Disciplinary Counsel v. Johnston

[Cite as Disciplinary Counsel v. Johnston, 121 Ohio St.3d 403, 2009-Ohio-1432.]

DISCIPLINARY COUNSEL v. JOHNSTON.

[Cite as Disciplinary Counsel v. Johnston,

121 Ohio St.3d 403, 2009-Ohio-1432.]

Attorneys — Misconduct — Conduct adversely reflecting on fitness to practice

law — Failure to maintain client funds in separate account — One-year

suspension stayed on conditions.

(No. 2008-2447 — Submitted February 4, 2009 — Decided April 2, 2009.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 08-017.

__________________

Per Curiam.

{¶ 1} Respondent, Wesley Alton Johnston of Wadsworth, Ohio,

Attorney Registration No. 0061166, was admitted to the practice of law in Ohio in

1993. The Board of Commissioners on Grievances and Discipline recommends

that we suspend respondent’s license to practice for one year, staying the

suspension on remedial conditions, based on findings that he impermissibly

commingled his personal and client funds by using his client trust account for

operating expenses. We agree that respondent committed this professional

misconduct as found by the board and that a one-year stayed suspension is

appropriate.

{¶ 2} Relator, Disciplinary Counsel, charged respondent in a one-count

complaint with violations of the current Rules of Professional Conduct and the

Disciplinary Rules of the former Code of Professional Responsibility.1 A panel

1. In effect, relator charged respondent with continuing violations of the applicable rules for

misconduct occurring before and after February 1, 2007, the effective date of the Rules of

Professional Responsibility, which supersede the Code of Professional Conduct. In specifying

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appointed by the board heard the case, including the parties’ extensive stipulations

and respondent’s testimony, made findings of misconduct, and recommended an

18-month, conditionally stayed suspension from practice. The board accepted the

findings of misconduct but recommended a conditionally stayed suspension of

one year.

{¶ 3} The parties have not objected to the board’s report.

Misconduct

{¶ 4} Upon passing the bar, respondent worked for approximately one

and one-half years for another attorney and then opened his own practice, mainly

accepting court-appointed juvenile and criminal cases. As of the November 2008

panel hearing, respondent maintained offices in Wadsworth, Youngstown, and

Cleveland. He devoted approximately half of his practice to court-appointed

criminal work but also represented clients in domestic-relations disputes and

Social Security claims, and in cases involving contract and business litigation,

workers’ compensation, and personal injury.

{¶ 5} Soon after opening his solo practice, respondent opened a bank

account for holding client funds in trust, an account he has always maintained.

But because of financial difficulties, respondent eventually started overdrawing

his operating bank account, which led to large bank overdraft charges and other

fees. He then switched to using his client trust account both for entrusted funds

and as his operating account. From January 2006 through October 2007,

respondent admittedly commingled funds in his client trust account by depositing

client funds, personal funds, earned attorney fees, and unearned retainer fees into

the account.

both the former and current rules for the same acts, the allegations compose a single ethical

violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894 N.E.2d

31, fn. 1.

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January Term, 2009

{¶ 6} Respondent made nine deposits that had no relation to any client,

for a total of $3,370.63, into his client trust account during 2006. The bulk of

these deposits came from rent money that respondent had collected for the

landlord from another tenant in his office building. He had deposited other funds

just to avoid overdrawing the account.

{¶ 7} During 2006, respondent cashed 37 checks from the trust account,

withdrawing a total of $12,327.44. He cashed 18 checks from the trust account

during 2007, withdrawing another $6,455. Respondent wrote 44 checks from the

client trust account during 2006 and 2007 to pay personal obligations. He also

routinely made ATM or debit withdrawals and transferred funds from the account

to pay both personal and business creditors. Respondent insists that he had earned

all funds that he withdrew, and relator did not charge that he had misappropriated

any client funds.

{¶ 8} Moreover, respondent overdrew his client trust account during

2006 and 2007. His bank assessed him for either overdraft or insufficient-fund

charges 22 times. The negative balance in respondent’s trust account triggered

the bank’s obligation to report the impropriety to relator, which commenced the

investigation that led to the underlying complaint.

