The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. VanBibber, Slip Opinion No. 2024-Ohio-1702.]
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. 2024-OHIO-1702
DISCIPLINARY COUNSEL v. VANBIBBER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. VanBibber, Slip Opinion No.
2024-Ohio-1702.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct stemming
from multiple traffic violations, failure to comply with court orders,
mismanagement of client trust account, and failure to cooperate in
disciplinary investigation—Conditionally stayed two-year suspension.
(No. 2023-0979—Submitted September 12, 2023—Decided May 7, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2022-050.
__________________
Per Curiam.
{¶ 1} Respondent, Jack Herchel VanBibber, of Marion, Ohio, Attorney
Registration No. 0097242, was admitted to the practice of law in Ohio in 2018.
SUPREME COURT OF OHIO
{¶ 2} In a two-count December 2022 complaint, relator, disciplinary
counsel, charged VanBibber with a total of five ethical violations, arising primarily
from his being charged with and convicted of traffic offenses in multiple Ohio
counties, his dishonesty with law-enforcement officers during traffic stops, his
failure to comply with court orders related to his traffic violations, his
mismanagement of his client trust account, and his failure to cooperate in the
ensuing disciplinary investigation. The parties submitted stipulations of fact,
misconduct (including three ethical violations that were not charged in relator’s
complaint), and aggravating and mitigating factors. They also submitted 70
stipulated exhibits.
{¶ 3} The matter proceeded to a hearing before a three-member panel of the
Board of Professional Conduct. The panel found by clear and convincing evidence
that VanBibber had committed the charged misconduct and the additional
stipulated violations. After considering the relevant aggravating and mitigating
factors and our relevant precedent, the panel recommended that VanBibber be
suspended from the practice of law in Ohio for two years with the entire suspension
conditionally stayed. The board adopted the panel’s findings of fact, conclusions
of law, and recommended sanction. The parties jointly waived objections to the
board’s findings and recommendations. See Gov.Bar R. V(17)(B)(3).
{¶ 4} For the reasons that follow, we adopt the board’s findings of
misconduct and recommended sanction.
I. MISCONDUCT
A. Count One—VanBibber’s Dishonesty and Failure to Comply with the
Law
{¶ 5} Relator alleged in the first count of the complaint that over a period
of nearly four and a half years, VanBibber violated Prof.Cond.R. 3.4(c) (prohibiting
a lawyer from knowingly disobeying an obligation under the rules of a tribunal),
8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
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January Term, 2024
deceit, or misrepresentation), and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law). Those
allegations relate primarily to VanBibber’s conduct that gave rise to five traffic
stops, his dishonesty during those stops, his being charged with and convicted of
traffic offenses resulting from those stops, and his failure to abide by the resulting
court orders. The parties’ stipulated facts and exhibits and VanBibber’s
disciplinary-hearing testimony support the findings of the board.
1. Traffic Violations in Greene County
{¶ 6} Late in the evening on December 25, 2017—ten days before
VanBibber was admitted to the practice of law in Ohio—he drove his truck off a
road in Greene County and crashed into a tree. He admitted to the responding law-
enforcement officers that he had consumed alcohol prior to driving, but he refused
to submit to a chemical test to determine the alcohol concentration or presence of
other controlled substances in his body. As a result of his refusal to submit to a
chemical test, his driver’s license was seized and administratively suspended under
R.C. 4511.191.
{¶ 7} VanBibber was charged in the Xenia Municipal Court with operating
a vehicle while under the influence of alcohol or a drug of abuse (“OVI”) and failure
to control. He pleaded guilty to an amended charge of reckless operation, was
sentenced to a suspended jail term, and was ordered to serve three days in a driver-
intervention program, which he completed in July 2018. He was also ordered to
pay a fine and court costs and serve a two-year term of community control. Because
VanBibber was unable to show at the sentencing hearing that he had motor-vehicle
liability insurance at the time of his traffic offense, his driver’s license was
suspended pending his submission of proof to the Ohio Bureau of Motor Vehicles
(“BMV”) of his compliance with Ohio’s Financial Responsibility Act, R.C.
Chapter 4509 (a “financial-responsibility suspension”).
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{¶ 8} VanBibber filed an application for driving privileges in the Xenia
Municipal Court, but the court never ruled on the application because VanBibber
did not pay the required $50 permit fee. VanBibber also did not notify the BMV
that he had obtained motor-vehicle liability insurance for a six-month period from
mid-September 2018 through mid-March 2019. Therefore, the financial-
responsibility suspension remained in effect. Nevertheless, he continued to drive.
2. Traffic Violations in Delaware County
{¶ 9} In December 2018, a state trooper stopped VanBibber in Delaware
County after observing him drive “across 6 lanes to the right turn lane toward a
vehicle then swerv[e] back four lanes to the left turn lane.” During the traffic stop,
the trooper found marijuana in the trunk of VanBibber’s car. As a result of that
incident, VanBibber was charged in the Delaware Municipal Court with possession
of marijuana, driving in marked lanes, driving under suspension in violation of R.C.
4510.11A, and driving under OVI suspension in violation of R.C. 4511.14. He
moved to amend the charge of driving under OVI suspension to a charge of driving
under financial-responsibility suspension in violation of R.C. 4510.16. The court
granted the motion, and VanBibber pleaded guilty to the amended charge. The
remaining charges were dismissed. VanBibber was fined $100 and ordered to pay
court costs and serve one year of community control. Because he was unable to
show proof of insurance at the time of sentencing, the financial-responsibility
suspension continued.
{¶ 10} VanBibber signed a form acknowledging the municipal court’s order
requiring him to pay the fine and court costs by 10:00 a.m. on July 9, 2019, or
appear in court at that time to show cause why he had failed to do so. He failed to
comply with the court’s order. The court therefore blocked his vehicle registration
and transfer privileges. That block remained in effect until September 2020 when
VanBibber paid the fine and court costs.
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3. Traffic Violations in Logan County
{¶ 11} On January 3, 2020, a Bellefontaine police officer clocked
VanBibber driving 39 m.p.h. in a 25 m.p.h. zone. After activating his emergency
lights and initiating a pursuit, the officer observed VanBibber fail to yield at a stop
sign and reach speeds in excess of 60 m.p.h. while driving through residential areas,
alleys, and side streets before finally stopping. When questioned by the officer,
VanBibber claimed that he had been unaware of the pursuit and that he had been
driving to the Bellefontaine Municipal Court to represent a client. However, his
route did not take him in the direction of that court.
