Disciplinary Counsel v. Truax

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

Disciplinary Counsel v. Truax, Slip Opinion No. 2016-Ohio-7334.]

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-7334

DISCIPLINARY COUNSEL v. TRUAX.

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

may be cited as Disciplinary Counsel v. Truax, Slip Opinion No.

2016-Ohio-7334.]

Attorneys—Misconduct—Violation of the Rules of Professional Conduct—

Conditionally stayed six-month suspension.

(No. 2016-0856—Submitted July 13, 2016—Decided October 18, 2016.)

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

Court, No. 2015-080.

_______________________

Per Curiam.

{¶ 1} Respondent, William Henry Truax Jr. of Columbus, Ohio, Attorney

Registration No. 0001923, was admitted to the practice of law in Ohio in 1976. In

December 2015, relator, disciplinary counsel, charged Truax with professional

misconduct arising from his misuse of a client’s funds in his trust account.

SUPREME COURT OF OHIO

{¶ 2} The Board of Professional Conduct considered the cause on the

parties’ consent-to-discipline agreement. See Gov.Bar R. V(16). In the agreement,

Truax admitted that after depositing a client’s retainer into his trust account, he

withdrew $1,452.50 in unearned legal fees for his own personal use. Truax also

overdrew the account by $14.78. After relator commenced an investigation, Truax

informed the client that he had converted a portion of her retainer and he offered to

refund her money. The client, however, chose to allow Truax to continue with his

representation and deduct the costs of his legal services from the amount that he

had converted. Truax then completed his representation of the client without

further incident. The parties stipulate that Truax’s conduct violated Prof.Cond.R.

1.15(c) (requiring a lawyer to deposit advance legal fees and expenses into a client

trust account, to be withdrawn by the lawyer only as fees are earned or expenses

incurred).

{¶ 3} In their agreement, the parties also stipulate that no aggravating

factors are applicable to this case and that mitigating factors include the absence of

a prior disciplinary record, the lack of a dishonest motive, a timely and good-faith

effort to make restitution, and a cooperative attitude toward the disciplinary

proceedings. See Gov.Bar R. V(13)(C)(1) through (4). As a sanction, the parties

recommend that Truax serve a stayed six-month suspension.

{¶ 4} The board found that the consent-to-discipline agreement conforms to

the requirements of Gov.Bar R. V(16), and it recommends that we adopt the

agreement in its entirety. In support of this recommendation, the parties and the

board cite Disciplinary Counsel v. Vivyan, 125 Ohio St.3d 12, 2010-Ohio-650, 925

N.E.2d 947. In that case, an attorney withdrew $1,535 in client funds to which he

was not entitled from his trust account. Mitigating factors included the absence of

prior discipline in an almost 40-year legal career, cooperation in the disciplinary

process, and timely restitution. We noted that under such circumstances, the

“standard disposition” is a conditionally stayed six-month suspension. Id. at ¶ 14.

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January Term, 2016

{¶ 5} We agree with the parties and the board that Truax’s conduct violated

Prof.Cond.R. 1.15(c), that Vivyan is relevant precedent, and that a similar sanction

is warranted here. Accordingly, we adopt the parties’ consent-to-discipline

agreement.

{¶ 6} William Henry Truax Jr. is hereby suspended from the practice of law

for six months, all stayed on the condition that he engage in no further misconduct.

If Truax violates the condition of the stay, the stay will be lifted and he will be

suspended for the full six months. Costs are taxed to Truax.

Judgment accordingly.

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

FRENCH, JJ., concur.

O’NEILL, J., dissents and would publicly reprimand respondent.

_________________

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

Assistant Disciplinary Counsel, for relator.

William Henry Truax Jr., pro se.

_________________

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