2} On June 15, 2009, relator, Cincinnati Bar Association, filed a

complaint charging respondent with four violations of Prof.Cond.R. 1.15

regarding the safekeeping of funds and property after respondent allegedly

overdrew his Interest on Lawyers’ Trust Accounts (“IOLTA”) account.

{¶ 3} The parties entered into a 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.”). The Board of Commissioners on Grievances and

Discipline adopted the agreement of the parties, including the stipulated facts,

violations, and sanction. Based upon its findings that respondent committed four

violations of Prof.Cond.R. 1.15, including single violations of 1.15(a)(2)(iv) and

1.15(a)(3)(ii) and two violations of 1.15(c), the board recommends that we

publicly reprimand respondent. On review, we adopt the board’s findings of

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misconduct and hold that a public reprimand is appropriate for respondent’s

violations of the Rules of Professional Conduct.

Misconduct

{¶ 4} The stipulated facts of this case show that on July 1, 2008,

respondent received two checks totaling $1,790.92 from a client (“client one”) to

cover court reporting costs owed to Litigation Support Services. Respondent

deposited both checks into his IOLTA account on or about July 10, 2008, and on

July 14, 2008, he issued a check for $1,790.92 to Litigation Support Services on

behalf of client one.

{¶ 5} Between July 14 and July 31, 2008, respondent made several

online transfers from his IOLTA account to his business account and drew one

check on the IOLTA account for a separate client matter. On August 6, 2009,

respondent transferred an additional $3,000 from his IOLTA account to his

business account for “fees earned,” leaving a balance of $556.30 in the IOLTA

account. At the time respondent made that transfer, the $1,790.92 check to

Litigation Support Services had not yet been presented to the bank for payment.

When Litigation Support Services deposited its check on August 6, 2008,

respondent’s bank returned the check for insufficient funds. Therefore, it is clear

that respondent failed to maintain a proper accounting of which client’s monies he

withdrew as he paid himself.

{¶ 6} The next day, respondent deposited a second client’s $1,500

retainer to his IOLTA account. This deposit permitted the Litigation Support

Services check to clear. But even assuming that the entire IOLTA account

balance of $556.30 belonged to client one, $1,234.62 of the payment to Litigation

Support Services came from funds belonging to a second, unrelated client.

{¶ 7} In the consent-to-discipline agreement, respondent admits that he

(1) violated Prof.Cond.R. 1.15(a)(2)(iv) by failing to maintain a record of client

one’s current balance and outstanding checks, (2) violated Prof.Cond.R.

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1.15(a)(3)(ii) by failing to maintain a record of which client’s funds were affected

by each IOLTA account credit and debit, (3) violated Prof.Cond.R. 1.15(c) by

failing to maintain $1,790.92, advanced by client one for litigation expenses, in

his IOLTA account, and (4) violated Prof.Cond.R. 1.15(c) by causing a portion of

a $1,500 IOLTA account deposit belonging to a second client to be misapplied to

cover an overdraft.

Sanction

{¶ 8} Neither the parties nor the board has identified any aggravating

factors. See BCGD Proc.Reg. 10(B)(1). The parties have stipulated to the

following mitigating factors: (1) respondent’s absence of any prior disciplinary

history, (2) his cooperative attitude and full and free disclosure to the board, and

(3) his actions in immediately funding his IOLTA account from his personal

funds once he receive notice of the overdraft. See BCGD Proc.Reg. 10(B)(2)(a),

(c), and (d).

{¶ 9} We have previously imposed public reprimands for conduct similar

to that of respondent. See, e.g., Medina Cty. Bar Assn. v. Piszczek, 115 Ohio

St.3d 228, 2007-Ohio-4946, 874 N.E.2d 783 (public reprimand for failure to

properly oversee IOLTA account given lack of aggravating factors and mitigating

factors, including that attorney made timely and good-faith restitution, reconciled

all account irregularities, and gave free and full disclosure for purposes of

disciplinary proceedings); Akron Bar Assn. v. Holda, 111 Ohio St.3d 418, 2006-

Ohio-5860, 856 N.E.2d 973 (public reprimand for failure to keep retainer in a

separate, identifiable bank account and neglect of divorce action where there were

no aggravating factors and several mitigating factors, including the absence of any

prior disciplinary proceedings against attorney and lack of dishonesty or

selfishness).

{¶ 10} Therefore, on the board’s recommendation, we accept the consent-

to-discipline agreement. For violations of Prof.Cond.R. 1.15(a)(2)(iv),

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1.15(a)(3)(ii), and 1.15(c), we hereby order that respondent be publicly

reprimanded. Costs are taxed to respondent.

Judgment accordingly.

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

O’DONNELL, LANZINGER, and CUPP, JJ., concur.

__________________

W. Breck Weigel and Jarrod M. Mohler, for relator.

John J. Helbling, pro se.

______________________

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