{¶ 12} During the traffic stop, the officer learned that VanBibber’s license
was under suspension and that his license plate had expired in October 2019.
VanBibber told the officer that he had just purchased the vehicle when, in fact, he
had owned the vehicle for nearly a year and had failed to transfer the title and
registration. Notably, the vehicle-registration-and-transfer block imposed by the
Delaware Municipal Court remained in effect at that time. VanBibber was charged
in the Bellefontaine Municipal Court with misdemeanor counts of driving under
financial-responsibility suspension, having an expired or unlawful license plate,
reckless operation, failure to yield at a stop sign, and speeding. He pleaded guilty
to reckless operation and a reduced charge of speeding, and the other charges were
dismissed. He was ordered to pay a fine and court costs, and his driver’s license
was suspended for 90 days.
{¶ 13} Nevertheless, he continued to drive.
4. Traffic Violations in Champaign County
{¶ 14} In February 2020, just 13 days after VanBibber’s license was
suspended by the Bellefontaine Municipal Court, a Champaign County sheriff’s
deputy stopped him for a headlight violation. VanBibber could not provide the
deputy with his vehicle registration or proof of insurance. The deputy noted that
VanBibber was driving with an expired license plate belonging to the vehicle’s
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former owner. Once again, VanBibber falsely claimed that he had purchased the
vehicle a few months earlier and that he had not had time to transfer the title.
{¶ 15} VanBibber was charged in the Champaign County Municipal Court
with driving under court suspension, in violation of R.C. 4510.11, and with driving
under noncompliance suspension and under financial-responsibility suspension,
both in violation of R.C. 4510.16(A). He pleaded guilty to driving under court
suspension, and the other charges were dismissed. The court imposed a 30-day jail
sentence, which it suspended in its entirety on the condition that VanBibber commit
no driving offenses in the next year. And the court ordered VanBibber to pay $507
in fines and court costs with an initial payment of $20 due by March 30, 2020. The
court’s order further stated that if VanBibber failed to make a payment by the
deadline, he would have to appear in court on March 31, 2020. Because he failed
to make the required payment or appear in court on the stated date, a contempt
warrant was issued in October 2020. VanBibber did not pay the fine or court costs
until February 2021.
5. Relator Initiates a Disciplinary Investigation
{¶ 16} Upon learning of VanBibber’s multiple traffic offenses and driver’s-
license suspensions in early 2020, VanBibber’s employer terminated VanBibber’s
employment and reported his conduct to relator. In response to relator’s first letter
of inquiry into the extent of his charges and convictions for traffic violations and
whether he “knowingly continued to drive without a license” after his convictions,
VanBibber claimed that he had driven “only when necessary to maintain [his]
livelihood” and that he was taking steps to ensure that he would not do so again.
{¶ 17} In August 2020, VanBibber signed an affidavit in which he
acknowledged his prior traffic charges, convictions, and driver’s-license
suspensions. He admitted that he had flagrantly violated the law, claimed that he
had accepted responsibility for his actions, and represented that he had taken steps
to ensure that his misconduct would not be repeated. VanBibber expressly
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January Term, 2024
acknowledged that relator would reopen its investigation if he committed similar
offenses in the future. Relator then closed its investigation without filing a formal
complaint. Despite VanBibber’s assurances to relator, he has stipulated and the
evidence shows that he continued to drive while his driver’s license was under
suspension.
6. Traffic Violations in Crawford County
{¶ 18} In November 2021, more than a year after relator closed the
disciplinary investigation, a Crestline police officer stopped VanBibber for having
a white light on the rear of his vehicle. During that traffic stop, the officer learned
that VanBibber’s driver’s license was under suspension and that he was driving
with an expired license plate. VanBibber was charged in the Crestline Mayor’s
Court with driving under suspension. VanBibber self-reported his conduct to
relator before pleading no contest to an amended charge of no operator’s license.
He was found guilty and ordered to pay a fine and court costs.
{¶ 19} While his traffic case was pending, VanBibber petitioned the
Crawford County Municipal Court for permission to retake the driving test and for
limited driving privileges. The court granted the petition, and VanBibber obtained
limited driving privileges, effective January 13, 2022.
7. Disorderly Conduct in Marion County
{¶ 20} In April 2022, VanBibber was charged in the Marion Municipal
Court with disorderly conduct after he repeatedly knocked on his neighbor’s door
while intoxicated, believing that the house was his own. He paid the waiver on the
disorderly-conduct citation and the case was closed.
8. Relator Reopens the Disciplinary Investigation
{¶ 21} In response to VanBibber’s February 2022 self-report of his
Crawford County case, relator sent him a letter requesting additional information.
VanBibber replied, stating that in summer 2021, he moved in with family members
in Galion and opened a law office in Mansfield. He admitted that after submitting
7
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his August 2020 affidavit to relator, he drove “on several occasions” when he was
unable to obtain rides from friends, family, or commercial ridesharing services.
{¶ 22} Relator later asked VanBibber to provide copies of his rideshare
receipts and the names of anyone who had given him rides from late August 2020
through mid-January 2022. Relator asked that VanBibber submit this information
no later than November 14, 2022, and stated that no extensions of time would be
granted.
{¶ 23} Nearly three months after relator filed a complaint with the board,
VanBibber informed relator through counsel that his ex-girlfriend had paid for the
majority of his rideshares. However, the parties have stipulated that if called as a
witness, VanBibber’s ex-girlfriend would testify that (1) she dated VanBibber from
approximately November 2020 to July 2021, (2) she paid for eight rideshares for
VanBibber between March and June 2021, (3) VanBibber never informed her that
he could not legally drive, and (4) VanBibber borrowed her car several times during
the relationship and “scratched [it] up” on one occasion.
9. Findings of Misconduct with Respect to Count One
{¶ 24} The board found by clear and convincing evidence that VanBibber
violated Prof.Cond.R. 3.4(c) by failing to comply with the Bellefontaine Municipal
Court’s 90-day license suspension and multiple court orders regarding the payment
of fines, costs, and related court appearances; Prof.Cond.R. 8.4(c) by providing
false information to law-enforcement officers in Logan and Champaign Counties
regarding the purchase of his vehicle; and Prof.Cond.R. 8.4(h) by failing to comply
with multiple traffic laws and driver’s-license suspensions.
