Lorain County Bar Association v. Smith

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

Lorain Cty. Bar Assn. v. Smith, Slip Opinion No. 2016-Ohio-7469.]

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-7469

LORAIN COUNTY BAR ASSOCIATION v. SMITH.

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

may be cited as Lorain Cty. Bar Assn. v. Smith, Slip Opinion No.

2016-Ohio-7469.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Public

reprimand.

(No. 2016-0539—Submitted June 1, 2016—Decided October 27, 2016.)

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

Court, No. 2015-031.

_______________________

Per Curiam.

{¶ 1} Respondent, Gerald Morton Smith of Avon Lake, Ohio, Attorney

Registration No. 0008781, was admitted to the practice of law in Ohio in 1961.

{¶ 2} On May 4, 2015, relator, Lorain County Bar Association, filed an

eight-count complaint against Smith with the Board of Professional Conduct. In

the complaint, relator alleged that Smith violated the Rules of Professional Conduct

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in his representation of a single client by charging a clearly excessive fee, failing to

deposit the fee into his client trust account, failing to advise the client that he might

be entitled to a refund of all or part of the fee if it was not earned, failing to maintain

required trust-account records, and representing to the client that he could

improperly influence government officials to achieve a favorable resolution of the

client’s criminal matter. The parties entered into stipulations of fact and

misconduct, stipulating to some but not all of the charged offenses.

{¶ 3} After conducting a hearing, a panel of the board issued a report in

which it found that the stipulated violations were proven by clear and convincing

evidence, dismissed an additional alleged violation on relator’s motion, and

unanimously dismissed the remaining allegations based on the insufficiency of the

evidence. See Gov.Bar R. V(12)(G). The panel recommended that Smith be

publicly reprimanded for his misconduct. The board adopted the findings of fact,

conclusions of law, and recommendation of the panel. There are no objections to

the board’s findings or recommendation. We adopt the board’s report in its entirety

and publicly reprimand Smith for the conduct described below.

Misconduct

{¶ 4} On or about March 13, 2008, Robert Gonzalez Jr. requested that Smith

represent his father, Robert Gonzalez, in a criminal matter. Smith informed

Gonzalez Jr. that he would accept the representation and that his fee would be

$25,000. An associate in Smith’s firm appeared in the Oberlin Municipal Court on

behalf of Gonzalez. Gonzalez Jr. paid Smith $10,000 on March 14, 2008, and paid

him an additional $15,000 four days later.

{¶ 5} Gonzalez was indicted on April 9, 2008, on a number of serious

offenses, including kidnapping and abduction with firearm specifications, and

faced a possible sentence of more than 32 years in prison if convicted on all counts.

{¶ 6} Upon reviewing the charges and the facts of the case after Gonzalez’s

arraignment, Smith told him that he would require an additional $50,000 to

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January Term, 2016

represent him—of which Gonzalez Jr. paid $45,000. The fact that Smith never

entered into a written fee contract with Gonzalez created uncertainty regarding the

nature of the fees, which Smith described variously in his testimony as a flat fee, a

retainer, or a retainer until a flat fee could be set. It is clear, however, that no portion

of the $70,000 fee was ever deposited into Smith’s client trust account and that

Smith failed to advise Gonzalez in writing that if the entire fee was not earned, he

might be entitled to a refund of some or all of the fee. In addition, Smith failed to

maintain records, bank accounts, and bank statements and failed to retain monthly

reconciliations for Gonzales that would have demonstrated the manner in which he

handled client funds.

{¶ 7} On April 21, 2008, Gonzalez was released on bond. In December

2008, he pleaded guilty to the charged offenses—with the exception of a charge for

violating a protection order, which was dismissed. In March 2009, he was

sentenced to two years in prison on the kidnapping charge and a three-year

consecutive sentence for the firearm specification. Gonzalez was eligible for

judicial release in just three and a half years, and despite the state’s opposition, he

was released from prison in November 2012. The board found that there was little

question that Smith provided Gonzalez with very effective assistance of counsel.

{¶ 8} The board also found that regardless of how Smith characterized his

fee, his handling of the funds violated several Rules of Professional Conduct, and

it therefore accepted Smith’s stipulation that he violated Prof.Cond.R. 1.5(d)(3)

(prohibiting a lawyer from charging a fee denominated as “earned upon receipt,”

“nonrefundable,” or in any similar terms without simultaneously advising the client

in writing that the client may be entitled to a refund of all or part of the fee if the

lawyer does not complete the representation), 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), and 1.15(a)(1) through (5)

(requiring a lawyer to hold funds belonging to a client or third party in a client trust

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account separate from his own property and to maintain certain records regarding

the funds held in that account and certain bank records, as well as to perform and

retain a monthly reconciliation of the account).

{¶ 9} We adopt the board’s findings of fact and misconduct.

Sanction

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

several relevant factors, including the ethical duties that the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

{¶ 11} The parties stipulated and the board found as relevant mitigating

factors the absence of a prior disciplinary record in Smith’s more than 50-year legal

career, the absence of a dishonest or selfish motive, his full and free disclosure to

the board and cooperative attitude during the course of the disciplinary proceedings,

and evidence of his good reputation apart from the charged misconduct. See

Gov.Bar R. V(13)(C)(1), (2), (4), and (5). The only aggravating factor present is

that Smith engaged in multiple offenses. See Gov.Bar R. V(B)(4).

{¶ 12} The board recommends that we publicly reprimand Smith for his

misconduct. In support of that recommendation, the board cites Akron Bar Assn.

v. White, 136 Ohio St.3d 51, 2013-Ohio-2153, 989 N.E.2d 1013 (publicly

reprimanding a lawyer with no prior disciplinary record who deposited a client

retainer in his firm’s operating account rather than his client trust account), and

Trumbull Cty. Bar Assn. v. Rucker, 134 Ohio St.3d 282, 2012-Ohio-5642, 981

N.E.2d 866 (publicly reprimanding a lawyer with no prior disciplinary record who

failed to hold client property in an interest-bearing client trust account separate

from the lawyer’s own property, failed to advise the client that the client may be

entitled to a refund of all or part of a “nonrefundable” fee if the lawyer did not

complete the representation, failed to promptly deliver funds or property that a

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client was entitled to receive, neglected the client’s legal matter, and failed to

reasonably communicate with the client).

{¶ 13} Having thoroughly reviewed the board’s findings of fact and

conclusions of law, the applicable aggravating and mitigating factors, and the

sanctions we have imposed for comparable misconduct, we adopt the board’s

findings of fact and misconduct and agree that a public reprimand is the appropriate

sanction in this case.

{¶ 14} Accordingly, Gerald Morton Smith is publicly reprimanded for the

misconduct described above. Costs are taxed to Smith.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

_________________

D. Chris Cook, for relator.

Gallagher Sharp, Monica A. Sansalone, and Matthew T. Norman, for

respondent.

_________________

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