Mahoning County Bar Association v. Gerchak

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

Mahoning Cty. Bar Assn. v. Gerchak, Slip Opinion No. 2015-Ohio-4305.]

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. 2015-OHIO-4305

MAHONING COUNTY BAR ASSOCIATION v. GERCHAK.

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

may be cited as Mahoning Cty. Bar Assn. v. Gerchak, Slip Opinion No.

2015-Ohio-4305.]

Attorneys—Misconduct—Failure to communicate basis of fee—Failure to hold

client funds in client trust account—Failure to deposit pre-paid legal fees

in client trust account—Two-year suspension, stayed on conditions—Two-

year probationary period.

(No. 2015-0290—Submitted April 14, 2015—Decided October 20, 2015.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2014-061.

_______________________

Per Curiam.

{¶ 1} Respondent, David John Gerchak of Youngstown, Ohio, Attorney

Registration No. 0069060, was admitted to the practice of law in Ohio in 1998. On

May 24, 2007, we suspended him for failure to complete continuing-legal-

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education requirements, In re Continuing Legal Edn. Suspension of Gerchak, 113

Ohio St.3d 1522, 2007-Ohio-2487, 866 N.E.2d 1095, and in 2011 we suspended

him for one year for violating Prof.Cond.R. 8.4(c) and (d), with the entire

suspension stayed on the conditions that he comply with the terms of a three-year

Ohio Lawyers Assistance Program contract and commit no further misconduct,

Disciplinary Counsel v. Gerchak, 130 Ohio St.3d 143, 2011-Ohio-5075, 956

N.E.2d 292.

{¶ 2} On September 3, 2014, a probable-cause panel of the Board of

Commissioners on Grievances and Discipline1 certified to the board a complaint

filed by relator, Mahoning County Bar Association, against Gerchak. In that

complaint, relator alleged that Gerchak had committed multiple ethical violations

regarding his recordkeeping in the representation of a criminal defendant.

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

aggravating and mitigating factors and agreed that a two-year suspension, fully

stayed on conditions, is the appropriate sanction for Gerchak’s violation of three

Rules of Professional Conduct. The parties agreed that the charges regarding two

additional alleged rule violations should be dismissed.

{¶ 4} A panel of the board conducted a hearing at which it received the

parties’ stipulations of fact, stipulated exhibits, and stipulations as to the

misconduct. At the hearing, Gerchak was the sole witness, addressing mostly

mitigation. The panel adopted the parties’ agreed sanctions, including a two-year

probation period during which Gerchak would be required to work with a

monitoring attorney, obtain a minimum of three hours of continuing legal education

in law-office management, pay the costs of the proceeding, and commit no further

misconduct. The board adopted the findings of fact, conclusions of law, and

1

Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been

renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII.

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January Term, 2015

recommendation of the panel. We adopt the board’s findings, conclusions, and

recommended sanction.

Misconduct

{¶ 5} In the spring of 2008, Jeff Blanche retained Gerchak to represent him

in a matter in which he was charged with four counts of assaulting a police officer.

He entered a plea and was sentenced to three years of community control with

conditions. Blanche later sought to have his conviction expunged or sealed, but

Gerchak advised him that his sole avenue of recourse was a gubernatorial pardon.

Gerchak gave Blanche a form to obtain fingerprints for a criminal-history check

and instructions to collect information to pursue the pardon. Blanche never

returned the fingerprint card, even after he had been given a second one. Blanche

paid Gerchak $750 to pursue the pardon, but Gerchak did not deposit the funds in

his client trust account.

{¶ 6} In November 2012, Blanche retained Gerchak to represent him

regarding charges of operating a vehicle while impaired (“OVI”). Because Gerchak

had not pursued the earlier pardon matter, he and Blanche agreed that the previously

paid $750 would be applied to the representation regarding the OVI arrest. Blanche

made multiple additional payments, bringing the total he paid Gerchak to $1,400.