{¶ 25} We adopt the board’s findings of misconduct. We also note that the
facts regarding VanBibber’s conduct during relator’s investigations could support
findings that VanBibber violated Prof.Cond.R. 8.1(a) (prohibiting a lawyer from
knowingly making a false statement of material fact in connection with a
disciplinary matter) and 8.1(b) (prohibiting a lawyer from knowingly failing to
8
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respond to a demand for information by a disciplinary authority during an
investigation). The board, however, has made no findings of such misconduct with
respect to Count One—nor could it, because VanBibber has not been charged under
Count One with violating those rules and has not stipulated to violating them.1 See
In re Ruffalo, 390 U.S. 544, 552, 88 S.Ct. 1222, 20 L.Ed. 2d 117 (1968) (the
“absence of fair notice as to the reach of the grievance procedure and the precise
nature of the charges” deprives an attorney of procedural due process); Disciplinary
Counsel v. Simecek, 83 Ohio St.3d 320, 322, 699 N.E.2d 993 (1998) (the addition
of misconduct charges after the record is closed and without fair notice to the
attorney “fails to pass the test of procedural due process”); see also Disciplinary
Counsel v. Reinheimer, 162 Ohio St.3d 219, 2020-Ohio-3941, 65 N.E.3d 235,
¶ 7-9, 18-19 (applying this court’s holdings in Ruffalo and Simecek to reject the
board’s findings that an attorney violated two divisions of Prof.Cond.R. 1.4 based
on facts that were not alleged and violations that were not charged in the relator’s
complaint).
{¶ 26} Nonetheless, the board’s factual findings regarding VanBibber’s
conduct during relator’s investigations are important to our analysis because they
support the parties’ stipulations and the board’s findings regarding two aggravating
factors that are relevant to the sanction for VanBibber’s misconduct—namely, (1)
that VanBibber failed to cooperate in the disciplinary process and (2) that he
submitted false evidence or false statements or engaged in other deceptive practices
during the disciplinary process. See Gov.Bar R. V(13)(B)(5) and (6).
1. Although VanBibber was charged under Count Two with a violation of Prof.Cond.R. 8.1(b), the
allegations in that count are limited to VanBibber’s failure to provide information in response to
relator’s multiple inquiries regarding his client trust account.
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B. Count Two—Trust-Account Violations and Failure to Cooperate
in the Resulting Disciplinary Investigation
{¶ 27} In May 2022, a client paid VanBibber a flat fee of $3,500 under a
written fee agreement that provided that the fee was earned upon receipt and that
the client may be entitled to a refund of all or part of the fee if VanBibber did not
complete the representation. The next day, VanBibber issued himself a $3,500
check from his client trust account, but he did so before the client’s credit-card
payment was credited to that account. His bank returned the check for insufficient
funds, and it notified relator of that fact.
{¶ 28} On May 31, 2022, relator sent a letter of inquiry by certified mail to
VanBibber at his office address, asking him to provide a written response and
documentation regarding the overdraft of his client trust account by June 14.
Someone at that address signed for the letter, but VanBibber did not respond to it.
In early July, relator emailed VanBibber a copy of the letter and inquired about the
status of his response. After receiving that email, VanBibber found relator’s initial
letter in a common area outside his office. He informed relator that he had not
received the letter and that no one from his office had signed for it. He then
requested and received a two-week extension of time to provide his written
response. Two days after his response was due, VanBibber requested another
extension of time to respond to relator’s inquiry, claiming that he had improperly
calendared the deadline and that he had recently contacted counsel about the matter;
relator granted the request, giving VanBibber until August 11 to respond.
{¶ 29} Thereafter, VanBibber met with an attorney to discuss his client-
trust-account overdraft, but he did not retain that attorney. When he requested
another extension of time to respond to relator’s letter of inquiry, he told relator
that he was waiting for his bank to respond to his request for records and he falsely
represented that he had retained an attorney. (He did subsequently retain an
attorney.) Relator granted an extension of time through August 25, but VanBibber
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did not comply with the new deadline or respond to relator’s subsequent efforts to
communicate with him.
{¶ 30} Relator subpoenaed VanBibber’s client-trust-account records from
his bank. Those records demonstrated that VanBibber had commingled personal
and client funds in his client trust account by failing to timely withdraw his earned
fees. The records also showed that VanBibber had used his earned fees to pay his
personal and business expenses directly from his client trust account.
{¶ 31} After reviewing the bank records, relator subpoenaed VanBibber for
a deposition. Although the deposition was cancelled because the court reporter was
ill, relator and VanBibber spoke by telephone on October 26. VanBibber
apologized for his failure to respond to relator’s inquiries, stating that he had only
recently gathered documents responsive to relator’s requests. He agreed that he
would scan and email those documents to relator as soon as he returned to his office.
Relator memorialized that conversation in an email and attempted to follow up with
VanBibber a few days later when the documents had not been received.
{¶ 32} VanBibber responded to relator’s inquiries through an attorney
almost three months after relator filed a certified complaint in December 2022. He
admitted that (1) while he typically charged flat fees that were earned upon receipt,
he had occasionally maintained client funds in his client trust account, (2) he had
commingled earned fees with client funds in his client trust account, (3) he had not
maintained client or general ledgers for his client trust account, and (4) he had not
performed required monthly reconciliations of his client trust account.
{¶ 33} The parties stipulated and the board found that VanBibber’s conduct
violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold the property of clients in
an interest-bearing client trust account, separate from the lawyer’s own property)
by commingling earned fees and client funds in his client trust account and 8.1(b)
by failing to provide information in response to relator’s multiple inquiries about
his client trust account. In fact, in his posthearing brief to the panel, VanBibber
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conceded that the funds held in his client trust account were primarily fees earned
upon receipt. We adopt these findings of misconduct.
{¶ 34} In addition to violations of Prof.Cond.R. 1.15(a) and 8.1(b) as
charged under Count Two of the complaint, VanBibber stipulated to the following
violations that were not charged in the complaint: Prof.Cond.R. 1.15(a)(2)
(requiring a lawyer to maintain a record for each client on whose behalf funds are
held), 1.15(a)(3) (requiring a lawyer to maintain a record for the lawyer’s client
trust account, setting forth the name of the account; the date, amount, and client
affected by each credit and debit; and the balance in the account), and 1.15(a)(5)
(requiring a lawyer to perform and retain a monthly reconciliation of the funds held
in the lawyer’s client trust account). VanBibber also stipulated that he knowingly
and voluntarily waived notice of the additional charges as required by Gov.Bar R.
