Disciplinary Counsel v. Pigott.

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

Disciplinary Counsel v. Pigott, Slip Opinion No. 2018-Ohio-5096.]

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. 2018-OHIO-5096

DISCIPLINARY COUNSEL v. PIGOTT.

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

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

2018-Ohio-5096.]

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

including failing to obtain clients’ written consent to contingent-fee

agreements, failing to promptly deliver funds to clients, and engaging in

conduct involving dishonesty, fraud, deceit, or misrepresentation—Six-

month suspension.

(No. 2018-0815—Submitted July 18, 2018—Decided December 20, 2018.)

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

Court, No. 2017-054.

__________________

Per Curiam.

{¶ 1} Respondent, Thomas Daniel Pigott, of Toledo, Ohio, Attorney

Registration No. 0062919, was admitted to the practice of law in Ohio in 1994. We

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suspended Pigott’s license to practice law for four days in December 2005 for his

failure to register as an attorney for the 2005 to 2007 biennium. In re Attorney

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

N.E.2d 671; In re Reinstatement of Pigott, 107 Ohio St.3d 1705, 2006-Ohio-13,

840 N.E.2d 209.

{¶ 2} In an October 27, 2017 complaint, relator, disciplinary counsel,

charged Pigott with multiple acts of misconduct arising from his failure to enter

into written contingent-fee agreements with two of his clients, failure to have those

clients sign closing statements before Pigott withdrew his earned fees from his

client trust account, failure to promptly disburse funds to those clients, and

misappropriation of those funds for his own use. The parties entered into

stipulations of fact, misconduct, and aggravating and mitigating factors and agreed

that the appropriate sanction for that misconduct is a six-month suspension from

the practice of law. After considering those stipulations and the evidence presented

at a hearing before a panel of the Board of Professional Conduct, the board agreed

that Pigott had engaged in the charged misconduct and recommended that we adopt

the parties’ stipulated sanction.

{¶ 3} Based on our independent review of the record and our precedent, we

adopt the board’s findings of fact and conclusions of law and suspend Pigott from

the practice of law for six months.

Misconduct

Representation of Private Wealth Consultants

{¶ 4} In 2011 and early 2012, Pigott represented Private Wealth

Consultants (“PWC”) in a civil matter against Derick Gant and Gant Investment

Advisors, L.L.C. (collectively “Gant”). In January 2012, PWC and Gant entered

into a settlement agreement in which Gant agreed to pay PWC $28,000 in

installments of $10,000 by January 6, 2012, and $500 each month thereafter until

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January Term, 2018

the settlement was paid in full. Pursuant to the agreement, Gant was to remit all

payments to Pigott.

{¶ 5} PWC agreed to pay Pigott 50 percent of any proceeds that he collected

from Gant, but Pigott did not reduce the fee agreement to writing as required by

Prof.Cond.R. 1.5(c)(1) (requiring a lawyer to set forth a contingent-fee agreement

in a writing signed by both the client and the lawyer). From January 6, 2012,

through April 8, 2013, Pigott collected $17,000 from Gant. He deposited those

funds into his client trust account and distributed $8,500 to PWC in five

installments. During that same period of time, he also withdrew his earned fees

regarding the PWC matter, but he did not have PWC sign a closing statement as

required by Prof.Cond.R. 1.5(c)(2) (requiring a lawyer entitled to compensation

under a contingent-fee agreement to prepare a closing statement to be signed by the

lawyer and the client at the time of or prior to receipt of compensation under the

agreement, detailing the calculation of the lawyer’s compensation and any costs

and expenses deducted from the judgment or settlement).

{¶ 6} From April 2013 through December 2014, Pigott collected an

additional $10,500 from Gant and deposited the funds into his client trust account.

