Disciplinary Counsel v. Becker

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Becker, Slip Opinion No. 2014-Ohio-3665.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South

Front Street, Columbus, Ohio 43215, of any typographical or other formal

errors in the opinion, in order that corrections may be made before the

opinion is published.

SLIP OPINION NO. 2014-OHIO-3665

DISCIPLINARY COUNSEL v. BECKER.

[Until this opinion appears in the Ohio Official Reports advance sheets,

it may be cited as Disciplinary Counsel v. Becker,

Slip Opinion No. 2014-Ohio-3665.]

Attorneys—Misconduct—Misappropriation of funds entrusted to attorney as

fiduciary of decedent’s estate and as guardian of incompetent person—

Disbarment.

(No. 2013-1257—Submitted January 7, 2014—Decided September 3, 2014.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 2011-116.

____________________

PFEIFER, J.

{¶ 1} Stephen Leslie Becker of Lima, Ohio, Attorney Registration No.

0002829, was admitted to the practice of law in Ohio on November 7, 1975.

Relator, disciplinary counsel, filed a complaint against Becker on December 5,

2011, alleging that Becker had violated the Disciplinary Rules of the Code of

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Professional Responsibility and the Rules of Professional Responsibility.1 The

complaint described a pattern of misconduct in which, over a period of years,

Becker misappropriated funds entrusted to him, primarily to feed his gambling

addiction.

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

Discipline held hearings on the matter in December 2012 and January 2013. The

panel made findings of fact and conclusions of law and recommended that Becker

be permanently disbarred. The board adopted the panel’s report in its entirety.

{¶ 3} Both sides have filed objections in this court. Given the gravity

and duration of the misconduct, the fiduciary duties violated, the harm caused

to vulnerable victims, the multiple aggravating factors, and the sanctions

imposed in similar cases, we adopt the board’s findings of fact and conclusions

of law. We also agree that permanent disbarment is the appropriate sanction.

Misconduct

Count I—Christopher I. Becker Guardianships

{¶ 4} Becker’s nephew, Christopher I. Becker, was born in 1976 and

suffers from severe developmental disabilities. On December 12, 1983, the

Allen County Probate Court appointed Becker guardian of the estate of

Christopher, then still a minor. Becker also prepared and filed a “Fiduciary’s

Acceptance” form, thereby subjecting himself to possible penalties for improper

conversion of the property that he held as fiduciary.

{¶ 5} In November 1990, Becker lent $5,000 to Jack and Cindy

Stevenson, taking a mortgage as security. In July 1991, Robyn Becker,

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Relator charged Becker with misconduct under the applicable Disciplinary Rules of the Code of

Professional Responsibility for acts occurring before February 1, 2007, the effective date of the

Rules of Professional Conduct, which superseded the Disciplinary Rules. Acts occurring thereafter

were charged as violations of the Rules of Professional Conduct.

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Becker’s wife, lent an additional $56,000 to the Stevensons. This loan was

also secured by a mortgage.

{¶ 6} In March 1992, Becker drafted a note for the Stevensons in which

they agreed to repay a loan in the amount of $63,000. The note identified the

lender as Christopher I. Becker. This loan was secured by a mortgage in favor of

Christopher. The Stevensons used the proceeds of this loan to repay Becker and

his wife for the two earlier loans. The loan was not disclosed on the guardian’s

account that Becker filed with the probate court. Two years later, when the

Stevensons repaid the loan, the receipt of the check and the interest earned were

not disclosed to the probate court.

{¶ 7} In September 1994, Christopher was no longer a minor but

remained incompetent. Becker was again appointed guardian of Christopher’s

estate. Becker concedes that he failed to file the guardian’s account as frequently

as the law required and that he concealed his use of guardianship funds, including

$32,152.50 he lent to himself to pay gambling debts. He conceded that this

“loan” was not a proper use of Christopher’s funds.

{¶ 8} In 2002, Becker used guardianship funds to lend $30,800 to his

daughter to help her buy a house. A second mortgage was recorded in Becker’s

favor and not disclosed to the court. Becker conceded that it is not permissible to

use guardianship funds to make a loan secured by a second mortgage.