V(10)(A).
{¶ 35} The board accepted those stipulations, finding that VanBibber had
knowingly and voluntarily waived notice of the additional charges and that he had
violated those rules by failing to maintain client and general ledgers for funds held
in his client trust account and by failing to reconcile that account monthly. We find
that those stipulations and the board’s findings are consistent with due process
under the holdings in Ruffalo and Simecek, and we adopt the board’s findings that
VanBibber violated Prof.Cond.R. 1.15(a)(2), (3), and (5).
II. SANCTION
{¶ 36} When imposing sanctions for attorney misconduct, we consider all
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.
{¶ 37} The parties stipulated and the board found that five aggravating
factors are present in this case: (1) VanBibber acted with a dishonest or selfish
motive, (2) he engaged in a pattern of misconduct, (3) he committed multiple
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offenses, (4) he failed to cooperate in the disciplinary process, and (5) he submitted
false statements or evidence during the disciplinary process. See Gov.Bar R.
V(13)(B)(2) through (6).
{¶ 38} The board acknowledged that VanBibber often equivocated in
response to questions from panel members, offered excuses for his actions, and
attempted to downplay the seriousness of some of his misconduct. But it also found
that when confronted about one incident of such equivocation, VanBibber promptly
admitted that he had lied to a police officer during a traffic stop in an attempt to
minimize the consequences of his conduct. He also acknowledged that his actions
lacked maturity before once again accepting full responsibility for his misconduct.
Believing his testimony to be sincere, the board rejected relator’s contention that
VanBibber had failed to acknowledge the wrongful nature of his misconduct. See
Gov.Bar R. V(13)(B)(7).
{¶ 39} As for mitigating factors, the parties stipulated and the board found
that VanBibber submitted evidence of his good character and reputation and had
other penalties and sanctions imposed for his misconduct—namely, the sanctions
he received for his traffic offenses and the disorderly-conduct charge. See Gov.Bar
R. V(13)(C)(5) and (6). The board, however, rejected the parties’ stipulation that
VanBibber’s clean disciplinary record was a mitigating factor, given that his
misconduct spanned virtually his entire legal career. See, e.g., Disciplinary
Counsel v. Longino, 128 Ohio St.3d 426, 2011-Ohio-1524, 945 N.E.2d 1040, ¶ 30
(declining to attribute mitigating effect to a clean disciplinary record given the
attorney’s brief tenure as an attorney).
{¶ 40} In addition to the aggravating and mitigating factors identified by the
parties, the board noted that in the year preceding his disciplinary hearing,
VanBibber had been mentored informally by attorney Ted Coulter. Coulter, a solo
practitioner with more than 41 years of experience, works in the same building as
VanBibber and sees him almost every day. Coulter testified that VanBibber often
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asks him for advice regarding legal procedure and strategy. He stated that he has
observed VanBibber mature since they first met in March 2022. Coulter noted that
VanBibber has become more mindful that the things he does and says, both
personally and professionally, are important, and he stated that “[VanBibber’s] got
responsibility. He shows up. He completes things and [takes] care of clients.”
{¶ 41} Coulter spoke of VanBibber’s passion for helping his clients, stating,
“[VanBibber] tries to help people like I do * * *, on our own time * * *.” And like
two attorneys who submitted character letters on VanBibber’s behalf, Coulter also
spoke of the dire need in Marion County for attorneys who are willing to work in a
rural area and accept court-appointed work.
{¶ 42} In a posthearing brief to the panel, relator recommended that
VanBibber be suspended from the practice of law for two years with 18 months
stayed on the conditions that he submit to an assessment conducted by the Ohio
Lawyers Assistance Program (“OLAP”) and comply with any resulting treatment
recommendations. VanBibber asserted that his misconduct did not involve or harm
any clients and that his failure to comply with multiple traffic laws and driver’s-
license suspensions does not render him unfit to practice law. He therefore
suggested that a fully stayed two-year suspension would be the appropriate sanction
for his misconduct.
{¶ 43} The board acknowledged that VanBibber’s misconduct did not harm
any clients. But it also recognized that an attorney’s deliberate violation of the law
nonetheless reduces public confidence in the legal profession. We have long
declared that “[t]he integrity of the profession can be maintained only if the conduct
of the individual attorney is above reproach” and that attorneys “ ‘should refrain
from any illegal conduct * * * because obedience to the law exemplifies respect for
the law.’ ” Cincinnati Bar Assn. v. Hennekes, 110 Ohio St.3d 108, 2006-Ohio-
3669, 850 N.E.2d 1201, ¶ 13, quoting Cleveland Bar Assn. v. Stein, 29 Ohio St.2d
77, 81, 278 N.E.2d 670 (1972).
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{¶ 44} In determining the appropriate sanction for VanBibber’s
misconduct, the board considered Stark Cty. Bar Assn. v. Zimmer, 135 Ohio St.3d
462, 2013-Ohio-1962, 989 N.E.2d 51. In Zimmer, we indefinitely suspended an
attorney who, like VanBibber, committed multiple driving infractions over several
years—some of which were related to his consumption of alcohol—and continued
to drive while his license was under suspension. Id. at ¶ 5, 7, 9. Zimmer’s traffic
offenses culminated with an incident in which he crashed into a parked vehicle and
a building and then fled the scene without reporting the damage or leaving his
contact information. Id. at ¶ 5. Several bench warrants were issued for Zimmer’s
failure to comply with various court orders related to his traffic offenses, and he
failed to cooperate in the resulting disciplinary investigation. Id. at ¶ 7, 9.
{¶ 45} Zimmer’s misconduct was more egregious than VanBibber’s in that
Zimmer was found to have committed 17 rule violations, including multiple
violations of Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal
act that reflects adversely on the lawyer’s honesty or trustworthiness), 8.4(c), 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), and 8.4(h) and former disciplinary rules prohibiting
comparable misconduct. Zimmer at ¶ 6, 8, 10, 12. VanBibber, in contrast, has been
found to have committed single violations of Prof.Cond.R. 8.1(b), 8.4(c), and
8.4(h), along with four additional violations of rules related to the management of
his client trust account—none of which involved the misappropriation of client
funds. Both Zimmer and VanBibber failed to cooperate in the disciplinary
investigations and had other sanctions imposed for their misconduct. See Zimmer
at ¶ 14. While the evidence in this case suggests that VanBibber may have some
issues with substance use, in Zimmer we found that the evidence strongly suggested
that an untreated substance-use and/or mental disorder had interfered with his
personal conduct for some time—though he did not present any documentation to
establish that as a mitigating factor, id. at ¶ 16, 17.