He did not, however, remit any of those funds to PWC. And on the few occasions

that PWC inquired about the status of the settlement, Pigott replied that he would

“settle up” with the company at a later date. But instead of maintaining those funds

in his client trust account, Pigott withdrew his earned fees without having PWC

approve a closing statement and then misappropriated the remaining funds by

writing multiple checks to himself, his firm, and his wife for personal and business

expenses. On July 18, 2016, he still owed PWC $5,250, but his client trust account

held just $89.93.

{¶ 7} In February and March 2017, Pigott continued to deposit earned fees

and client funds into his client trust account. During the same time period, he issued

a $500 check to his wife from the account, checks totaling $9,000 to his firm, and

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a check for $3,250 to PWC. But when Pigott issued a $4,150 check from the

account on behalf of a different client, it was twice returned for insufficient funds.

He subsequently deposited personal funds into the account and purchased a

certified check to replace the client-trust-account check that had been returned.

Relator commenced its investigation after receiving a bank notice regarding the

overdraft of Pigott’s client trust account.

{¶ 8} Pigott paid the remaining $2,000 that he owed to PWC on November

17, 2017, and no further restitution is owed to the company.

Representation of Robert Falk

{¶ 9} On January 31, 2007, the Lucas County Court of Common Pleas

issued a default judgment for $124,393.96 in favor of Robert Falk in a civil matter.

Having represented Falk in the litigation, Pigott agreed to help Falk collect the

judgment through wage garnishment in exchange for one-third of any proceeds

collected. Pigott, however, did not reduce that fee agreement to writing.

{¶ 10} Beginning on September 23, 2013, and approximately every two

weeks thereafter until August 7, 2017, Pigott received a garnishment payment from

the judgment debtor’s employer. Pigott notified Falk of the payments, but he did

not disburse any portion of the proceeds to him. And on the few occasions that

Falk inquired about the status of the payments, Pigott promised that he would

“settle up” at a later date.

{¶ 11} Although Pigott deposited the garnishment payments into his client

trust account, he withdrew his earned fee without having Falk sign a closing

statement. He also misappropriated Falk’s share of the payments by writing

multiple checks to himself, his firm, and his wife for personal and business

expenses. He should have held $2,731.21 in trust for Falk on March 30, 2015, but

his client-trust-account balance was just $1,488.33—and by March 6, 2017, it was

overdrawn.

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January Term, 2018

{¶ 12} By August 7, 2017, Pigott had collected $6,640.47, at least

$4,426.98 of which belonged to Falk. He paid that amount to Falk in November

2017. Since then, Pigott has entered into a written contingent-fee agreement with

Falk and continues to receive garnishment payments on Falk’s behalf. He now

disburses those funds in a timely manner and has Falk sign a closing statement that

states the details of the disbursements.

Rule Violations

{¶ 13} The parties stipulated and the board found that Pigott’s conduct with

regard to PWC and Falk violated Prof.Cond.R. 1.5(c)(1), 1.5(c)(2), 1.15(b)

(prohibiting a lawyer from depositing his or her own funds in a client trust account

except to pay or obtain a waiver of bank service charges), 1.15(d) (requiring a

lawyer to promptly deliver funds that a client is entitled to receive unless otherwise

agreed to in writing by the client), and 8.4(c) (prohibiting a lawyer from engaging

in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Sanction

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

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

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

imposed in similar cases. Because each disciplinary case is unique, however, we

may take all the relevant factors into account when determining which sanction to

impose in any particular case. Columbus Bar Assn. v. Watson, 144 Ohio St.3d 317,

2015-Ohio-4613, 42 N.E.3d 752, ¶ 7.

{¶ 15} At the panel hearing, Pigott testified that in 2012, a medical

condition left him unable to work on a regular basis for at least six months, which

caused his income to decrease significantly. He had no disability insurance, his

wife did not work outside of their home, and they had children in school. Around

that time, he stopped making disbursements to PWC and Falk and began to use his

clients’ funds to cover family bills. Several checks were returned for insufficient

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funds and Pigott overdrew his client trust account in the midst of additional family

stress in early 2017.

