Columbus Bar Association v. McCord

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

Columbus Bar Assn. v. McCord, Slip Opinion No. 2016-Ohio-3298.]

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. 2016-OHIO-3298

COLUMBUS BAR ASSOCIATION v. MCCORD.

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

may be cited as Columbus Bar Assn. v. McCord, Slip Opinion No.

2016-Ohio-3298.]

Attorneys―Misconduct―Failure to maintain client trust account―Failure to

inform clients of lack of professional liability insurance―Failure to file and

pay federal income taxes―One-year suspension, all stayed on conditions.

(No. 2014-1896—Submitted January 27, 2016—Decided June 8, 2016.)

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

Court, No. 2014-062.

_______________________

Per Curiam.

{¶ 1} Respondent, Lumumba Touré McCord of Columbus, Ohio, Attorney

Registration No. 0066968, was admitted to the practice of law in Ohio in 1996. In

December 2005, we briefly suspended McCord’s license to practice law based on

his failure to timely register for the 2005-2007 biennium. In re Attorney

SUPREME COURT OF OHIO

Registration Suspension of McCord, 107 Ohio St.3d 1431, 2005-Ohio-6408, 838

N.E.2d 671; and In re Reinstatement of McCord, 107 Ohio St.3d 1705, 2006-Ohio-

13, 840 N.E.2d 209.

{¶ 2} In a three-count complaint filed in September 2014, relator, Columbus

Bar Association, charged McCord with multiple violations of the Rules of

Professional Conduct arising from his failure to maintain a client trust account,

failure to advise his clients that he did not maintain professional liability insurance,

and his failure to file federal income tax returns for the years 2006 through 2010.

{¶ 3} In November 2014, relator certified that McCord was in default

pursuant to former Gov.Bar R. V(6a) (now Gov.Bar R. V(14)), and we imposed an

interim default suspension on McCord’s license to practice law in Ohio effective

December 10, 2014. Columbus Bar Assn. v. McCord, 141 Ohio St.3d 1249, 2014-

Ohio-5407, 21 N.E.2d 1098. On March 6, 2015, we granted McCord’s motion for

leave to answer the complaint, agreed to terminate the interim default suspension

upon conditions, and remanded the case to the Board of Professional Conduct for

further proceedings. Columbus Bar Assn. v. McCord, 141 Ohio St.3d 1484, 2015-

Ohio-783, 26 N.E.3d 820. We reinstated him to the practice of law on April 15,

2015. Columbus Bar Assn. v. McCord, 142 Ohio St.3d 1238, 2015-Ohio-1428, 30

N.E.3d 959.

{¶ 4} A panel of the board conducted a hearing and found by clear and

convincing evidence that McCord engaged in some, but not all, of the misconduct

charged in relator’s complaint and recommended that he be suspended for one year,

all stayed on conditions. The board adopted the panel’s report in its entirety. We

adopt the board’s findings of fact, conclusions of law, and recommended sanction.

Count One: Failure to Maintain Client Trust Account

{¶ 5} McCord admits that he closed his client trust account in 2010 and that

from that time until approximately May 9, 2013, he deposited unearned client funds

into his business account. He testified that in his criminal practice, he treated his

2

January Term, 2016

fee as “earned upon receipt” in that he immediately started working on the case. If

a client was dissatisfied with McCord’s fee or with his work, or if a task was not

completed, McCord would refund the unearned portion of his fee from funds held

in his business account.

{¶ 6} That practice was recognized and approved by the Board of

Commissioners on Grievances and Discipline in Advisory Opinion 96-4 (June 14,

1996), which interpreted the former Code of Professional Responsibility and stated,

“It is proper for a lawyer to enter a flat fee agreement requiring a criminal defendant

to pay a fixed amount in advance of representation in a criminal matter” and that a

flat fee “may be deposited into the lawyer’s business account upon receipt,” but

that it “should not be deemed nonrefundable.” Id. at syllabus. But the Rules of

Professional Conduct, which took effect on February 1, 2007, supersede that

advisory opinion and the board has recently withdrawn it. See Advisory Opinion

2016-1.

{¶ 7} Prof.Cond.R. 1.15(c) requires a lawyer to “deposit into a client trust

account legal fees and expenses that have been paid in advance, to be withdrawn

by the lawyer only as fees are earned or expenses incurred.” Although

Prof.Cond.R. 1.5(d)(3) permits a lawyer to designate that a fee is “earned upon

receipt” or “nonrefundable,” it also requires the lawyer to advise the client in

writing that if the lawyer does not complete the representation for any reason, the

client may be entitled to a refund of all or part of the fee. See also Advisory Opinion

2016-1, at 4. If those conditions are satisfied, then a fee paid in advance is to be

considered the lawyer’s funds and deposited in a place other than the lawyer’s client

trust account. Id.

{¶ 8} At the hearing, McCord acknowledged that he now understands that

his past practice of depositing flat fees into his business account without satisfying

the conditions in Prof.Cond.R. 1.5(d)(3) is no longer acceptable under the rules and

that he has reopened his client trust account.

3

SUPREME COURT OF OHIO

{¶ 9} Although no clients complained or were harmed by McCord’s

practice, the parties stipulated and the board found that McCord’s failure to deposit

client funds into a client trust account violated Prof.Cond.R. 1.15(a).