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{¶ 46} The board also considered several cases more recent than Zimmer in
which we imposed lesser sanctions on attorneys who had engaged in similar
misconduct, including Disciplinary Counsel v. Piazza, 159 Ohio St.3d 150, 2020-
Ohio-603, 149 N.E.3d 469, and Disciplinary Counsel v. Halligan, 157 Ohio St.3d
447, 2019-Ohio-3748, 137 N.E.3d 1141.
{¶ 47} In Piazza, Piazza was arrested and charged with assault and
disorderly conduct, after which he repeatedly violated a temporary protection order
that prohibited him from having any contact with the victim of those offenses, made
false statements to law-enforcement officers about his contact with the victim, and
attempted to gain an advantage in his criminal proceeding by advising the victim
not to appear for trial. Piazza at ¶ 3-5, 9. Piazza eventually entered no-contest
pleas to two charges of violating the protection order, and the original assault and
disorderly-conduct charges were dismissed. Id. at ¶ 4-5. He later violated the terms
of his probation by testing positive for cocaine, which he admitted he had used on
multiple occasions. Id. at ¶ 6-7.
{¶ 48} Like VanBibber, Piazza violated Prof.Cond.R. 3.4(c), 8.4(c), and
8.4(h). He likewise commingled personal and client funds and failed to maintain
proper client-trust-account records in violation of Prof.Cond.R. 1.15(a) and
1.15(a)(2), (3), and (5). Piazza at ¶ 9, 14. But Piazza’s misconduct was more
egregious than VanBibber’s in that Piazza twice misappropriated client funds and
persuaded the relator to terminate four earlier investigations of his client-trust-
account management by giving false assurances that he would change his ways. Id.
at ¶ 11-13. The board also found that his contrition was insincere. Id. at ¶ 18. We
suspended Piazza for two years with the second year conditionally stayed, and we
placed conditions on his reinstatement to the practice of law that addressed his
substance-use issues. Id. at ¶ 24.
{¶ 49} In Halligan, Halligan engaged in several alcohol-related traffic
offenses, drove on at least one occasion while his driver’s license was under
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January Term, 2024
suspension, represented himself and a client in court while under the influence of
alcohol, and attempted to mislead a judge and law-enforcement officers about his
alcohol consumption. 157 Ohio St.3d 447, 2019-Ohio-3748, 137 N.E.3d 1141, at
¶ 5-12. He also neglected a client’s legal matters, id. at ¶ 14-15, failed to provide
competent representation to two clients, id. at ¶ 6, 12, 17-19, and failed to refund
unearned fees, id. at ¶ 15-16, 18-19. The aggravating and mitigating factors in
Halligan were similar to those in this case, but Halligan also failed to make
restitution for the unearned fees he retained. Id. at ¶ 6, 21, 24. We suspended
Halligan from the practice of law for two years with 18 months conditionally
stayed; one of those conditions was that he make restitution to his clients. Id. at
¶ 30. We also imposed conditions on his reinstatement to the practice of law,
including that he present proof of compliance with his criminal sanctions and proof
that he was abstaining from and otherwise addressing his alcohol use. Id.
{¶ 50} In addition to Zimmer, Piazza, and Halligan, the board considered
two cases in which we imposed conditionally stayed one-year suspensions on
attorneys who had been convicted of various criminal offenses related to single
incidents of OVI and fleeing the scene of an accident: Cleveland Metro. Bar Assn.
v. Strauss, 165 Ohio St.3d 45, 2021-Ohio-1263, 175 N.E.3d 516, and Disciplinary
Counsel v. Mitchell, 158 Ohio St.3d 356, 2019-Ohio-5218, 142 N.E.3d 669. But
the board noted that Strauss and Mitchell were found to have violated only two
ethical rules—Prof.Cond.R. 8.4(b) and 8.4(h). See Strauss at ¶ 8; Mitchell at ¶ 7.
The board found that VanBibber’s ethical violations—arising from five separate
traffic incidents (four of which occurred while VanBibber’s driver’s license was
under suspension), two instances of making false statements to law-enforcement
officers, and mismanagement of his client trust account—are more numerous,
varied, and pervasive than the offenses committed by Strauss and Mitchell but less
egregious than those of Zimmer, Halligan, and Piazza.
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{¶ 51} Weighing the misconduct and aggravating and mitigating factors in
this case—including VanBibber’s informal mentoring relationship and his
commitment to serving clients in an underserved community—against these
precedents, the board concluded that a conditionally stayed suspension would both
protect the public and allow VanBibber to continue providing much-needed legal
services in Marion County. The board therefore recommends that we suspend
VanBibber from the practice of law for two years with the entire suspension stayed
on the conditions that he (1) contact OLAP within 30 days of our final disciplinary
order in this case to schedule a substance-abuse evaluation, (2) comply with any
recommendations arising from the OLAP evaluation, (3) serve a two-year period
of monitored probation focused on client-trust-account management and
compliance with any OLAP recommendations, and (4) engage in no further
misconduct.
{¶ 52} We have held that “[w]hen an attorney engages in a course of
conduct that violates [an ethical rule prohibiting dishonesty, fraud, deceit, or
misrepresentation], the attorney will be actually suspended from the practice of law
for an appropriate period of time.” Disciplinary Counsel v. Fowerbaugh, 74 Ohio
St.3d 187, 658 N.E.2d 237 (1995), syllabus. In Fowerbaugh, we imposed a six-
month suspension on an attorney who lied to a client about the status of her case,
created a false document to convince the client that he had filed her case after the
court rejected his filing, and perpetuated his dishonesty by telling the client that a
hearing had been scheduled and later that it had been canceled. Id. at 187-188, 191.
We have since recognized that the presumption of an actual suspension established
in Fowerbaugh may be overcome by “an abundance of mitigating evidence.”
Disciplinary Counsel v. Markijohn, 99 Ohio St.3d 489, 2003-Ohio-4129, 794
N.E.2d 24, ¶ 8, citing Dayton Bar Assn. v. Kinney, 89 Ohio St.3d 77, 728 N.E.2d
1052 (2000).