{¶ 16} Pigott notified PWC Chief Executive Officer Gary Rathbun and

Falk—both of whom were long-term clients and friends—of his misconduct and

made restitution to them. Both men submitted letters acknowledging that they had

received restitution and indicating not only that they forgave Pigott for his

misconduct but that they continue to trust him with their personal legal matters and

would not hesitate to recommend him to others in need of legal services.

{¶ 17} As aggravating factors, the parties stipulated and the board found

that Pigott had a brief attorney-registration suspension, acted with a dishonest or

selfish motive, engaged in a pattern of misconduct, and committed multiple

offenses. See Gov.Bar R. V(13)(B)(1) through (4). The board adopted the parties’

stipulated mitigating factors, which include Pigott’s timely, good-faith effort to

make restitution and rectify the consequences of his misconduct; his full and free

disclosure to the board and cooperative attitude toward the proceedings; and

evidence of his good character and reputation as demonstrated by the letters from

Rathbun and Falk, six fellow attorneys, and the Assistant Chief Magistrate of the

Lucas County Probate Court. See Gov.Bar R. V(13)(C)(3), (4), and (5).

{¶ 18} Based on the significant mitigating factors present, the parties

stipulated and the board found that a six-month suspension from the practice of law

is the appropriate sanction for Pigott’s misconduct. In support of that

recommendation, the parties and the board cited several cases in which we imposed

suspensions ranging from six months to two years with 18 months stayed on

conditions for conduct comparable to that engaged in by Pigott. See, e.g.,

Disciplinary Counsel v. Manning, 119 Ohio St.3d 52, 2008-Ohio-3319, 891 N.E.2d

743 (imposing a six-month suspension on an attorney who made misleading

statements about the availability of a client’s settlement proceeds, failed to deposit

and maintain client funds in a separate client trust account, failed to maintain

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January Term, 2018

complete records of client funds in his possession, and used client funds to pay

personal and business expenses); Dayton Bar Assn. v. Gerren, 103 Ohio St.3d 21,

2004-Ohio-4110, 812 N.E.2d 1280 (imposing a six-month suspension on an

attorney who misappropriated settlement proceeds that he had reserved to satisfy a

client’s outstanding medical bill); Disciplinary Counsel v. Bubna, 116 Ohio St.3d

294, 2007-Ohio-6436, 878 N.E.2d 632 (imposing a one-year suspension with six

months conditionally stayed on an attorney who deposited his personal funds in his

client trust account to avoid garnishment, used client funds for his own purposes,

and overdrew the account on multiple occasions); and Disciplinary Counsel v.

Johnson, 131 Ohio St.3d 372, 2012-Ohio-1284, 965 N.E.2d 294 (imposing a two-

year suspension with 18 months conditionally stayed on an attorney who

commingled personal and client funds in his client trust account, used client funds

for his own purposes, and failed to cooperate in the resulting disciplinary

investigation).

{¶ 19} Having independently reviewed the record and the cases cited by the

parties and the board, we agree that Pigott’s conduct is most comparable to that of

the attorneys in Manning and Gerren. In light of Pigott’s acceptance of full

responsibility for his misconduct, his payment of restitution, the corrective actions

that he has taken to utilize proper contingent-fee agreements and settlement-

disbursement sheets going forward, and the evidence of his good character and

reputation, we agree that a six-month suspension is the appropriate sanction for

Pigott’s misconduct.

{¶ 20} Accordingly, Thomas Daniel Pigott is suspended from the practice

of law in Ohio for six months. Costs are taxed to Pigott.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,

and DEGENARO, JJ., concur.

_________________

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Scott J. Drexel, Disciplinary Counsel, and Karen H. Osmond, Assistant

Disciplinary Counsel, for relator.

Goranson, Parker & Bella Co., L.P.A., and Christopher F. Parker, for

respondent.

_________________

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