{¶ 9} In January 2005, the guardianship was terminated because

Christopher had moved to Colorado. Becker was ordered to transmit the

guardianship funds to the Colorado guardian. The final account that Becker filed

in April 2006 indicated that he had distributed in full the remaining balance of

$35,082.75. But Becker admitted that he did not make that distribution. Instead,

he issued a check to Christopher’s father for $17,272.98 in November 2008. The

final account also did not disclose the $30,800 loan to Becker’s daughter.

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{¶ 10} The board found by clear and convincing evidence that Becker’s

conduct regarding Christopher’s guardianships violated DR 1-102(A)(3)

(prohibiting conduct involving moral turpitude), 1-102(A)(4) (prohibiting conduct

involving dishonesty, fraud, deceit, or misrepresentation), 1-102(A)(5)

(prohibiting conduct that is prejudicial to the administration of justice), and 1-

102(A)(6) (prohibiting conduct that adversely reflects on the lawyer’s fitness to

practice law). We adopt the board’s findings of fact and misconduct with respect

to Count I.

Count II—Eileen Binkley joint bank account

{¶ 11} For over 20 years until her death in 2008, Becker helped care for

his elderly aunt, Eileen Binkley. Binkley signed a will bequeathing one-third of

her estate to Becker and a power of attorney granting Becker broad authority to

manage her affairs. In July 2005, Becker opened a joint bank account in his and

Binkley’s name and deposited $20,500 in the account, including a check payable

to Binkley for $18,000. Three more checks totaling $42,000 were deposited in

August 2005—one payable to Binkley for $17,000 and two payable to Becker for

$25,000. In July and August, Becker wrote checks to four different casinos

totaling $37,000. From October to December 2005, Becker withdrew $9,500 in

cash and wrote three more checks to casinos totaling $22,000 and a check for

$25,000 to repay money that he had improperly taken from Christopher.

{¶ 12} In June 2007, Becker deposited a cashier’s check in the amount of

$15,000 drawn from a separate savings account of Binkley’s. On the same day,

Becker signed and endorsed a check for $15,000 payable to himself.

{¶ 13} In June 2008, Becker deposited $65,222.37 of Binkley’s money

into the joint account. Over the next ten days, Becker wrote checks totaling

$62,500 to four casinos.

{¶ 14} Becker was confronted in October 2010 by attorneys from the firm

that employed him, Huffman, Kelley, Becker & Brock, L.L.C. (“the Huffman

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firm”). Becker admitted that he did not have authority to spend Binkley’s money

on his gambling debts. He acknowledged that he had stolen from her and referred

to himself as a thief.

{¶ 15} The board found, by clear and convincing evidence, that Becker

had used the joint account to convert tens of thousands of dollars belonging to his

aunt. The board found that Becker’s conduct violated DR 1-102(A)(3), 1-

102(A)(4), and 102(A)(6) and Prof.Cond.R. 8.4(b) (prohibiting illegal acts that

reflect adversely on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting

conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h)

(prohibiting conduct that adversely reflects on the lawyer’s fitness to practice

law). We adopt the board’s findings of fact and misconduct with respect to Count

II.

Count III—Eileen Binkley estate

{¶ 16} Eileen Binkley, the subject of Count II of the complaint, died on

August 1, 2008, at the age of 91. Her will was admitted to probate, and on

August 6, 2008, Becker filed an application to be appointed executor. The

application was granted, and Becker signed a fiduciary’s acceptance form, thereby

acknowledging that he was subject to penalties for improper conversion of

property that he held as a fidiciary.

{¶ 17} Five days later, Becker issued a check payable to himself for

$27,500 from the estate’s bank account, calling it a “partial distribution” to a

beneficiary, i.e., himself. No other distributions were made at that time. Over the

next four months, Becker made other distributions to himself from the estate

account totaling over $51,000.

{¶ 18} On January 21, 2009, Becker filed an estate inventory and a

memorandum in which he purported to disclose all the property that Binkley had

distributed as gifts before she died, including all money from joint bank accounts.