Gerchak deposited none of the payments in his client trust account. Gerchak did

not have a written fee agreement for the OVI case, nor did he provide Blanche with

a monthly statement detailing the time spent, funds disbursed, or funds remaining.

{¶ 7} The parties stipulated and the board found that Gerchak’s conduct

violated Prof.Cond.R. 1.5(b) (requiring an attorney to communicate the nature and

scope of the representation and the basis or rate of the fee and expenses within a

reasonable time after commencing the representation), 1.15(a) (requiring a lawyer

to hold property of clients in an interest-bearing client trust account, separate from

the lawyer’s own property), and 1.15(c) (requiring a lawyer to deposit into a client

trust account legal fees and expenses that have been paid in advance). The parties

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and the board also recommend that the remaining alleged violations be dismissed.

We adopt the board’s findings of fact and misconduct.

Sanction

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

relevant factors, including the ethical duties 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. We also weigh evidence of the aggravating

and mitigating factors listed in Gov.Bar R. V(13).

{¶ 9} The parties stipulated and the board found as an aggravating factor

that Gerchak had prior disciplinary offenses. See Gov.Bar R. V(13)(B)(1). As

mitigating factors, the parties stipulated and the board found that Gerchak has

demonstrated the absence of a dishonest or selfish motive, that he has made full and

free disclosure and demonstrated a cooperative attitude toward the disciplinary

proceedings, and that he has presented evidence of his good character and

reputation apart from the charged misconduct. See Gov.Bar R. V(13)(C)(2), (4),

and (5). Upon the panel’s recommendation, the board also found as mitigating

factors Gerchak’s acknowledgment of wrongdoing and full reimbursement of fees

paid, even though some work was performed on the case. The board also found

that Gerchak acknowledged a need for and was receptive to mentoring.

{¶ 10} The parties jointly recommended that Gerchak be suspended for two

years, all stayed on conditions. The board considered sanctions imposed in three

cases that involved similar facts and violations: Akron Bar Assn. v. Tomer, 138

Ohio St.3d 302, 2013-Ohio-5494, 6 N.E.3d 1133 (attorney suspended for two years,

stayed on conditions, for violations of Prof.Cond.R. 1.3, 1.4(a)(2), 1.4(c), 1.15, and

8.4(c) that included client-trust-account improprieties; the attorney had no prior

discipline, and the aggravating factors included multiple offenses and submission

of fraudulent evidence during the disciplinary process), Disciplinary Counsel v.

Dockry, 133 Ohio St.3d 527, 2012-Ohio-5014, 979 N.E.2d 313 (attorney received

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January Term, 2015

one-year suspension, stayed on conditions, for multiple violations of Prof.Cond.R.

1.15(a), 1.15(a)(2), 1.15(a)(5), 8.4(c), and 8.4(h); numerous mitigating factors were

significant to the ultimate sanction), and Disciplinary Counsel v. Doellman, 127

Ohio St.3d 411, 2010-Ohio-5990, 940 N.E.2d 928 (attorney received one year

suspension, stayed on conditions, for client-trust-account violations, including

failure to maintain an account and commingling personal, client, and business

funds).

{¶ 11} Having reviewed the record, weighed the aggravating and mitigating

factors, and considered the sanctions imposed for comparable misconduct, we

adopt the board’s findings and recommended sanction. Accordingly, David John

Gerchak is hereby suspended from the practice of law in Ohio for two years, all

stayed on the conditions that he (1) submit to a two-year period of probation

pursuant to Gov.Bar R. V(21), during which he shall work with a monitoring

attorney, (2) annually complete a minimum of three hours of continuing legal

education on law-office management, and (3) commit no further misconduct. If

Gerchak fails to comply with the conditions of the stay, the stay will be lifted, and

Gerchak will serve the entire two-year suspension. Costs are taxed to Gerchak.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

_________________

David C. Comstock Jr. and Ronald E. Slipski, Bar Counsel, for relator.

John B. Juhasz, for respondent.

_________________

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