{¶ 9} Respondent ended up bouncing one check to a client, but he

quickly covered the check, paying the client by a certified check that included

associated bank charges. Respondent also did not have an acceptably reliable

recordkeeping system to allow him to account to clients for funds in his

possession.

{¶ 10} Based on the parties’ stipulations, the panel and board found clear

and convincing evidence that respondent had violated DR 1-102(A)(6) and its

counterpart, Prof.Cond.R. 8.4(h) (both prohibiting a lawyer from engaging in

conduct that adversely reflects upon his fitness to practice law); DR 9-102(A) (all

funds of clients paid to a lawyer shall be deposited in one or more identifiable

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bank accounts containing no funds belonging to the lawyer) and its counterpart,

Prof.Cond.R. 1.15(a) (a lawyer shall hold property of clients or third persons that

is in a lawyer’s possession in connection with representation separate from the

lawyer’s own property); and DR 9-102(B)(3) (a lawyer shall maintain complete

records of all funds, securities, and other properties of a client coming into the

possession of a lawyer and render appropriate accounts to his client regarding

them). We accept these findings of misconduct.

Sanction

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

relevant factors, including the duties violated by the lawyer in question 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 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. Because each disciplinary

case is unique, we are not limited to the factors specified in the rule but may take

into account “all relevant factors” in determining what sanction to impose.

BCGD Proc.Reg. 10(B).

{¶ 12} We have already discussed respondent’s violations of duties owed

to his client and the profession. With respect to precedent, the board’s

recommendation of a one-year suspension, all stayed on conditions, is within the

range of sanctions we have imposed in similar cases.

{¶ 13} As the board observed, we suspended the lawyer in Disciplinary

Counsel v. Newcomer, 119 Ohio St.3d 351, 2008-Ohio-4492, 894 N.E.2d 50,

from practice for six months, staying the entire suspension, because he had used

his client trust account for his personal banking needs after the bank closed his

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January Term, 2009

personal account. That lawyer overdrew the client trust account on two

occasions. We found him in violation of DR 1-102(A)(6) and 9-102(A).

{¶ 14} By contrast, the lawyer in Disciplinary Counsel v. Vogtsberger,

119 Ohio St.3d 458, 2008-Ohio-4571, 895 N.E.2d 158, commingled his own

funds with those held in trust for clients to shield the money from creditor

garnishment. Because that lawyer committed the extra impropriety of acting

dishonestly to hide personal resources, a violation of DR 1-102(A)(4), we

suspended him for two years with a stay of only the second year.

{¶ 15} The board found respondent’s misuse of his client trust account of

greater gravity than the misuse in Newcomer but less than the misuse in

Vogtsberger. We agree. Moreover, though respondent engaged in a pattern of

misconduct, an aggravating factor under BCGD Proc.Reg. 10(B)(1)(c), he has

presented much in mitigation. Respondent has no previous record of professional

discipline, has incorporated a new accounting system for his practice, and has

cooperated fully in the disciplinary proceedings, which are all mitigating factors

under BCGD Proc.Reg. 10(B)(2)(a), (c), and (d). Fortunately, no client suffered

significant financial harm due to respondent’s misconduct. Respondent’s good

character and reputation in his community and his charitable work on behalf of

victims of Huntington’s disease, disadvantaged clients, and his church also weigh

in his favor.

{¶ 16} We suspend respondent from the practice of law in Ohio for one

year; however, the suspension is stayed on the condition that he complete a one-

year monitored probation in accordance with Gov.Bar R. V(9). The monitoring

attorney, to be appointed by relator, shall provide oversight as to respondent’s

business practices, especially as they relate to management of his client trust

account. As a second condition of the stay, respondent shall complete, in addition

to the other continuing legal education (“CLE”) requirements under Gov.Bar. R.

X, six hours of CLE in law-office management and accounting. If respondent

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fails to comply with the terms of the stay and probation, the stay will be lifted,

and he will serve the entire one-year suspension.

{¶ 17} Costs are taxed to respondent.

Judgment accordingly.

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

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

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Stacey Solocheck

Beckman, Assistant Disciplinary Counsel, for relator.

Paul Knott, for respondent.

______________________

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