Notably missing from the list, however, was any mention of the tens of thousands

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of dollars that Becker had distributed to himself from the joint account from 2005

to 2008. Even the existence of the joint account was not disclosed. Becker used

the joint account to hold estate funds, including a deposit in April 2009 of

$96,979.50 from the proceeds of the sale of Binkley’s house. Over the next few

months, Becker wrote several checks on the joint account, including $17,000

payable to casinos and $13,500 payable to cash.

{¶ 19} The “First and Final Fiduciary’s Account” that Becker filed on

January 21, 2010, contained intentionally false and misleading information and

omissions. For instance, Becker failed to disclose the checks written to the

casinos and to cash. The account also falsely stated that final distributions had

been made to other beneficiaries in November 2009. Those distributions were not

made until May 2010 and October 2010, at least in part because the needed funds

were unavailable. When asked at the disciplinary hearing why the funds were not

available, Becker stated, “Because I had gambled the money away.”

{¶ 20} The board found by clear and convincing evidence that Becker’s

conduct regarding Binkley’s estate violated Prof.Cond.R. 8.4(b), 8.4(c), 8.4(d)

(prohibiting conduct that is prejudicial to the administration of justice), and

8.4(h). We adopt the board’s findings of fact and misconduct with respect to

Count III.

Count IV—Funds pertaining to other clients

{¶ 21} The parties stipulated at the hearing that in April 2010, Becker

improperly used for his personal purposes $2,216 that had been given him as

payment for legal services and that should have been reported to and deposited

with the Huffman firm. Becker falsely assured his colleagues that this was a one-

time mistake. Becker received a settlement check for $24,920.48 for client John

Festa, which should have been deposited into the firm’s IOLTA account. Instead,

he deposited the check into an account that he controlled. Becker wrote a check

for $22,040.61 from the account to pay his brother John Becker his share of

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Binkley’s estate. Becker also wrote a check for $2,879.87 payable to himself.

When Becker subsequently paid Festa $16,815.36, he used attorney fees received

from a different client. The board concluded by clear and convincing evidence

that Becker violated Prof.Cond.R. 8.4(c), 8.4(h), and 1.15(a) (a lawyer shall hold

the property of clients in the lawyer’s possession in an IOLTA account).

{¶ 22} Several times Becker received funds for attorney fees that he did

not report to the Huffman firm—$6,230.12 from Festa, $1,200 from Matt

Gossard, $5,000 from Michael Steinke, $2,000 from Joan Clellan, $1,500 from

Brad Longstreth, $650 from Dennis Gardner, and an unidentified amount from

Jessica Wheeler. The board found by clear and convincing evidence that this

dishonesty to his employer in attempting to conceal his diversion of those fees

violated Prof.Cond.R. 8.4(c) and 8.4(h).

{¶ 23} We adopt the board’s findings of fact and misconduct with respect

to Count IV.

Sanction

{¶ 24} “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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio

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

O’Malley, 137 Ohio St.3d 161, 2013-Ohio-4566, 998 N.E.2d 470, ¶ 15.

{¶ 25} The board found several aggravating factors: that Becker acted

with a dishonest and selfish motive, engaged in a pattern of misconduct,

committed multiple offenses, caused harm to vulnerable victims, and failed to

make full restitution. BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (h), and (i). The

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board found one mitigating factor: that Becker had no prior disciplinary record.

BCGD Proc.Reg. 10(B)(2)(a).

{¶ 26} Becker offered no reliable evidence that he suffered from a mental

disability or a chemical dependency when the violation occurred. Accordingly,

we presume that he was healthy and unhindered at those times. Disciplinary

Counsel v. McCord, 121 Ohio St.3d 497, 2009-Ohio-1517, 905 N.E.2d 1182, ¶ 5.

{¶ 27} It is obvious, given how much of the converted and

misappropriated money went to pay casinos, that Becker has a gambling problem.

But Becker has not established all the elements necessary to establish this

condition as a mitigating factor under BCGD Proc.Reg. 10(B)(2)(g). His former

psychologist did testify that Becker was a pathological gambler, but he did not

testify that this disorder caused Becker’s misconduct, BCGD Proc.Reg.