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January Term, 2024
{¶ 53} In this case, however, the conduct that resulted in our finding that
VanBibber violated Prof.Cond.R. 8.4(c) consists of his twice making false
statements to law-enforcement officers regarding the purchase date of his vehicle
and the reasons for his failure to properly register that vehicle. Those
misrepresentations were made in an effort to minimize what was arguably the most
minor of his offenses during his Logan and Champaign County traffic stops. While
VanBibber’s false statements to law-enforcement officers during his traffic stops
are unbecoming of an officer of the court, they were not made to a court or a client,
nor were they made under oath.
{¶ 54} The larger problem in this case is that VanBibber disobeyed multiple
court orders and continued to drive during the four-plus years relevant to this
disciplinary proceeding. After his license was suspended in December 2017, he
was charged with 13 additional offenses in four traffic cases and a separate count
of disorderly conduct unrelated to his driving. Those offenses occurred over a
nearly four-and-a-half-year period that commenced mere days before his admission
to the practice of law in this state. VanBibber pleaded guilty to seven of those
charges or amendments thereto—all misdemeanors.
{¶ 55} During his disciplinary-hearing testimony, VanBibber denied
having a problem with alcohol or drugs. He admitted, however, that he had been
drinking before his first traffic offense in December 2017, that marijuana was found
in his car during the December 2018 traffic stop, and that he was intoxicated when
he engaged in his most recent offense of disorderly conduct in April 2022.
Although he claimed that he submitted to an OLAP assessment that did not result
in any treatment recommendation, he presented no documentary evidence to
support that contention. Moreover, that assessment occurred before VanBibber
faced a disorderly-conduct charge that he admits arose from his intoxication.
{¶ 56} VanBibber’s initial failure to cooperate in relator’s investigation
and, more particularly, his submission of false statements to relator in the initial
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and reopened investigations admittedly give us pause. We note, however, that
VanBibber has accepted responsibility for his misconduct by entering into
comprehensive stipulations of fact and misconduct that include stipulations to three
rule violations that were not charged in relator’s complaint. Moreover, he has
submitted evidence of his good character and exhibited a commitment to providing
legal services in an underserved community.
{¶ 57} On these facts, we conclude that the two-year conditionally stayed
suspension recommended by the board with its attendant conditions and
corresponding period of monitored probation is the appropriate sanction for
VanBibber’s misconduct.
III. CONCLUSION
{¶ 58} Accordingly, Jack Herchel VanBibber is suspended from the
practice of law in Ohio for two years with the suspension stayed in its entirety on
the conditions that he (1) contact OLAP within 30 days of the final disciplinary
order in this case to schedule a substance-abuse evaluation, (2) comply with any
recommendations arising from the OLAP evaluation, (3) serve a two-year term of
monitored probation in accordance with Gov.Bar R. V(21), focusing on client-trust-
account management and his compliance with any recommendations arising from
the required OLAP evaluation, and (4) engage in no further misconduct. If
VanBibber fails to comply with the conditions of the stay, the stay will be revoked
and he will serve the full two-year suspension. Costs are taxed to VanBibber.
Judgment accordingly.
DEWINE, DONNELLY, STEWART, and DETERS, JJ., concur.
KENNEDY, C.J., concurs in part and dissents in part, with an opinion joined
by FISCHER, J.
BRUNNER, J., not participating.
_________________
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January Term, 2024
KENNEDY, C.J., concurring in part and dissenting in part.
{¶ 59} This case presents the issue of what constitutes an appropriate
sanction to protect the public when an attorney flagrantly and continually violates
the law for five years and engages in misconduct that places his clients’ funds
directly at risk, even when there is no evidence of actual harm to the clients. In my
view, “a fully stayed suspension here does not send a ‘strong message’ to attorneys
across Ohio,” Disciplinary Counsel v. Nowicki, __ Ohio St.3d __, 2023-Ohio-3079,
__ N.E.3d __, ¶ 84 (Kennedy, C.J., concurring in part and dissenting in part),
quoting Nowicki at ¶ 31. Therefore, I dissent from the majority’s decision to stay
respondent Jack Herchel VanBibber’s suspension from the practice of law in its
entirety. I would suspend VanBibber for two years with 18 months conditionally
stayed.
{¶ 60} I concur in part with the majority’s decision because I agree with the
majority’s findings regarding VanBibber’s violations, aggravating factors, and
mitigating factors. In addition, I agree with the majority that VanBibber must
satisfy certain conditions to receive a stayed portion of his suspension. Specifically,
I concur in the following part of the majority’s decision:
[VanBibber will] (1) contact [the Ohio Lawyers Assistant Program
(“OLAP”)] within 30 days of the final disciplinary order in this case
to schedule a substance-abuse evaluation, (2) comply with any
recommendations arising from the OLAP evaluation, (3) serve a
two-year term of monitored probation in accordance with Gov.Bar
R. V(21), focusing on client-trust-account management and his
compliance with any recommendations arising from the required
OLAP evaluation, and (4) engage in no further misconduct.
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Majority opinion, ¶ 58 In addition, during the six-month actual suspension that I
would impose, I would require VanBibber to complete six hours of a continuing-
legal-education class on client-trust-account management.
I. Protecting the Public’s Trust in Lawyers
{¶ 61} An attorney licensed to practice law in Ohio is instilled with public
trust. “An attorney does not hold an office of public trust in a constitutional or
statutory sense.” In re Thatcher, 22 Ohio Dec. 116, 131 (1912). “He is but an
officer of the court, exercising a privilege or franchise.” Id. Because “[t]he right
to practice is not an absolute right, * * * [it] may be modified, or it may be
withdrawn, in the interests of the public welfare.” Id. Imposing attorney-discipline
sanctions is one way to withdraw that privilege.
{¶ 62} “The primary purpose of attorney discipline ‘is not to punish the
offender, but to protect the public.’ ” Nowicki, __ Ohio St.3d __, 2023-Ohio-3079,
__ N.E.3d __, at ¶ 82 (Kennedy, C.J., concurring in part and dissenting in part),
quoting Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815
N.E.2d 286, ¶ 53. “ ‘Protecting the public * * * is not strictly limited to protecting
clients from a specific attorney’s potential misconduct. Imposing attorney-
discipline sanctions also protects the public by demonstrating to the bar and the
public that this type of conduct will not be tolerated.’ ” (Ellipses added in Nowicki.)
Id. at ¶ 83 (Kennedy, C.J., concurring in part and dissenting in part), quoting
Disciplinary Counsel v. Schuman, 152 Ohio St.3d 47, 2017-Ohio-8800, 92 N.E.3d
850, ¶ 17.