Count II: Professional Liability Insurance

{¶ 10} McCord did not maintain professional liability insurance prior to

May 2, 2013, and failed to inform any client of that fact for more than two years.

No client complained and it appears that no clients were harmed by this failure.

However, the parties stipulated and the board found that this conduct violated

Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the lawyer does not

maintain professional liability insurance).

Count III: Failure to File and Pay Federal Income Taxes

{¶ 11} McCord was indicted on March 19, 2013, for failing to file income

tax returns and pay federal income taxes for the calendar years 2006 through 2010.

He eventually entered into a plea agreement in which he pleaded guilty to one

misdemeanor count of willful failure to file a return, supply information, or pay

income taxes in violation of 26 U.S.C. 7203. The court accepted the agreement and

sentenced him to 60 days in jail and one year of supervised release and ordered him

to pay restitution of $98,908.85. McCord appealed the decision, but his sentence

was affirmed.

{¶ 12} Relator argued and the board agreed that McCord’s misdemeanor

conviction violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an

illegal act that reflects adversely on the lawyer’s honesty or trustworthiness).

However, the board recommended that three additional alleged violations be

dismissed.

{¶ 13} We adopt these findings of fact, agree that McCord’s conduct

violated Prof.Cond.R. 1.15(a), 1.4(c), and 8.4(b), and dismiss the remaining alleged

violations.

4

January Term, 2016

Sanction

{¶ 14} The parties stipulated and the board found that McCord’s prior three-

day registration suspension and multiple violations are aggravating factors

weighing in favor of a greater sanction. See Gov.Bar R. V(13)(B)(1) and (4). They

also found that relevant mitigating factors include McCord’s full and free disclosure

to the board and cooperative attitude toward the disciplinary proceedings, the

imposition of criminal sanctions for his income tax violations, his payments of $300

per month toward his criminal restitution order, his efforts to correct his accounting

practices, his admission of responsibility, and the absence of harm to his clients.

See, e.g., Gov.Bar R. V(13)(C)(3), (4), and (6). The board also noted that a Franklin

County Common Pleas Court judge testified and described McCord as being

“professionally prepared” and performing “stellar work when representing his

clients.” He stated that he was disappointed to learn of McCord’s federal tax issue,

but that he was confident in McCord’s honesty and ability to perform his duties.

See Gov.Bar R. V(13)(C)(5).

{¶ 15} Relator recommended that McCord be suspended from the practice

of law for one year with six months stayed and that he serve one year of probation.

In contrast, McCord argued in favor of a six-month fully stayed suspension with

two years of probation. The board, however, recommended that McCord be

suspended from the practice of law for one year, but that we stay the entire

suspension on the conditions that he (1) comply with all requirements of the Internal

Revenue Service for the payment of his back taxes, (2) timely pay his current tax

obligations, and (3) successfully complete a two-year term of probation, during

which he must complete at least six hours of continuing-legal-education (“CLE”)

courses in law-office management in addition to the CLE requirements set forth in

Gov.Bar R. X. Neither party objects to this recommendation.

{¶ 16} We have imposed one-year fully stayed suspensions on attorneys

who have engaged in comparable misconduct. See Cuyahoga Cty. Bar Assn. v.

5

SUPREME COURT OF OHIO

Veneziano, 120 Ohio St.3d 451, 2008-Ohio-6789, 900 N.E.2d 185 (imposing a one-

year suspension stayed on conditions on an attorney who not only failed to timely

file tax returns and pay her own taxes for five years, but also failed to withhold

federal payroll taxes from her employees’ wages for seven years); Lake Cty. Bar

Assn. v. Ezzone, 102 Ohio St.3d 79, 2004-Ohio-1774, 806 N.E.2d 991 (suspending

an attorney for one year, all stayed on conditions based on his guilty plea to a

misdemeanor charge of failure to file a federal income tax return); and Disciplinary

Counsel v. Hillman, __ Ohio St.3d __, 2016-Ohio-1172, __ N.E.3d __ (imposing a

one-year stayed suspension on an attorney who was convicted of willfully failing

to file a federal income tax return and who acknowledged that he also failed to file

two additional returns). We recognize that in addition to failing to file income tax

returns, McCord failed to deposit client funds into a separate client trust account

and failed to inform his clients that he did not carry professional liability insurance.

Nonetheless, we agree that a one-year suspension, stayed on conditions, is the

appropriate sanction for his misconduct.

{¶ 17} Accordingly, Lumumba Touré McCord is suspended from the

practice of law for one year, all stayed on the conditions that he (1) comply with all

requirements of the Internal Revenue Service for the payment of his back taxes, (2)

timely pay his current tax obligations, (3) successfully complete a two-year term of

probation, during which he must complete at least six hours of CLE courses in law-

office management in addition to the CLE requirements of Gov.Bar R. X, and (4)

engage in no further misconduct. If McCord fails to abide by these conditions, the

stay will be lifted and he will serve the full one-year suspension. Costs are taxed

to McCord.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

_________________

6

January Term, 2016

Bloomfield & Kempf, L.L.P., and David S. Bloomfield; Barry W. Epstein;

A. Alysha Clous, Assistant Bar Counsel, and Bruce A. Campbell, Bar Counsel, for

relator.

Brehm & Associates, L.P.A., and Eric W. Brehm, for respondent.

_________________

7