10(B)(2)(g)(ii), or that Becker had undergone a sustained period of successful

treatment, BCGD Proc.Reg. 10(B)(2)(g)(iii). See Stark Cty. Bar Assn. v.

Williams, 137 Ohio St.3d 112, 2013-Ohio-4006, 998 N.E.2d 427, ¶ 23. Becker’s

failure to pursue any kind of consistent help for his problem eliminates this factor

as possible mitigation.

{¶ 28} Becker asserted that he was cooperative and that his

cooperativeness should be a mitigating factor. BCGD Proc.Reg. 10(B)(2)(d).

Relator contended that Becker was uncooperative and that his uncooperativeness

should be an aggravating factor. BCGD Proc.Reg. 10(B)(1)(e). There is nothing

in the record that indicates that Becker was either notably cooperative or

conspicuously uncooperative.

{¶ 29} Becker claims in his objections to the board’s report that he has

accepted full responsibility for his actions and that his acceptance should be a

mitigating factor. We see nothing in the record that suggests that Becker has

accepted full responsibility for his conduct. Becker characterized some of his

misappropriations as “loans” and suggests that calling some of his

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misappropriations “theft” is a matter of semantics. Becker also tried to take credit

for self-reporting even though the record reflects that the self-reporting occurred

only after he had been confronted by his colleagues at the Huffman firm. See

Disciplinary Counsel v. Yajko, 77 Ohio St.3d 385, 388, 674 N.E.2d 684 (1997).

{¶ 30} Becker also objects to the board’s recommendation of disbarment,

citing his otherwise excellent record and his alleged attempts to address his

addiction. But we have consistently stated that “the primary purpose of the

disciplinary process is not to punish the offender but to protect the public from

lawyers who are unworthy of the trust and confidence essential to the attorney-

client relationship.” Cleveland Metro. Bar Assn. v. Lockshin, 125 Ohio St.3d 529,

2010-Ohio-2207, 929 N.E.2d 1028, ¶ 42. In this case, it is obvious that an

extreme sanction is necessary to protect the public. Becker misappropriated

substantial sums that were entrusted to him. As we have stated, “No

circumstances ever justify the deliberate misappropriation of [a] client’s funds for

a lawyer’s personal benefit,” and “the appropriate discipline when a lawyer

knowingly converts client funds is disbarment.” Cleveland Bar Assn. v. Belock,

82 Ohio St.3d 98, 100, 694 N.E.2d 897 (1998); Cuyahoga Cty. Bar Assn. v.

Churilla, 78 Ohio St.3d 348, 350, 678 N.E.2d 515 (1997). Given the extent and

duration of the various misappropriations and the helplessness of some of the

victims (including a disabled nephew and an elderly aunt), we are confident that

disbarment is the appropriate sanction.

{¶ 31} Though gambling was a primary factor in many of the

misappropriations, it is not clear that it was the only factor. Furthermore, there is

no reason to believe that Becker has conquered his gambling problems. He has

not sought regular treatment for his gambling problems. In fact, it appears that he

has not sought any treatment since 2012. This case is therefore unlike Akron Bar

Assn. v. Smithern, 125 Ohio St.3d 72, 2010-Ohio-652, 926 N.E.2d 274. In

Smithern, the respondent acknowledged her addictions, was receiving treatment

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for them, and demonstrated that she could overcome them with continued

treatment. Id. at ¶ 10. There is no reason to think that Becker has control over his

gambling problem.

{¶ 32} After considering the violations committed, the aggravating

factors, the mitigating factor, and all other relevant information, we conclude that

the appropriate sanction is disbarment. Accordingly, Stephen Leslie Becker is

hereby permanently disbarred from the practice of law in Ohio. Costs are taxed to

Becker.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and

O’NEILL, JJ., concur.

____________________

Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant

Disciplinary Counsel, and Robert R. Berger and Karen H. Osmond, Assistant

Disciplinary Counsel, for relator.

Robert K. Leonard Law Offices, L.L.C., and Robert K. Leonard, for

respondent.

_________________________

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