{¶ 63} In 1788, Lord Mansfield wrote that the purpose of disciplinary
actions “is not by way of punishment; but the Courts on such cases exercise their
discretion, whether a man whom they have formerly admitted, is a proper person to
be continued on the roll or not.” Ex parte Brounsall, 2 Cowp. 829, 830, 98
Eng.Rep. 1385 (1778). This court has “previously emphasized that respect for the
law and our legal system is the sine qua non of that right to continuance on the
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January Term, 2024
rolls.” Disciplinary Counsel v. Trumbo, 76 Ohio St.3d 369, 372-373, 667 N.E.2d
1186 (1996). In my view, VanBibber is not “a proper person to be continued on
the roll” at this time.
{¶ 64} In December 2017, VanBibber was involved in a single-car accident.
He was charged with operating a vehicle while under the influence of alcohol or a
drug of abuse (“OVI”), a first-degree misdemeanor, as well as failure to control, a
minor misdemeanor, and he pleaded guilty to an amended charge of reckless
operation, a fourth-degree misdemeanor. VanBibber was sentenced to 30 days in
jail, with 27 days suspended. VanBibber served the three unsuspended days of his
sentence attending a driver-intervention program. VanBibber was also fined $250,
ordered to pay court costs, and ordered to complete a term of community control.
In addition, VanBibber’s driver’s license was suspended because he was unable to
show at his sentencing hearing that he had motor-vehicle liability insurance at the
time of his accident. Following the suspension of his driver’s license, VanBibber
obtained motor-vehicle liability insurance in September 2018, but he did not notify
the Bureau of Motor Vehicles of his having obtained insurance.
{¶ 65} VanBibber then applied for driving privileges with the Xenia
Municipal Court, but he did not pay the $50 permit fee, so his application was put
on hold by the court. Although the court never ruled on his application for driving
privileges, VanBibber continued to drive. Then, in November 2018, VanBibber
bought a vehicle, but he failed to transfer the vehicle’s title to himself.
{¶ 66} VanBibber’s lack of respect for the law continued in December 2018
when he drove across six lanes of traffic, then swerved back across four lanes.
During the traffic stop for the marked-lanes violation, a law-enforcement officer
discovered marijuana in the trunk of VanBibber’s vehicle. VanBibber was charged
with possession of marijuana, a minor misdemeanor; a marked-lanes violation, a
minor misdemeanor; driving under suspension, a first-degree misdemeanor; and
driving under OVI suspension, a first-degree misdemeanor. VanBibber pleaded
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guilty to a reduced charge of driving under a financial-responsibility (“FRA”)
suspension, and the remaining charges were dismissed. VanBibber was fined,
ordered to pay court costs, and ordered to serve one year of community control.
Additionally, VanBibber’s driver’s license remained suspended because he could
not show proof of motor-vehicle liability insurance at the time of sentencing.
{¶ 67} VanBibber did not pay the fine or court costs by the court-ordered
deadline, nor did he appear in court to show cause for his failure to pay.
Consequently, the court placed a block on VanBibber’s vehicle-registration
privileges. Despite the suspension of his driving privileges and the vehicle-
registration block, VanBibber continued to drive.
{¶ 68} In January 2020, VanBibber’s flagrant disregard for the law
continued. He was caught speeding and attempted to elude the law-enforcement
officer making the traffic stop. During the traffic stop, the officer learned that
VanBibber was driving under suspension and with an expired license plate.
VanBibber lied to the officer, stating that he had recently purchased the vehicle
when he actually bought it in November 2018. Following this incident, VanBibber
was charged with driving under an FRA suspension, driving with an expired license
plate, reckless operation, failure to yield at a stop sign, and speeding. VanBibber
pleaded guilty to reckless operation and a reduced speeding charge; the other
charges were dismissed. VanBibber was fined and his driver’s license was
suspended. Once again, VanBibber ignored the suspension and continued to drive
without the privilege to do so.
{¶ 69} Thirteen days after VanBibber’s driver’s license was suspended for
his January 2020 traffic offenses, VanBibber was pulled over for driving with only
one operable headlight. VanBibber again lied to the law-enforcement officer
making the traffic stop about when he had purchased the vehicle, claiming that he
had not had time to transfer the title yet. VanBibber was charged with driving under
court suspension, a first-degree misdemeanor; driving under a noncompliance
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January Term, 2024
suspension, an unclassified misdemeanor; and driving under an FRA suspension,
an unclassified misdemeanor. VanBibber pleaded guilty to driving under court
suspension, a first-degree misdemeanor; the remaining charges were dismissed. He
was sentenced to a 30-day suspended jail sentence and ordered to pay a fine and
court costs totaling $507. VanBibber did not pay the fine or court costs by the
court-ordered deadline, nor did he appear in court to show cause for his failure to
pay. Consequently, a warrant was issued for his arrest.
{¶ 70} Around that time, VanBibber’s employer learned about VanBibber’s
multiple convictions and driver’s license suspensions and notified relator,
disciplinary counsel, of those actions. Relator launched a disciplinary investigation
but did not pursue disciplinary charges against VanBibber, who assured relator that
he would not drive again until he was legally allowed to do so. Relator closed the
investigation without filing a formal complaint.
{¶ 71} Despite this assurance to relator, VanBibber continued to drive. In
November 2021, VanBibber was pulled over by a law-enforcement officer for a
traffic stop. During the traffic stop, the officer learned that VanBibber was driving
with a suspended license and an expired license plate. VanBibber was charged with
driving under a noncompliance suspension, a first-degree misdemeanor. He
pleaded no contest to an amended charge of no operator’s license, a first-degree
misdemeanor. VanBibber self-reported his conduct to relator.
{¶ 72} After self-reporting his November 2021 traffic charges to relator,
VanBibber engaged in further misconduct. He was charged with disorderly
conduct in April 2022, and he overdrafted his client trust account in May 2022.
Relator reopened the disciplinary investigation, during which relator discovered
that VanBibber had also been commingling his clients’ funds with his personal
funds.
{¶ 73} In the interest of public welfare, VanBibber should be actually
suspended from the practice of law for six months because he flagrantly violated
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the law for five years. VanBibber’s misconduct has spanned the course of his entire
career as an attorney, demonstrating his lack of respect for the law and our legal
system. Additionally, despite repeatedly receiving reduced or amended charges for
his driving violations, VanBibber continued to exhibit apathy for the law. In my
view, this type of behavior cannot be tolerated and makes VanBibber unfit for
continuance on the rolls.
II. No Abundance of Mitigating Evidence
{¶ 74} Generally, “attorney misconduct ‘involving dishonesty, fraud,
deceit, or misrepresentation warrants an actual suspension from the practice of
law.’ ” Disciplinary Counsel v. Jarvis, 169 Ohio St.3d 430, 2022-Ohio-3936, 205
N.E.3d 499, ¶ 34, quoting Disciplinary Counsel v. Karris, 129 Ohio St.3d 499,
2011-Ohio-4243, 954 N.E.2d 118, ¶ 16; see also Disciplinary Counsel v.
Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. This
presumption in favor of an actual suspension may be overcome only when there is
“an abundance of mitigating evidence.” Disciplinary Counsel v. Markijohn, 99
Ohio St.3d 489, 2003-Ohio-4129, 794 N.E.2d 24, ¶ 8, citing Dayton Bar Assn. v.
Kinney, 89 Ohio St.3d 77, 728 N.E.2d 1052 (2000).
{¶ 75} In Vanbibber’s case, there are only two mitigating factors as
compared to five aggravating factors. Two is not an abundance. “ ‘Abundance’
means a ʻgreat quantity or amount,ʼ ʻlarge number,ʼ or ʻplentiful supply.ʼ ”
Disciplinary Counsel v. Taylor, __ Ohio St.3d __, 2024-Ohio-1082, __ N.E.3d __,
¶ 37 (Kennedy, C.J., concurring in part and dissenting in part), quoting Webster’s
Third New International Dictionary 8 (2002). The mitigating factors here—
(1) evidence of VanBibber’s good character and reputation and (2) other penalties
and sanctions imposed for his misconduct, see Gov.Bar R. V(13)(C)(5) and (6)—
are not great in quantity when compared to the aggravating factors—VanBibber
(1) acted with a dishonest or selfish motive, (2) engaged in a pattern of misconduct,
(3) committed multiple offenses, (4) failed to cooperate in the disciplinary process,
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January Term, 2024
and (5) submitted false statements or evidence during the disciplinary process, see
Gov.Bar R. V(13)(B)(2) through (6). Because there is not an abundance of
mitigating factors, the presumption in favor of an actual suspension is not overcome
in this case.
III. Substantial Sanction for Commingling Client Funds
{¶ 76} “We have consistently recognized that the ‘mishandling of clients’
funds either by way of conversion, commingling, or just poor management,
encompasses an area of the gravest concern of this court in reviewing claimed
attorney misconduct.’ ” Disciplinary Counsel v. Riek, 125 Ohio St.3d 46, 2010-
Ohio-1556, 925 N.E.2d 980, ¶ 10, quoting Columbus Bar Assn. v. Thompson, 69
Ohio St.2d 667, 669, 433 N.E.2d 602 (1982). Of the various types of mishandling
of client funds, “ ‘[n]o aspect of attorney misconduct is more frequently engaged
in, or more severely condemned, than the commingling of an attorney’s funds with
those of his client.’ ” Thompson at 669, quoting Ohio State Bar Foundation, Ethics
and Discipline in Ohio, 15 (1977). “[T]he separation of client funds from those of
the lawyer [is necessary], not only to protect the client, but also to avoid even the
appearance of impropriety.” Erie-Huron Counties Joint Certified Grievance
Commt. v. Miles, 76 Ohio St.3d 574, 576, 669 N.E.2d 831 (1996), citing former DR
Canon 9 of the Code of Professional Responsibility.2
{¶ 77} Because “it is ‘of the utmost importance that attorneys maintain their
personal and office accounts separate from their clients’ accounts[,]’ * * * any
violation of that rule ‘warrants a substantial sanction whether or not the client has
been harmed,’ ” Disciplinary Counsel v. Wise, 108 Ohio St.3d 381, 2006-Ohio-
1194, 843 N.E.2d 1198, ¶ 15, quoting Erie-Huron Counties at 577. For example,
1. Effective February 1, 2007, the Rules of Professional Conduct superseded the Disciplinary Rules
of the Code of Professional Responsibility. See 110 Ohio St.3d CCLXXXIV.
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[i]n Disciplinary Counsel v. Morgan, 114 Ohio St.3d 179, 2007-
Ohio-3604, 870 N.E.2d 1171, we imposed a two-year suspension
with one year conditionally stayed on an attorney who had
commingled funds in his client trust account, had overdrawn the
account numerous times, and had failed to cooperate in the
disciplinary investigation. In doing so, we noted that a “more
stringent sanction than a stayed suspension” was warranted for this
type of misconduct. Id. at ¶ 11.
Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894
N.E.2d 31, ¶ 20.
{¶ 78} Here, VanBibber failed to timely withdraw his earned fees from his
client trust account, thereby commingling his personal funds with his clients’ funds.
Additionally, VanBibber paid his personal and business expenses directly from his
client trust account. Similar to the attorney’s misconduct in Morgan, VanBibber’s
misconduct regarding the removal of funds from his client trust account placed his
clients’ funds “directly at risk,” Morgan at ¶ 11. Although relator did not discover
any evidence that VanBibber’s commingling, removal, and overdraft of funds from
his client trust account actually harmed any of his clients, VanBibber’s misconduct
warrants a more substantial sanction than a fully stayed suspension. See Wise at
¶ 15.
IV. Conclusion
{¶ 79} “All our [Rules of Professional Conduct] and all our Ethical
Considerations are founded on respect for the law, for the court system, for the
judges, for counsel and, of course, for clients.” Trumbo, 76 Ohio St.3d 369 at 373,
667 N.E.2d 1186. VanBibber’s misconduct, which spans his entire legal career,
demonstrates a habitual lack of respect for the law, the courts, the bar, and his
clients. VanBibber’s flagrant disregard of the law, coupled with a lack of mitigating
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January Term, 2024
factors and his commingling of his clients’ funds with his personal funds, warrants
a substantial sanction. Therefore, I would impose a sanction of a two-year
suspension with 18 months conditionally stayed. Because the majority does
otherwise, I dissent in part.
FISCHER, J., concurs in the foregoing opinion.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond, Assistant
Disciplinary Counsel, for relator.
Montgomery Jonson, L.L.P., George D. Jonson, and Lisa M. Zaring, for
respondent.
_________________
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